final ruling

Colorado’s high court: There’s no such thing as teacher tenure

PHOTO: Denver Post file
The Colorado Supreme Court.

The Denver teachers who challenged a landmark state law that allows school districts to put certain experienced educators on unpaid leave lost their cases Monday.

The Colorado Supreme Court ruled against the educators, who sued Denver Public Schools in 2014 alleging that the state’s largest district violated their rights to due process. Some of the teachers had lost their positions in schools and failed to get re-hired by a principal within a set period of time, which led the district to put them on unpaid leave — a move the teachers argued amounted to getting rid of them without cause or a hearing.

The district argued it was simply following a 2010 state law, known as Senate Bill 191, that changed the rules for teacher evaluations and assignments. The law allows teachers who lose their positions because of circumstances such as student enrollment declines to be put on unpaid leave if they don’t find new positions within 12 months or two hiring cycles.

The high court sided with the district, ruling that because Colorado law “provides for neither ‘tenure’ nor ‘permanent teachers,’” Denver Public Schools did not violate teachers’ rights. Instead of tenure, state law allows teachers to earn “non-probationary status” after three years of effective evaluations. Teachers with that status are entitled to a hearing before being fired.

The 2010 law also eliminated the practice called “forced placement” in which non-probationary teachers who lost their positions were assigned to open positions at other schools.

Denver district officials didn’t like forced placement. Teachers were often placed at schools where a majority of students were living in poverty, which officials said unfairly resulted in the district’s highest-needs students being taught by teachers who didn’t choose to be there.

After Senate Bill 191, the district began giving teachers who lose their positions temporary assignments with the expectation that they would look for permanent “mutual consent” positions, meaning a school’s principal agrees to hire them, within the 12 months or two hiring cycles.

The Colorado Supreme Court issued rulings in two related lawsuits Monday. One was filed by a group of seven Denver teachers, including some who’d been put on unpaid leave after losing their positions due to enrollment declines or program changes at their schools. The other was filed by a single teacher who suffered the same fate but for a different reason.

Attorneys for Denver Public Schools argued that putting teachers on unpaid leave is different than firing them. Under the law, teachers on unpaid leave are put into a “priority hiring pool.” If they find a mutual consent position, they are hired at their previous salary level.

Denver Superintendent Tom Boasberg said the district welcomes the high court’s decision upholding the provision of the law that ends forced placement.

“Forced placement was wrong: wrong for students, wrong for teachers, and wrong for schools, and it is good that practice will not come back,” Boasberg said in a statement.

The teachers were represented by attorneys from the the Colorado Education Association, the state’s largest teachers union. President Kerrie Dallman said teachers are “very disappointed by this pair of unreasonable decisions that strip away rights of experienced educators.”

“It’s baffling that during a time of teacher shortage, when we know teacher pay and working conditions do not stack up to the demands of the profession, that our courts would discard employee due process rights,” Dallman said in a statement.

She said the ruling was especially disappointing given that the backers of Senate Bill 191 “explicitly asserted that they were not repealing the due process rights of experienced teachers.” Dallman said the union would take its fight back to state lawmakers “to fix an education system that continues to operate with serious flaws to the detriment of our schools and students.”

Gubernatorial candidate Mike Johnston, a former educator and state senator who sponsored Senate Bill 191, said in a statement that “we all share the same goal: to do what’s right for Colorado’s kids.”

“With today’s decision,” Johnston said, “we can move forward in that spirit and work together to improve achievement for students across the state.”

Several local education reform advocacy organizations praised the decision.

Luke Ragland, president of conservative Ready Colorado, called it a “thorough and uniform repudiation of the teachers’ union and their radical view” and “a win for students and families.”

Colorado Succeeds, a non-partisan group that represents the state’s business community, called the ruling “a significant victory for Colorado’s students, educators, and education leaders.”

“To meet the diverse needs of students statewide, it is essential that principals have the authority and flexibility to hire who they want,” president Scott Laband said in a statement.

The Colorado Children’s Campaign, an advocacy group known for its work on health and education issues, also characterized the ruling as “a major win for Colorado’s kids.”


Denver parents worry budget changes will hurt students with special needs, despite district assurances

PHOTO: Helen H. Richardson/The Denver Post
Josue Bonilla, 13, left, gets a high five from his teacher Wendi Sussman, right, after completing a hard reading lesson in his multi-intensive special education class at STRIVE Prep charter school in Denver in 2016.

Denver parents of students with disabilities are concerned that an impending reorganization of the school district’s special education department will have a negative impact on their children.

Specifically, parents are worried about cuts to the number of special education teachers and paraprofessionals, teacher’s aides that one advocate called “the backbone of special education,” the people who often help students follow directions or focus on their schoolwork.

