This teachers union brought affirmative action into its layoff practices. Will more follow?

When thousands of Minneapolis teachers walked off the job in March, the nation was riveted.

As the picketing teachers resolved their differences with the school district and finally settled on a contract, what got less attention, at least at the time, was a remarkable clause that upends hallowed seniority-based job protections.

The provision essentially exempts novice teachers of color from so-called last in, first out firing practices in the event of layoffs.

The new clause, language the union and district had been debating for months, doesn't explicitly say Black teachers will be protected over white peers. Still, conservative media have raised that specter in recent weeks. Political figures including former Wisconsin Gov. Scott Walker have condemned the provision, as has a lawsuit claiming discrimination against white teachers filed in late August.

Whether the provision will pass legal muster is unclear: Experts say the extent to which it provides racial protections against layoffs is unprecedented. Either way, it’s emblematic of a new, “unapologetic” brand of teacher unionism that has made it an explicit objective to protect educators – and students – of color, said Eric Duncan, a senior policy analyst at the Education Trust, an advocacy and research nonprofit.

According to Duncan and others, that brand of unionism is growing in popularity – and here to stay.

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The vast majority of teachers are white

As with other public sectors, traditional, and race-neutral, seniority protections are sacrosanct in teaching. “Bread-and-butter collective bargaining is about treating all members fairly and equally,” said Bradley Marianno, an educational policy professor at the University of Nevada, Las Vegas, who studies teachers unions.

The last-in, first-out process historically has been seen as the fairest, and most equal, way of dealing with budget cuts whenever they invariably hit schools. But it's long had its critics, too, including from prominent union foes, such as former D.C. schools chancellor Michelle Rhee, who have argued seniority is a poor proxy for effectiveness. 

And in recent years, racial justice advocates have increasingly questioned the approach given teachers of color tend to be less experienced than the average public school educator.

Roughly eight in 10 of the country’s teachers are white. Despite a growing number of students of color, who now account for more than half of the public K-12 population, and concerted efforts to diversify the pipeline, that rate has hardly budged for years.

The mismatch is similar in Minneapolis. Greta Callahan, president of the teachers unit at the Minneapolis Federation of Teachers, recently told Sahan Journal that roughly two in three of its students are people of color, compared with just 20% of its teachers.

The agreement between the MFT and Minneapolis Public Schools exempts “teachers who are members of populations underrepresented among licensed teachers in the district” from seniority-based layoffs. The contract states this is largely “to remedy the continuing effects of past discrimination.”

The district and union “mutually agreed” to this language “to support the recruitment and retention of teachers from underrepresented groups as compared to the labor market and to the community served by the school district,” district spokeswoman Crystina Lugo-Beach said in a statement to USA TODAY.

What’s so novel – and, as experts put it, so bold – about the provision is the extent to which it protects those 20% of teachers.

Diversity provisions are not uncommon in teacher collective bargaining agreements. In some cases, like a previous iteration of Boston teachers’ contract, the agreements simply apply or spell out long-standing court orders somehow compelling districts to diversify the teacher pipeline.

In others, they protect nonwhite teachers by exempting participants of residency or grow-your-own programs, which are popular pathways into teaching for people of color. The MFT contract exempts graduates of the district’s grow-your-own programs, which recruit and train city students and other community members for local teaching jobs, from seniority-based layoffs, too.

A few take it a step further. In his comprehensive analyses of collective bargaining agreements in several states, Marianno has found a handful of medium-sized districts whose contracts allow race to be considered as a factor in determining whom to lay off.

Where the Minneapolis provision stands out, though, is that it doesn’t just treat race as a thumb on the scale. In the other examples where race was a factor, it helped to break a tie where two educators of equal seniority and the same prerequisites are tied for dismissal. In Minneapolis, the district must skip an educator of color and move down to the next one on the list.

Marianno and others said they’ve never seen anything like that.

A new approach to collective bargaining

The Minneapolis provision was adopted as a number of major forces pulled at the district and union. For one, a global racial reckoning, inspired by the police murder of George Floyd in the same city, had begun. (One of the Minneapolis teachers union’s leaders taught the student who filmed the damning video of Floyd’s death.)

