Updated - Colorado’s largest teachers union Wednesday launched a two-pronged attack on part of the state educator effectiveness law, filing both a lawsuit and serving notice of a proposed bill in the legislature.

At issue is the mutual consent section of Senate Bill 10-191, which requires both principal and teacher agreement for placement of a teacher in a school. The Denver Classroom Teachers Association and its statewide parent, the Colorado Education Association, claim the Denver Public Schools have misused the law by essentially firing teachers without due process.

The suit was filed Wednesday by five former Denver teachers and the DCTA. The filing, which had been expected for months, came in Denver District Court and names DPS and the State Board of Education as defendants. (The board is the default defendant in many suits involving education laws.)

Later in the day during a news conference at CEA headquarters, union leaders and Sen. Nancy Todd, D-Aurora, announced plans to file a bill that would prohibit districts from putting teachers on unpaid leave if they can’t be placed in schools, but it wouldn’t repeal the full mutual consent portion of state law.

The bill will be sponsored in the House by Rep. Joe Salazar, D-Thornton.

“We have fought the good fight with the Denver Public Schools and avoided going to the courts and the legislature,” said Kerrie Dallman, CEA president. “We had great hopes that we would not get to this point,” said Amie Baca-Oehlert, CEA vice president. Since negotiations with DPS didn’t work, the lawsuit and the proposed bill are needed, the two said.

Dallman and other CEA leaders repeatedly stressed that the two unions have no objections to the evaluation portions of SB 10-213. “This really is a surgical lawsuit,” she said. (Dallman and Oehlert both are members of the State Council for Educator Effectiveness, the advisory group that drew up recommendations for implementation of the law.)

Sen. Johnston, others react to suit

Sen. Mike Johnston, author of SB 14-191, later in the day defended current mutual consent provisions and said of DPS, “I haven’t seen any evidence to see they are using it incorrectly.” He said he’d talked with CEA last summer about possible tweaks to the law but that no agreement was reached.

The Denver Democrat also agreed that the lawsuit “will change nothing about the evaluation process. … I don’t think this is going to be a big distraction.”

Johnston could end up being the deciding vote on the Salazar-Todd bill. If that measure passes the House and reaches the Senate floor, it’s unlikely any of the Senate’s 17 Republicans would vote for it. If Johnston also votes no, that would provide an 18-vote majority to kill the bill in the 35-member Senate.

A statement from the Department of Education sounded the same note, saying, “The filing of this lawsuit does not impact the ongoing work of schools and districts to implement the law.”

Separately, the SBE released a statement saying it was “deeply disappointed” with the lawsuit and “will defend this lawsuit to the fullest extent of the law.”

DPS Superintendent Tom Boasberg defended SB 10-191’s current provisions, saying, “The practice of forced placement is wrong. It is wrong for our students, wrong for our teachers and wrong for our schools. It is particularly harmful because it disproportionately impacts our highest-poverty schools where our kids have the greatest need for excellent teachers.”

A coalition of business and education reform groups criticized the lawsuit. The suit “would turn back the clock for Colorado teachers and students,” said a news release from the Great Teachers and Leaders Law Coalition.

Senate Minority Leader Bill Cadman, R-Colorado Springs, commented, “This lawsuit should outrage every student, every parent, and every taxpayer in this state. The same union that tried to take another billion dollars from Colorado citizens with Amendment 66, is now trying to create a protected class of substandard workers.”

Inside the lawsuit

The lawsuit argues that the mutual-consent provisions of the law and DPS’ actions are unconstitutional because they violate the state constitution’s ban on “impairment of contracts” and state laws on the firing of teachers. The suit also alleges that the district has violated teachers’ due-process rights.

The suit argues that non-probationary teachers have “a constitutionally protected property interest in … continued employment” that cannot lawfully be terminated without providing the procedural due process guaranteed by” the state constitution.

The class-action aspect of the suit seeks to include several different types of Colorado teachers, primarily those who held non-probationary status before May 20, 2010, when the mutual-consent provision went into effect.

The suit seeks a court ban on use of the mutual-consent provision for various kinds of non-probationay teachers and reinstatement and back pay for teachers who lost their jobs.

Based on the track record of prior public-policy lawsuits in Colorado, this case could take years to resolve if it goes up through the appeals process.

CEA lawyer Brad Bartels said, “I would be lying if I said that it would be short.” He said the first legal fight will be over whether the DCTA has made a proper claim for relief that can be adjudicated. If the suit passes that hurdle, there likely will be long proceedings over whether the case can proceed as a class action. The lawsuit makes claims for two main classes, a group of DPS teachers and all state teachers who were non-probationary before May 2010.

CEA leaders said they would pursue the lawsuit even if the Salazar-Todd bill passes because the suit seeks damages and reinstatement for those DPS teachers.

Individual plaintiffs in the lawsuit faced a filing deadline that was due to expire last summer. But the two unions, DPS and the State Board of Education agreed late last August to extend the deadline for filing a suit until Feb. 1 – Saturday.

The five teachers listed as plaintiffs are Cynthia Masters, Michele Montoya, Mildred Kolquist, Lawrence Garcia and Paul Scena.

The Great Teachers and Leaders Law Coalition is made up of civic, business and non-profit organizations including A+ Denver, Colorado Children’s Campaign, Colorado Competitive Council, Colorado Concern, Colorado Succeeds, Democrats for Education Reform, Denver Metro Chamber of Commerce, Donnell‐Kay Foundation, Gates Family Foundation, Piton Foundation and Stand for Children. Gov. John Hickenlooper and former Govs. Bill Owens and Bill Ritter are supporting the coalition’s criticism of the lawsuit.

The major elements of SB 10-191 are requirements for annual evaluations of principals and teachers, basing 50 percent of evaluations on student academic growth and the provision that teachers who have two consecutive ineffective or partially effective ratings lose their non-probationary status (commonly called tenure).

Read full text of the suit here.

Background on the issue from Chalkbeat: