Hail to the Chief ... Justice

After treating myself to taking June off, I found my email filled last week with inquiries about the sudden, and unexpected, retirement announcement by Chief Justice Sue Bell Cobb. Judge Cobb, one of two Democrats currently holding statewide office, and the only one on the appellate courts, will be missed. She has brought leadership to the Supreme Court, not only as a tireless and forward-looking administrator of the state judicial system, but as a courageous voice of moderation and justice on a court dominated by Fortune 500 rubber stamps. Before her tenure on the highest court, she served for 12 years on the Alabama Court of Criminal Appeals, where she frequently took the position that - imagine this - the law had to be upheld, even if that meant a conviction was reversed.

Perhaps nothing calls to mind her judicial courage more than her opinion in the case of Wilson v. State, 830 So.2d 765 (Ala.Crim.App. 2001). Theresa Wilson was the poster child for what can go wrong in the war on drugs. A 28-year-old mother of two small children, Wilson became addicted to narcotic painkillers prescribed to her by her physician for her fibromyalgia. Unable to work, she sold a portion of her painkillers to an undercover officer for money to pay her utility bills. The officer then goaded her into procuring more drugs, which turned out to be prescription morphine a similarly-strapped neighbor provided her to sell, for a share of the cut. That diluted morphine mix turned out to be 41.8 grams - 1.47 ounces - over the threshold for Alabama’s drug trafficking law. Her naïveté in drug sales was manifest; she let the narc leave with the drugs, without full payment. Wilson had no prior criminal record. Because Wilson’s second, police-encouraged sale was 1.47 ounces over the limit, she was sentenced to a mandatory term of life imprisonment without any possibility of parole or early release.

Noting that the trafficking law under which Wilson was charged is legally titled the “Drug Baron’s Enforcement Act of 1986,” and that “Wilson does not fit into that category,” Judge Cobb wrote a detailed opinion, explaining how the precedent of the United States Supreme Court required constitutional review of such sentences, and held that while Wilson’s crime was serious, leaving prison in a pine box was cruel and unusual punishment. (Republican Judge Kelli Wise, now a Supreme Court Justice, agreed with Judge Cobb and wrote a concurring opinion. Republican Judge James Shaw, who defeated Judge Deborah Bell Paseur to join the Supreme Court in 2006, dissented, saying that “the majority’s decision is impermissibly based on a concept of natural justice.”) Contrary to Judge Shaw’s opinion, no convicted trafficker has been released since the Wilson case on a similar basis, but our prisons - as Chief Justice Cobb has recently pointed out - are still overflowing with nonviolent minor drug offenders.

One of the recurring themes of emails and calls I have gotten since Judge Cobb’s announcement has been its impact on the prospects of the Alabama Democratic Party. Does this yet further signal the Party’s demise? Is there any hope for the Judicial System? When will we again be a competitive party? Will Judge Cobb ever return to politics?

All are good questions. As to the first, many will overstate its significance to the Party’s prospects. I understand that the condition of Judge Cobb’s mother - to whom she is especially close - is indeed serious. This retirement may mark one of those rare occasions in politics when a statement regarding “more time with my family” is indeed the truth. Her retirement may also have intended political consequences with respect to her successor. Governor Bentley is likely to appoint someone from his faction of the GOP to the vacancy, rather than someone from the Business Council-Riley wing. This would give such an appointee the advantage of campaigning in 2012 as an incumbent, and Judge Cobb may have intended to thus lessen the Business Council’s voice on the Court.

The history of appointed Supreme Court justices in Alabama is a mixed one. It features one unlikely hero, at least in the mind of the progressive Democrat: Fob James. James shattered the racial barrier on the modern Supreme Court with his 1980 appointment of Oscar W. Adams. When Adams retired, Jim Folsom Jr. appointed Justice Ralph Cook, who is also black, to the vacancy. Don Siegelman appointed a second black Justice, Judge John England, to the Supreme Court during his administration. Both seats were eventually lost to white Republicans in 2000, although Judge Cook did narrowly win one full term in the 1994 elections. Racial animus, however, is not the only reason appointed judges fail to win election after appointment, and the partisan sword is two-edged. Judge Cobb won her seat as Chief Justice in 2006 by defeating Riley appointee, and serious corporate ho, Drayton Nabers. Expect a heated GOP primary for the job in 2012, with current Justice Lyn Stuart the likely Business Council candidate. (Having written elsewhere about the all-white Alabama appellate judiciary, I won’t urge Governor Bentley to show Fob’s courage and appoint someone doomed to lose the Republican primary - but it would be a tremendous gesture.)

