due process rights of teachers discipline, discharge, and evaluation
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DUE PROCESS RIGHTS OF TEACHERSDiscipline, Discharge, and Evaluation
PurposeTo extend justice and fairness to the individual in relationship to governmentTo establish a fundamental balance between the rights of individuals and the exercise of the police power of the stateGuaranteed by the 5th and 14th Amendments
You cannot adversely impact (discipline) an employee in violation of his/her constitutional rights
Constitutional Due Process Substantive Due Process What rights does the employee have?Procedural Due ProcessHow can that right be removed legallyVagueness TestIs the reason for removal of the right vague?Irrationality and Presumption TestIs there a rational connection between the
Substantive Due ProcessEssence of life, liberty, property, implicit and explicitGovernment incursion can occur only after justification and due process
Three Features of Substantive Due ProcessLiberty 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 requiredIf liberty or property employment interest is created, due process is required
Bd of Regents v. Roth; Perry v. Sindermann
Liberty and Property InterestsLibertyTo go where you want, do what you want, without infringing on the rights of othersPropertyIncludes land, money, merchandise, job, opinions, expression Everything to which a man may attach a value and have a rightMadison
Board of Regents v. Roth SC 1972An 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 courts rationale?
Perry v. Sindermann SC 1972A 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 courts rationale?
Procedural Due ProcessMechanics for determining truthNotice, opportunity to be heard, and unbiased judgeRequired when a fundamental right is suspended by the state
Mathews Balancing TestPrivate interest which is affectedRisk of erroneous deprivation, value of additional safeguardsStates interest, function involved and burden of additional safeguardsIs individual entitled to a hearing prior to action?Is pre/post deprivation hearing required?Extent of proof
Three FactorsThree 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 NoticeDid 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 toleratedSocially disapproved: theft, arson, property damage, threats, assaults, sexual harassment, firearms, selling drugs, gamblingIndustrially disapproved: insubordination, leaving without permission, poor performance, dishonesty, sabotageSimilar Offenses
Tips for Providing NoticeProgressive disciplineDepart from your bargained discipline steps cautiouslyREVIEW the discipline language in the bargained contract note detailsBe consistent in which rules result in which penaltiesPast 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/
The Other 7 TestsReasonable 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 employees 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 every evening, and searching the halls of the multiple story and wing building. He did not see her car in the parking lot when he arrived, nor when he left. He was in the building 10-15 minutes, but never waited until he found her. The principal recommended termination for false reporting on her time sheet. Should the Superintendent follow his recommendation?
Cleveland Bd v. Loudermill SC 1985A 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?
Weingarten RightUS Supreme Court ruled that an employee is entitled to union representation during any interview that could lead to discipline. However the employer is not required to notify the employee of that right. NLRB v Weingarten US 1975
Employee requested union representative to be present when questioned during an investigation. The employer denied. The union filed an unfair labor practice.
Crump v. Board of Ed SC NC 1990Teacher 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 TestA government regulation is void because of vagueness if its prohibitions are not clearly definedA law is vague if persons of common intelligence are required to guess as to their actual meaningNo standard of conduct is specified at allWiemann v. Updegraff SC 1952Connell v Higginbotham SC 1971
Vague Administrator TroubleCome to my office around 3 pmYou should clean up your room for the open houseThat floor looks dirtyId like your lesson plan to be available when I walk inYou should change peoples perception of youTry to avoid doing things that make you look like you want to groom female students
Irrationality/Presumptions TestThere must be a rational connection between the fact proved and the ultimate end presumedThe individual cannot be denied the right to rebut an irrational presumptionIrrebuttable presumptions deny due processCleveland v. Lefleur SC 1974
Clarke v. ShorelineIn 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 1986Sufficient cause for a teachers discharge exists as a matter of law when the teachers deficiency is unremediable, and:Materially and substantially affects the teachers performance, ORLacks 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 1981Whether a teachers conduct provides sufficient cause for his discharge shall be determined by considering:Age and maturity of the studentsExistence and degree of adverse effects upon students and other teachersThe period of time elapsed since the conduct occurredThe circumstances surrounding the conduct and its likelihood of repetitionThe teachers motives, andThe effect of the conduct on the rights of the teacher involved and other teachers
Washington State Resourceshttp://www.k12.wa.us/ProfPractices/investigations/DisciplinaryAction.aspx
Requirement for Evaluation(4) The failure of any evaluator to evaluate or supervise or cause the evaluation or supervision of certificated employees or administrators in accordance with this section, as now or hereafter amended, when it is his or her specific or delegated responsibility to do so, shall be sufficient cause for the non-renewal of any such evaluators contract under RCW 28A.405.210, or the discharge of such evaluator under RCW 28A.405.300.
- Evaluation Dates to RememberRCW 28A.405.100: Certs onlyProvisional: one observation in first 90 daysTotal observation time
Differences between Tenure and Provisional Certificated StaffNotification any time after October 15Probable CauseAppeal process via statutory hearingUnpaid during appealDiscrimination/retaliation claims can still be pursued
2 years for new certs and out of state certs1 year for certs new to your districtWithout CauseAppeal only to SBDiscrimin/retaliation claims may be pursued