DUE PROCESS RIGHTS OF TEACHERS

Discipline, Discharge, and Evaluation

Purpose

To extend justice and fairness to the individual in relationship to government

To establish a fundamental balance between the rights of individuals and the exercise of the police power of the state

Guaranteed by the 5th and 14th Amendments

You cannot adversely impact (discipline) an employee in violation of his/her constitutional rights

Constitutional Due Process

1. Substantive Due Process What rights does the employee have?

2. Procedural Due Process How can that right be removed legally

3. Vagueness Test Is the reason for removal of the right

vague?

4. Irrationality and Presumption Test Is there a rational connection between the

Substantive Due Process

Essence of life, liberty, property, implicit and explicit

Government incursion can occur only after justification and due process

Three Features of Substantive Due Process

Liberty and property interests are created by an independent source (contract, tenure laws) – not the Constitution

If liberty or property employment interest is not created, due process is not required

If liberty or property employment interest is created, due process is required

Bd of Regents v. Roth; Perry v. Sindermann

Liberty and Property Interests Liberty To go where you

want, do what you want, without infringing on the rights of others

Property Includes land,

money, merchandise, job, opinions, expression

“Everything to which a man may attach a value and have a right”Madison

Board of Regents v. Roth SC 1972 An untenured assistant professor was

notified that he would not be rehired. He sued, claiming he had a right to due process before his contract was not renewed.

Court found for the employer

What was the court’s rationale?

Perry v. Sindermann SC 1972 A professor who had been employed on

a series of one year contracts was non-renewed after being publically critical of the state governing board. He sued requesting damages and reinstatement.

Court found for the employee.

What was the court’s rationale?

Procedural Due Process

Mechanics for determining truth

Notice, opportunity to be heard, and unbiased judge

Required when a fundamental right is suspended by the state

Mathews Balancing Test

Private interest which is affected

Risk of erroneous deprivation, value of additional safeguards

State’s interest, function involved and burden of additional safeguards

Is individual entitled to a hearing prior to action?

Is pre/post deprivation hearing required?

Extent of proof

Three Factors Three Levels of Application

What Process is Due?

Right to a hearing before termination (Loudermill) Right to a union representative if requested

(Weingarten) Right to an opportunity to improve performance

before termination (teacher termination laws RCW)

Right to a fair, unbiased process to investigate the truth, with fair consequences resulting (“7 Tests of Just Cause”, determined by arbitration cases)

http://edu.teamster.org/seven.htm

Test 1: Providing Notice

Did the employer give employee forewarning of the possible/probable consequences of the disciplinary conductImplied notice” is the concept that every employee should know will not be tolerated1.Socially disapproved: theft, arson, property

damage, threats, assaults, sexual harassment, firearms, selling drugs, gambling

2.Industrially disapproved: insubordination, leaving without permission, poor performance, dishonesty, sabotage

3.“Similar Offenses”

Tips for Providing Notice

Progressive discipline Depart from your bargained discipline

steps cautiously REVIEW the discipline language in the

bargained contract – note details Be consistent in which rules result in

which penalties Past Practice can only be altered by

clear, public communication

Should the Employee Have Known? http://www.comcast.net/video/teacher-writes-loser-on-

child-s-assignments/1439046655/Comcast/1439005829/

http://www.ksdk.com/news/local/story.aspx?storyid=189813

www.kimatv.com/news/43396642.html

www.yourwestvalley.com/news/computer-13795-surprise-police.html

The Other 7 Tests

Reasonable Rule: Is the rule reasonable? Investigation: Did the employer make a true

and thorough effort to determine the truth? Fair Investigation: Was the investigation

conducted fairly and objectively? Proof: Was the evidence sufficient? Equal Treatment: Are penalties given

evenhandedly without discrimination? Penalty: Was the consequence related to

the seriousness of the offense and employee’s past work record?

Do you see a problem?

3rd grade student reported that a teacher had grabbed him hard enough by the arm to leave a bruise. The principal investigated by talking to other students in the class, who all said the teacher was mad and did grab the student by the arm. The principal called the teacher into his office with her union rep and issued her a written warning.

Do you see a problem?

A custodian was reported to being gone during her shift. The principal investigated by returning to school and looking for her every evening looking for her, but did not see her. The principal recommended termination for false reporting on her time sheet. Should the Superintendent follow his recommendation?

Cleveland Bd v. Loudermill SC 1985 A security guard was fired for falsifying

his application. He was not afforded the opportunity to respond to the charge. He brought suit.

What did the court say?

What is the Loudermill right?

Crump v. Board of Ed SC NC 1990 Teacher was terminated for immorality

and insubordination. He sued seeking damages, claiming his due process rights were denied because one member of the school board was biased.

How did the court respond?