As to the personal future of Judge Cobb, I wouldn’t be surprised to see her back someday. Her retirement remarks didn’t foreclose the possibility. The 2014 gubernatorial race is a long way off. It’s a good two years before a 2014 nominee will have to seriously hit the fundraising and rubber chicken circuit. This should provide her with plenty of time to spend with her family and catch her breath after 30 years of nonstop public service. Should she run, there is a good chance she would not have serious primary opposition. The Democratic bench isn’t as deep as it was in the early 90’s; if Lucy Baxley retires from the PSC, we may well have no incumbent statewide Democratic officeholders going into 2014. One or two legislators whose names have come up in recent years as gubernatorial possibilities either lost their seats in 2010, or had close shaves that might reflect on their electability. Ron Sparks would be a strong candidate for another try, but his acceptance of a position in the Bentley administration indicates he’s not looking in that direction. Finally, if Bentley loses the Republican primary to a Business Council ally, Judge Cobb could count on substantial financial support from AEA in the general election.

Whatever the future holds for her, Judge Cobb deserves a “thank you” from each of us in the Democratic Party - and in Alabama.

Three to Life - The Myths of Teacher Tenure “Reform”

JUNE 5, 2013 NOTE TO THOSE WHO FIND THIS PAGE: I HAVE NOTED ON MY TRAFFIC LOG THAT THIS PAGE CONTINUES TO GET A LOT OF HITS FROM SEARCH ENGINES, BASED ON SEARCHES FOR “ALABAMA TEACHER TENURE LAW.” I AM FLATTERED BY THE CONTINUED ATTENTION. YOU SHOULD KNOW THAT SB301 PASSED ON MAY 26, 2011, AND SOME, BUT PERHAPS NOT ALL, OF THE PROVISIONS OF SB310 DISCUSSED IN THIS POST ARE NOW LAW. YOU SHOULD CONSULT AN ATTORNEY OR, IF YOU ARE AN AEA MEMBER, YOUR UNISERV DIRECTOR FOR ADVICE ON THE LAW AS IT PASSED. THANKS!

One of the more closely watched bills at this stage of the 2010 Regular Session of the Alabama Legislature has been SB310, a Republican proposal to “reform” the teacher* tenure law in Alabama. The list of the bill’s sponsors reads like a Who’s Who of the hard-core GOP political apparatus: Senators Pittman, Dial, Waggoner, Marsh, Taylor, Beason, Williams, Blackwell and Whatley. The bill’s main sponsor, Sen. Trip Pittman of Baldwin County, has been quoted as saying the object of his bill is “making it easier for school boards to get rid of the bad ones [teachers].” (Please note how the linked story from The Birmingham News contains a couple of short “balance” quotes from AEA Executive Director Paul Hubbert, and devotes many column-inches to quotes and “horror stories” from the bill’s proponents. Nice balance, Si.) The Mobile Press-Register has fallen in line with the Business Council line on the bill.

Don’t believe that hogwash. This bill, pure and simple, has two objectives: (1) punishing teachers who, through AEA, supported Democratic legislative candidates in 2010, and provided support for Gov. Robert Bentley in the 2010 Republican Primary over Business Council insider Bradley Byrne; and (2) intimidating teachers from such political activity in the future.

Before getting into the specifics of the bill, let’s take a thumbnail view of the tenure rights of a classroom teacher under current Alabama law. (Slightly different standards and procedures apply to principals and other supervisors.) First off, a school board may non-renew a teacher’s contract before the end of their third year on the job for good cause, bad cause, or no cause at all. After that time, a teacher is considered tenured, or in the awkward language drafted by a lawyer, has “attained continuing service status.”

Let’s suppose that a tenured teacher is accused of having shown up at school on a couple of occasions under the influence of alcohol. The teacher denies this. Let’s assume for the sake of argument that the teacher was in fact as sauced as Otis Campbell on the days in question. Whether the superintendent and board of education propose to terminate the teacher, or suspend him for more than seven days, the procedures are roughly the same.

