TOPEKA — Sen. Tom Arpke laid the foundation of an ongoing legal battle by championing a bill to end long-standing employment due process rights available to thousands of public school teachers.
Elimination of tenure in 2014 was a cause for celebration, the anti-union Salina Republican said at the time, because district administrators would have a clear path to jettison underperforming educators from classrooms. The practical result was more than 25,000 Kansas teachers who completed three years’ on the job lost the right to a hearing before an independent officer when informed they wouldn’t be retained by a district.
Arpke lost a re-election campaign in 2016, but constitutional questions regarding late-night maneuvering at the Capitol was again on the Kansas Supreme Court’s docket.
The legal issue before the court last week emerged from nonrenewal of Flinthills tenured teachers Sallie Scribner and Mark McNemee, who were let go in 2015 and became plaintiffs in a lawsuit challenging the retroactive removal of tenure rights. They’re represented by attorney David Schauner with the Kansas National Education Association. He was opposed in oral argument by Ed Keeley, a lawyer representing the Rosalia-based district, and Dwight Carswell, of the Kansas attorney general’s office.
In January 2017, the state Supreme Court unanimously upheld the teacher tenure law in a separate legal challenge. In that case, KNEA argued merger into a single bill both state appropriations to school districts and a set of policy changes wasn’t allowed.
In the latest round of argument, Schauner said the Supreme Court should restore job protections that had been in place since the mid-1970s.
“This statute does have a retroactive application,” he said. “It takes away property that these clients had earned through their quality service to the school district.”
Justice Lee Johnson suggested the Legislature had the power to revoke a property interest that had been established years ago by the Legislature.
“Can they under any circumstance eliminate this property interest?” Johnson said.
“Not unbridled,” Schauner said. “With proper safeguards, the answer is, ‘Yes.’ There is a strong property interest that was taken from these plaintiffs by action of the Legislature without either notice or opportunity to be heard.”
Justice Marla Luckert said there was case law suggesting legislative bodies weren’t required to conduct hearings for the purpose of allowing the public to speak. In addition, Justice Eric Rosen asserted decisions by the Legislature to operate under cover or darkness or rely on convoluted procedures was unlikely to be construed as denial of due process.
“Typically,” Rosen said, “we look to the legislative process to satisfy the due process requirement.”
Justice Caleb Stegall, who as appointed by Brownback, said the standard of legislative conduct contemplated by Schauner wasn’t practical.
“How is the standard you’re proposing manageable at all?” Stegall said. “Virtually every law passed by the Legislature, in some way, constrains liberty.”
Keeley, the attorney representing the USD 492 school district, said the four-year-old Kansas statute at the center of the controversy was valid. Lawmakers were on solid ground when they ended a requirement districts inform teachers in writing why their contract wouldn’t be renewed and to engage in independent hearings regarding that justification, he said.
“It’s a legislative prerogative,” Keeley said. “It’s a policy matter. So-called tenure rights are not constitutional rights under the Kansas Constitution.”
Meanwhile, Carswell told justices the 2014 Legislature didn’t violate constitutional boundaries when passing teacher tenure reforms.
“The U.S. Supreme Court long ago established that when legislatures affect a general class of people, the legislative process provides all the process that is due,” he said. “The U.S. Supreme Court has also been clear that legislatures are not required to hold hearings on legislation.”