Education Law Insights

California Court Finds Teacher Tenure, Layoff, and Dismissal Laws Unconstitutional

Posted by Jackie Wernz on June 12, 2014

By Guest Blogger Amy Kosanovich Dickerson

School leaders across the country are buzzing about a California Superior Court’s recent tentative ruling that the state’s teacher tenure, dismissal, and layoff laws violate the equal protection clause of the California Constitution. As can be seen in the analyses in the Chicago Tribune, Politico and Education Week, education and news groups are also speculating about the ruling’s significance for California and other states throughout the country.  Below is a brief summary of the decision and its potential implications for states across the country, including Illinois.

The Court’s Decision

In Vergara v. State of California, nine California public school students, supported by the group Students Matter, claimed that the state’s teacher tenure, dismissal and layoff statutes result in “grossly ineffective teachers” obtaining and retaining permanent employment, and that these teachers are disproportionately employed in schools serving predominantly low-income and minority students, in violation of the equal protection clause of the California Constitution. The court agreed with the students, finding that the statutes violate students’ fundamental rights to equal education “by adversely affecting the quality of education they are afforded by the state.” The court’s opinion references a significant amount of testimony presented at trial on these adverse effects, including testimony that 1-3% of teachers in California, or 2,750-8,250 teachers, are “grossly ineffective.”

In finding the state’s teacher tenure law unconstitutional, the court took particular issue with the fact that a California public school teacher may attain tenure in only two years, and that the tenure decision effectively must be made in the middle of the teacher’s second year under the law’s notice provision. The court found this short timeframe unfairly disadvantages both teachers and students, noting that two of the state’s own experts agreed that a three-to-five year probationary period would be a more beneficial time frame to make tenure decisions for both students and teachers.

The court also found that the state’s current teacher dismissal procedure is so complex, time consuming, and expensive that it effectively prohibits an effective, efficient, and fair dismissal of a grossly ineffective teacher. The court cited evidence that the dismissal process for a teacher in California can take anywhere from two to ten years and cost $50,000 to $450,000, and that as a result, dismissals are “extremely rare” because administrators believe it to be “impossible” to dismiss a teacher under the current system. The court also relied on testimony that the Los Angeles Unified School District alone had 350 grossly ineffective teachers it wished to dismiss at the time of trial for whom the dismissal process had not yet been initiated.

Finally, the court ruled that the state’s teacher layoff procedures are unconstitutional due to layoff decisions being based solely on a teacher’s seniority without any consideration of a teacher’s classroom performance or evaluation ratings. While the court’s ruling calls for the challenged statutes to be enjoined from being enforced, the court stayed such injunctions until any appeals of the ruling are completed.

Insights for School Leaders, in California and Beyond

Throughout its opinion, the Court distinguished California’s current tenure and layoff laws from those in other states, suggesting that other states’ laws would not present the same problems found by the court. For example, the court cited evidence that California is one of only five states with a probationary period before a teacher is awarded tenure of two years or less. Thirty-two states have a three-year teacher probationary period, and nine states have a four-or five year period. Similarly, California is among only ten states that consider seniority as the sole factor or a required factor when deciding teacher layoffs. While twenty states provide that seniority may be considered among other factors, eighteen states and Washington, D.C. leave the layoff criteria to school district discretion, and two states provide that seniority cannot be considered.

Thus, it is possible that student groups in states with laws similar to California might succeed on similar challenges based on the reasoning of this case. In states with laws that differ considerably from California’s, however, it is less likely that the court’s reasoning would support a challenge to the current law. For example, the recent amendments to Illinois’ teacher tenure, dismissal and layoff laws by Senate Bill 7 and the Performance Evaluation Reform Act (PERA) created numerous distinctions between Illinois’ and California’s laws. Namely, Illinois has a 4-year probationary period for teachers before they can be awarded tenure, and by September 1, 2016, teacher performance will be a factor in all tenure decisions for those teachers first employed by that date. Illinois also requires a teacher’s performance to be considered in a school district’s layoff decisions and has undergone changes to its teacher dismissal process that were intended to make the process more efficient.

In any event, there is no doubt that education leaders from across the country will be paying close attention to the outcome of any appeals filed in this case. And while the legal implications of the case may still be uncertain, this decision sends a powerful message about a growing trend of viewing policy on teacher employment decisions from the perspective of their impact on students.

Medical Marijuana and K-12 Schools: The Straight Dope on How Schools Can Deal

Posted by Jackie Wernz on October 8, 2013

Illinois recently joined twenty other states and the District of Columbia in legalizing medical marijuana. Four other states are considering passing similar legislation in the near future. How do primary and secondary schools adapt when the state allows employees and students to legally possess and use marijuana for medical purposes? The following are a few issues that K-12 schools may face.

