Former New Orleans Teachers Win a Pyrrhic Victory in Court [Updated]

Update 01/27/14: Leslie Jacobs, former BESE/OPSB member and founder of EducateNow!, says claims that the teachers’ lawsuit could bankrupt the Orleans Parish School Board are unfounded:

“School boards are ‘political subdivisions’ of the state, and both the Louisiana Constitution and the Governmental Claims Act protect political subdivisions from having their property or assets seized in execution of judgments rendered by state courts. (This protection does not apply when the execution is of a federal court judgment.) Unless there is something really unique about this case (which is unlikely), the only way that that OPSB pays any of this judgment is if it specifically appropriates money for this purpose.”   

Read the rest of her commentary here. 

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Last week, Louisiana’s Fourth Circuit Court of Appeal unanimously upheld a lower court ruling that found that the Orleans Parish School Board wrongly terminated nearly 7000 tenured teachers in the months following Hurricane Katrina. Although the five-member panel of judges reduced the damages originally awarded to plaintiffs, the decision still leaves the Orleans Parish School Board (OPSB) – and to a lesser extent the State of Louisiana – on-the-hook for over $1.5 billion $750 million in back pay and benefits, an amount that some say could bankrupt the district.

While attorneys for OPSB and State vowed to appeal the ruling to Louisiana Supreme Court, the chance of a significant reversal of the Fourth Circuit’s ruling seems unlikely. At least in regard to their claim against OPSB, it appears that plaintiffs have the law on their side and it all boils down to the issue of tenure. Tenure confers a “property right” (i.e., the right to a teaching position) for those teachers who receive it – which, prior to Act 1, meant 99% of eligible candidates.* Since Article II of Louisiana’s Constitution states that “No person shall be deprived of life, liberty, or property, except by due process of law,” any district that sought to remove a tenured teacher faced an uphill climb.

The “due process” afforded tenured teachers usually meant a series of hearings and a lengthy appeals process, and districts had to meet a much higher burden-of-proof that there was cause for dismissal. In addition, when adverse financial circumstances made a so-called “reduction-in-force” (RIF) necessary, districts were required to establish a “recall list” of laid-off tenured teachers, who were legally entitled to any teaching vacancies that became available in the subsequent two years.

The Case Against the Orleans Parish School Board

It goes without saying that the Orleans Parish School Board was already deeply troubled before Katrina. In July 2005, the turnaround firm Alvarez & Marsal, which was brought in to make sense of the district’s Byzantine finances, released a report that warned of an impending fiscal crisis and estimated OPSB would run out of money by September:

“The conditions we have found are as bad as any we have ever encountered. The financial data that exists is [sic] unreliable, there has not been a clean audit since FY 2001-2002, there is no inventory of assets, the payroll system is in shambles, school buildings are in deplorable condition and, up to now, there has been little accountability.”

Katrina only helped push the district to its breaking point. When OPSB finally reconvened more than two weeks after the storm, many expected that board members would set aside their differences and work together, yet those hopes were dashed almost immediately as the board descended into infighting and deadlock.

OPSB’s inability to effectively respond to the disaster, along with their financial challenges, only further convinced officials in Baton Rouge that they needed to act quickly and decisively to address the situation – a sentiment even shared by OPSB member, Jimmy Fahrenholtz, who declared, “[The State] should have taken us over a long time ago. I’d be more than happy to give up my power to get kids educated.” Fahrenholtz got his wish in November, when the State took over all but six OPSB schools and placed them under the control of the Recovery School District (RSD). To OPSB officials, the takeover obviated the need for a RIF, and therefore, the board instead sent termination letters to employees effective March 24th, 2006.

It was OPSB’s failure to conduct a RIF and establish a recall list that Judge Roland Belsome, writing on behalf the Fourth Circuit, cites in his opinion ruling in favor of the plaintiffs [see full opinion below]:

“Based on the clear language of the Board’s Policy, the Recall List is not optional, regardless of the circumstances surrounding the RIF…By failing to compose a recall list, the Board clearly violated its own Policy.”

