by Julie Pelegrin

Before 2010, a teacher who was employed by a Colorado school district for three consecutive years automatically earned the status of nonprobationary teacher, which means the teacher could be dismissed only for certain reasons specified in statute and only after receiving notice and a hearing. With changes made to the law in 2010 by Senate Bill 10-191 (S.B. 191), a nonprobationary teacher can now be placed on indefinite unpaid leave for certain specified reasons – but the statute doesn’t require notice and a hearing. How is indefinite unpaid leave different from being dismissed? The Colorado Court of Appeals recently considered that question.

S.B. 191, which mainly focuses on evaluations for teachers and principals, also includes language about teacher employment. Specifically, the act amends §22-63-202, C.R.S., to say that a teacher cannot be placed at a school unless the school principal agrees to the placement after getting input from at least two of the school’s teachers. This requirement is commonly known as the “mutual consent” provision.

S.B.191 also allows a school district to remove a nonprobationary teacher from the classroom for certain specified reasons. The nonprobationary teacher can apply for a vacant position at a different school, but the mutual consent provision applies. If the nonprobationary teacher cannot secure a mutual consent placement within the longer of 12 months or two hiring cycles, the teacher goes on indefinite unpaid leave. After that, if the teacher secures a mutual consent placement, the school district will resume the teacher’s salary and benefits at the level they would have been if the teacher had not been on unpaid leave.

In January of 2014, the Denver Classroom Teachers Association (DCTA) and five nonprobationary teachers employed by Denver Public Schools (DPS) filed a lawsuit against DPS and the State Board of Education claiming that placing a nonprobationary teacher on unpaid leave as allowed in S.B.191 is unconstitutional. All but one of the nonprobationary teachers were removed from their schools under the S.B.191 provisions. Three of the five teachers were placed on indefinite unpaid leave after being unable to secure mutual consent placements.

The suit makes two claims:

1. The teacher employment statute creates a private contract between the teachers and the school district; the unpaid leave provisions unconstitutionally interfere with that contract; and
2. The teacher employment statute creates a property interest in continued employment for nonprobationary teachers. Placing a nonprobationary teacher on indefinite unpaid leave is essentially the same as dismissing the teacher. So, the provisions that allow the school district to place the teacher on indefinite unpaid leave without giving the teacher due process – notice and a hearing – take away the teacher’s property interest in continued employment in violation of the due process clause of the constitution.

Last March, the state Attorney General and the lawyers for DPS filed a motion to dismiss the lawsuit on the basis that the teachers and the DCTA did not state any claims for which the court could grant relief. The trial court agreed and granted the motion to dismiss in June.

The teachers and the DCTA appealed the trial court’s dismissal order to the Colorado Court of Appeals. And in November, the Court of Appeals reversed the trial court’s order and sent the case back to the trial court for further proceedings.

On the first claim, the trial court recognized that there is a presumption that a statute does not create private contract rights; a statute creates policy that the General Assembly can later change. A person can overcome that presumption by showing that, in passing a statute, the General Assembly actually intended to create private contract rights. But the trial court did not think the teachers and the DCTA had provided any evidence that the General Assembly intended to do that when it passed the teacher employment statutes.

The Court of Appeals disagreed with the trial court. The Court of Appeals looked not just at the current teacher employment law, but at the previous law as well. The Court of Appeals opined that the current teacher employment law is not significantly different from the previous law: The previous law granted a teacher “tenure” after three years of continuous employment and the current law grants a teacher “nonprobationary status” after three years of continuous employment. In the opinion of the Court, “tenure” and “nonprobationary status” are synonymous because they both guarantee dismissal only for cause and only after notice and a hearing.

There is Colorado case law that holds that the previous teacher employment law created private contract rights. Based on this, the Court of Appeals found that the teachers and DCTA have overcome the presumption against creating contracts, and the current teacher employment statute does create a contract between teachers and the school district. Now the trial court must decide whether the S.B.191 provisions substantially impair the contractual relationship and whether the impairment is justified because it is reasonable and necessary to serve an important public purpose.

The Court of Appeals also disagreed with the trial court on the second claim: The S.B.191 provisions that allow a school district to place a nonprobationary teacher on indefinite unpaid leave do violate constitutional due process requirements. The trial court had said that being on indefinite unpaid leave is not the same as being fired; the S.B.191 provisions simply change the rights that accompany employment, they don’t take the right to continued employment away.

The Court of Appeals agreed that, since a person can come back from indefinite unpaid leave at the same salary level, being on indefinite unpaid leave is not the same as being fired. So the teachers who were placed on indefinite unpaid leave were not deprived of the property right of continued employment. But, the Court found that when a teacher is placed on unpaid leave, the teacher’s expectation of continued employment is “disappointed” because the teacher is not working or getting paid. A Colorado Supreme Court case interpreting the previous teacher employment law held that a teacher who is placed on unpaid leave has a right to a hearing to decide whether the teacher was truly placed on unpaid leave for a reason authorized in the statute and whether the placement was made in an arbitrary or unreasonable fashion. Based on this case, placing the teachers on unpaid leave without a hearing, as allowed by the S.B.191 provisions, does deprive teachers of their constitutional due process rights.

On December 17, 2015, the Attorney General’s office and the attorneys for DPS filed a petition for certiorari, requesting the Colorado Supreme Court to review the Court of Appeals decision.