How the teacher unions ended up in a fight with David Boies

Liberals and labor unions go together like wine and cheese. Thus, it was with an ironic flair that the newly-formed Partnership for Educational Justice, which seeks to reverse union-friendly teacher tenure laws, announced this week that its new Chair is David Boies, a nationally-known lawyer closely associated with liberal causes.

Boies, the son of two schoolteachers, is the star litigator who led the fight against California’s Proposition 8 that denied marriage rights to same-sex couples. A dyed-in-the-wool Democrat, he also represented almost-president Al Gore during the tumultuous vote-counting scandal in Florida and prosecuted Microsoft on anti-trust charges during the Clinton Administration.

When asked why he was chairing the Partnership, Boies replied, “liberals always want equal opportunity.” Left unsaid: not only for grown-ups, but also for children.With this statement, Boies reframes the debate around teacher job security policies, particularly seniority-based lay-offs, or “LIFO” for “last in, first out. He also points to a growing rift within the Democratic Party.

The New York Times’ Motoko Rich wrote on Monday that dissension around LIFO is “emblematic of an increasingly fractured relationship between the Democrats and the teachers’ unions.” Stephen Sawchuk wrote in Education Week on Wednesday that “at this rate, teacher tenure may exceed the Common Core State Standards as an education policy lightning rod, even as a possible wedge issue in the midterm and 2016 elections.”

Another sign of this internecine rift: the suit in N.Y. is supported by a new lobbying firm called The Incite Agency, headed by Robert Gibbs and Ben LaBolt. Gibbs was Pres. Obama’s White House Press Secretary. LaBolt was Pres. Obama’s national press secretary and White House spokesman for Justices Sonia Sotomayor and Elena Kagan during their confirmations to the Supreme Court.

It’s a strange hill for the unions to die on. After all, of all teacher tenure laws, LIFO is the least defensible, existing solely for the purpose of protecting older teachers when schools make staffing cuts and disallowing administrators from dismissing ineffective teachers if they’ve served longer than younger teachers.

The Los Angeles Times reported, in reference to Vergara v. California, the case that laid the path for challenges to teacher tenure laws in other states, that hundreds of promising new teachers were cut from the district in 2010 due to LIFO. One hundred and ninety were in the top fifth overall of teachers in raising math and reading scores.

Only 12 states cling to this policy, including New Jersey and Pennsylvania. The other ten are Oregon, California, Alaska, Hawaii, Minnesota, Wisconsin, Rhode Island, Kentucky, W. Virginia, and New York.

LIFO’s roots date back to the late nineteenth and early twentieth century when teacher salaries were in the gutter, pensions didn’t exist, and nepotism ran amok. New Jersey, recognizing that there was desperate need for some sort of compensatory perk, passed the first statewide tenure law in 1909, although Massachusetts already had something similar in place.

Teachers are still underpaid (unless they work in Princeton, where the average teacher salary is $78,351). But school boards are barred from exercising nepotism (unless you live in Elizabeth) and school staff members get great benefits.

New Jersey came teasingly close to eliminating LIFO during negotiations over the 2012 tenure reform law known as TEACHNJ. Senator Teresa Ruiz (D-Essex), the architect of the bill, presented a late draft to the Senator Education Committee that removed LIFO as a protection, but put it back at the last minute in deference to NJEA and in exchange for its support.

At the time, she promised a disappointed contingent of LIFO foes that the Legislature would revisit the issue. That time may approach soon.

Boies, drawing on his liberal Democrat roots, will argue that LIFO deprives needy children of equal opportunity and violates their civil rights. He’ll have the additional ammunition of another suit filed by seven minority families who are members of a group called New York City Parents Union. (Reports are that the two suits will be merged.) How closely do teacher unions want to be identified with a policy that obstructs the education of needy children? Maybe it’s time for them to repair that fracture with the Democrats and give up the LIFO ghost.

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Laura Waters is president of the Lawrence Township School Board in Mercer County. She also writes about New Jersey’s public education on her blog NJ Left Behind. Follow her on Twitter @NJLeftbehind.