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State board weighs in on lawsuit dispute

A unanimous State Board of Education on Wednesday joined the chorus of people urging the Colorado Education Association not to challenge the constitutionality of the state’s teacher evaluation law.

Colorado Department of Education
Colorado Department of Education

And the board’s resolution shed some light on the possible impetus behind recent statements by Gov. John Hickenlooper and by some business leaders defending the evaluation law (Senate Bill 10-191) and urging the teachers union not to sue.

The board’s resolution claims that the Colorado Education Association may have violated an Aug. 27 agreement that extended the deadline for any lawsuit.

That agreement prompted accusations by some media commentators and political operatives that the lawsuit was delayed to avoid unfavorable publicity during the campaign to pass Amendment 66, the proposed $950 million P-12 tax increase.

But the controversy is more complicated than that. It’s focused on a provision of SB 10-191 that requires mutual agreement by a teacher and a principal to place a teacher in a school. The CEA’s Denver Public Schools affiliate, the Denver Classroom Teachers Association, claims DPS has been misusing that provision to get rid of teachers for budgetary reasons. An arbitrator previously ruled for the union, and a lawsuit over the issue has been considered possible.

Legal deadlines for some affected teachers to sue were set to expire on Aug. 31. DPS, the DCTA, CEA and the state board signed an agreement in late August agreeing to extend the deadline for filing suit until next Feb. 1, ostensibly to allow DPS and the local union to continue negotiations.

That deadline extension – known as a “tolling agreement” in legal jargon – contains the provision that “complainants shall not file or assist any individual in filing any action concerning Senate Bill 10-191 until or after January 1. 2014.”

The state board’s resolution contain the claims that “concerns have arisen regarding CEA/DCTA’s possible violation of the Tolling Agreement by raising the constitutionality of SB 10-191 in other cases.”

Asked about that after the vote, SBE Chair Paul Lundeen cited September filings in two pending teacher-dismissal lawsuits, one by teacher Cynthia Shepard against DPS, and one by teacher Lori McCoin against the Calhan School District in El Paso County.

While the suits initially were filed before the tolling agreement was signed, Lundeen said the September filings – responses by the teachers’ lawyers to school district motions for dismissal – may have violated the tolling agreement by raising legal issues about SB 10-191.

Lundeen and board staffer Carey Markel said that after those filings were made, the attorney general’s office wrote to CEA lawyers, warning that they may have violated the tolling agreement and asking that they be withdrawn. CEA lawyers declined to do so, Lundeen and Markel said.

In a statement, CEA dismissed the idea that the cases (plus a third one) are a violation of the tolling agreement.

“The alleged ‘violation’ of the tolling agreement is based upon three cases which were filed prior to the signing of the tolling agreement,” the statement said. “The issues raised in these cases only peripherally deal with provisions of SB-191.” Referring to the McCoin case, the CEA statement said, “The case has absolutely nothing to do with the ‘consent’ provisions of SB-191, or whether they are unconstitutional.”

The filings in those two court cases were made on Sept. 18 and Sept. 26.

Representatives of seven business groups wrote to CEA on Sept. 27, urging the union not to sue (see EdNews story). Hickenlooper issued a similar statement on Oct. 2 (see story).

Statements by the business leaders and Hickelooper strongly emphasized their support for SB 10-191 as a cornerstone of Colorado education reforms, as did the board’s Wednesday resolution.

Significantly, the board’s resolution passed with the support of three Republican members and three Democrats. (A fourth Republican member, Debora Scheffel of the 6th District, wasn’t at the meeting.)

A lot of the rhetoric on the issue has implied that the whole of SB 10-191 is under potential legal threat, not just the issue of mutual consent. The more important provisions of the law require annual evaluations of principals and teachers and that 50 percent of those evaluations be based on student academic growth. The law also requires that teachers who receive two consecutive ineffective or partially effective ratings lose non-probationary status.

EdNews asked Lundeen, a Republican, if he had any evidence that CEA might challenge more than mutual consent. He said he didn’t have such evidence. “I don’t want to guess at what they’d do [but] they very well might,” he said.

Lundeen said the board wasn’t asked by the Hickenlooper administration to take a stand and that the impetus for the resolution “is a desire to protect SB 10-191.”

Elaine Gantz Berman, a Denver Democrat who’s usually on the opposite side of the ideological fence from Lundeen, said, “I will wholeheartedly support this resolution.”

CEA spokesman Mike Wetzel, responding to the board’s resolution, said, “No, we will not commit to not suing, but we are willing to engage in further conversations to resolve our disagreements with DPS. We are legally prohibited from filing a lawsuit during the time extension in the tolling agreement.” Wetzel said negotiations with DPS “have stopped as a result of a decision made by the DPS and the governor’s office” and that “CEA wants to continue discussions into a mediation process and we are willing to come to the table and resolve our differences if DPS is willing to the same goal.”

Wetzel also said, “We relate the flurry of statements from external groups to their misunderstanding on what our complaint with DPS is all about. We are disputing a specific portion of SB-191 that allows districts, specifically DPS, to fire effective, experienced teachers. DPS’ misapplication of the ‘mutual consent’ provision has nothing to do with teaching performance; it has nothing to do with teacher evaluations.”

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