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LIFO surprise: With contentious ‘last in, first out’ suddenly gone from statute, where are teacher layoff policies headed?

Even if it didn’t take center stage this year, the debate over how much of a role seniority should play in determining teacher layoffs is contentious and longstanding.

State Rep. Jenifer Loon, far right, authored the bill removing LIFO as the default policy in state statute.
MinnPost photo by Erin Hinrichs

While debates over teacher licensure reforms, school funding and failed pseudo voucher bills dominated the education agenda at the Capitol this year, a pretty significant policy measure passed without much commotion: the “last in, first out” layoff policy, commonly known as LIFO, is no longer written into state statute as the default for districts and union leaders who can’t reach an agreement during negotiations on how layoffs should otherwise be handled.

The LIFO policy is pretty self-explanatory. “Literally, the last person hired is the first person to go, regardless of their effectiveness in working with students,” explains Gary Amoroso, executive director of the Minnesota Association of School Administrators.

Even if it didn’t take center stage this year, the debate over how much of a role seniority should play in determining teacher layoffs is contentious and longstanding. Teachers unions and many DFL lawmakers contend LIFO is a safeguard for tenured teachers who advocate for their students and shouldn’t have to worry about retaliation from administration. They also view it as a way to ensure that senior teachers who have moved up the payscale aren’t cut, come budget crunches, simply because a district could hire or retain newer teachers for a fraction of the cost.

On the other hand, a number of Republican lawmakers, school district officials and education reform folks — joined by the Star Tribune editorial board, which wrote an editorial opposing LIFO in March — insist that a layoff system that doesn’t take things like teacher quality into account actually hurts schools and students, especially students of color. That’s because the least experienced teachers tend to be working in schools with higher concentrations of minority and low-income students. During a round of LIFO-based layoffs, these teachers are laid off first; and since they make the least amount of money that may mean laying off more teachers.

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Given all of the bipartisan work that took place this session to address the teacher shortage in subject areas like English as a Second Language, special education and career and technical education, along with the push to diversify the teacher corps, the details of a layoff policy may seem inconsequential. But, in reality, schools are still facing budgetary hardships and issuing pink slips for a number of reasons, whether it’s tied to declining enrollment, programmatic changes or some other factor. And while it’s safe to say that nobody wants layoffs to occur, districts and unions still need to have layoff policies in place.

The big difference, moving forward, is that the power dynamics between the two parties at the negotiating table are now a bit more even. In theory, districts always had the opportunity to negotiate something different from a LIFO-only policy. But when the unions’ preferred option was already established as the fallback in state statute, they had little to no incentive to entertain alternative proposals, opponents of the policy say.

“Now that that default is gone, it will require more meaningful conversation around reforms and the ULA [Unrequested Leave of Absence] process,” said Kirk Schneidawind, executive director of the Minnesota School Boards Association. “Hopefully the boards and school reps of teachers will look at this as an opportunity to strengthen our teaching profession, as well as our school districts.”

‘It was a big surprise’

The chair of the House Education Finance Committee, Rep. Jenifer Loon, R-Eden Prairie, authored the bill removing LIFO as the default policy in state statute. It’ll go into effect at the start of 2019, a delay that’ll give districts and unions a bit of a cushion to figure out how they want to approach this piece of their contract during the next bargaining cycle.

Kirk Schneidawind
Kirk Schneidawind

Now completing her fifth term in the Legislature, Loon says she’s been working on this piece of legislation since her second term and is “still kind of pinching” herself that it passed this year. It’s gone through various iterations, including a more prescriptive attempt to tie layoff policies to the new teacher evaluation systems that districts and their respective teachers unions recently adopted. This year, the bill coming out of the House was straightforward: Simply, there is no more default layoff policy.

“I’ve had a lot of districts that have come to me and said they’d really like to see this change,” Loon said. ‘There hasn’t really been any interest or willingness, on the part of the teachers bargaining unit, to work on something different than seniority and now they’ll have to. I think we’ll see how well everyone comes to the table in the spirit of starting with a blank piece of paper.”

She’s under no illusion that districts will suddenly look to cast away seniority as a factor in shaping layoff policies. But she’d like to see it coupled with some other factors, rather than serving as the sole criterion, she says. That could help prevent putting schools in a situation where, when faced with having to reduce personal costs, they are forced to cut standout teachers who haven’t yet accrued tenure.

An example

Just this spring, for instance, a former state teacher of the year, Tom Rademacher, found himself in this predicament because he’d moved back to the school he’d previously taught at for six years and was back at the bottom of the pecking order, as far as seniority goes, when layoffs happened this year. While Rademacher has been public about not wanting to be dubbed the poster child of the anti-LIFO campaign — because he’d rather see changes made so no good teachers have to be let go — it’s the sort of thing that really casts LIFO-only policies into question.

“I’m hoping this will be another tool or another strategy of saying, ‘You know, maybe we’re gonna start looking at our newer teachers and the ones who are just hitting it out of the park, and there should be some protections for folks if we have to do layoffs,’” Loon said.  

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Asked why the removal of LIFO ended up passing this year, she says it’s still unclear what changed Gov. Mark Dayton’s mind. He’s vetoed similar legislation in the past, but told media he’d be more willing to support a LIFO repeal once the new teacher evaluation system was in place.

Denise Specht, president of Education Minnesota, the state teachers union, says it’s long been a priority for House Republicans, but she wasn’t expecting to see any movement on this issue this year.

