Due Process Rights of Teachers

1. Due Process Rights of Teachers Discipline, Discharge, and Evaluation

2. 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

3. Constitutional Due Process • Substantive Due Process • What rights does the employee have? • Procedural Due Process • How can that right be removed legally • Vagueness Test • Is the reason for removal of the right vague? • Irrationality and Presumption Test • Is there a rational connection between the

4. Substantive Due Process Essence of life, liberty, property, implicit and explicit Government incursion can occur only after justification and due process

5. 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

6. 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

7. 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?

8. 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?

9. 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

10. Mathews Balancing Test Three Factors Three Levels of Application • 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

11. 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

12. Test 1: Providing Notice Did the employer give employee forewarning of the possible/probable consequences of the disciplinary conduct Implied notice” is the concept that every employee should know will not be tolerated • Socially disapproved: theft, arson, property damage, threats, assaults, sexual harassment, firearms, selling drugs, gambling • Industrially disapproved: insubordination, leaving without permission, poor performance, dishonesty, sabotage • “Similar Offenses”

13. 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

14. 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

15. 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?

16. 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.

17. 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?

18. 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?

19. Weingarten Right US 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.

20. 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?

21. 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

22. 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”

23. 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

24. 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

25. 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.”

26. 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

27. Washington State Resources • http://www.k12.wa.us/ProfPractices/investigations/DisciplinaryAction.aspx • http://www.k12.wa.us/ProfPractices/CodeConduct.aspx

28. 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 evaluator’s contract under RCW 28A.405.210, or the discharge of such evaluator under RCW 28A.405.300.”

29. Evaluation Dates to Remember RCW 28A.405.100: Certs only • Provisional: one observation in first 90 days • Total observation time <60 minutes; at least one is 30-minutes consecutive • Summary of observation to employee within three days • Probationary period of 60 days • Twice monthly meetings during the probationary period

30. Differences between Tenure and Provisional Certificated Staff Tenured Cert Provisional • Notification any time after October 15 • “Probable Cause” • Appeal process via statutory hearing • Unpaid during appeal • Discrimination/retaliation claims can still be pursued • 2 years for new certs and out of state certs • 1 year for certs new to your district • Without Cause • Appeal only to SB • Discrimin/retaliation claims may be pursued

31. 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

32. Discharge v Performance Nonrenewal Discharge 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

33. Evaluation or Discipline • Range of performance from good to bad • Follows evaluation criteria • Improvement process outlined in statute • No pay during appeal • It’s either OK or not OK • Follows progressive discipline • No statutory improvement process or plan required • Pay during appeal

34. Evaluation or Discipline • Observation of improvement area must be seen or occur “on the job” • Improvement area must be on evaluation document • Timelines are rigid in statute and in CBA • Your knowledge of evaluation process and criteria will be tested • Conduct might occur on or outside the job • Conduct need not be specifically outlined in any document—but there are legal guidelines based on previous cases • Timelines are only rigid as much as they are in your CBA • Your documentation will be tested

35. 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)

36. Examples Concerns Strengths 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.

37. 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!”

38. 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!”