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 rightMadison

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 courts 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 courts 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
• States 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/14390058
  29/
• http//www.ksdk.com/news/local/story.aspx?storyid
  189813
• www.kimatv.com/news/43396642.html
• www.yourwestvalley.com/news/computer-13795-surpris
  e-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 employees 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 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?

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
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?

20
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

21
Vague Administrator Trouble

• Come to my office around 3 pm
• You should clean up your room for the open
  house
• That floor looks dirty
• Id like your lesson plan to be available when I
  walk in
• You should change peoples perception of you
• Try to avoid doing things that make you look
  like you want to groom female students

22
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

23
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

24
Clarke v. Shoreline WA SC 1986

• Sufficient 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, 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.

25
Hoagland v Mt. Vernon SC WA 1981

• Whether a teachers 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 teachers motives, and
• The effect of the conduct on the rights of the
  teacher involved and other teachers

26
Washington State Resources

• http//www.k12.wa.us/ProfPractices/investigations/
  DisciplinaryAction.aspx
• http//www.k12.wa.us/ProfPractices/CodeConduct.asp
  x

27
Discipline v Evaluation

• What does the process matter? Why cant 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

28
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

29
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)

30
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.

31
Its 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 athletes 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
  thats been sitting in a car for a few hours
• The lead prosecuting attorney is on line 1
• Somebodys ASB account shows a purchase of a new
  62 plasma TVjust 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!

32
Its only Discipline IF

• The administrative assistant tells you to call
  Dr. Howards 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
• Youve now said three times, I cant believe you
  did that AGAIN!!!
• A reporter for the Seattle Times has just a few
  questions
• The teacher says Whats 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!
•