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Judge hears challenge to Florida teacher law

Bill Kaczor, Associated Press

TALLAHASSEE, Fla. (AP) -- The Florida Legislature crossed the line between its proper role of setting policy and unconstitutionally dictating labor contracts when it passed a law requiring merit pay for teachers and ending tenure for new hires, union lawyers told a judge Wednesday.

An attorney for the state, though, denied the law that was passed two years ago violated teachers' constitutional right to collectively bargain for wages, hours and terms of employment.

After the two-hour hearing, Circuit Judge John Cooper said he wasn't sure when he would rule and he may even ask the lawyers to talk with him again. The attorneys also agreed to submit suggested orders by Jan. 28 and take another week to respond to each other's proposal.

Cooper's decision, whichever way it goes, is expected to be appealed. The judge said he usually has a good idea of how he's going to rule by the time a case reaches final argument but not this time.

"I guess I'm being asked to be sort of the judicial education czar," Cooper said. "That's a little bit uncomfortable."

Florida Education Association lawyer Tom Brooks disagreed but said he understood how Cooper feels.

"We're asking you to tell the Legislature they don't have the authority to do something that they've done," Brooks said. "That makes you nervous. I don't blame you."

Brooks, though, said the six teachers who sued simply want Cooper to follow settled law. He argued the Legislature has violated the right to collective bargaining in the Florida Constitution by dictating the terms of contacts between school boards and local unions.

That includes a teacher evaluation system, 50 percent of which must be based on student growth as measured by exams such as the Florida Comprehensive Assessment Test, or FCAT. The evaluations in turn are used to set performance-based salary schedules.

"I'm reminded of the old saw attributable to Henry Ford: 'You can have any color Model T as long as it's black,'" said Brooks' partner, Ron Meyer. "That's what they say in this statute: You can have a salary schedule that has to look exactly like this."

Michael Mattimore argued for the state that the law passes constitutional muster because it doesn't explicitly prohibit collective bargaining. He also noted that some 60 collective bargaining agreements have been signed between school districts and local unions since it was passed.

"There's still lots of room for collective bargaining," Mattimore said. "Collective bargaining exists with this law. It has been successful to date."

The union lawyers argued the law is so restrictive that it implicitly prohibits collective bargaining.

Cooper asked Mattimore what would happen to contracts signed under the law if he should strike it down.

"I think we're inviting labor chaos," he responded.

Brooks, though, said the contracts simply could be renegotiated.

Mattimore also argued the individual teachers had no right to sue, contending only collective bargaining units have such authority. Brooks responded that collective bargaining is a right granted to each individual employee.

Striking down the law could affect the state's $700 million federal Race to the Top grant, which includes a similar test-based merit pay requirement, Mattimore argued. Meyer contended the two are unrelated and noted the federal grant explicitly requires collective bargaining.

The law has been the focus of public debate for years, generating protests from street corners to cyberspace.

The Republican-controlled Legislature passed a similar bill in 2010, but it was vetoed by then-Gov. Charlie Crist. The high-profile veto came shortly before Crist quit the GOP and ran unsuccessfully for the U.S. Senate without party affiliation. Crist has since become a Democrat and is considering running for governor again.

The 2011 version was the first bill signed into law by Crist's successor, Republican Gov. Rick Scott.