First, the board must give written notice to the teacher, setting forth the proposed discipline and the general grounds for it. A tenured teacher may only be fired for “incompetency, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner, justifiable decrease in the number of teaching positions or other good and just cause.” The teacher may then insist on meeting with the board before it votes, and that hearing must be held between 20 and 30 days of the notice. If the board votes to fire or suspend the teacher, the teacher may ask for a hearing before a neutral arbitrator. If the teacher and the board can’t agree on an arbitrator, one is appointed by the Federal Mediation and Conciliation Service, a federal labor agency. That arbitrator (called a “hearing officer” in the statute) must hold a hearing between 30 and 60 days after his or her appointment. The arbitrator may uphold the firing, may reverse it and order the teacher reinstated, or may impose a lesser sanction such as a suspension or reprimand. (Such a reprimand could be considered if the teacher ever screws up again, and an attempt is made to fire him.) Either party may ask the Court of Civil Appeals to review the arbitrator’s ruling, which may only be reversed if that Court finds the arbitrator’s ruling “arbitrary and capricious.” Suspensions of less than 7 days, or of transfers to another school in the same system, are subject to a similar procedure, except that the arbitrator’s ruling may not be appealed, and is final. A teacher’s contract is not “canceled,” i.e., he is not fired, until the hearing officer issues his or her opinion, and he must continue to be paid. This safeguards the innocent teacher from being starved into accepting a lesser punishment, transfer, or abandoning a meritorious fight for his job. Except for the substitution of a prompt hearing with an arbitrator for a hearing with the former State Tenure Commission, this is basically the law as it has existed since 1939.

So, if our hypothetical teacher actually did have a pint of Mr. Boston Vodka for breakfast, he will be fired in fairly short order, but not without an adequate opportunity to establish his innocence. He also has the right to prove to the arbitrator that he is in fact the best teacher in the system, the alcohol problem is the result of a recent family problem, that he’s getting help for it, and that both he and his students would be better off if he were given a lighter sanction. I guess the sponsors of the bill would rather replace this unfortunate chap with a rookie. Or someone who wouldn’t dare support a Democrat.

According to the Alabama Association of School Boards, which is pushing SB310, since the arbitrators replaced the Tenure Commission, they have heard 145 termination cases. The school boards have won 83 (57%) of those outright; the teacher was fired. Teachers have been reinstated without sanctions in only 20 cases (13%), and in 42 cases (29%); the arbitrator has imposed a lesser sanction on the teacher. It sounds like there is a real need for the current safeguards for a number of teachers, but that boards of education are well able to get rid of the true bad apples.

SB310 makes some draconian changes to the law that has worked well since 1939. Among these are:

• Probably the worst aspect of SB310 is that it radically amends the procedure for a teacher to obtain neutral review of his or her dismissal. Instead of a speedy hearing before a neutral arbitrator, the teacher would be forced to file an action in the local circuit court, where it would go on the docket behind every other earlier case. Chief Justice Sue Bell Cobb recently ordered drastic reductions in court operations in response to budget shortfalls. In this environment, those reviews would take months - or more likely, years. Years during which, under SB310, the teacher would not be getting paid. And the circuit judge would not have the discretion an arbitrator has under the current law to impose a lesser sanction. The judge would have to work from a typed transcript of the board’s “hearing,” and could not observe the demeanor of witnesses, as they would in any other case, to assess the credibility of the witnesses. (Under current law, the hearing officer observes both the teacher and the witnesses against him at a live hearing.) Finally, the judge could only reverse the board on “an express finding by the court that the decision was arbitrary and capricious, a manifest abuse of discretion, or the product of a material violation of the procedural rights of the employee.”
• In addition to the current limited grounds for firing, SB310 provides that a teacher could be fired for “a consistent or pervasive record of inadequate student achievement or performance under the employee’s supervision.” In other words, a first-rate career educator could be fired if her students perform poorly on tests, even if that’s because she’s teaching in an overcrowded, under-equipped school in a socioeconomic disaster zone, where students have never done well on standardized tests. The board doesn’t have to fire her, mind you, but if she dares support the wrong candidate in the next election, those scores are grounds for termination.
• SB310 would eliminate all independent review of a suspension of a teacher for less than 45 days. No arbitrator, no independent hearing, no nothing. In case you don’t grasp the full import of this measure, consider that teachers are usually paid over twelve months for nine or so months’ work. A non-reviewable 44-day suspension would result in the loss of nearly a quarter of the teacher’s annual salary. If I were a superintendent wanting to settle a personal score, a 44-day suspension might work better than a termination that might be reversed on review.
• The bill likewise removes all transfers to another school from the current review process. This may not sound like an issue to many non-teachers, but I have at least 15 teachers in my immediate extended family, and you can rest assured transfers have historically been used for retaliatory purposes. Transfers are often not benign. Suppose that I were a teacher at Orange Beach Elementary School in Baldwin County, and I had even bought a home near there after gaining tenure. If I dare support the opponent of an incumbent school board member, she can arrange to have me transferred to Vaughn Elementary School in Stockton which, according to Google Maps, is 63 miles and 1 hour 39 minutes from Orange Beach Elementary. In an era of $4.00 a gallon gas (those are stop-and-go, not freeway, miles), that’s not a hassle, it’s an economic hardship.

