Due Process Laws Vary for Teachers by State

The concept underpinning teacher due process is simple: Teachers should have the right to hear and contest charges against them before they lose their jobs.

The reality of the laws governing those processes, though, is frequently far more complicated, a review of state due process laws shows. Among other things, they differ in the forum prescribed for such hearings, the timeline for completing them, and the kinds of evidence that can be introduced.

Obscure and often ill-understood, such details are nevertheless the ones with which advocates, teachers’ unions, and others will need to grapple in the wake of a surge of interest in revamping teachers’ job protections, one of the fallouts of the Vergara v. California decision.

That June ruling—since appealed by both the state and its teachers’ unions—declared in part that the Golden State’s due process rules for dismissing poorly performing teachers, as currently structured, impinged on vulnerable students’ constitutional rights to a quality education.

In essence, the debate over due process amounts to this: Do current laws appropriately balance expediency with the fairness enshrined in the concept of due process? If not, how should they be revised?

Due process is conferred when a teacher completes a probationary period and receives continuing contract status, sometimes called tenure.

It prevents districts from discharging teachers without just cause, established in a legal hearing that typically includes the right to legal representation, requires a court stenographer, and permits the presiding party to subpoena witnesses and hear testimony.

Analyzing Policies

Some states set up different processes for cases of misconduct versus those of performance, as is the case in New York and California. In addition, according to the Denver-based Education Commission of the States, seven states return tenured teachers who receive repeated poor evaluations to probationary status, a policy that in theory makes it easier to dismiss them in such cases.

Still, one of the oft-cited complaints is that terms like “performance” are too ill-defined in most state laws, thereby dragging out hearings as those terms are debated.

Unions, which are legally obligated to represent members in such hearings, counter that principals fail to appropriately document teachers’ failings. Tenure remains, they say, an important protection so that teachers can champion students’ needs or teach their choice of curriculum without fear of reprisals.

“As long as due process remains abstract, people will gravitate to the extreme stories,” said Mary Cathryn Ricker, the executive vice president of the American Federation of Teachers. “We have to do a better job of showing the examples where it is very efficient, and still fair.”

Philosophical differences aside, dismissing teachers for performance reasons remains exceedingly rare in the United States. According to the most recent federal statistics, in just four states did the average district dismiss one or more teachers a year for performance in 2010-11.

There are many variations among the states whose due process policies Education Week examined.

For one, sometimes the hearings are held before a school board, sometimes before a hearing officer, and sometimes teachers get a choice.

In Connecticut, for example, the state’s AFT chapter advises teachers to request an independent hearing officer, because of the potential for school board members to have previous knowledge of the teacher or some other conflict of interest.

State laws also differ in how much support teachers must receive before they are dismissed for performance. In South Carolina, teachers must receive “reasonable” assistance before notices are filed.

Generally, said W. Allen Nickles III, a lawyer who represents teachers in due process hearings in the Palmetto State, that means at a minimum teachers have been told which areas in their evaluation need to improve, and given a corresponding improvement plan.

“Usually, the case concerns whether or not the improvement plan is sufficiently specific, whether the areas in the improvement plan were properly addressed, and whether the formal evaluation was conducted properly,” Mr. Nickles said.

And finally, each state often has case law on the books interpreting the statutes and potentially introducing additional requirements and restrictions.

For instance, Pennsylvania courts have interpreted that state’s requirement that teachers fail two performance evaluations prior to being served with notice to mean teachers have an implicit right to remediation, said Emily J. Leader, a senior deputy general counsel for the Pennsylvania School Boards Association.

Of all the moving parts, the one advocates are likely to focus most closely on concerns how long the process should take. In the Vergara case, one of the prosecution’s key points was the length and accompanying expense of the hearings.

In some states, it is challenging to generalize those figures because there is no time limit on the actual hearing. That’s the case in Pennsylvania and South Carolina.

“It really varies tremendously depending on the nature of the offense and number of witnesses,” Ms. Leader, the Pennsylvania lawyer, said. “I’ve been the hearing officer with a board for one where it took one night, five hours. And I’ve heard of some that have taken 30 sessions over a period of months.”

Improvements Debated

Faced with such variation, due process critics believe states should set a strict timeline on how long cases should take.

“Those trials went on forever, and the level of evidence you have to produce is far beyond the action you’re trying to take. I would make it 30 days if I could,” said Elizabeth Arons, a former head of human resources for the New York City school system. “We’re not trying to put a teacher in jail; we’re just trying to sever employment.”

In a recent publication, the advocacy group TNTP, a supporter of reforms to tenure, argued that the entire dismissal process should be limited to 90 days. The hearing itself should take no longer than a day, the New York City-based group says.

Officials for the American Federation of Teachers, meanwhile, have pushed for a timeline of 100 days for adjudicating teacher performance. In fact, the AFT points to several states it claims have significantly streamlined teacher due process.

Connecticut is among the states with the most specific rules, which were revised with union approval in 2012. The timeline from when a teacher is given notice to a decision is now 85 days, barring mutually agreed-upon extensions. And crucially, the state now limits the actual hearing to just 12 hours of evidence and testimony in cases of teacher performance.

“Our coalition consulted with attorneys who had experience in termination hearings, and while they thought the revised timeline was tight, they said it was a reasonable limit,” said Melodie Peters, the president of AFT Connecticut. “The reality is that a longer timeline doesn’t help the teacher. Their lives are on hold until the issue is addressed and resolved.”

In New York City, union officials say three-quarters of the 637 cases opened between 2012-13 and 2013-14 under the state’s disciplinary law were resolved, with the median time being 105 days. (As with many other states, New York permits hearing officers to fine or issue other penalties rather than to dismiss a teacher. Other cases settle before a decision is rendered.)

Legal Activity

Meanwhile, revisions to New York state’s laws made in 2012 added incentives for hearing officers to speed up proceedings, and specified that hearings for teachers accused of incompetence should be complete within 60 days.

So far, it’s unclear how the state’s revisions will play out, in part because of a two-year prohibition on using test scores as part of teachers’ reviews.

“That part of the law is so new, we haven’t really started to see those cases come in yet,” said Richard Casagrande, the general counsel for New York State United Teachers. It remains unclear whether any of the more recent bids to revise tenure and due process will ultimately yield alterations in such laws.

Legal efforts are gathering steam in New York, where two lawsuits seeking to invalidate the teacher-dismissal process were combined by a state court this month. In South Carolina, a state senate panel recently held hearings on whether teacher dismissals take too long—or are potentially subject to conflicts of interest.

On the other hand, a ballot initiative in Missouri to restrict teachers’ employment contracts to three years appears to have lost some steam.

Its backers said recently that they won’t continue funding their campaign in the face of poor results in straw polls, and instead, will redirect attention to building up public interest in changes to tenure.