Effective teachers are the lifeblood of education. More than any other school-related factor, teachers have deep and lasting impacts on students’ futures. But despite the power of effective teaching, nearly half of Colorado’s unionized school districts are operating under negotiated policies or agreements that place students’ educations and excellent teachers’ jobs at risk by unlawfully prioritizing simple seniority, or length of service, over performance in layoff situations.
Research has repeatedly demonstrated the power of effective teaching — and not just on standardized test performance. A 2011 National Bureau of Economic Research study found that the students of high-performing teachers were “more likely to attend college, attend higher-ranked colleges, earn higher salaries, live in higher [socioeconomic status] neighborhoods, and save more for retirement.”
School districts have a responsibility to ensure that every student is taught by a great teacher — even when financial times are hard. As it turns out, they also have a legal obligation to support this goal when adopting layoff procedures.
A lesser-known requirement in state law curtails the use of “last-in-first-out” (LIFO) teacher layoff procedures in Colorado school districts. Under LIFO systems, justifiable reductions in force (RIFs) are conducted solely or primarily on the basis of seniority, or how long a teacher has served in a school district.
As of 2012, any contract or policy covering RIFs must consider performance as a significant factor before considering seniority and nonprobationary status. These latter two factors may be taken into account, but only if doing so is in the best interests of students.
Despite these requirements, 16 of the 38 Colorado school districts known to formally bargain with their local teachers unions — districts collectively employing more than a quarter of the state’s public school teachers — have maintained seniority-based RIF procedures. These districts are:
Boulder Valley RE-2
Brighton 27J
Centennial R-1
Center 26 JT
Cherry Creek 5
Denver County 1
Gunnison Watershed RE-1J
Lake County R-1
Mapleton 1
Pueblo County 70
Salida R-32J
St. Vrain Valley RE-1J
Summit RE-1
Telluride R-1
Trinidad 1
Westminster 50
In some cases, these unlawful provisions have simply been overlooked. Many districts do not scrutinize their agreements or policies while renegotiating them. However, a number of the districts have attempted to justify the continued presence of LIFO systems using two primary arguments. First, that they have “elected not to” follow the law because they have not recently conducted layoffs and do not anticipate doing so in the near future. And second, that the continued existence of these LIFO procedures is acceptable because state law supersedes district union agreements. These arguments fail to pass muster.
In response to the first argument, we should acknowledge the importance of equal application of the law. Most of the state’s unionized districts have already brought their negotiated procedures into alignment with statute, presumably despite the fact that they were not facing layoff situations. These districts are to be commended. Why should other districts be held to a different standard?
The LIFO issue presents an opportunity for school districts to engage in the type of responsible, forward-thinking governance citizens expect. There is no compelling reason to wait until a volatile economy once again delivers a financial downturn to address the problem. And, if these same districts’ perpetual warnings about dire funding shortfalls are any indication, one must assume that the specter of hard financial decisions looms larger than they now argue. An ounce of prevention is worth a pound of cure.
The second argument also falls short. It is true that “state law trumps” negotiated union agreements or policies. Yet given this fact, one has to wonder why some districts have negotiated and ratified agreements — sometimes repeatedly — that contain language they know is in violation of statute. The needed changes are straightforward. Why not simply make them?
Some contracts contain clauses stating that provisions found to be unlawful are null and void, which further complicates the problem. State law requires school districts to have reduction-in-force policies in place and provides guardrails for those policies, but it does not offer a ready-made layoff procedure to be followed. Districts cannot simply “revert to state law” should layoffs become necessary in the absence of a lawful RIF policy. They must actually have such a policy in place.
State statute notwithstanding, the goal of education is and must always be to produce the best possible outcomes for students. With this goal in mind, the remaining districts with negotiated LIFO procedures should make the simple changes needed to serve the best interests of students rather than adults.
Ross Izard is an education policy analyst at the Independence Institute, a free-market think tank in Denver. This op-ed is excerpted from the recent Issue Paper “Eternal LIFO: Unlawful Layoff Procedures in Unionized Colorado School districts.”