As I noted starting out, this is all being done in the name of academic standards. SB310 is even called “The Students First Act of 2011.” This proposal, and others like it, have occasionally garnered support from fuzzy-headed otherwise-progressive Democrats who also insist that charter schools wouldn’t re-segregate Alabama education. A news flash for them: educational employment in Alabama is already knee-deep in Big-P Politics. SB310’s virtual abolition of tenure would give incumbent local board members and elected superintendents a green light to fully politicize the hiring processes in their systems. (Which might have the unintended political effect of entrenching Democratic machine control in places like the Black Belt, where boards are solidly Democratic.) It also greases the rails for those local board members who need to transfer or fire a qualified, experienced teacher to make room for their niece or nephew who just got out of college and needs a teaching job in the home county. There’s nothing “Students First” about that.

One of the weak excuses given for this bill is that it’s “too hard to fire an incompetent teacher in Alabama, and we have to make it easier for the sake of educational standards.” It takes three years for a teacher to attain tenure under current law. Three years. Does anyone think it takes New England Patriots Coach Bill Belichick three seasons to decide if a player is good enough for his team? If a teacher is that substandard, three years is plenty of time to figure that out, and get rid of him.

The bill’s prospects are sadly good, in the current machine political atmosphere of Montgomery. A handful of Republicans like Sen. Cam Ward of Shelby County, and Reps. Blaine Galliher of Etowah County, Todd Greeson of DeKalb County, and Owen Drake of Jefferson County, seem to be vacillating on the bill because of its extreme reach. A veto by Gov. Bentley would not be surprising, given his political debts to AEA. Of course, a simple majority overrides a gubernatorial veto in Alabama, and the kleptocratic GOP leadership wants this bill badly. They have rebuffed Dr. Hubbert’s public offer to support any bill, in his words, “to expedite the hearings and have them quicker and more efficiently,” which would remove one of the major complaints of SB310’s sponsors. I, for one, would forgive any Democrat who reached out to these Republicans to encourage them to remain independent of the latter-day Boss Hoggs trying to impose their iron hands on the legislative process. This bill would also be a good opportunity for my readers to try out the site’s newest feature: a page with hyperlinks for e-mailing letters to the editor of most of the newspapers in the state.

Politicians have had it in for teachers since at least 399 B.C.E., when Anytus and Meletus, a couple of extremists in the Athenian Assembly, arranged for the execution of Socrates, whose teaching was not acceptable to the political powers that were. Opposing the contemporary version of this unibrow hatred of education is as good a cause as any to rally around in this session. And I wouldn’t be honest if I didn’t acknowledge my glee at the way GOP overreaching is turning teachers into Democratic activists at a pace Dr. Hubbert can only dream of achieving.

*Although I use the word “teacher” throughout this post, the tenure law also applies to a wide range of support personnel such as custodians, bus drivers, and cafeteria workers. I just figure you don’t want to read “and/or support personnel” 60 times.

