Union Contracts: Stronger than Acts of God

By 06/28/2012

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Few good things came out of Hurricane Katrina but one has been the transformation of the New Orleans’ school system (see New Schools in New Orleans).  With 110 of 127 schools destroyed and a history of shocking educational failure in the district, management of the district’s failing schools was turned over to the state’s Recovery School District (RSD) while the Orleans Parish School Board (OPSB) retained control over the few remaining viable schools.

Since the schools were destroyed and could not be reopened, the OPSB also fired all 7,000 of the district’s employees and then chose not to renew its contract with the teachers union, which expired at the end of the 2005-06 school year.  The RSD imposed competition on the district by turning most schools into charter schools and eliminating centralized control. Those reforms have led to significant gains in student achievement.  The OPSB also turned most of the schools under its control into charters.

But in America all good things must be litigated.  Seven dismissed teachers filed suit claiming that their dismissal was improper.  Last week a state trial judge, Ethel Simms, in Louisiana agreed and awarded them $1 million in damages. She ruled that the teachers were deprived of a “vested property interest held in their tenured or permanent employment positions” and that they were denied due process. Her ruling provides no explanation for that conclusion.  Attached to her brief order are 40 plus pages of findings of fact that also do not adequately explain why the OPSB lacked the authority to fire the teachers.

Indicating what could either be called educational cluelessness or gross partisanship, Judge Simms also took exception to the fact that charter schools hired instructors from Teach For America “although there were thousands of certified, experienced OPSB teachers available.”

The school board will certainly appeal and it would be shocking if Judge Simms’ decision survives appellate review.  Even if the district didn’t follow precise protocol when trying to notify its scattered employees about their termination, since the union contract expired at the end of academic year they could have no continued “property interest.”  Whatever damages would be limited to the months following Katrina.

The district also had in place a reduction in force (RIF) policy, which allowed it to dismiss employees for “such factors as enrollment decline, budget shortfalls, district reorganization, and program changes . . . even though job performance has been satisfactory.” Leaving aside what percentage of the district’s employees could be said to have performed satisfactorily prior to Katrina, enrollment massively declined both because of population decline but also because students in RSD schools–the overwhelming majority of students–were no longer part of the district.

-Joshua Dunn

Comment on this article
  • Bonnie Capatelli says:

    Mr. Dunn, why didn’t you attack ALL contracts? After all, in our legal system, isn’t a contract a contract? Should I be allowed to disregard the one I signed with my housebuilder if I think public opinion will allow me to get away with it?

    What about the contract that was signed between me and my client. Does she have the right to walk away and dishonor it, betting that in the midst of a major social and ecological disaster, combined with some payoffs and a well-oiled propaganda machine, she can “get away with it”?

    Are you arguing that ALL contracts should be broken whenever one party wants to do so, or JUST those dealing with education?

  • Josh Dunn says:


    Please read my post. I indicated that under the RIF policy, which the union contract was also bound by, the school district had the authority to dismiss the teachers because of the circumstances surrounding Katrina and that regardless the contract expired at the end of the year voiding any “property interest.” Perhaps I’m wrong and the appellate courts will disagree with me but I doubt it.

    I never came close to implying that contracts should be broken whenever someone feels like it. All contracts list conditions under which the parties are no longer bound by the contract.


    Josh Dunn

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