For another, a growing caucus within teachers unions – tracing back a decade and taking hold in cities such as Chicago, Los Angeles and New York – was intent on leveraging their bargaining power to advance progressive goals such as racial equity.

“It’s not as if this is appearing out of a vacuum,” Marianno said. These leaders “began to rethink the collective bargaining process – to use it as a mechanism for bringing about social justice in schools.”

In a recent interview with USA TODAY’s editorial board, Randi Weingarten, president of the American Federation of Teachers, described this approach as “bargaining for the common good.” It’s about more nurses and guidance counselors in schools, she said; it’s about restorative justice practices and smaller class sizes for students living in poverty.

Grappling with the prospect of layoffs in the early days of COVID-19, some states and districts – including Oregon and Providence, Rhode Island – flirted with the idea of allowing race to influence layoff decisions, said Michael Hansen, a senior fellow at the Brookings Institution, a nonpartisan think tank.

States and districts had made significant strides in teacher diversification efforts in the years leading up to the pandemic, and there was a lot of fear that progress would be lost.

But any attempts at being explicit about racial protections have floundered. Introducing racial preferences into employment decisions is tricky legal territory, Hansen said. Legal precedent has generally sided with teachers suing over affirmative action exemptions to layoffs.

In a case in the 1980s known as Wygant v. Jackson, the U.S. Supreme Court ultimately ruled in favor of the white teachers who sued their local school board and union over quotas for “minority personnel.”

And in the ‘90s, there was Piscataway Board of Education v. Taxman. That case involved a New Jersey school district that amid layoffs found itself having to choose between two teachers with equal seniority.

Rather than choose from the two at random as had been protocol, the board invoked its affirmative action plan. The Black teacher was kept on board and the white one let go. An appeals court ruled that the local school board was in violation of the Civil Rights Act.

Perhaps the legal risk is the point. Marianno suspects the union may have anticipated a challenge and figured it could leverage any pushback as “a way to rally their membership around the progressive caucus.”

“This provision does something important for the union, whether or not it's legal,” Marianno said. “It signals to their membership base that they are fully on board with moving the union in a social justice direction.”

The Minneapolis Federation of Teachers did not respond to requests for comment.

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BIPOC educators 'pushed out'

Layoff debates may feel beside the point at a time when many districts, including Minneapolis, are dealing with too few teachers.

But those vacancies are largely driven by new positions created with the help of pandemic relief dollars. Experts worry about the funding cliff districts will face when those dollars dry up in a few years. Public school enrollment is also expected to drop over the next few years in many cities, including Minneapolis, which means those districts will need fewer teachers. 

If nothing else, the agreement’s novel and pointed language sends a message to people of color, who according to the Education Trust’s Duncan face a range of barriers in their efforts to become and remain teachers.

“What we see more and hear more and more is educators of color being pushed out not because of (last in-first out) policies necessarily,” Duncan said, “but because of cultural impacts – because they’re not being protected from some of the conditions that would drive anyone out of the profession.” Teachers of color disproportionately work in low-income, under-resourced schools.

In 2020, the same year she became a finalist for Minnesota Teacher of the Year, Qorsho Hassan lost her job as a fifth-grade educator at a diverse Minneapolis-area elementary school. The district blamed seniority-based protections and layoff practices.

Hassan went on to get a job at another elementary school – and to clinch the top teacher award, becoming the first Somali American to do so. But just last month, she announced she was leaving the classroom, describing the declining services and support, the mounting trauma among students and her sense of helplessness about it all.

“We're constantly attracted and told that we would be retained. But the idea of this workplace being toxic doesn't really lend itself to us staying,” she said in an interview with the local public radio station. “I do not feel like I voluntarily walked away from the job. I love teaching. It's very much a part of who I am. And I'm struggling with the fact that I won't continue to do what I love. But I also really need to value myself.”

Contact Alia Wong at (202) 507-2256 or awong@usatoday.com. Follow her on Twitter at @aliaemily.

This article originally appeared on USA TODAY: This teachers union brought affirmative action into its contract