Monday, January 19, 2009

Due Process for Teachers

My interviewee asked that her name not be mentioned. She is a principal at a San Francisco school. She regularly assists in the hiring and firing of teachers. Her insight was very helpful in assessing the complicated and shifting nature of the right of due process that is sharply protected for teachers.

It is difficult to first imagine employment to be considered as property and thus protected by the Fifth and Fourteenth amendments, but as was elegantly explained in Board of Regents v. Roth, “liberty and property are broad and majestic terms … purposely left to gather meaning from experience,” (Lee, p. 71). And after a series of court decisions, the connection between employment and the concept of property was well articulated.

The Principal I spoke with agreed with the idea that employment needs to be protected, though she noted that the employers are in growing need of empowerment. A tenured teacher has an abundance of protections around their life-time contract with the district. There is a lengthy, expensive, and nearly insurmountable process to remove a tenured teacher. The steps involve many reviews with the teacher, outside observers, and union representatives. Unless criminal conduct or severe negligence can be proven, a teacher must be offered assistance before even considering removal.

This assistance step in this due process is called a Teacher Support Plan. This is a non-punitive step used to offer aid and direction to a struggling teacher. Often times an Instructional Reform Facilitator (IRF) is assigned to the teacher to offer guidance. Throughout the process the teacher meets with observers and listens to their reviews.  During this observation and assistance period, if incompetence can be demonstrated and the union representative convinced of this, then the legal process of terminating the contract as a result the teacher’s failure to comply can be started.
Typically this never occurs. It is too difficult. Often what takes place is known informally as a “golden handshake.” Bonuses are added to the teacher’s retirement package and the teacher decides to retire early. This is a method that is very expensive and not available during the current budget crisis.

Despite the extreme protections given to teachers and the extreme difficulty the Principal has in removing low-performing teachers, she feels that it is still a necessary thing. She explained that teachers have a great responsibility and a high pressure position and should not have to play politics to keep their job. Tenure insures the protection of a teacher’s right.
The middle ground is a concept called a “privileged right.” She felt that if a teacher demonstrates strong performance during a probationary period then they earn the right to tenure. If the teacher does not meet expectations, feedback is given (in private) and they are a “non-reelect” for a contract. No tenure is offered. This is not termination, the probationary period is simply over and nothing else is offered. It is completely within the employer’s right so long as the manner of doing so does not impair employment elsewhere (Lee, p. 74).

The Principal would like to see a longer probationary period. Presently, teachers that demonstrate adequate skill are offered life-time contracts after just two years. I agree with this assessment, two years isn’t enough time to fully evaluate a person’s long-term performance.

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