Earlier this month, the New Jersey Supreme Court declined to hear a challenge brought by students to the “last-in, first-out” (LIFO) provisions of the state’s tenure law, so these provisions remain in effect, at least for now.
Before the court was an appeal of the Appellate Division’s June 27, 2018 decision in H.G. v. Harrington. In the matter, students attending Newark Public Schools challenged the existing tenure law, which mandates that dismissals, resulting from a reduction in force, must be made on the basis of seniority.
Likewise, rehiring must be based on seniority. Therefore, due to lack of seniority, the last teachers hired are the first to be dismissed and last to be rehired.
The students argued that the law requires school districts to lay off effective but less experienced teachers while keeping less effective teachers on the job, only because they have more seniority.
The students argued that this requirement denies them a “thorough and efficient education” guaranteed by the New Jersey constitution.
Additionally, they argued that the LIFO provisions of the tenure law violate their right to equal protection under the state constitution because they “have disproportionately affected students of color in areas of concentrated poverty” and also violate the students’ due process rights.
The LIFO policy, the students contended, left the school district with two bad choices. The school district must lay off teachers only because they lacked long-term experience. Alternatively, to avoid that result, the district must pay to preserve a pool of teachers without assignments, which would divert millions of dollars from the students’ education.
The Appellate Division did not allow the students’ claims to move forward. The court held that the students’ claims were not “ripe” for review by the court, meaning that the issues that the students raised relied on events that may not occur as they assert, or may not occur at all.
The court noted that the school district had taken steps to reduce the number of ineffective or partially effective tenured teachers.
“It is entirely possible that, through the termination of ineffective tenured teachers, and re-education and rehabilitation of others now rated ineffective or partially ineffective,” the court found, a reduction in force “causing ineffective tenured teachers to teach students while effective tenured teachers are removed may never occur.”
With the Supreme Court declining to hear the students’ appeal, LIFO remains the status quo until overturned by a legislative change or court ruling. The issue of whether the students’ claims could have moved forward in the event of a current reduction in force was left open by the court.
School districts considering action based on teacher evaluations and performance are encouraged to discuss these issues with their board attorney. For additional information, please contact the NJSBA Legal and Labor Relations Department at (609) 278-5254.