Longform

Teachers fight back against Denver Public Schools in court

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In January 2013, nearly a year after she was RIBed, Kolquist was invited to a reception for DPS teachers whose students made outstanding academic growth for three consecutive years. But even that didn't help. This year, she reluctantly made the decision to retire rather than be put on unpaid leave.

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To try to resolve their difference of opinion, DPS and the union hired an arbiter, who held a five-day hearing in early 2012.

The union's position was the same as it is now: Under a longstanding state law, nonprobationary teachers 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 argues that Senate Bill 191 does just that.

On the big question of constitutionality, the arbiter sided with the union, finding that the district couldn't dismiss nonprobationary teachers without due process. The only constitutional way to get rid of a nonprobationary teacher, he wrote, is to prove that he or she should be fired for cause — which is not what DPS is doing with the RIBed teachers.

Because the arbitration was non-binding, however, the district didn't do anything. "The law is the law, unless and until the legislature changes it or a court declares the law unconstitutional," Boasberg explains. "And regardless of whether an arbiter says a law is constitutional or unconstitutional, every citizen has a responsibility to follow the law."

However, the union claims that DPS is the only school district out of 179 across Colorado that's using the mutual-consent provision of Senate Bill 191 in this way. And union leaders are especially irked that DPS wasted no time in implementing it.

The DPS school board didn't publicly discuss the arbiter's opinion until December 2012, six months after it was issued. And even then, it only came up because Andrea Merida, the most outspoken of the board's three-member minority at the time, asked if the board was going to vote on whether to accept the arbitration.

When Boasberg and the board president said no, Merida asked: "So we're just going to let it go until some legal process starts?"

The answer to that turned out to be yes.

On January 29 of this year, the union filed suit in Denver District Court. Bartels says the ultimate goal is to reverse the fates of the teachers who've been placed on unpaid leave and get them their jobs back. The plaintiffs are also seeking back pay, a settlement that Bartels estimates would likely be in the millions of dollars.

That same day, state senator Nancy Todd announced that she and state representative Joe Salazar would sponsor a bill that would fix the issue. The bill, known as House Bill 1268, proposed to resurrect the practice of direct placement by adding a section to Senate Bill 191. That section would have stated that if a nonprobationary teacher is RIBed and is unable to secure a mutual-consent position, the district "shall assign the teacher to an available assignment" or fire her for cause, in which case she would be entitled to a hearing. The bill would have applied only to teachers who held nonprobationary status as of May 20, 2010, the day that Senate Bill 191 was signed into law.

"When I was asked to co-sponsor this bill, I hesitated for a few minutes, because it's never easy to stand strong on your beliefs," Todd, a former Cherry Creek School District teacher, said that day. "When you do it publicly, you make a statement. The statement I am making is that I do believe in due process. I do believe that we honor the professionalism of teachers.... I am very concerned that a hatchet has been used in the place of a pen and pencil to evaluate."

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So if RIBed teachers aren't getting all of the open positions within DPS, who is?

District statistics show that DPS hired 498 new teachers in the 2010-2011 school year, 720 new teachers in 2011-2012, 656 new teachers in 2012-2013 and 897 new teachers in 2013-2014. Of those 897, many were young: 44 percent were under the age of 30, according to DPS, and 10 percent came from programs such as Teach for America.

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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