Why Legislative Words Matter

This one’s for all the aspiring policy wonks.

In Newark, NJ, the superintendent recently attempted to revoke the tenure rights of a group of teachers deemed ineffective. The state has a statute (“TEACHNJ”) of recent vintage permitting such things.

Kind of. Well, at least eventually.

One of the affected teachers contested the district’s decision, and an arbitrator sided with the teacher. It turns out that, in an arbitrator’s estimation at least, the statute technically took effect later than the district contends.

The arbitrator ruled that the statute’s language officially started the evaluations-with-state-mandated-consequences clock in 2013-14, not 2012-13. That means the district has only one annual performance evaluation of the teachers in question, not the two that are needed to invoke the state’s tenure-removal provision. So even though the district’s action comports with the spirit of the state law, this personnel decision was overturned, and the “remedy is reinstatement with full back pay and benefits.”

Because of the exact wording of legislative language, dozens of teachers are either–depending on your worldview–being indefensibly shielded from the law’s clear intent or rightly defended from an illegitimate administrative action.

If this law’s lack of specificity frustrates you, consider Section 5 of this North Carolina statute. So concerned that the state board would use its existing statutory and regulatory authority to procure an unpopular testing system (e.g. PARCC or SBAC), the legislature actually prohibits the board from acquiring any new assessment system until it is given new, explicit legislative permission to do so. The law goes even further, actually naming the kinds of tests that would probably be acceptable, (e.g. NAEP, SAT, ACT).

This is the endless tug of war between legislative authority and administrative discretion. In the former, a district gets its hand rapped for trying to squeeze too much power from what it considers sufficiently permissive language. In the latter, lawmakers craft uber-specific language to prevent the state school board from using its existing power to act against the legislature’s wishes.