March 2016 Issue - Labor Issues
March 29, 2016

Taking our fights to the courts

Author: By James D. Bilik, NYSUT Assistant General Counsel
Source: NYSUT United

Defending hard-won tenure rights, holding the state accountable on school funding, keeping the spotlight on unfair standardized testing: These are all top priorities for NYSUT. They are also subjects of litigation, and NYSUT's lawyers are fully engaged in the battle.

Defending tenure and seniority

Davids v. State; Wright v. State.

Plaintiffs assert that the tenure and seniority laws violate their constitutional right to a sound, basic education. NYSUT, the United Federation of Teachers and other intervenor-defendants counter that these claims are not justiciable because the challenged laws, which protect teachers' ability to advocate for their students and their communities without fear of arbitrary or discriminatory reprisals, reflect the Legislature's judgment that tenure and seniority are beneficial. The trial court denied our motion to dismiss. Our appeal will be argued in the Appellate Division, Second Department later this year.

Protecting collective bargaining rights

Buffalo Teachers Federation v. Commissioner of Education.

The receivership law empowers receivers to seek changes in union contracts and gives the State Education Commissioner the power to resolve disputes. In a November 2015 decision, the commissioner adopted virtually every contract change requested by the Buffalo school district superintendent/receiver for five "persistently struggling" Buffalo schools, thereby altering provisions in the current contract relating to involuntary transfer, length and starting and ending times of the school day, and teachers' schedules. On Dec. 23, 2015, the commissioner issued a similar decision regarding 15 other schools, again imposing virtually all of the district's proposals.

We sued on behalf of the BTF in February, asserting that the commissioner exceeded her authority and that the decision violated due process and was entirely unworkable. The suit also asserts that the receivership law as applied has impaired the BTF contract in violation of the U.S. Constitution. The case is scheduled to be heard at the end of April, and we are preparing a similar lawsuit to challenge the commissioner's Dec. 23 decision.

School funding and state accountability

NYSUT v. State of New York.

This case challenges the property tax cap/freeze, which prohibits school boards from increasing a tax levy by the lesser of 2 percent or the rate of inflation unless 60 percent of voters favor exceeding the cap. Under the freeze, increases in a taxpayer's school tax bill caused by an increased tax levy will be reimbursed by the state only if the district's budget is tax cap-compliant.

The case alleges that the law is arbitrary, denies equal protection, and unconstitutionally interferes with local control over funding and creation of educational opportunity, free speech and the right to vote. The trial court dismissed our claims, and our appeal was argued on Jan. 14 in the Third Department. We await decision.

Maisto v. State.

The plaintiffs in this state court case are parents of children in eight small city school districts. Plaintiffs assert that inadequate state funding violates plaintiffs' constitutional right to a sound, basic education. NYSUT has provided financial and research support in the case and a NYSUT attorney worked with plaintiffs' trial team. The evidence at trial of the state's chronic underfunding of our neediest schools, and of the terrible effects of that underfunding on school children, was compelling and indeed shocking. A decision is expected from the trial court in the near future.

State standardized testing and teacher evaluation

Urbanski v. Commissioner of Education; Ahern v. Commissioner of Education.

Plaintiff teachers from Rochester and Syracuse sued SED for failing to account for the "achievement gap" between economically disadvantaged and more affluent students in implementing the student growth portion of the APPR. This failure results in lower scores for these teachers in violation of the APPR law and equal protection. Albany County Supreme Court denied the state's motion to dismiss in December, and SED must now respond to the merits of the claims.

NYSUT v. Board of Regents.

This case, filed in January 2016 in State Supreme Court on behalf of NYSUT and six local unions, alleges that two regulations implementing Education Law Section 3012-d violate the Taylor Law by purporting to remove Teacher Improvement Plans from collective bargaining, and to give SED the power to require changes in collective bargaining agreements. SED is to answer the complaint in early April.

Allen v. Commissioner of Education.

Brought by NYSUT on behalf of five members who scored grades 3–8 state ELA or math tests, Allen is a First Amendment challenge to SED's "gag order" which prohibits teachers from disclosing the content of test materials in any activity inside or outside school. The gag order potentially subjects teachers to discipline or license revocation merely because they choose to speak out on unfair questions and other testing issues. The case is in pre-trial discovery and a decision on the merits could be issued by early 2017.