District officials insist the reorganization does not cut paraprofessional or teacher support. Any reductions families are experiencing, they said, are the result of school-level budget constraints as the number of students with disabilities at those schools ebbs and flows.

In fact, officials said the reorganization is meant to increase the number of adults working inside schools – a change they said will benefit all students, not just those with special needs. The plan calls for trimming $4 million from the district’s billion-dollar budget by shrinking the pool of central office staff who help school principals serve students with disabilities. That money would be reallocated to fortify mental health services for all students, including by providing every district-run school with at least one full-time social worker or psychologist.

Some parents of students with disabilities are skeptical. Their feelings speak to the tenuousness of resources for special education students and distrust that they’ll get the services they need. Federal law guarantees students with disabilities a “free and appropriate” education. What that means in practice can a subject of disagreement among districts, parents, and advocates.

“The improvements that they’re proposing to make, they’re all great,” said Jeanne Posthumus, whose sixth-grade daughter has a rare genetic disorder and receives special education services at a Denver charter school. “But don’t do it on the backs of kids with special needs.”

About 10,000 of the 92,600 students in Denver Public Schools have disabilities, according to district statistics. They have historically lagged far behind their peers in reading, writing, and math. Last year, 44 percent of Denver fourth-graders without disabilities met expectations on the state literacy test, while just 8 percent of fourth-graders with disabilities did.

Eldridge Greer, the district’s associate chief of student equity and opportunity, said the reorganization, which is set to go into effect on July 1, is meant to “dramatically improve academic outcomes and truly meet the promise of special education.”

Part of the problem with the system as it exists now, Greer said, is that the central office staff who help school principals end up spending too much time putting out fires related to student behavior and too little time working on improving academic instruction.

The proposal calls for eliminating about 30 of those central office positions, as well as some supervisory and vacant positions in the same department. The positions that remain will focus on academics, including coaching and training special education teachers, Greer said.

Managing student behavior will become the responsibility of a bigger corps of mental health workers hired with the savings, he said. Most schools already have social workers and psychologists, but not all of them can afford to have one on staff five days a week.

That’s despite a tax increase approved by voters in 2016 that included $10.9 million to hire more mental health workers and nurses. The money was split among schools based on enrollment, with extra allotted to those with high needs, district officials said. But it still left some smaller and more affluent schools without five-day coverage, which principals have said is crucial.

“We’re seeing so many more young children in kindergarten with severe behavioral needs,” said Robin Kline, the principal at Steck Elementary, a high-achieving school in southeast Denver that serves a wealthier student population. “Whether or not they’re special education, they require a level of special education, figuratively, that requires a lot more one-on-one.”

The proposal also calls for hiring eight more “behavior techs,” who are specially trained professionals or paraprofessionals who can be deployed to schools for weeks at a time to help manage behavior crises. The district has seven behavior techs this year.

In addition, elementary schools with special programs for students with emotional needs would get an additional $50,000 to spend on paraprofessionals, mental health workers, or teachers.

The reorganization, Greer said, “creates role clarity and enables the instructional specialists to do what they do best.” He emphasized that the district is not cutting its special education budget, and he said it would continue to provide services to students who qualify. The district spends $1,300 more per student on special education now than it did in 2013, he said.

Parent Danielle Short said families are confused by the changes. Her 7-year-old son, Micah, has Down syndrome and was treated for leukemia. He’s currently in a kindergarten class taught by one teacher and two paraprofessionals. Though the paraprofessionals are there to help all of the students in the class, she said they spend a lot of time with Micah, helping him in the lunchroom and the bathroom, and keeping an eye on him in the hallways.

The first grade class at Micah’s school has just one part-time paraprofessional. To keep Micah fully included with his peers, rather than in a separate classroom, Short said his special education team has determined he needs a dedicated paraprofessional next year.

“It’s not my vision for him to have para glued to his hip,” she said. “But he needs one right now.”

She’s worried the reorganization will affect Micah’s ability to get one, especially since families at other schools said they have been told their students’ one-on-one paraprofessionals may be cut next year. Greer denied that’s the case, but he said he understands the parents’ reaction.

“When we try to make this system change, it can create incredible anxiety because people remember just a generation ago how hard it was to get students with disabilities through the schoolhouse door,” Greer said.

His assurances haven’t completely assuaged parents’ fears. Short said that while she’s grateful that schools will get more mental health support next year, she wants to make sure her son’s more specific needs are met, too.

“The psychologist has been helpful for my son,” providing strategies to help with some of his behavior, Short said. But, she added, “his needs are not met by increasing the psychologist from half-time to full-time. He has other needs that should be funded by the district.”

