Court defends Rhee's layoffs
Budget cut necessitated action eventually, judge says

By Bill Turque
Washington Post Staff Writer
Wednesday, November 25, 2009

A D.C. Superior Court judge on Tuesday upheld Chancellor Michelle A. Rhee's decision to lay off 266 public school teachers and other educators to close a budget gap, flatly rejecting union arguments that she contrived financial problems to rid the system of older instructors.

Judge Judith Bartnoff ruled that the Washington Teachers' Union failed to prove any of its core contentions in challenging the Oct. 2 job cuts that triggered the most turbulent month of Rhee's 29-month tenure, which included student protests, union rallies and D.C. Council hearings. The union filed suit five days after the layoffs, branding them an illegal mass firing and calling for the teachers to be reinstated while the matter was turned over to an arbitrator.

But Bartnoff said that given the school system's fiscal condition after the council cut $21 million from the school budget July 31, a reversal of the layoffs would only force Rhee and Mayor Adrian M. Fenty (D) to make other cuts.

"The District asserts, and the plaintiff has not disputed, that in that event, other staff would be subject to a RIF [reduction in force] -- even further into the school year -- or programs that have been deemed essential would have to be cut," Bartnoff wrote in her 23-page opinion. "Such an action would not benefit DCPS, its teachers, students or staff, or the wider District of Columbia community."

D.C. Attorney General Peter Nickles called the ruling "a slam dunk."

"I'm very gratified," he said. "All of this shrill rhetoric about lawlessness and the RIF being a pretext was completely refuted in a court of law, where everyone got their chance to present witnesses and evidence."

George Parker, the union president, did not respond to a phone call seeking comment.

Union attorney Lee Jackson argued that Rhee, in essence, went on an illegal hiring spree over the spring and summer, bringing more than 900 new teachers on board knowing that she would need to make cuts later. The union claimed that Rhee sought to move out older teachers in favor of younger ones that she wanted to hire.

Bartnoff did not address that allegation but said the union failed to provide any substantive evidence that Rhee packed the system with more teachers than she could pay for. Lisa Ruda, Rhee's chief of staff, testified at a Nov. 5 court hearing that before the council reduced the agency's 2010 budget by $21 million, the school system had enough money to pay for all of its teachers.

Bartnoff did not, however, mention testimony at the Oct. 29 council hearing, when Noah Wepman, the school system's former chief financial officer, disclosed "spending pressures" in the agency's 2009 budget before the council's budget cut.

Bartnoff acknowledged the testimony of teachers union witnesses who said that the decisions to lay them off were unwise or motivated by "inappropriate considerations."

Nevertheless, she added, "some questionable RIF decisions do not establish that the RIF was a pretext for a mass discharge, given the undisputed evidence that the DCPS budget was sufficient to support the existing staff and the new teachers" prior to the council action on July 31.

Bartnoff said the union failed to meet the multipronged legal test for winning a preliminary injunction, the legal vehicle teachers hoped could be used to roll back the layoffs. The criteria include the likelihood of ultimately winning its case, which was doubtful in Bartnoff's estimation.

The union's collective bargaining agreement with the city does not provide for arbitration in cases of job cuts caused by budget difficulties. Under District law, employees who believe they've been unfairly laid off can file an appeal with the Office of Employee Appeals.

The judge also ruled that the layoffs, while personally painful to many teachers, did not meet the definition of "irreparable injury" required to win an injunction. Nor do the job cuts irreparably harm the teachers' bargaining unit, she said, despite accusations that Rhee is intent on breaking the union.

Some of the laid-off teachers said they were not surprised by the ruling, given Bartnoff's negative comments at the court hearing.

"I expected it," said Cynthia Hill, a former biology teacher at Ballou High School, who criticized the union's legal strategy of attempting to take the matter to arbitration. "Nobody can represent anybody that badly, I think.

"It's almost like they're in bed together anyway," she said, referring to Parker, Rhee and Bartnoff.

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