Drug Possession and Use

What if an employee or student shows up at school, on a school bus, or at a school-related event with marijuana? Or uses marijuana at those places? When caught, the individual presents a doctor’s prescription for the drug. Is the prescription a get-out-of-jail-free card for school discipline?

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The Supreme Court’s DOMA Decision: Impact on School Districts

Posted by Jackie Wernz on June 28, 2013

The U. S. Supreme Court has declared unconstitutional a portion of the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union between one man and one woman.  The Court’s 5-4 vote in U.S. v. Windsor will reach well beyond the case of Edith Windsor, a New York widow, who was sent a $363,000 estate tax bill by the Internal Revenue Service after her wife died in 2009.  The Windsor decision means that same-sex couples who are legally married now must be treated the same under federal law as married opposite-sex couples.  What does that mean for school districts? My colleagues, Jeff Nowak and Veronica Silvaprovide their take on this decision’s impact on employers, including public schools, in a recent FR Alert.

New Jersey District Dismisses Teacher Who Called Students “Future Criminals” on Facebook

Posted by Jackie Wernz on January 21, 2013

Earlier this month, a New Jersey appellate court affirmed the dismissal of a tenured teacher for comments she made about her students on Facebook. Good summaries of the case, In re O’Brien, can be found through the National School Boards Association and Education Week (subscriber access only). But the case warrants a closer look for school leaders and employees who wish to better understand First Amendment protections of school-employee speech on the internet. Although the school district was allowed to dismiss the teacher in this situation, where she criticized her young students in an inflammatory way, there is a blurry line between protected and unprotected employee online speech that administrators must be careful to understand. Below are a summary of the facts in the case, the relevant legal standard and its application to O’Brien’s situation, and some lessons that school administrators and employees can learn from the ruling.

The Facts

In 2010-2011, Jennifer O’Brien was a veteran teacher with over a decade of experience in the Paterson, New Jersey public schools. At the start of the 2010-2011 school year, Paterson unexpectedly was assigned to teach first grade at a new school that was predominately comprised of minority students, including African-Americans and Latinos. All of the students in her class, in fact, were either Latino or African-American.

O’Brien began to believe that six or seven of the students in her class had behavioral problems, which were having an adverse impact on her classroom environment. One student struck her, another stole money from her and other students, and some students hit each other.

O’Brien responded to these issues by sending disciplinary referrals to the school administrators on several occasions, but she thought the referrals had not been addressed adequately. O’Brien then posted two posts on her Facebook page relating to the issues:

“I’m not a teacher—I’m a warden for future criminals!”

“They had a scared straight program in school—why couldn’t [I] bring [first] graders?”

O’Brien said she posted the statement that her students were “future criminals” because of the behavior of some – but not all – of the students, not because of their race or ethnicity. News of her posts spread quickly throughout the school district, however. Two angry parents went to her principal’s office to express their outrage, and one parent threatened to remove her child from school. The school also received at least a dozen irate phone calls. Twenty to 25 people gathered outside the school to protest because of the statements, and news reporters and camera crews from major news organizations descended upon the school. At the next Home-School Council meeting, the majority of the meeting was devoted to O’Brien’s posts and parents expressed their outrage over the posts. When O’Brien was made aware of the outrage against her posts, she was surprised that her posts had led to such a reaction. (more…)

TechCon 2012 Recap: Should Schools Let Teachers Use Social Media in the Classroom?

Posted by Jackie Wernz on November 19, 2012

Another hot topic that came up at our TechCon 2012 presentation on social media policies (which I blogged about earlier this month here) is whether to allow teachers to use social media in the classroom. Reports about why social media belongs in the classroom (such as this one from NBC News, which was later picked up by the Huffington Post) make compelling points about the need to meet students where they are and teach them how to use (and responsibly use) technology such as social networking. But there are serious legal concerns school districts should consider. At the conference, we discussed some of these concerns.

Age Appropriate Behavior?

For instance, some students, particularly at the elementary level, may be too young to establish a page on a social media website without violating the terms and conditions of the website. Teachers shouldn’t use social media pages for classroom activities if student participation would violate those sites’ policies. Our conclusion on this point: teachers probably should not be allowed to use any social media websites that have age restrictions for younger students. That means no Facebook, friends. Does that mean there must be a brick wall between elementary school students and technology? Not at all. There are fantastic free social media tools for teachers out there that are not open to the public in the same way as Facebook, and so do not have the same age restrictions.

Locked Out….

We also discussed that teachers’ use of personal social networking websites can create issues for schools that need to supervise or investigate such use. This is especially true in states like Illinois that have laws prohibiting public employers from asking for passwords to social networking accounts, even if they are used for a business purpose. School districts in Illinois and other states with similar laws may find themselves in a bind if they need to access the social media websites to investigate misconduct, for litigation purposes or to respond to a public records request. Notably, the Illinois law suggests that public employers can’t even ask for information from social networking pages of employees. This could prohibit school districts from asking teachers to make their personal social networking pages accessible to administrators when used for classroom purposes. I wrote on this topic in the most recent issue of the Illinois Association of School Board Journal in an article titled Locked out…Strategies for complying with the Facebook Password Law.

