Hundreds of Minnesota teachers lose their jobs each year, regardless of how effective they may be in the classroom, because of a state law and union contracts that protect more senior teachers from layoffs as a result of budget cuts.

Between 2008 and 2013, nearly 2,200 Minnesota teachers were laid off under the so-called “last in, first out” provision in state law, according to a recent analysis by the Minnesota Department of Education.

Minnesota is one of fewer than a dozen states where a teacher’s job security is determined largely by the date he or she was hired. Amid growing pressure to improve educational outcomes, especially for students of color, Minnesota Republicans and now a DFL lawmaker want to require school districts to consider performance when deciding which teachers keep or lose their jobs. They are emboldened by a court ruling in California last year that called seniority job protections unconstitutional because it often meant schools with high rates of minority students were saddled with the most ineffective teachers.

Education Minnesota, the statewide teachers union and a potent political force at the Capitol, says changes are unnecessary because state law allows local districts to negotiate conditions for layoffs that go beyond seniority. The union notes that 142 of the state’s more than 330 school districts have exercised that right.

But a Star Tribune analysis of 114 contracts covering thousands of teachers shows that school districts rarely depart from the seniority standard even when they can.

In none of the contracts is performance, as measured by new statewide teacher evaluation standards now in effect, considered during layoff decisions. An Education Minnesota spokesman noted that current contracts were negotiated before the 2011 teacher-evaluation law was implemented.

Terri Bonoff

Flipping a coin

Contract after contract details how seniority is defined and how to break ties between teachers in cases of equal seniority — without having to weigh merit or teacher effectiveness.

Some districts, such as Inver Grove Heights, use the day and hour a teacher was hired as a last-resort measure to break a tie. The Milaca School District contract specifies that if two teachers with equal seniority are under layoff consideration, a coin must be flipped to determine who loses their job if other tiebreaking steps fail.

In Lakeview schools, the teacher with the smallest last four digits of his or her Social Security number gets the job if other tiebreaking measures fail. In Albany schools, administrators will review teachers’ undergraduate and graduate grade-point averages before flipping a coin to break the tie.

“How would a parent feel if a district is making an important decision about which teachers to keep and in some cases, it’s just going to come down to flipping a coin?” said Rep. Jenifer Loon, R-Eden Prairie and sponsor of a House bill that would revise the seniority law. “I think that’s shocking, and most people would find that unacceptable.”

Meanwhile, opponents of seniority-guided layoffs are considering trying their luck in court. A legal challenge similar to California’s may be coming to Minnesota. An identical lawsuit challenging teacher tenure is underway in New York.

Should the Legislature act first, it is possible that DFL Gov. Mark Dayton would approve the bills sponsored by Loon and Sen. Terri Bonoff, DFL-Minnetonka. His 2012 veto of a measure to repeal “last in, first out” was motivated largely because the teacher evaluation law had not yet rolled out.

Firm union opposition

Education Minnesota, with 70,000 members, has vigorously opposed efforts to revise the state law governing layoffs. It says the current system provides a stable framework for administrators and keeps the most experienced teachers in the classroom.

Denise Specht, president of the union, said the newly-implemented teacher evaluation requirements should not be used to determine layoffs because the requirement is new and untested.

“For most school districts, the implementation of the [evaluation] law is only about four or five months old,” Specht said. “We’re really in the infancy stages of the teacher development and evaluation plans. … My belief is that we need to give this law some time.”

Jess Anna Glover, an attorney for the union, warned lawmakers at recent hearings that school districts could face costly legal challenges by teachers if officials use evaluation data in determining staff cuts. Teachers, fearing for their jobs, could challenge their evaluations, tying up the state and school districts in costly efforts to defend their decisions. Other DFLers on the House Education Finance committee said legal challenges could turn ugly and undermine the evaluation system. They say evaluations were intended to improve teaching quality, not make termination decisions.

Rep. Tom Anzelc, DFL-Balsam Township, a veteran educator, said basing layoffs on peer-conducted evaluations as the evaluation law requires would result in a “contentious back-and-forth, teacher on teacher, teacher on administrator, teacher on school-board member, animosity, which is going to be a really big deal for every lawyer on Main Street who has a shingle up.”

Contract review

A review of nearly all 142 locally negotiated contracts found that layoff language is effectively identical to the state law. In all the districts, seniority is the first consideration when officials make staff cuts, but there were some exceptions.

In some districts, local bargaining units and administrators agreed to retain less-senior teachers if cutting them would violate any affirmative-action programs or if a teacher’s dismissal “would result in the discontinuance of any extra- or co-curricular program.”

Other districts, such as St. Paul Public Schools, had exemptions for teachers with Montessori or language immersion certifications. Such carve-outs for specialty certifications were uncommon though. In many cases, determining which teacher is considered more senior came down to salary. The more highly paid teacher, due to more training or education, would likely be retained.

Legal challenge looming?

As lawmakers mull revising the teacher seniority law, opponents are preparing for the possibility of fighting the matter in court. Because Minnesota’s Constitution guarantees students a right to a “uniform system of public schools,” opponents have said the state is ripe for a legal challenge filed under similar grounds as the Vergara vs. California case.

The California state court found that tenure protections and “last in, first out” procedures denied minority students equal access to quality teachers. The decision noted that ineffective teachers were most likely to work in underperforming schools with minority students, resulting in reduced learning and lifetime earnings.

A Star Tribune analysis of teacher evaluation data last fall found a similar pattern in Minneapolis Public Schools. The review showed that Minneapolis schools with the largest number of low-income students had the highest concentration of poor-performing instructors. In the 2013-14 school year, Minneapolis officials fired 6 percent of their teaching staff, about 200 teachers, for poor performance.

Bonoff, the sponsor of the Senate bill and the lone Democrat supporting the measures, said she wants to avoid seeing the issue argued in court.

“It’s my commitment that I do all I can to have it occur by us coming to terms as a Legislature with the governor and passing something,” Bonoff said. “If that doesn’t happen, and there’s a lawsuit, it’s because the public wants this to happen … [but] I hope we pass it first.”