Portside

In a lawsuit that some say could bankrupt theOrleans Parish public school system, an appeals court has decided that the School Board wrongly terminated more than 7,000 teachers after Hurricane Katrina. Those teachers were not given due process, and many teachers had the right to be rehired as jobs opened up in the first years after the storm, the court said in a unanimous opinion.

The state is partly responsible for damages, according to Wednesday's ruling from Louisiana's Fourth Circuit Court of Appeal. However, its five-judge panel did reduce the potential damages certified by the District Court: Instead of five years of back pay plus fringe benefits, the appeals court awarded the teachers two to three years of back pay, with benefits only for those employees who had participated in them when they were employed.

During the appeal, lawyers said the damages could amount to $1.5 billion.

The class-action case applies to all School Board employees who were tenured as of Aug. 29, 2005, the date that Katrina blasted up the Louisiana-Mississippi line and New Orleans levees failed, flooding much of the city. Many employees were members of the United Teachers of New Orleans, but the appeals court ruled that an earlier settlement with the union did not prevent this case from being tried.

The decision validates the anger felt by former teachers who lost their jobs. It says they should have been given top consideration for jobs in the new education system that emerged in New Orleans in the years after the storm.

Beyond the individual employees who were put out, the mass layoff has been a lingering source of pain for those who say school system jobs were an important component in maintaining the city's black middle class. New Orleans' teaching force has changed noticeably since then. More young, white teachers have come from outside through groups such as Teach for America. And charter school operators often offer private retirement plans instead of the state pension fund, which can discourage veteran teachers who have years invested in the state plan.

Though many schools have made a conscious effort to hire pre-Katrina teachers and New Orleans natives, eight years later, people still come to public meetings charging that outside teachers don't understand the local students' culture.

The 7,000-plus educators were initially placed on "disaster leave without pay" then terminated, a decision that was made final on March 24, 2006.

The circumstances of those layoffs rubbed salt in the wound, plaintiffs said: Notices were delivered to teachers' old addresses, sometimes to houses that no longer existed, and they directed teachers wanting to appeal the layoff to come to the School Board's building, which Katrina had destroyed. This happened even though state-appointed consultants Alvarez & Marsal had set up a hotline to collect teachers' evacuation addresses.

Meanwhile, the state took over almost all the city's public schools and radically expanded the opportunity to charter them. The tragedy of the storm offered the opportunity, reformers said, to make big changes that would give the children the education they deserved.

Schools reopened one at a time or in handfuls, in a decentralized system. The charters had complete control of their own hiring.

The defendants in the suit sought to justify the layoffs by saying they had no idea when or how many schools would reopen, and that they could not keep paying teachers for jobs that no longer existed. Almost all its schools had been taken over by the stateRecovery School District, and the few remaining Orleans Parish public schools were dependent on state per-pupil funding to operate. With no students, there was no money.

In the end, the Orleans Parish School Board directly ran only six schools, down from more than 120. As of last year, the School Board directly employed only 600 people.

Civil District Court Judge Ethel Simms Julien initially ruled for the teachers in 2012. The appeal was argued in May. 

The reduction in force

The appeals court panel that ruled Wednesday was composed of judges James McKay III, Edwin Lombard, Paul Bonin, Daniel Dysart and Roland Belsome, who wrote the opinion.

It said the School Board had the right to institute a reduction in force. But the method used by the board denied teachers their constitutionally protected right to be recalled to employment, the court said. Even with the schools closed, the School Board was legally required to create a "recall list" of teachers who were available to return to work. The board did not, even though it had that information.

Furthermore, the School Board should have used that list to rehire employees for jobs as they opened for the next two years.

"In failing to create the recall list, the appellees lost the opportunity for employment for a minimum of two years," Belsome wrote.

The court's decision did not address the question of whether employees had been properly notified of the layoffs or given a meaningful opportunity to appeal.

The state's role

During the appeals hearings, the judges challenged the plaintiffs to explain why the state was liable. The judges suggested the plaintiffs targeted the state for fear the local School Board wouldn't be good for the money.

Julien, the trial judge, had ruled the state was responsible for two reasons: Officials interfered wrongly with the teachers' employment contracts, and the state was a partner in managing the schools at the time. Cecil Picard, the state education superintendent at the time, had signed a memorandum of understanding with the School Board to overhaul the local board's finances, which resulted in consultants Alvarez & Marsal coming in.

The appeals court overturned both arguments. It said the memorandum of understanding did not create a broader legal partnership, and state law gave Picard the authority to take over New Orleans' schools, which resulted in the layoffs.

However, the appellate judges did think the state had some role: It should have rehired some of the teachers itself for the schools it commandeered for its Recovery School District. The law governing the state district says that when schools are taken over, existing teachers "shall be given priority consideration for employment in the same or comparable position."

Wrote Belsome: "There is absolutely no evidence that qualified appellees were provided the consideration mandated by the statute. To the contrary, the record clearly shows that the state advertised for these positions nationally and contracted with Teach for America to hire inexperienced college graduates (who) did not have teacher certification."

For that reason, the state is responsible for an extra year of back pay and benefits to teachers who would have met the criteria to be rehired. That's much lighter than Julien's initial ruling, which made the state equally responsible with the Orleans school system for five years of back pay plus benefits.

Brent Barriere, lead attorney for the School Board, said he thought employees would not get paid if they had found other jobs.

Reaction

Willie Zanders, lead attorney for the plaintiffs, said the unanimity of the decision indicated the strength of their arguments.

"I'm very pleased and humbled at the same time," he said. "We have experienced, through the funerals and the phone calls, a lot of the hardships these educators have had to endure." Gwendolyn Ridgley, one of the seven lead plaintiffs, died in 2012.

He added, "It's a victory for them even though it's not the final step," referring to the state and School Board's right to appeal.

Barriere said the School Board was not ready to discuss the likelihood of an appeal. State Education Superintendent John White did not respond to a request for comment.

As expected, the union's parent organization, the Louisiana Federation of Teachers, was thrilled with the Fourth Circuit's ruling.

"These employees suffered a dual tragedy: Once when the levees broke and another when their livelihoods were taken from them," said federation attorney Larry Samuels.

But Carter, of United Teachers of New Orleans, said he thought the anger among veteran educators had begun to subside as newer teachers -- some of whom have joined the union -- understood "it wasn't the educators who were here who were the problem" before the storm. He supported what he called the "renaissance" in New Orleans education.

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Tenured New Orleans pre-Katrina teachers who want more information may email the plaintiffs' legal team at nopsejustice.com.