Vagueness Test

A government regulation is void because of vagueness if its prohibitions are not clearly defined

A law is vague if persons of common intelligence are required to guess as to their actual meaning

“No standard of conduct is specified at all” Wiemann v. Updegraff SC 1952 Connell v Higginbotham SC 1971

Vague Administrator Trouble “Come to my office around 3 pm” “You should clean up your room for the open

house” “That floor looks dirty” “I’d like your lesson plan to be available when I

walk in” “You should change people’s perception of you” “Try to avoid doing things that make you look

like you want to groom female students”

Irrationality/Presumptions Test There must be a rational connection

between the fact proved and the ultimate end presumed

The individual cannot be denied the right to rebut an irrational presumption

Irrebuttable presumptions deny due process Cleveland v. Lefleur SC 1974

Clarke v. Shoreline

In general, Clarke v. Shoreline clarified that there are some instances where the teacher can be terminated without complying with the traditional probationary procedure and plan of assistance outlined by statute.

Previously, an argument could be made that a teacher must be put on a plan of improvement before he/she could be terminated

Clarke v. Shoreline WA SC 1986

• “Sufficient cause for a teacher’s discharge exists as a matter of law when the teacher’s deficiency is unremediable, and:

• Materially and substantially affects the teacher’s performance, OR

• Lacks any positive educational aspect or legitimate professional purpose.

In such cases, the teacher is deemed to have materially breached his promise to teach and can be discharged without compliance with the probationary procedures of RCW 28A.67.065.”

Hoagland v Mt. Vernon SC WA 1981

• Whether a teacher’s conduct provides sufficient cause for his discharge shall be determined by considering:• Age and maturity of the students• Existence and degree of adverse effects

upon students and other teachers• The period of time elapsed since the

conduct occurred• The circumstances surrounding the

conduct and its likelihood of repetition• The teacher’s motives, and• The effect of the conduct on the rights of

the teacher involved and other teachers

Washington State Resources http://www.k12.wa.us/ProfPractices/

investigations/DisciplinaryAction.aspx

http://www.k12.wa.us/ProfPractices/CodeConduct.aspx

Discipline v Evaluation

What does the process matter? Why can’t we use both?

Different Terminology and Processes for Certificated Employees “Performance Nonrenewal” for “remedial” teaching

deficiencies “Discharge” for “nonremedial” behavior that has a substantial

adverse impact on performance or for behavior that has no legitimate professional purpose

“Nonrenewal” for misconduct and performance issues with provisional employees

Discharge v Performance Nonrenewal

Requires either progressive discipline or severe single incident

Can occur anytime during the contract

Notice must specify the Reasons for the Discharge

Requires an initial unsatisfactory evaluation and a probationary plan of improvement

The plan of improvement must give the employee an opportunity to improve

Notice of nonrenewal by May 15

DischargePerformance Nonrenewal

Evaluation Tips

Know your evaluation criteria Take deliberate notes Use the following formula

I have a concern with…(cite criteria from evaluation)

An example is …(cite the example from your notes)

This is important because…(provide reason) It is recommended that… (provide your

suggestion for remediation)

Examples

Instructional Skill Concern: No observable lesson

objectives.

Example: The lesson began without a statement to the class of what they were going to learn or of what the objective was. Your stated objective to the students was that you wanted them to have fun. Having fun is not one of our essential learning requirements!

Rationale: It is important to have observable lesson objectives because students will learn better if they know what is expected.

Suggestion: I recommend that you include lesson objectives in your planning for this unit and that you provide plans to me by [insert date].

Handling of Student Discipline and Attendant Problems

  Strength: The students followed

established District policies for their conduct.

Example: I noticed on four different occasions that students made comments to others about observing the rules on the classroom wall and that students efficiently responded to your reward and consequence system.

  Rationale: It is important to have

established guidelines and discipline in the classroom because student learning time is increased without needless discipline distractions.

  Suggestion: Please keep up the effective

implementation of your discipline system.

Concerns Strengths

It’s Discipline IF…. (adapted from Paul Clay, and

Staci Vesneske)

You have to ask Dr. Ruth what it means The track coach thought it would be funny to “accidentally” say

that a female athlete’s shorts were “too skimpy for her pubic” instead of saying they were “too skimpy for the public”

The band teacher goes to his car between each period because “he likes to drink bottled water that’s been sitting in a car for a few hours”

The lead prosecuting attorney is on line 1 Somebody’s ASB account shows a purchase of a new 62”

plasma TV…just in time for March Madness, BABY. The “low-cal”, “fiber rich” brownies at the faculty party were

“groovy”. The kindergarten teacher says: “the little S%*# deserved

everything he got!”

It’s only Discipline IF…

The administrative assistant tells you to call Dr. Howard’s hotel room in Aruba, and Charlie Shreck calls you right back.

The “improvement plan” is: “Stop doing that, you idiot!” “Taking an interest in kids’ lives” involves texting them, sending emails,

and creating a personal MySpace, marked “private” to you, the principal You’ve now said three times, “I can’t believe you did that AGAIN!!!” A reporter for the Seattle Times has “just a few questions” The teacher says: “What’s the big deal? Kids get worse bruises dirty

dancing at the semester break mixer!” A parent calls to ask how the movie “American Pie” is related to the 9th

grade language arts curriculum. Larry, the Math teacher, points his finger at you, looks you straight in

the eye, saying: “I was ONLY practicing my tap routine in the airport restroom!”