Leaders of the Denver teachers’ union this week accused the district of keeping secret files on teachers – the contents of which they say are used to place teachers on leave without giving them a chance to respond, a claim the district denies.

Protestors from the Denver Classroom Teachers Association show their opposition to SB 10-191 on April 30, 2010. <em>EdNews file photo</em>

More than 100 fired-up teachers wearing Denver Classroom Teachers Association stickers attended Thursday’s board meeting to urge the board to take seriously an arbitrator’s “advisory opinion” on policies concerning the implementation of Senate Bill 10-191, the educator effectiveness law.

The major area of concern that emerged from the joint arbitration sessions was around “mutual consent” for placing teachers in schools. According to DCTA Executive Director Carolyn Crowder, the arbitrator indicated in a report – not yet publicly released – that the mutual consent amendments to the Teacher Employment, Compensation and Dismissal Act made by SB 10-191 are “unconstitutional.”

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Mutual consent means that teachers with at least three years experience who lose their current posts no longer can be assigned to another school without the approval of the teacher and the new school’s principal. SB 10-191 says if a mutually agreeable place cannot be found for such teachers within 12 months or two hiring cycles, whichever is longer, they go on unpaid leave.

Henry Roman, DCTA president, said the district’s implementation of SB 10-191 “ignores due process and has nothing to do with teacher effectiveness or educator performance.” DCTA says 2,000 mostly veteran educators have been negatively affected by the change, 50 of whom are now on leave without pay. The district puts that figure at 45.

According to a response from DCTA to the advisory opinion, 50 “experienced teachers, with excellent performance evaluations” have been placed on indefinite leave without pay with no due process.

“We urge DPS to rethink the practice of displacing these teachers and then denying them a true priority hiring opportunity. The students are the ultimate victims of this ‘master teacher drain,'” the DCTA response reads.

In the past, the district would continue to pay such teachers indefinitely until Superintendent Tom Boasberg cracked down on the practice of what’s known as “direct placement.” Boasberg set limits on the direct placement of teachers in the district’s lowest-performing and highest-poverty schools even before SB 10-191. He did that because district data had shown that direct-placement teachers were being disproportionately placed in Title I schools – those where at least half of the students qualify for federally subsidized lunches, an indicator of poverty.

Boasberg said the district values its experienced teachers and what they bring to classrooms. However, he said SB 10-191 corrected some practices that were not in the best interest of kids.

“This is a law we support,” Boasberg said. “What this law changes is the old practice of forced placement. We were forced placing over 100 teachers a year into schools where by definition the schools did not want the teachers or the teachers did not want to go. That practice was wrong.”

As to the constitutionality of SB 10-191, Boasberg said that’s up to the courts, not school districts. He said DPS  – and every other district – is required to follow the law.

“The law is the law and an advisory opinion … doesn’t change what the law is,” Boasberg said. “We have an obligation to follow the law as long as the law is on the books unless or until the legislature changes it or unless a court rules it’s unconstitutional.”

The DCTA still has major issues with how veteran teachers are being treated. The union asked the school board to accept the arbitrator’s opinion. However, the board did not vote on the matter or offer any guidance to staff on Thursday. The board has already met in closed session to discuss the matter with district counsel.

The DCTA response also claimed that other districts have delayed implementing the mutual-consent portion of the law. DCTA said it is willing to jointly apply – with DPS – for a waiver from the mutual consent portion of the law if both parties agree that is the best approach.

“We will be assessing next steps,” Crowder said.

Boasberg said the district highly values its experienced teachers. He said teachers displaced by school or program changes have a shot at getting other DPS teaching jobs over the three hiring cycles that happen within any given year. He said the 45 teachers who ended up on leave without pay represent half of 1 percent of the district’s 5,000 teachers.

“There are many, many opportunities for teachers who lose their job in a building to get a new job at a different school during the course of this year-plus period,” Boasberg said.

Once secret files on teachers raise concerns

According to DCTA, the arbitrator also pointed out problems with DPS’ practice of creating a file on teachers trying to obtain mutual consent by requiring principals to fill out a mandated reference form. That form is kept in a file that – until recently – teachers were not allowed to see.

“You can’t hire and fire based on arbitrary rules, or J. Edgar Hoover-like secret files,” Roman said. “People who could be impacting (students) positively are not in the classroom.”

The DCTA says there have been several examples of teachers being offered jobs only to have the offers rescinded after the hiring principal read the “reference file.” The DCTA asked the district to reinstate those teachers or give them temporary assignments.

“When teachers do not know what has been said about them – they have no way of responding,” the DCTA statement reads.

Boasberg, though, said he has no evidence that this has ever occurred.

“All of these issues were raised in the advisory opinion – none were validated,” Boasberg said. “Every principal must and, of course, they should ask for a reference on a teacher from the school where they formerly served. That is done before any job offer is made.”

Board member Andrea Merida on Thursday asked why six months had passed without the board getting an update on the arbitrator’s opinion, issued in June.

“We’ve got to deal with these things a lot quicker,” Merida said. “We’ve got to set some things right. There is a difference between state law and following good moral practice.”

After the audience applauded her comment, Merida challenged the district to “make it right before it gets expensive.”

Teacher placement – then and now

Before Senate Bill 10-191 became law

      • Under Colorado law, non-probationary teachers – those with more than three years’ experience – who received satisfactory evaluations were essentially guaranteed jobs provided they weren’t convicted of a felony or met other grounds for dismissal spelled out in law.
      • If non-probationary teachers lost their positions through program changes or enrollment declines, they could be assigned elsewhere in the district through “direct” or “forced” placement, meaning the teacher and the new principal did not have to consent to the placement.

After Senate Bill 10-191 was signed in May 2010

      • Non-probationary teachers who lose their jobs can only be placed at another school within their district through “mutual consent.” This means both the teacher and the principal at their new school, with input from at least two teachers at that school, must agree to the placement.
      • If a non-probationary teacher can’t secure a mutual-consent assignment after 12 months or two hiring cycles, whichever is longer, the teacher then goes on unpaid leave.
      • The law does not define the length of a hiring cycle.

Sources: Teacher Employment, Compensation and Dismissal Act; Educator Effectiveness Law.