Minneapolis’ new teachers of color layoff protections: Three things to know

Minneapolis Public Schools is stepping into nearly uncharted territory — and potentially thorny legal ground — with its new policy aimed at protecting teachers of color from potential layoffs.

The new teachers contract, reached last week after a 14-day strike, creates exemptions to seniority-based job cuts, a feat that few other districts in the state have managed. Experts say it’s a novel approach to shielding teachers of color, who tend to be younger and less experienced, from bearing the brunt of last-in, first-out layoffs.

“This is landmark language in a collective bargaining agreement,” said Joseph Daly, a Mitchell Hamline University law professor and arbitrator with the state’s Bureau of Mediation Services. “I’ve never seen language like this.”

The policy seems carefully written to withstand potential lawsuits, which could arise from laid-off white teachers suing the district and claiming they were discriminated against on the basis of race, lawyers said. Still, careful contract language can’t guarantee the school district or union would be immune from litigation.

“We worked closely with the district to be sure we were turning our shared values of retaining underrepresented educators into enforceable contract language,” Minneapolis Federation of Teachers President Greta Callahan said in a statement to the Reformer. “At the same time, we are still preserving seniority rights to protect all members from arbitrary layoffs.”

Here’s what you need to know about the new policy.

What is the new policy?

Under the new contract agreement, effective in spring 2023, teachers will be subject to layoffs or job changes in order of seniority, except if the teacher is “a member of a population underrepresented among licensed teachers.” Previously, jobs were cut exclusively based on seniority.

MPS data shows teachers of color face job changes from budget cuts at higher rates than white teachers. During the 2020-21 school year, nearly 23% of “excessed” teachers — meaning their positions in a certain school or program were eliminated — were teachers of color, while teachers of color made up 18% of the workforce.

Changing the last-in, first-out layoff policy was a point of contention during negotiations. Advocates for adjusting the policy said it was necessary to diversify the school district’s overwhelmingly white workforce — 18% of teachers are people of color, compared to 62% of students— and address achievement gaps between white students and Black, Latino and Native students.

Research shows learning from teachers of color is linked to benefits for students of color, from higher overall academic achievement to improved graduation rates. Experts cite increased teacher diversity as a key component of closing the achievement gap. The teachers union — including some people of color in its ranks — said the issue was a sideshow that sought to weaken the union and its bargaining power.

Could it lead to lawsuits?

It certainly could. Daly of Mitchell Hamline said he wouldn’t be surprised to see the district and union sued by, for example, a more-senior white teacher who was laid off while a less-senior teacher of color kept their job. The white teacher hypothetically could argue the policy violates the 14th Amendment’s Equal Protection Clause, he said.

“Will there be legal problems? Probably the same problems we’ve had for years and years with the concept of affirmative action,” Daly said. “To me, this is an attempt at affirmative action, to bring in and keep teachers who look like the kids they’re teaching.”

But it’s difficult to predict whether such a challenge would succeed, experts say. A policy that based layoffs on race would clearly be unlawful, said Stephen Befort, a University of Minnesota law professor. Minneapolis Public Schools’ contract doesn’t mention race at all.

“It’s pretty clear that how they crafted the provision, they were trying to make it defensible legally,” Befort said.

What would the court consider in a hypothetical legal challenge?

Phrasing

The policy doesn’t mention race, which better positions the district and union, experts say. The language could apply to Latino teachers, as well as LGBTQ, low-income and multilingual teachers. 

“Trying to match up (demographics of) teachers with children — that’s pretty good language,” Daly said. “That’s a proper objective of a school district and a teachers union.”

Race as sole factor or one of many factors

The U.S. Supreme Court has ruled in college admissions cases that race can be one of many factors in admissions decisions but not the sole factor. Befort said in the event of a lawsuit alleging racial discrimination, he’d want to find out if race was the deciding element or one of many factors in the layoff decision.

Past discrimination

The contract states that the purpose of the layoff provision is to “remedy the continuing effects of past discrimination,” and that “past discrimination by the district disproportionately impacted the hiring of underrepresented teachers.”

The phrasing mirrors some desegregation orders from the 1970s and 1980s, as well as Supreme Court language about affirmative action, said Eric Duncan, a lawyer and policy analyst with national nonprofit The Education Trust.

For example, the majority opinion in a 1995 decision upholding a federal affirmative action program states that “the unhappy persistence of both the practice and the lingering effects of racial discrimination” justified race-conscious hiring practices in some situations.

“If affirmative action is being taken to remedy past discrimination by the entity itself, that helps with legality,” Befort said, noting that proof of how the district’s actions affected teacher diversity would bolster its case.

Diversity

Naming workforce diversity as the policy’s goal would also give the district and union more legal leeway, Duncan said. The Supreme Court has ruled that diversity is a “compelling interest” — satisfying one of the legal standards for race-conscious policies — in several college admissions cases.

“That’s a traditional way that states and districts have worked around (legal barriers) in race-conscious efforts to get more teachers of color,” Duncan said.

In recent years, the Supreme Court has been more skeptical of affirmative action, Duncan said. The 6-3 conservative majority may be poised to overturn affirmative action, after agreeing to hear two cases challenging race-conscious college admissions later this year.