Although Belsome may be technically correct in asserting that OPSB erred in its decision to dispense with the formal RIF and recall process, the fact remains that very few of those who lost their jobs would have ever regained employment with the district. The takeover of all but a handful of OPSB’s schools meant that the only direct-run schools left under board control were Ben Franklin Elementary School (a.k.a., “Baby Ben”), Eleanor McMain Secondary School and McDonogh #35 Senior High School, which reopened in January 2006, and Mary Bethune Elementary which reopened later. This means there were probably an estimated 220-250 teaching positions in OPSB after Katrina (excluding charters who select their own staff). Therefore, even if OPSB formally RIF’d tenured teachers, ranked them on a recall list, and then placed them in order of seniority, it might have made a difference for only around 3% of the approximately 7000 tenured teachers who were laid off [keeping in mind that also would have meant bumping out less-senior teachers already in those positions].

The Questionable Culpability of the State of Louisiana

On the other hand, Belsome’s basis for holding the State of Louisiana liable for damages is much less convincing. In his opinion, Belsome finds that a “violation of due process was committed…by the State through the Louisiana Department of Education by failing to follow the mandates of Act 35.” As noted above, Act 35 authorized the RSD’s takeover of all but a handful of OPSB schools by amending parts of La. R.S. 17:1990, which originally established the RSD and set the parameters for its governance and operation.

Belsome holds that RSD was legally required to give “priority consideration” to tenured teachers who previously taught in OPSB schools, citing La. R.S. 17:1990(D)(1) which states:

At the time of the transfer of a school to the school district [RSD], any certified teacher with regular and direct responsibility for providing classroom instruction to students who is employed in the transferred school by the prior system shall be given priority consideration for employment in the same or comparable position by the school district.

Instead Belsome pointedly claims that RSD did nothing of the kind, saying:

“There is absolutely no evidence that qualified Appellees were provided the consideration mandated by the statute. To the contrary, the record clearly shows that the State advertised for these positions nationally and contracted with Teach for America to hire inexperienced college graduates that did not have teacher certification.”

There are a few problems with Belsome’s argument that should be noted. To start, there was tremendous uncertainty as to how many people would return to the city in the months after Katrina. Certainly one of the reasons why the RSD recruited nationally was that the “Katrina Diaspora” was indeed national in scope – New Orleanians were exiled in cities and towns across country for months, and in some cases, for years after the storm. At the time the RSD was scrambling to fill positions to staff its schools, a local search alone would have been insufficient.

Second, Belsome clearly misunderstands the trajectory of the relationship between the RSD and Teach For America. I actually worked on staff in TFA’s Greater New Orleans office from 2004 up through the summer of 2006. [Full disclosure: Ironically, I managed the placement of teachers in OPSB schools during the summer of 2005.] I can attest there was never any “collusion” between the RSD and TFA to fill the district’s vacancies with TFA teachers, as others have falsely claimed and it seems Belsome believes. In fact, we almost didn’t bring any new corps members to the region during 2006-07 school year, as it seemed unlikely that there would be positions for them with so many veteran teachers recently released by OPSB. Although we eventually decided to bring in a corps of new teachers in the summer of 2006, it was far smaller than usual: approximately a dozen teachers in total (down from 45-50 in both 2004 & 2005). The fact that the RSD turned to TFA to help staff schools as time went on happened because of the difficulty RSD encountered in recruiting, not because of an overarching plan to replace former OPSB teachers with TFA corps members.

More importantly, there is a perception vs. reality problem with Belsome’s entire argument. Critics of the city’s post-Katrina school reform efforts have long claimed that one of the primary aims of the RSD’s takeover was to replace the city’s traditional teachers with young outsiders drawn from the ranks of organizations like Teach For America and teachNOLA. And, while it’s true that the teaching force in New Orleans today is younger and whiter than it was before the storm, it would be a mistake to presume that has always been the case, especially in the first few years after Katrina.

