Senate Education Committee Chair Dolores Gresham this week began the process of questioning Tennessee’s teacher tenure and employment laws.

According to a press release, Gresham has requested an Attorney General’s opinion on the constitutionality of Tennessee’s teacher tenure and employment laws in light of the recent decision in the Vergara v. California case.

From the release:

“This is a very important decision regarding teacher employment laws, which will reverberate to states across the nation, said Senator Gresham. “Tennessee, like California, has its own constitutional provision regarding student’s education rights in addition to the Equal Protection Clause afforded by the U.S. Constitution. We certainly need to make sure that we are on sound constitutional footing, and especially whether the reforms passed over the last several years will satisfy the constitutional tests as decided in this ruling.”

Gresham asked two specific questions:

1) Whether the current statutes or state law in effect prior to July 1, 2011 governing permanent employment violate students’ rights to a free education under the equal protection provisions of the Tennessee or U.S. Constitution.

2) If Tennessee law or the statutes in effect prior to July 1, 2014, governing layoffs or the dismissal and suspension of teachers violate student’s rights to a free education under the federal and state constitutions.

The Tennessee Constitution in Article 11, Section 12 states:

The General Assembly shall provide for the maintenance, support, and eligibility standards of a system of free public schools.

It’s not clear how tenure protections for teachers would inhibit the provision (on an equal basis) of a free education for all students.

Tennessee’s tenure laws were changed in 2011.  Under those provisions, teachers must teach 5 years before tenure is considered. Only those teachers with two consecutive years of evaluation scores of 4 or 5 (the highest two scores) may be granted tenure. Teachers who fail to meet that standard cannot be granted tenure.

Under Tennessee law (TCA 49-5-511 and TCA 49-5-512), tenure affords simple due process rights to teachers.

That means that if a Director of Schools wishes to dismiss a tenured educator, the reason for dismissal must be provided in writing to the teacher.  Should the teacher wish to appeal the dismissal, the teacher has 30 days to request a hearing by an impartial hearing officer. That hearing must be scheduled within 30 days of the receipt of the request (a maximum of 60 days would pass between the notice of dismissal and the hearing).

In 2012, the Supreme Court of Tennessee, in a unanimous decision, upheld the Tennessee law that requires both written notice and the opportunity for a hearing.

What’s not clear from Gresham’s early salvo is what about affording employees basic due process impedes a student’s right to equal access to a free public education.

It seems that abiding by a process that prevents arbitrary dismissal of teachers demonstrates to students a fundamental concept of fairness.  All teachers receive a TEAM evaluation score and since 2012, that score has been used in determining the granting of tenure. The dismissal process for tenured teachers is straightforward and allows both sides to present a case.  It prevents principals or Directors of Schools from simply dismissing teachers for reasons such as politics or personality issues.

Meanwhile, the free public education to which Gresham seems concerned that all students should have access to, is undermined by a General Assembly that balances the state’s budget on the backs of teachers and schools.  In the case of Gresham specifically, she has been a tireless champion of K12, Inc., a private, virtual school that receives Tennessee tax dollars yet fails to even approach adequately educating Tennessee students.

While the Governor has appointed a duplicative BEP task force designed to avoid the uncomfortable conversation around the inadequacy of current BEP funding, Senator Gresham is starting a fight about teacher tenure.  It’s the BEP funding that could, in fact, be unconstitutional in its current form as many systems find it inadequate to meet the needs of students.

Whatever the AG opinion says, this may only be the beginning of a legislative and legal fight over teacher tenure in Tennessee.

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