The General Assembly’s 2013 repeal of the teacher tenure law amounted to an unconstitutional taking of contract and property rights as to those teachers who’d already attained that status, according to a Court of Appeals opinion released this morning.

Writing for the court, Judge Linda Stephens said:

[W]e cannot escape the conclusion that for the last four decades, the career status protections provided by section 115C- 325, the very title of which—“Principal and Teacher Employment Contracts”— purports to govern teachers’ employment contracts, have been a fundamental part of the bargain that Plaintiffs and thousands of other teachers across this State accepted when they decided to defer the pursuit of potentially more lucrative professions, as well as the opportunity to work in states that offer better financial compensation to members of their own profession, in order to accept employment in our public schools.

The ruling by the three-judge panel affirms Superior Court Judge Robert H. Hobgood’s decision handed down a little over a year ago.

Under North Carolina’s “Career Status Law,” teachers in their first four years were deemed “probationary” and employed year-to-year under annual contracts. At the end of the four-year period, they became eligible for career status, giving them rights to continuing contracts and due process protections from arbitrary or unjustified dismissals.

In summer 2013, lawmakers enacted a repeal of that law in an effort to rid the state of tenure by 2018, saying that it enabled bad teachers to stay in the system.

They eliminated tenure for teachers who had not reached career status by August 2013 and revoked career status for all teachers by July 2018.

As an enticement for already-tenured teachers to act sooner, lawmakers also required local school boards to offer 25 percent of them temporary 4-year contracts with annual raises of $500 in exchange for giving up their tenure rights early.

In May 2014, Judge Hobgood ruled that the revoking of tenure for teachers who’d already reached career status was unconstitutional, as was the “25 percent” plan, which Hobgood said included no standards to guide school districts and served no public purpose.

As to teachers who had not yet achieved career status, though, Hobgood found that they had no protectable contract rights and thus could not challenge the repeal.

Two judges on the panel, Stephens and Martha Geer, largely agreed with Hobgood’s ruling.

But Court of Appeals Judge Chris Dillon issued a separate opinion in which he agreed only with the lower court’s finding that tenured teachers had property rights warranting a hearing in the event they were dismissed (something the repeal did not allow).

Read the full opinion here.

Senator Bob Rucho of Mecklenburg County

Senator Bob Rucho of Mecklenburg County

As Clayton Henkel and Lindsay Wagner report in the posts below, negotiations over teacher pay have taken what appears to be a positive turn this week at the General Assembly with the announcement that the state Senate is willing to back down on its demand that teachers choose between a pay raise and their right to a measure of due process when it comes losing their jobs.

It’s welcome news, but news that is tempered by the fact that Senators apparently kept their fingers crossed behind their backs while they made the offer. Senate Education Committee chairman Jerry Tillman also told reporters Lynn Bonner and Jim Morrill that the matter of teacher due process (i.e. “tenure”) would be back:

“’We’ll get rid of tenure in 2018,’ he said. ‘That issue will be settled.’”

Perhaps even more frustrating than Tillman’s statement in the aftermath of yesterday’s negotiations, however, were the comments of his Senate colleague and fellow conservative fire-breather, Bob Rucho.

When asked about the Senate’s consistent refusal to budge on its plan to pay for teacher raises by firing thousands of teacher assistants (a plan that even Senate President Pro Tem Phil Berger hinted might finally be on the way out) Rucho was his usual  aggressive self. As Morrill and Bonner reported: Read More


Last night’s Moral Monday demonstrations took an unexpected turn when Senate leader Phil Berger (R-Rockingham) decided to sit down with teachers, who were staked out in front of his office late last night, to debate some of the education policies he has put forward.

WUNC Education Reporter Dave Dewitt has a great story about how the night went off script and the debate that took place:

But here’s where script took an unexpected turn. Just a few seconds later, Senator Berger came around the corner, pulled some couches into a circle, and offered to have a discussion.

And that’s exactly what they did. For more than an hour and a half, Berger and the protesters discussed education policy and the challenges facing teachers. There were some heated moments, and some passionate disagreements.