“You didn’t see from us anything around it because we thought it really wasn’t going to be part of the final package. And it was a big surprise,” she said.

In a press release sent out during the special session she asserted that the removal of this state statute doesn’t necessarily mean things should, or will, change at the local level. “There’s nothing in this bill preventing districts from carrying existing polices forward, and we expect most districts will do so,” Specht said in the press release.

Denise Specht
Denise Specht

Moving forward, she says she’ll be advising local teachers unions to ensure that any modified layoff policies that may take things other than seniority into consideration are not arbitrary or discriminatory against teachers who are doing things like “speaking truth to power, speaking up about services that students aren’t receiving at their schools, or giving an honest grade to a student who might be an influential member of the community.”

She has concerns about how teachers issued a Tier 1 license under the new licensure system — the lowest rung of licensure that will encompass teachers without any formal teaching background — will not be subject to the newly bargained layoff policies. But she’s even more concerned with how the LIFO repeal could, in her estimate, exacerbate the current teacher shortage. Studies in other states — like Louisiana and Illinois — have shown that a lack of tenure or job security has resulted in teachers leaving the profession — teachers of color, in particular — she said.  

It’s too early to tell what sort of an impact the state-level LIFO repeal will actually have on schools. But Specht suspects there’s not much of an appetite, on the local level, to use anything other than seniority.

“There are some locals that are probably going to just put seniority in their contract because it’s easy, it’s predictable,” she said. “We actually hear that a lot of superintendents and principals like it because sometimes having those tough conversations, it’s hard for them. We also believe that teacher development and evaluation law might play into this.”

Looking beyond seniority

While people on both sides of the LIFO debate seem to agree that seniority will continue to play a predominant role in local layoff policies, some believe the repeal of LIFO will, in fact, inspire some more creative layoff policy negotiations.

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Josh Crosson, senior policy director with the education reform group EdAllies, says he and his colleagues have done a lot of research on layoff policies and haven’t found a single district that uses something other than “last in, first out” for determining teacher layoffs. Some districts tinker around the edges. For instance,  if two teachers are hired at the same time and one needs to get cut, they might do a coin flip to see who gets to stay in the classroom, Crosson explained, citing a 2015 investigative story by Ricardo Lopez in the Star Tribune.

Nationally, Minnesota is joining the ranks of a handful of other states that leave layoff policies completely up to the discretion of local districts. According to a 2015 state analysis conducted by the National Council on Teacher Quality, 19 states currently fall into this category. Another 19 allow seniority to be considered with other factors, 10 require seniority to be considered, and three states prohibit seniority from being a factor altogether. A closer look at how layoff policies are crafted in 35 large districts in the 19 states that leave layoff decisions at the district level shows that 19 use seniority as the sole or primary criterion. Only 14 percent use performance as the sole or primary criterion.  

“My guess would be that even though it’s no longer in state law, the status quo is still going to be the default unless there’s a specific effort to change it. And that is a battle that can often require a lot of political capital on the side of the district,” said Kency Nittler with the National Council on Teacher Quality.

Even so, she says that the repeal of LIFO legislation in Minnesota opens up a number of new possibilities for districts to factor criteria other than seniority into their layoff policies. For instance, some districts might look to negotiate a system that buckets teachers into groups based on their performance-evaluation ratings. Those with the lowest level of ratings may be let go first. From there, any additional cuts might be based on seniority. In some policies she’s observed, districts have adopted a point system where teachers can get points for their performance evaluation. This portion often carries the most weight, but they can also get points for things like experience, leadership roles, or other measures of professional growth.

“I think there are ways to make systems that are not purely 100 percent based on performance that are certainly much less quality blind than ‘last in, first out,’ but are perhaps palatable for the negotiating table,” Nittler said.

Schneidawind says he’s already been fielding inquiries from school board members who are looking for guidance. He predicts some districts will start having conversations around factoring teacher evaluation into the process. Some have already negotiated a modified seniority list, he added.

But now that districts and unions will be required to have a conversation about this, perhaps more districts will consider ways to prioritize holding on to teachers with certain qualifications during layoffs, like those who hold multiple licenses, for instance.

Loon suspects any new priorities that emerge will look very different from district to district. Perhaps a district that’s really invested in offering concurrent enrollment courses will take into account those who have the postsecondary credentials required to teach these courses. Or districts that have invested in a grow-your-own program, to help paraprofessionals and other nonlicensed staff become licensed teachers, might look to add special provisions to their layoff process.

What Osseo Area Schools did

The Osseo Area Schools serves as a good example of what this could look like. In their current teacher contract, they pushed for and secured a buffer for those who complete their grow-your-own program. Once these teachers have completed their student teaching in the Osseo district and coursework through Metropolitan State University, and obtained their teaching license and continuing contract status with the district, they are awarded up to two additional years of seniority.

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Judy McDonald, executive director of human resources for the district, says they’ve viewed the default LIFO-only policy as an obstacle to recruiting and retaining a high quality and diverse workforce.  

“We are absolutely always interested in negotiating something so that we put the best teachers in front of our kids and that we have more autonomy determining who the best teacher is other than seniority and using multiple variables, if that is possible,” she said. “So we certainly have a strong interest in negotiating. And I’m sure Education Minnesota has a lot of strong interests as well, so it’s going to be a matter of putting our interests on the table and seeing if there’s a way to reach some kind of middle ground.”