Broken bow board work session

Board and Administration Roles in Personnel

Karen Haase (402) 804-8000 karen@ksbschoollaw.com KSB School Law @KarenHaase

Source of Board Authority  The Legislature created school districts and boards of education

• They are “creatures of statute • They have considerable discretion, but . . .

• They may do only what they are statutorily authorized to do or have implied authority to do

The Widget Effect • 2009 Study conducted by The New Teacher Project • Surveyed 15,000 teachers and 1,300 principals in 12 school districts, • Conclusion: Schools treat teachers as interchangeable parts, rather than individual professionals http://widgeteffect.org/downloads/TheWidgetEffect.pdf

The Widget Effect • How evaluation systems reflect and codify the “Widget Effect” – All teachers are rated good or great.

– Excellence goes unrecognized.

– Professional development is inadequate.

– No special attention to novices – Poor performance goes unaddressed

TNTP’s Recommendations • Adopt a comprehensive performance evaluation system that fairly, accurately and credibly differentiates teachers based on their effectiveness in promoting student achievement and provides targeted professional development to help them improve

TNTP’s Recommendations • Train administrators and other evaluators in the teacher performance evaluation system and hold them accountable for using it fairly and effectively.

TNTP’s Recommendations • Integrate the performance evaluation system with critical human capital policies and functions such as teacher assignment, professional development, compensation, retention and dismissal.

TNTP’s Recommendations • Address consistently ineffective teaching through dismissal policies that provide lower-stakes options for ineffective teachers to exit the district and a system of due process that is fair but efficient.

Statutory Terms  Probationary - certificated employee served 3 FTE years or less  Tenured - certificated employee served more than 3 FTE years  Continuing contract - certificated employee=s contract renews automatically unless given notice that complies with statute and board policy

Discharge  Nonrenew - discharge probationary employee at end of year  Terminate - discharge tenured employee at end of year  Cancel - discharge certificated employee mid-contract

Administrators’ Duties  Carry out board policy  Direct, supervise and evaluate staff  Oversee the operation of the school in all areas

Board’s Duties  Statutory • Provide school house • Keep it in good condition • Keep accurate accounts  Operationally • Establish policy • Employ all certificated staff • Supervise the superintendent

Board’s Duties  oversight vs. micromanagement  Board’s role = “what” •

Community values, vision priorities, policies

 Administration’s role = “how” •

Strategies, tactics and techniques

• • •

Field trips Calendar Coaches and sponsors

 Examples

Statutory Entitlement Probationary Employee  Observation and evaluation once each semester • Full instructional period • List of deficiencies • Suggestions for improvement • Follow-up evaluations and assistance

Tenured Teachers Seven Deadly Sins

      

Incompetence Neglect of duty Unprofessional conduct Insubordination Immorality Physical or mental incapacity Other conduct

Probationary Hearing  Conducted before the board  Supposedly informal  “Discuss and explain” position on continuing employment  Board decision may be for any reason except unconstitutional one  Majority of quorum sufficient

Tenured Teacher Hearing    

Notice of possible termination 7 days to request hearing Hearing within 30 days 5-day notice before hearing • Charges • Names of witnesses • Substance of testimony • Documents

Tenured Teacher Hearing  Hearing is formal  Administration, board and teacher represented by attorneys  Presentation of evidence  Cross examination  Decision based solely on evidence  Majority of members of board must vote to terminate

In Employment Matters  Board members should remain impartial • Nebraska Supreme Court: the hearing “should be before a tribunal that both possesses some academic expertise and has an apparent impartiality toward the charges.”

In Employment Matters  Board members should: • Not investigate • Not express opinions • Direct people to the superintendent  Administration initiates the notice  Board responsible for action only: • If the case goes to hearing • Teacher fails to request a hearing

Sanders v. Board of Ed. (1978)

 Tenured PE teacher at South Sioux  Evaluations marked as “good” or “excellent” in all categories until 1975-76  1975-76 marked as “needs improvement” in two categories: classroom control and student participation  Board voted to consider termination based on incompetency, neglect of duty, inability to control students and poor preservation of equipment

Sanders v. Board of Ed. (1978)

 At hearing • Superintendent • Assistant Principal • Principal

 Nebraska Supreme Court • Teacher had not violated any rule or order • No area of performance rated as “unacceptable” • Teacher “not performing below the standards required of other teachers”

Davis v. Board of Ed. (1979)

 Tenured teacher at Calloway  Administration recommended termination, board terminated after a hearing  At hearing • Superintendent • Principal • Other witnesses all supported Ms. Davis