For the most part, all parties were respectful. The protestors whittled their list to three items they wanted addressed: they wanted tenure back; they wanted teacher assistants restored; and they wanted Berger to hold a series of public meetings on education. At the end, Berger committed to nothing more than another conversation the next day to consider further meetings.

And instead of being led out in handcuffs, the 15 protesters walked out the front of the building, nodding to Capitol Police officers, to meet their supporters.

Proffitt spoke first: “So we sat down and we had a good conversation, which to my understanding this is the first time this has happened in the last couple of years. So I think this represents a win for the movement because I think we put enough pressure on them that they realized they had to have a conversation.”

When he was done, Bryan Proffitt stepped behind the crowd and tried to gather himself. Someone handed him a bottle of water and the sweater he thought he had lost, and he finally took a deep breath.

He admitted the night had not gone like he thought it would.

“Talk is cheap,” he said.” There needs to be a real opening. But if there’s an opening, we’ll take it. But if it means the threat of arrest, if that means risking arrest again, and putting negative pressure on them again, then we’ll be back.”

Click here to read or listen to DeWitt’s full story.




Judge Robert H. Hobgood issued a written order in Wake County Superior Court today declaring the 2013 General Assembly’s actions unconstitutional in eliminating due process rights, or career status, for teachers who already had obtained it.

Hobgood made the ruling three weeks ago and issued his written order today. The trial court also permanently halted the 25 percent contract provision statewide as it was “inextricably tied” to the revocation of due process rights.

The 25 percent contracts, also passed into law last year, would have required teachers to give up their due process rights four years early in exchange for small pay bumps of $500 for each of those four years.  More than 51 school districts had passed resolutions in opposition to the contracts.

“This is an important victory, not only for teachers, but for public education,” said Rodney Ellis, president of NCAE.  “Local boards and superintendents have been standing right along with us in saying that protecting due process rights for teachers is a good thing – that we want our teachers to be strong advocates for students and to not have to fear politics will rob them of their job.”

Reacting to the Senate’s 2014 budget proposal to offer teachers an 11 percent raise if they voluntarily relinquish tenure, Ellis said, “The Senate budget provision was clearly in response to our lawsuit and is plainly wrong.  Our victory reaffirms the important role of the judiciary in interpreting the constitution and determining when the General Assembly has overstepped its bounds by passing laws that are unconstitutional.”

State Senator Phil Berger has promised to appeal Hobgood’s ruling.


This morning’s editorial in the Charlotte Observer gets yesterday’s state Senate proposal on teacher pay and the “choice” it would offer teachers on the matter just about right:

“The plan, announced by Senate leader Phil Berger, would boost teacher pay by an average of 11 percent – the largest increase in N.C. history, Berger says. It’s significantly more than Gov. Pat McCrory proposed this month in his teacher pay plan, and it would lift North Carolina all the way from 46th to 27th in the nation in teacher pay.

That wasn’t so hard, was it?…

Then there’s the plan’s caveat: If teachers want to receive the substantial pay increase Republicans are offering, they must give up the ‘career status’ – or tenure – that N.C. law guarantees. Republicans already tried to eliminate tenure last year, but a Superior Court judge ruled this month that it is unconstitutional to take that career status away from teachers who already have earned it.

Now Republicans are trying to make teachers give tenure up “voluntarily” by dangling the pay increase in front of them. We’re not sure how the two – tenure and pay – are otherwise connected. Tenure offers teachers two primary protections – a hearing process when a teacher is being dismissed or demoted for any of 15 reasons that include poor performance and neglect of duty, plus a similar hearing process when a teacher is dismissed because of budget or staffing issues.

Both protections make it more time consuming and costly to fire teachers, but neither is costly enough to be paired with teacher pay, as Senate Republicans are doing. If they want to argue that teachers don’t deserve protection from layoffs that most of the rest of us don’t get, as Berger suggested Wednesday, that’s a legitimate and separate debate to have. But to finally give teachers the raise they’ve earned, only to make them give up the tenure they’ve also earned, is unfair.

Lawmakers should take up tenure later and concentrate on the intended task at hand – raising the pay of our public school teachers. As Senate Republicans and the governor are showing, it’s something that’s within reach, if they want it to be.”

You can read the entire editorial by clicking here.

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