DPS: Judge dismisses teachers' suit over law they say makes it easier to get rid of them

A judge has dismissed a lawsuit filed by seven Denver teachers who claim that the district used a provision of the state's landmark teacher effectiveness law to get rid of them without due process. Denver District Court Judge Michael Martinez found that since the law makes no mention of "tenure," longtime teachers are not "entitled" to a position.

Officials with the Colorado Education Association, whose lawyers are representing the teachers, say they plan to appeal the judge's ruling to the Colorado Court of Appeals.

We introduced you to five of the seven teachers involved in the lawsuit in our April cover story, "Wrong Answer." All five were older than 45 years old and were "reduced in building," or RIBed, due to factors such as a drop in enrollment at their school. When they tried to find new positions, they only got a few interviews -- and almost no job offers. Four of the five were eventually placed on unpaid leave, a move sanctioned by the so-called "mutual consent provision" of the state teacher effectiveness law, Senate Bill 191.

Before Senate Bill 191 was passed in 2010, RIBed teachers were sometimes "forced placed" in new positions without the consent of the school principal. The "mutual consent provision" of Senate Bill 191 requires that the principal agree to hire the RIBed teacher. But the five RIBed teachers who spoke to Westword say they struggled to understand why no one would hire them; all five have good teaching records.

"I think there was something that was out there that was telling principals to not hire [tenured] teachers who'd been placed on leave," teacher Michelle Montoya told us. "I think there's a stigma attached to it, like I'm a bad teacher. And that's not the case."

In January of this year, seven teachers and the Denver Classroom Teachers Association filed a class-action lawsuit against DPS. Their argument? Under a longstanding state law, nonprobationary teachers -- instructors who have earned three years of positive reviews -- have contractual rights that prevent them from being dismissed without cause and a hearing, and the Colorado constitution prohibits the state from impeding those contracts. However, the union argued, Senate Bill 191 does just that.

In March, DPS filed a motion to dismiss the lawsuit. The legislature can modify state laws however it chooses, the district argued, and in the case of Senate Bill 191, it chose to modify the law in a way that eliminates forced placement. "Plaintiffs must seek relief at the ballot box and in the Legislature, not with this Court," DPS's lawyers wrote.

The district also argued that there is no such thing as "tenure" anymore, and that DPS is not violating teachers' due-process rights because putting teachers on unpaid leave is different from dismissing them. For instance, a teacher who is put on unpaid leave and then secures a position is reinstated at her previous salary and benefits level.

On June 6, Judge Martinez agreed with DPS. "The removal of language expressly guaranteeing that a tenured teacher 'shall be entitled to a position of employment' is highly revealing of legislative intent," he wrote in his order.

As for whether putting teachers on unpaid leave is tantamount to an "effective discharge" from their jobs, Martinez found that while the results may be the same, the state legislature has the right to modify the law to allow it. "The mutual consent provisions represent the General Assembly's rightful exercise of its power 'to increase, to decrease, or to terminate' the benefits it has conferred," he wrote.

"And," he added, "when the legislature chooses to do so, Colorado courts have explained, 'the legislative determination provides all the process that is due.'"

Colorado Education Association president Kerrie Dallman issued a statement expressing disappointment with the ruling: "CEA members are highly disappointed by the Denver District Court ruling that Denver Public School's release of hundreds of veteran teachers did not violate the Colorado Constitution nor subvert the intent of Senate Bill 191," the statement says. "Denver students have clearly suffered by the inappropriate release of veteran teachers with good to excellent teaching evaluations. CEA will appeal the ruling and remains dedicated to ensuring qualified teachers remain in the classroom to provide our public school students with the best possible education."

More from our Education archive: "East High and Manual High: Community questions proposal to combine 9th grades."

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Melanie Asmar is a staff writer for Westword. She joined the paper in 2009 and has won awards for her stories about education, immigration and epic legal battles. Got a tip? She'd love to hear it.
Contact: Melanie Asmar