Davis v. Board of Ed. (1979)

 Nebraska Supreme Court • Sanders not applicable because here “the expert witness charged with the duty of evaluating the performance of the teacher” testified that she was not meeting standards • Both administrators stated that teacher had neglected her duties, their expert opinion sufficient as a matter of law

Hollingsworth v. Board of Ed. (1981)

 Tenured Life Science teacher from Alliance  Received good evaluations, but didn’t fit in with staff and students • • • •

Had conflict with another coach Students harassed Parents complained Principal asked teacher for his resignation 1/31 • Afterwards, increase in discipline, student survey, complaints about BO and bad breath

Hollingsworth v. Board of Ed. (1981)

 Nebraska Supreme Court • All evaluations good • “There is nothing in the record to reveal what prompted the decision to ask for his resignation on January 31. It does appear that, from that date forward, the administration commenced a systematic and diligent search for evidence which would justify the decision which had already been reached. That search has failed.”

Schultz v. Board of Ed. (1982)

 Elementary tenured teacher in Fremont  Testimony at hearing • • • •

Superintendent Elementary supervisor Principal Parents

Schultz v. Board of Ed. (1982)

 Nebraska Supreme Court: • Testimony of parents insufficient, even with medical complaints (“unsupported conclusions at best”) • “In view of the fact that Mrs. Schultz continued to receive above average ratings during the entire time she taught . . . we are at a loss to see how Mrs. Schultz could be found to be incompetent.”

Dealing with Complaints    

Have a complaint procedure Require complainants to follow it Refer them to appropriate person Give administrators opportunity to: • Investigate • Respond • Don’t take responsibility for resolving the complaint • Don’t make promises

Probationary Teacher Rights       

Statute and Rule 10 Evaluated once each semester Based on classroom observation Observed for “full instructional period” Written list of deficiencies Concrete suggestions for improvement Assistance in overcoming deficiencies Follow up evaluations assistance

Cox v. Board of Ed. (1997)

 1st year Band teacher at McCool Jctn.  Not formally evaluated 1st first semester  Students upset at end of 1st semester, principal found out they were dropping  Formal evaluation of 1st semester given to her 1/28 based on informal observations made 1st semester • “needs to improve communication” • “Use positive reinforcement when appropriate”

Cox v. Board of Ed. (1997)

 Nebraska Supreme Court • It is “undisputed” that “Cox did not receive a a list of deficiencies, a list of suggestions for improvement and assistance in overcoming the deficiencies, and follow up evaluations and assistance when deficiencies remain.”

• Must be based on an actual classroom observation for an entire instructional period

Probationary Teacher Rights        

Notice by April 15 7 calendar days to request a hearing Hearing within 30 calendar days Notice of employment-related reasons Right to be represented Right to discuss reasons Right to question witnesses Right to present evidence

Board Decision Probationary Teachers  Decision by majority of a quorum  The board may amend or nonrenew the contract of a probationary teacher for any reason it deems sufficient if the nonrenewal is in accordance with sections 79-824 to 79-842 and is not for constitutionally impermissible reasons.

Tenured Teachers Administrative Obligations         

Observe staff Evaluate performance Identify deficiencies Make suggestions for improvement Provide continued assistance Improvement (assistance) plan?

Respond to complaints Investigate concerns Give appropriate warnings

Board Decision Tenured Teachers  Decision by majority of the members of the board (4 on a 6-member board)  The board may amend or terminate nonrenew the contract of a tenured teacher for just cause.

Due Process Continued  Finding of just cause  Board decision based solely on evidence at the hearing  Written findings of fact  Decision by a majority of the board members (4 of 6)  Decision by May 15th

Just Cause  Just Cause consists of: • Incompetence • Neglect of duty • Unprofessional conduct • Insubordination • Immorality • Physical or mental incapacity • Failure to show professional growth • Conduct that substantially interferes

with continued performance of duties

Johanson v. Board of Ed. (1999)

 Tenured special ed. teacher in North Platte  Allegations that he had mistreated student • • • • •

Put soap in student’s mount Shook student Wrapped up in extension cord Threw student out of class Showed students a grade younger than him

 Board terminated for unprofessional conduct

Johanson v. Board of Ed. (1999)

 Nebraska Supreme Court • Sufficient evidence “if a judge could not, were the trial to a jury, direct a verdict” • Admission of hearsay evidence not error • “To determine whether conduct is unbecoming, even though not in violation of an explicit rule or ethical code, we look to the opinions of educational professionals. [School teachers are normally exited to be able to determine the type of conduct which constitutes unfitness to teach”