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CLAUDIO SANCHEZ, BYLINE: And I'm Claudio Sanchez in Washington. There's a good reason critics of teacher tenure laws view the Vergara ruling and now this New York lawsuit as a promising template for still more court battles.

KEVIN WELNER: Saying, well we should be able to fire teachers who are bad, of course we can agree on that.

SANCHEZ: To be clear Kevin Welner is not a critic of tenure laws. As director of the National Education Policy Center he hasn't taken a position and sees merit in both sides of the debate.

WELNER: I think there are probably also strong very strong arguments to be made that they should remain unchanged. I mean these job perfections were put in place to avoid other problems related to arbitrary firings and corrupt and nepotistic employment practices and they still serve that purpose to some extent.

SANCHEZ: Up to a point says Michelle Rhee, founder of Students First.

MICHELLE RHEE: There are states and jurisdictions in which the dismissal process is way too time-consuming and cumbersome essentially making it impossible for those teachers to be fired. And so when we have nonsensical laws that give people essentially a job for life, regardless of performance we should remove those policies or fix them.

SANCHEZ: After resigning under a cloud of controversy as Washington D.C.'s schools Chancellor, Rhee embarked on a national campaign. She and her group are targeting states whose constitutions explicitly guarantee every child the right to a quality education but are clearly falling short. Rhee could have used any number of problem areas to make her case, lopsided school funding, ability grouping, special education, but she settled on teacher tenure and seniority. Rhee's group supported the Vergara lawsuit in California and helped with this latest lawsuit in New York. Now she says it's time to take the fight to at least four other states. Minnesota, Connecticut, New Jersey and Tennessee.

VAN ROEKEL: She wants to go after unions. This has nothing to do with students.

SANCHEZ: Dennis Van Roekel is the outgoing president of the National Education Association.

ROEKEL: She has no evidence whatsoever that if you removed due process that that will somehow improve education.

RHEE: Nobody's arguing that we get rid of due process rights. What we're saying is lay offs should not be done by seniority (Unintelligibility) egregiously incompetent teachers, that the dismissal process should be process should be more streamlined.

SANCHEZ: Van Roekel insists unions are not opposed to straightening the time it takes to fire ineffective teachers or lengthening the time it takes to get tenure. Most states, 41 in fact, require anywhere from three to five years before a teacher is eligible for tenure. If anti-tenure groups don't think that's reasonable and want to challenge tenure laws in court, fine, says Van Roekel.

ROEKEL: But I'm going to fight like crazy to make sure that they also deal with equable funding, equitable learning conditions for all students because if they fail to address those issues, the losers are the students that we have in our schools today and tomorrow. And that is just wrong.

SANCHEZ: Legal experts say focusing on tenure and seniority laws alone does not get at lots of other problems. Again Kevin Welner.

WELNER: It doesn't focus on attracting smart teachers, it doesn't focus on developing smarter teachers, it doesn't focus on how to convince weaker teachers, who are not developing leave voluntarily. I mean most people don't leave jobs because they were fired, they leave jobs because they aren't successful at those jobs.

SANCHEZ: And Welner says Vergara like lawsuits could expose lots of other damaging policies that state courts could just as easily view as discriminatory. Again policies like ability grouping, which tracks low-income minority students into classes and programs that are nothing more than academic dumping grounds. So, maybe the silver lining in all this says Welner, is that state courts will be asked to scrutinize lots of questionable education policies and laws.

WELNER: Maybe it's time that we started moving in that direction. Asking the courts to play that role isn't ideal but it's probably preferable to generation after generation of kids being denied basic equality of educational opportunities.

SANCHEZ: The case in New York is likely to drag on. As for the Vergara ruling in California, teachers unions have appealed and Welner says only if the decision is upheld are we likely to see a sea change in teacher tenure and seniority laws. Claudio Sanchez NPR News.

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