Judge Hears Legal Challenge to SB 736 Teacher Merit-Pay Law

Legal challenge to the law that ties teacher performance to student test scores and merit gets underway in Leon County court....

The Florida Constitution guarantees all public employees, including teachers, the right to collective bargaining. But SB-736 aka The Student Success Act, the new law that ties teacher performance to test scores and merit pay and eliminates continuing teacher contracts, denies that basic constitutional right to public education employees.

The first stop in the SB 736 challenge began in Leon County Second Judicial Circuit court ( 1/16/13) as Judge John Cooper listened to arguements from attorneys for the state and the Florida Education Association. Tom Brooks handled most of the questions for FEA’s side of the argument, with some help from Ron Meyer. The state’s case was argued by Michael Mattimore, a Tallahassee attorney.

Judge John Cooper on bench

Judge Cooper read the written documents and arguments submitted by both sides in advance of the hearing and spent two hours questioning both sides. The FEA contends the law is unconstitutional because it substantially changes the way teachers are paid and evaluated without going through collective bargaining. The state denies the law violates collective bargaining rights, arguing that teachers are still free to negotiate with employers over wages, hours and working conditions.

In 2011, Gov. Rick Scott signed the landmark education bill into law. The new law was hailed as an educational achievement that would help Florida be successful under under the federal Race to the Top program. “We must recruit and retain the best people to make sure every classroom in Florida has a highly effective teacher,” Scott said after signing the bill at a Jacksonville charter school.

Since then, teachers have questioned whether the exams prescribed by the new law could reliably measure teachers’ performance. A few months after the law was signed, a group of teachers represented by the Florida Education Association sued to block it from taking effect.

FEA 736 Legal Challenge in court

This first hearings marks an early, defining step in what could become a long-running legal battle to decide the fate of a central piece of the governor’s education agenda. The teachers argue the Legislature overstepped its authority by changing the terms of their employment, which under the state constitution must be negotiated by their union through collective bargaining.

“The Legislature doesn’t usually get this far in determining things that are normally bargained, but this time they did,” said Thomas Brooks, an attorney representing the teachers in the case with the Florida Education Association, along with his legal partner, Ron Meyer. The state constitution already gives employees the right to negotiate through their unions, and courts have placed some limits on the Legislature’s power to set terms of employment.

Michael Mattimore, the state’s attorney, argued in court papers that the teachers’ “oppressive” reading of public employees’ constitutional right to collective bargaining would prevent the Legislature from passing meaningful education laws. He argued it would also bar lawmakers from passing legislation that affects the working lives of government employees, from safety regulations to drug testing requirements. “There is no constitutional prohibition to legislate the workplace in either public education or any other public employer,” he wrote.

FEA attorney Ron Meyer countered that “although the Legislature had the authority to determine the broad policy goals for improving student learning through Senate Bill 736, it intruded too far” when it set new rules for how teachers are evaluated, paid and rehired.

Leon County Judge Cooper will need to decide whether the merit-pay law violates the collective baragining provision in the Florida Constitution.

In November, the State hired an outside law firm at huge tax-payer expense. This new law firm asserted that the teachers named as plaintiffs lack standing to sue over collective bargaining issues and had waived their right to sue due to the Race to the Top grant applications.

In recent days, Gov. Rick Scott and new Education Commissioner Tony Bennett have said they want to review the evaluation law. They do not question its original goal: to measure teachers’ performance, and base pay and hiring decisions on whether they improve student learning. One of the most widespread concerns about the law is that teacher evaluations are in many cases based on the performance of students they do not teach.

The Scott administration has faced a running tab for lawsuits challenging policies from prison privatization to changes to the Florida Retirement System. The outside counsel for the state is billing $175 per hour for lawyers working on the case, with a contract that runs through June and caps fees at $25,000, court documents show.

Judge John Cooper said he wasn't sure when he will rule. Any decision is expected to be appealed.