Memo Urges Expedited Teacher Due Process

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The process for removing tenured teachers accused of crimes or malfeasance should be expedited, taking no longer than 100 days from start to finish, concludes a memorandum commissioned by

the American Federation of Teachers.

Prepared by Kenneth R. Feinberg, a lawyer well known for overseeing aspects of damage payments for the 2010 BP oil spill, the proposal calls for a better screening mechanism at the district

level to weed out allegations without merit. Impartial hearing examiners would hear legitimate cases and issue a binding ruling.

Though much of the proposal would rely on better documentation of evidence by districts and unions, it has implications for state legislatures, too: Many of its recommendations would

probably require changes to current laws governing due process hearings.

The proposal does not address dismissal for other reasons, such as poor classroom performance.

AFT President Randi Weingarten indicated that she supports the proposal, but it won’t become a formal part of AFT policy before the union’s executive board takes it up for a vote in

February. In an interview, Ms. Weingarten acknowledged that her endorsement might make some members uncomfortable.

“Some people will tell me I’m doing the wrong thing,” she said. “But the fact that there’s been an inability to have the right structures to deal with people who shouldn’t be teaching

doesn’t mean we shouldn’t correct that.”

The AFT asked Mr. Feinberg to revise procedures for disciplining teachers as one piece of a larger plan to examine teacher due process. (“AFT Chief Vows to Revise Teacher-Dismissal Process,”

Jan. 12, 2010.) Critics of due process rights, typically granted to teachers after three years of service, contend that the protections make teacher dismissals too costly and

time-consuming.

Mr. Feinberg’s proposal says, first of all, that the criteria for dismissing teachers for malfeasance should be much more specifically defined than such terms now enshrined in state codes as

“immorality,” “unprofessional conduct,” or “neglect of duty.”

The memo gives examples including, among other acts, conviction or allegation of a felony; improper use of force against students; sexual abuse or harassment; excessive absenteeism; or

alcohol and drug abuse.

The new criteria would be at the heart of a two-stage process for adjudicating claims. Teachers would not lose pay during that time unless formal charges of a felony or other such crime were

also filed.

At the first stage, parties alleging misconduct would bring the matter to the teacher’s principal. If the principal chose to pursue action, he would compile a detailed complaint listing the

relevant facts and evidence that support the allegation. The principal then forwards the information to the superintendent, who would determine whether to dismiss the claim; resolve it with

the local teachers’ union; or, if not resolved within 30 days, advance it to a formal hearing.

At the hearing stage, an examiner chosen jointly by the administration and the union would preside over the disciplinary proceedings. The examiner would render a final decision in writing

within 100 days and could recommend termination as well as lesser punishments, or dismiss the charges. Delays could cost both parties fines.

As it stands now, the plan runs counter to some states’ statutes. Not all states use hearing officers in due process proceedings; several use administrative-law judges or the state board of

education.

And according to Mr. Feinberg’s proposal, teachers could still appeal the hearing officer’s decisions under laws already on the books in most states.

The proposal doesn’t address other reasons for firing teachers, such as in the case of those deemed underperforming or “ineffective” on evaluations.

“The much more politically difficult question, and ultimately the most important, is what to do with teachers who are ineffective,” said Patrick J. McGuinn, an associate professor of

political science and education at Drew University, in Madison, N.J.

Ms. Weingarten has said publicly that evaluation systems jointly shaped by unions and management could supply evidence for due process hearings in those instances. Her union will continue to

refine the idea, she said.

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A version of this article appeared in the January 26, 2011 edition of Education Week as Memo Urges Expedited Teacher Due Process