The Big Mac Attack Continues

Yesterday’s news brought gales of laughter in law offices and courthouses across Alabama. Word hit the state about midday that the Supreme Court campaign of Democratic Judge Mac Parsons of Jefferson County had gotten a $5,000.00 contribution. As I lamented in last Friday’s post, such contributions are neither unusual nor intrinsically noteworthy. What catapulted this particular subvention into the headlines was its donor: Republican Supreme Court Justice Tom Woodall.

Only last week, Judge Parsons, always one of Alabama’s most quotable politicians, had garnered statewide headlines with the pleasingly indecorous pronouncement that Republican Justice Tom Parker, the incumbent whom he is challenging, is “lazy.” In a world where the usual judicial campaign consists of touting how conservative one is, and how liberal one’s opponent, this was a bracing, fresh approach to judicial campaigning. Those who have never experienced Parsons’s wit - which is often as not self-deprecating - would do well to watch his brief remarks earlier this year to the Over the Mountain Democrats:

Both Parsons’s jab at Parker, and the likely motivation behind Woodall’s donation (Woodall refused to comment further) come from Parker’s clear unfamiliarity with the Protestant Work Ethic. Or, for that matter, the work ethic of any other faith or sect. When Parker first went on the Supreme Court in 2005, he was assigned the usual stack of pending cases, most of which had been previously assigned to his predecessor, the unlamented Justice Jean Brown, whom he had ousted in the GOP primary. Within months, whispers were being heard that no opinions had emerged from Parker’s outbox. His reputation for low output has continued throughout his term on the Court.

Probably in anticipation that his output would become a re-election issue, Parker has produced published opinions at (what is for him) a blistering pace this year: 6 since January 1, 2010. But a comparison of the current Justices’ output bears review at this point. Since January 1, 2008, the Court’s current justices have each produced the following number of published opinions of the Court:

Justice	Opinions
Bolin	81
Stuart	76
Lyons	75
Woodall	64
Murdock	64
Smith	60
Cobb¹	36
PARKER	35
Shaw²	21

Maybe Parker indulged a little too liberally (pun intended) at Winter Carnival while at Dartmouth, to be able to put in a full work day. Whatever the cause, he is clearly not pulling his weight on the high court. A number of his cases have, under the leadership of Chief Justice Cobb, been re-assigned to other members of the Court. Normally an insular and collegiate lot, even if ideologically divided, the Court is rumored to be ready to replace Parker. The Woodall contribution may only be the first of several cracks in the partisan edifice.

In large part, this post has been a continuation of last Friday’s, with a special emphasis on the peculiar circumstances of one race. I noted the press given Parsons’s “lazy” comment in passing, but there is an object lesson there for the rest of our judicial candidates, and indeed all our nominees. The Republicans aren’t ten feet tall. They have vulnerabilities. Those weaknesses are usually not hard to find. (In the parlance of political pros, oppo research ain’t rocket science.) And if you take nothing else from either post, please note this - the media love an effective attack! When we dare to land a punch and draw blood, it will be covered! And whether you like or dislike this aspect of American politics, it is this sort of gamesmanship that reaches undecided voters. Unfortunately, if unanswered, it even works when there’s no basis to it. (Remember Willie Horton?) But when it is based on fact, it’s a game-changer.

So by all means, when you email your letter to the editor about the Supreme Court races, don’t forget to tell the reader about how little of his paycheck Republican Justice Parker is earning. More importantly, when you’re planning any other campaign, or ringing the doorbell of an undecided voter, don’t forget that the side that wants to win the most, usually does. Coach Steve Sloan will be remembered by most as a good quarterback, and a nice guy. He was the sort of warm, empathic individual you want calling on friends at the funeral home visitation. He never really showed anger as a coach. He also retired from college coaching with a 68-86-3 record. Nick Saban may not be the teddy Bear (another groaner, I know) type, but ... you get the point.

¹ Following the practice of Chief Justices of both parties for decades, Chief Justice Cobb only takes a half-load of opinions to draft, due to the duties of the Chief Justice as both the head of the Supreme Court, and administrative head of the entire Judicial Branch. Please note that if her total were doubled, she would have produced more published opinions than 5 of the 8 Republicans.

² Justice Shaw only came onto the Supreme Court in January of 2009, yet he is already on track to pass Justice Parker in published opinions released before the end of this year.