Late on June 6, a Denver district judge dismissed the Colorado Education Association lawsuit challenging the Denver Public Schools’ (“DPS”) adoption of the “mutual consent” provisions in S.B. 191.  The court ruled that plaintiff Cynthia Masters, on behalf of the CEA, failed to establish that the “mutual consent” provisions of S.B. 191 violated the Colorado Constitution’s contract and due process laws.

The “mutual consent” provisions of S.B. 191 amended the Teacher Employment, Compensation and Dismissal Act, C.R.S. §§ 22-63-101 to -403 (“TECDA”), to provide that a teacher may be assigned to a particular school only with the consent of the hiring principal and with input from at least two teachers at the school.  C.R.S. § 22-63-202(2)(c.5)(I). If a displaced nonprobationary teacher is unable to secure a mutual consent assignment at a school of the school district within twelve months or two hiring cycles, whichever is longer, the school district may place the teacher on unpaid leave until he or she secures a mutual consent assignment.  C.R.S. § 22-63-202(2)(c.5)(IV).

The plaintiffs argued that the TECDA created contracts between teachers who earned nonprobationary status prior to the enactment of S.B. 191 and their school district employers, thereby creating vested contract rights that DPS impaired when it effectively discharged nonprobationary teachers in the absence of satisfying TECDA’s dismissal provisions.  The district court rejected this argument, concluding that the language in TECDA did not demonstrate the creation of a legislative contract.

The plaintiffs also argued that TECDA’s for-cause dismissal provisions created a property right in continued employment for nonprobationary teachers.  In rejecting this argument, the district court drew a distinction between dismissals and displacements and determined that case law recognizing continued property rights in dismissal circumstances was inapplicable here.

Though the case has been dismissed, this is not the last that we will hear about the legality of the “mutual consent” provisions of S.B. 191.  CEA has publicly announced its intent to appeal the decision to the Colorado Court of Appeals.  Until a court of final resort rules on this holding, this issue remains unresolved.

Additional Information:

Copy of Decision – Masters et al v. School District No. 1

Denver Post – “Denver judge dismisses tenure lawsuit by teachers against DPS”

For more information about this decision or similar legislative matters and how they may affect your school district or BOCES, please contact Kristin Edgar ([email protected]) or Mike Schreiner ([email protected]). They can also be reached at 303-443-8010.