Due Process in Dismissal of Teachers

tabLe 9.1

due-process Rules for dismissing a tenured teacher

1. The teacher must be given a timely, detailed, written notice of the charges. 2. The teacher must be accorded a hearing and sufficient time to prepare. 3. The teacher has a right to be represented by legal counsel. 4. The teacher may present written and oral evidence, including witnesses. 5. The teacher may cross-examine witnesses and challenge evidence. 6. The hearing is to be conducted before an impartial body. The US Supreme Court has ruled (in Hortonville District v. Hortonville Education Association) that, under the US Constitution, a school board may be that impartial body unless bias can be proven. 7. The teacher is entitled to a written transcript of the proceedings. 8. The teacher has the right to appeal an adverse ruling to a higher legal authority, usually the state court system.

Source: See Hortonville District v. Hortonville Education Association, 426 US 482 (1976); Richard S. Vacca, “Teacher Evaluation and the Courts,” CEPI Education Law Newsletter (December 2003), available at www .cepi.vcu.edu/publications/newsletters; Richard S. Vacca, “Public School Teachers,” CEPI Education Law Newsletter (October 2006), available at www.cepi.vcu.edu/publications/newsletters; and Stephen Sawchuk, “Due Process Laws Vary for Teachers by State,” Education Week, September 24, 2014.

Vergara v. California A state-court

ruling that tenure unconstitutionally deprives students at low-achieving schools of equal educational opportunity.

due process A formalized legal procedure with specific and detailed rules and principles designed to protect the rights of individuals. districts have moved to increase the pre-tenure probationary period, usually from two years to three, and some administrators have increased their scrutiny and data collection regarding possibly incompetent teachers to solidify their position in due-process hearings.

Questioning of tenure accelerated nationally in 2014 and 2015 after a judge ruled in Vergara v. California that tenure unconstitutionally deprives students at lowachieving schools of equal educational opportunity. Many educators and researchers disputed the underlying theories, which presuppose that tests generally used to assess achievement can distinguish between effective/competent and ineffective/ incompetent teachers. In addition, eliminating tenure and moving to fire supposedly unfit teachers would make an appreciable dent in the low-achievement status of lowincome students. Whether the Vergara ruling will be upheld in a long appeals process and whether it will have much influence on school district policies and practices are open issues to be determined in the future.6

9-2c due process in dismissal of teachers

Due process refers to the use of legal rules and principles established to protect the rights of the accused. These principles are especially important to a teacher being dismissed from a job. The core element of due process is fairness. Although requirements vary from state to state, the rules shown in Table 9.1 are generally recognized in teacher dismissal cases.

Firing a teacher for incompetence requires documentation of efforts to help that person improve. Obtaining this documentation can be burdensome for everyone involved, and few tenured teachers are dismissed using formal legal procedures. Instead, administrators sometimes use less formal procedures for excluding incompetent

6Carl Cohn, “What’s Wrong With the Vergara Ruling,” Ed Source (October 5, 2014), available at www.edsource.org; Liz Dwyer, “Can America Really Fire Its Way to Better Teachers?” Take Part (June 11, 2014), available at www.takepart.com; and Nick Gillepsie, “Teacher Tenure on Trial in NYC,” Reason (March 16, 2015), available at www.reason.com.