For example, according to a February 2007 article in Ed Week, 86% of the teachers that had been hired to work in the RSD’s direct-run schools at that time previously worked in the OPSB system. While Belsome stated he was “unable to find any evidence that qualified Appellees were provided the consideration mandated by the statute,” how else would he explain the fact that nearly 9 out 10 of the district’s teachers in 2007 were OPSB veterans?

Interestingly, the same article includes two interviews which further undermine the contention that RSD gave insufficient consideration to veteran teachers. The first was with Karen A. Bryan, a teacher with 10 years experience in OPSB prior to Katrina, who was hired by the RSD to teach 5th grade at Live Oak Elementary in New Orleans East. Bryan told Ed Week, “I believe that if you are qualified and certified, that reapplying for a job is no problem. I really, truly had a desire to come back to help the students.”

Ed Week also spoke with United Teachers of New Orleans (UTNO) President, Brenda Mitchell, who stated that many former teachers were simply choosing not to apply for teaching positions with the RSD:

“Ms. Mitchell said teachers found insulting the new basic-skills test all applicants to state-run schools must pass, and she warned that many teachers may be reluctant to come to New Orleans without collective bargaining.”

It should be noted that although La. R.S. 17:1990 requires RSD to give “priority consideration” to former teachers, it doesn’t mandate that the district hire them. The statute also doesn’t prohibit the RSD from screening applicants, as the district did with the basic skills test referenced by Mitchell. If anything, the fact that nearly half of all applicants failed the basic skills exam attests to its importance.

Finally, as the Cowen Institute recounted in its history of the RSD, the district faced several challenges in the first two years after Katrina, including the “immense uncertainty” about the number of returning students (which was eventually much higher than initially projected) and the “multitude of operational challenges” posed by the extensive damage to facilities. As a result, the schools RSD “reopened” were, in reality, totally new entities. Although they may have adopted the names of schools that existed before the storm, most were located in new neighborhoods, housed in temporary buildings, and served an entirely new mix of families.

Who Wins and Who Loses?

To be clear, none of this is intended to minimize the devastating impact that the layoffs no doubt had on the district’s former teachers and their families. Like thousands of other New Orleanians, these teachers returned to the city only to find that their homes and their livelihoods had been washed away by the storm. Although, in retrospect, it’s correct that OPSB should have initiated a formal RIF and recall process in 2005, it’s also true that it would have made little difference for the overwhelming majority of teachers who suddenly found themselves unemployed as a result of Katrina. No matter which side ultimately prevails in this case, the missteps of the past can never be undone.

In the intervening nine years, our city’s public school system has been radically transformed for the better. Whereas previously, parents – in particular, low-income parents – had little choice but to send their children to perennially failing schools, the network of charters that has replaced the old order now provides families with real educational options. Moreover, the autonomy granted to these charters has allowed them to focus on the needs of students rather than the prerogatives of adults, resulting in substantial gains in academic performance.

Nevertheless, if the Fourth Circuit’s ruling stands, it could very well threaten the continued progress of our public school system. The $1.5 billion $750 million in damages sought by plaintiffs would likely bankrupt the district, potentially threatening the financial viability of both OPSB and RSD schools alike. As New Orleans education author and reporter, Sarah Carr, told All Things Considered:

“I don’t really think anybody knows how the details would be ironed out because more than 90 percent of public school children in New Orleans today attend independently run charter schools, so it really is a big question whether or not these independent charters would be liable. And I think even the fired employees and their supporters wouldn’t want this to be severely detrimental to the educations of today’s schoolchildren in the city.”

Whether intended or not, the unavoidable fact remains: if the plaintiffs win, our city’s children will lose.

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*Prior to Act 1, teachers by law automatically received tenure on the first day of their fourth year teaching, unless terminated prior to the end of their third year.

** Interestingly, three days before issuing his opinion, Judge Belsome tweeted a link to an extremely biased article about Teach For America (subsequently deleted), which no doubt informed his view of the “contract” between the state and TFA.

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Postscript 01/27/14: Interesting John Merrow interview with former OPSB and BESE member Leslie Jacobs, in which she discusses the post-Katrina transformation of the school system [begins at 16:00].