Short was among a group of parents who pleaded with the school board at its monthly meeting Thursday to, in the words of another mother, “stop pillaging special education funds.”

Christy Pennick told the board her son’s school, Swigert International in northeast Denver, is already feeling the effects: Instead of two special education teachers, it will have one next year.

Swigert principal Shelby Dennis confirmed that the district’s formula for allocating special education funding, which she said is based on the level of service students need, has allotted the elementary school one fewer special education teacher next year.

But Dennis said she doesn’t know if that’s a result of the reorganization or not. Since the district ran its formula for Swigert, one student with disabilities has transferred into the school and three more have qualified for special education services, she said. Given that, she said she’s hopeful the district will increase Swigert’s allotment in the fall. Even if it doesn’t, she said she was able to find $30,000 in her budget to hire a part-time teacher for next year to fill in some of the gap.

Pam Bisceglia, executive director of Advocacy Denver, a civil rights organization that serves people with disabilities, said it’s stories like that that raise red flags.

“What parents are hearing once again is where cuts are being made is to special education,” Bisceglia said. “It says their kids aren’t as important.”

biding time

Strike vote by Denver teachers no longer imminent due to contract extension

PHOTO: Eric Gorski
The bargaining teams from Denver Public Schools and the Denver teachers union at a contract negotiation session in 2017.

Although the Denver school district and its teachers union failed to reach a deal on an overhaul of the district’s pay-for-performance system, the prospect of a strike is less imminent.

Earlier this week, the union’s board of directors authorized a strike vote if a new agreement couldn’t be reached by the time the current one expired at midnight Wednesday.

The two sides couldn’t come to terms on how to change the system, but did reach a different kind of deal: District officials agreed to the union’s request to extend the current pay-for-performance agreement until January 2019 in the hopes that Colorado voters will approve a tax increase in November benefiting schools, making teacher pay raises more likely. However, the union did not take the threat of a strike completely off the table.

A statement from the union, the Denver Classroom Teachers Association, said the union “will begin preparing to take work actions to ensure progress on the new compensation system. If no agreement is reached by the Jan. 18 deadline, DCTA will immediately ask for a strike vote from union members the following day.”

In other districts that have experienced labor conflicts, teachers have picketed, refused to work extra hours, and even waged “sickouts.” The Denver teachers union did not specify the types of work actions they were considering.

Denver Public Schools Superintendent Tom Boasberg said the district was reluctant to sign a ten-month extension, “but in the end, we are prepared to honor their request for more time.”

“We all have a very clear, common goal and common interest around supporting our kids and giving our kids the very best chances to learn and grow,” Boasberg said. “I’m confident that common goal and common aspirations will help us move toward an agreement.”

Denver’s pay-for-performance system, called ProComp, was first piloted in 1999. Under the current agreement, teachers earn a base salary based partly on their level of education and years of experience, and partly on how much training they completed the year before and on the outcome of a yearly evaluation that takes student test scores into account.

Teachers can also earn bonuses and incentives on top of their base salary. This year, for example, teachers who work in a hard-to-serve school with a high percentage of students living in poverty can earn an extra $2,578 per year.

The union wants to make teachers’ paychecks more predictable by moving back to a traditional “steps and lanes” salary schedule in which raises are based on education and experience. Union leaders also want higher base salaries. The union proposed a salary schedule that would pay teachers with a doctorate degree and 20 or more years of experience a base salary of $100,000 with the opportunity to earn a more limited number of incentives on top of that.

The district, meanwhile, proposed a salary schedule that would continue to take teacher evaluations into account when calculating raises but would allow teachers to more significantly build their base salaries for more years. While the union’s proposal shrinks some incentives, the district’s proposal grows the incentive for teaching in a hard-to-serve school.

District officials said the union’s proposal is too expensive. ProComp is funded by a voter-approved tax increase that is expected to raise about $35 million this year. The union’s proposal would cost more than twice as much, district officials said.

Union leaders asked to extend the current agreement until January 2019 in the hopes that Colorado voters approve a proposed ballot measure that would raise $1.6 billion for schools. Backers of the measure, which would increase income taxes for people who earn more than $150,000 per year, are collecting signatures to get it on the November ballot.

Colorado’s Taxpayer’s Bill of Rights requires that voters approve any tax increase. In 2013, voters rejected a school funding tax increase that would have raised $950 million its first year.

Boasberg supports this year’s effort. He’s among the Colorado superintendents pushing for a new, “student centered” school funding formula if the measure passes.

“The entire purpose of that funding measure is to strengthen teacher compensation, decrease class sizes, and improve supports for kids,” Boasberg said. “So if that passes, of course we will eagerly sit down with DCTA to discuss how we strengthen our compensation for teachers.”