Now, there are arguably very good reasons for locking school administrators (and other employees) out of employees’ personal social networking websites. Another education blogger, @mcleod, made the analogy on my Twitter profile between laws like the Facebook Password Law and laws against wiretapping educators’ phones. If employees are choosing to use personal media or their personal telephones for personal use, I think there are very few (if any) who would suggest that school administrators should have access to those personal methods of communication. Simply because you sign up to be a public teacher should not mean that you give up all rights to a private personal life.

But once a teacher chooses to use those private, personal methods of communication to communicate with students on school business, I think their right to privacy must end. The Illinois Facebook Password Law does not recognize this reasonable distinction, and raises serious concerns as to how school districts can respond if they have a legitimate need to access school-related content on a teacher’s personal social networking account.

The easiest way to get around these concerns, and a good practice even in states that do not have Facebook password laws, is to have teachers create a “group” page on social media using their business e-mail account. In those cases, the page is arguably that of the school district and so does not fall under the prohibition in Facebook password laws. The use of a business account also helps prevent the line-blurring that can occur when a teacher uses her personal social media account with students. It can be hard to tell teachers and students that the teacher is an authority figure, not a friend, when the two are friends on personal social networking programs.

Tips and Tricks: Employee Discipline Investigations

Posted by Jackie Wernz on November 15, 2012

For those who follow me on Twitter and who follow this blog, you may have noticed a bit less content in the past two weeks than usual. I was busy assisting my colleague Shelli Anderson with a tenured teacher dismissal hearing and so was not as focused on Tweeting and blogging as I would usually be. Since I’ve been back, I have come across some interesting stories about teacher misconduct, including  a teacher accused of locking students in a closet in Arizona, and a teacher who allegedly made the following comment on Twitter after Barack Obama’s presidential win:

Congrats Obama. As one of my students sang down the hallway, ‘We get to keep our fooood stamps’…which I pay for because they can’t budget their money…and really, neither can you.”

What better time than now to review a few tips and tricks for employee discipline investigations? As most school leaders know too well, the first step when you get an allegation of misconduct like those cited above is to conduct an investigation to determine if discipline is warranted. One of the first things you do in that process, moreover, is to conduct interviews of employees, including the employee about whom the allegation is made. Here are a few tips and tricks to keep in mind when completing this important step in the investigatory process.

Admonitions and Representation

The purpose of these initial meetings is fact gathering, so it is important to make that point clear to the subject of the interview. Always begin an interview by telling the employee that you are there to gather all the facts you can so that they understand the purposes of the interview. If an employee is hesitant to participate, moreover, you can remind them that this is the chance to tell his/her side of the story and to ensure the administration has the whole story when making decisions about the situation. And of course, always make sure the employee knows before the meeting about any rights to union representation and that the employee may have and make sure that any necessary representative is present during the interview. (more…)

Are Your Students’ Parents “Friending” Teachers?

Posted by Jackie Wernz on September 27, 2012

A recent @IlPrincipals tweet identified an interesting USA Today article: “Should parents ‘friend’ their child’s teacher?” At this time of year when social media policies, procedures and guidelines are being reviewed across the country, another important question school leaders should ask is what they should do if such “friendships” occur. 

The “Parental Paparazzi”

Perhaps the most important thing school leaders should do is to educate teachers of the risks they face if they agree to such “friendships.” If teachers and parents become “friends,” and the parent brings in evidence of what they believe to be misconduct by the teacher on his or her social networking website, the school district may be able to – or even have to – discipline the teacher for that online activity. 

It’s not true, as one commentator suggested on NPR’s Talk of the Nation, that “anything that a parent might object to in your life can be the basis of discipline.” But there are risks from what is becoming known as the “parental paparazzi.” Teachers should be informed that if they agree to online relationships with parents, they are potentially opening their lives to the “paparazzi.”  (more…)

DOE Guidance in Light of Bus Monitor Karen Klein Incident

Posted by Jackie Wernz on August 20, 2012

With guest blogger Amy Dickerson

The story of Karen Klein, the now retired bus monitor from New York who was bullied by students on a school bus, gripped the country this summer. After a viral video of the incident was released, an internet campaign was launched soliciting donations to send Klein on vacation. As the LA Times reported, the campaign raised over half a million dollars.

Internet donors apparently weren’t the only ones paying attention. The Department of Education (DOE) issued a statement after the incident reminding schools of DOE resources to help create a safe and respectful environment on school busses. DOE’s Office of Safe and Healthy Students and the Safe and Supportive Schools Technical Assistance Center offer free presentations and related training modules which are must reads for school officials aiming to provide a respectful bus environment for back to school.