School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e © 2012 Pearson Education, Inc. All rights reserved. Chapter 10 Tenure, Dismissal, and Due Process

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved The tenure contract is designed primarily to provide a measure of security for teachers and to ensure that they are protected from arbitrary and capricious treatment by school authorities.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Any teacher who earns tenure or continuing service status also acquires a property right or a legitimate claim to the teaching position. Once a property right is acquired, the teacher may only be dismissed for cause. Full due process provisions must be applied.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Acquisition of Tenure In a number of states, tenure may only be attained after the teacher has successfully completed three successive years during the probationary period and receives an offer for reemployment for the succeeding year.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved The probationary period is one in which the non-tenured teacher is seeking tenure. During the probationary period, a teacher may be non-renewed at the end of the contract year without cause or dismissed during the year with cause. In the case of the latter, the teacher must be afforded full due process rights.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved In sum, non-tenured status involves: No expectation for employment beyond the contracted year No right to be provided reasons for non-renewal No right to due process No hearing

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Nonrenewal The primary reason due process does not apply to probationary status centers around a limited property interest. During the probationary period, the teacher typically is offered a one-year contract, which is renewable each year, if the school board elects to do so.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved The probationary teacher, then, only has a property right for the duration of the one-year contract. When the contract period ends each year, the teacher loses the inherent property right because both the teacher and the district have met contractual obligations to each other.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Due process and cause are necessary only if there is evidence that a property interest continues to exist. A property interest does not exist if no legal contract is in force.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Dismissal for Cause Tenure laws include grounds for dismissal in virtually all states. While there are variations among states, these grounds normally include incompetency, insubordination, immorality, neglect of duty, justifiable decrease in the number of teaching positions or financial exigency and a statement indicating “other good and just cause.”

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Incompetency One of the more frequently used grounds for dismissal involves charges of incompetency. Most commonly, incompetency refers to inefficiency, a lack of skill, inadequate knowledge of subject matter, inability or unwillingness to teach the curricula, failure to work effectively with colleagues and parents, failure to maintain discipline, mismanagement of the classroom, and attitudinal deficiencies.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Insubordination Insubordination is generally viewed as the willful failure or inability to obey a reasonable and valid administrative directive. In most cases, there is a discernible pattern in the teacher’s behavior which reveals that the teacher has been insubordinate. However, there are other instances in which one serious violation may form the basis for charges of insubordination.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Immorality Immorality is cited in relevant state statutes as grounds for dismissal and involves conduct that violates the ethics of a particular community. Some state laws refer to immorality as “unfitness to teach” or behavior which sets a poor example for students and violates moral integrity.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Criminal Activity Charges of criminal activity committed by public school teachers will normally result in dismissal, based on general unfitness, immorality, and unprofessional conduct. Depending on the severity and specifics of the criminal act, revocation of the teaching certificate also may be appropriate, especially in cases where a conviction occurs.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved In a number of states, conviction of felony or crime of moral turpitude will form defensible grounds for the revocation of the teacher’s certificate. In other instances, a series of convictions for misdemeanors may also prove sufficient to remove a teacher from an employment position by revocation of the teaching certificate.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Financial Exigency (Abolition of Positions) Financial exigency occurs when the district faces a bona fide reduction in its budget which results in abolishing certain employment positions. Positions may also be abolished when the district encounters reductions in student enrollment.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Neglect of Duty Neglect of duty occurs when a teacher fails to execute assigned duties. Neglect may be intentional or unintentional based on ineffective performance.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved The courts will generally support districts that demonstrate the need to reduce their teaching force, commonly called Reduction in Force (RIF) where there is evidence that a legitimate financial problem exists and substantive and procedural due process is provided.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Good or Just Cause Just cause is designed to provide the district broader latitude in dismissing teachers for causes not specifically identified in state statutes. It is not designed to allow the district to dismiss a teacher for personal, political, arbitrary or capricious reasons.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Collective Bargaining Collective Bargaining has grown in popularity and appeal in public education. Although it has always provoked controversy, many educators view collective bargaining as a mechanism to achieve a greater role in management and operation of public schools.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Since many of the issues involving collective bargaining center around rights of employees, terms and conditions of employment, its very nature sometimes evokes conflict and adversarial relationships between school boards and union representatives.

School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e Essex © 2012 Pearson Education, Inc. All rights reserved Most states currently permit some form of bargaining between teachers and school boards. These agreements may vary from required bargaining to some form of meet and confer provision.