Teacher firing bill would speed up some egregious cases

Published: Wednesday, May. 7, 2014 - 11:18 pm
Last Modified: Thursday, May. 8, 2014 - 7:47 am

In her 11 years as a deputy superintendent, Tanya Krause has never finished firing a teacher.

That’s not to say Krause hasn’t moved to dismiss teachers. But in each instance, after embarking on a case-building process that typically takes years and consumes tens of thousands of dollars, Krause has opted to send the teacher along with a paid settlement.

“It’s an incredibly laborious and time-consuming process,” said Krause, who is a deputy superintendent of the Campbell Union High School district. “While (a settlement) may be distasteful,” Krause added, “that teacher is no longer in the classroom with kids.”

Passing a teacher termination law, as Assemblywoman Joan Buchanan has learned, can also take a long time.

For the third consecutive year, the California Legislature will contemplate legislation expediting the appeals process for fired teachers. Last year, Buchanan’s teacher dismissal bill revived late in the session only to end its odyssey with a veto from Gov. Jerry Brown.

The dynamics have since shifted. The California Teachers Association has buoyed Buchanan’s latest effort by embracing a fast lane for teachers accused of the most horrific offenses. It carves out a distinct category of “egregious misconduct,” which includes abusing or molesting students and certain drug crimes like dealing to kids. Those appeals would jump to the front of the line and go before a judge, rather than a three-person panel comprising a judge and two teachers.

“I think overall our interests are the same,” said Buchanan, a Democrat from Alamo. “No one wants to see a teacher who abuses children remain in the classroom, and we also all believe in due process.”

In addition to creating the compressed appeals process for egregious misconduct, the legislation shortens the appeals process for teachers who are simply underperforming: those fired for “unsatisfactory performance,” or subpar instruction, or for instances of “unprofessional conduct” like showing up late or failing to turn in lesson plans.

Assembly Bill 215 requires those proceedings to start sooner, consolidates document filing and seeks to rein in common snags like evidence discovery and putting together the three-person hearing panel.

But the significance of the compromise lies in the new procedure for egregious misconduct. In past years, the union has opposed a separate process for such cases. In 2012, Sen. Alex Padilla floated a bill making it easier to dismiss child molesters and abusers by putting those cases before a single judge, rather than the current three-person panel. The union strenuously objected, and Padilla’s bill perished in committee.

“The Legislature must balance administrative efficiency against fairness to teachers,” the union’s opposition letter stated.

Now the CTA has joined forces with EdVoice, an organization that usually plays the role of the union’s ideological adversary, to back a bifurcated process. EdVoice had put pressure on the union by introducing a ballot initiative creating a separate process to fire teachers who abuse kids or sell them drugs.

EdVoice has since dropped the ballot measure, titled the “Stop Child Molesters, Sexual Abusers and Drug Dealers from Working in California Schools Act,” though it plans to reintroduce it if Buchanan’s bill fails.

“We don’t always get everything we want, but the critical question shouldn’t be (whether) we get everything we want,” said Dean Vogel, president of the California Teachers Association. “The critical question should be, how do we develop a program for dismissal that’s fair, effective and reliable?”

Critics point to a costly, protracted process for dismissing teachers deemed unfit to remain in the classroom. Appeals gobble up inordinate amounts of time and money, according to Buchanan and other advocates for streamlining the process. The case of Mark Berndt, a child-molesting teacher in Los Angeles who was paid $40,000 in 2011 to drop his appeal, spurred calls for action.

Asked whether prior attempts to dismiss teachers have dragged on longer in the appeals process than necessary, Jurupa Unified School District Superintendent Elliott Duchon burst out laughing.

“There were so many opportunities for delays,” he said.

Teachers, too, say the current system can allow unsatisfactory educators to linger for too long. Some add that the extended proceedings can be unfair not only to kids but to teachers left dangling, often pulled from the classroom but still receiving pay as they await a final resolution.

“If you move someone out of the classroom, do it for a good reason,” said Kimberley Gilles, an English teacher at Monte Vista High School who testified in support of Buchanan’s bill. “Get your documentation together, get your evidence, confront the teacher so the right kind of decision can be made and so the teacher can defend himself or herself, so the teacher isn’t just left dangling in professional limbo. ... Let that teacher exit the profession with dignity and give kids the teachers they deserve.”

Many of those delays happen after a teacher challenges being fired. Buchanan’s bill seeks to consolidate the appeals process – the recourse a teacher has to challenge being fired – and creates a new category of immoral conduct.

Otherwise, it does not address when a school district can fire a teacher in the first place. The bill does not alter teacher tenure rules that give teachers permanent employment status and powerful job protections, which some administrators say make it all but impossible to fire an incompetent teacher.

Advocates of change have clashed with the CTA and its allies in the Legislature, many of whom get campaign backing from the powerful union. Making it easier to identify and fire poor teachers forms one of the pillars of the modern education reform movement.

Various attempts to overhaul teacher evaluation rules also have fizzled. Buchanan had an evaluation bill last year, which she ultimately shelved to focus on the appeals process. Overarching concerns about tenure, seniority-based layoffs or evaluating teachers lie beyond the scope of Buchanan’s current bill, a distinction she emphasizes.

She said her current concern is not when a district can fire a teacher, but what happens after administrators have already decided to do so.

“I keep telling people, I’ve been telling them for two years, my bill is about how to resolve an employment dispute,” Buchanan said. “To take on more than one big issue at a time is very difficult.”

CTA leaders argue that administrators who spend enough time in the classroom, observing and interacting with their teachers, already should have plenty of tools to identify and phase out those who don’t pass muster.

“If you’re talking about teacher effectiveness, as an evaluator you should be in the classroom enough times to have a good sense of the instructional skill or technical skill of the teacher,” Vogel said. “With all due respect, there’s no reason for ineffective teachers to be in the classroom if you’ve got people actually doing their job of evaluating them.”

The complexity of assessing teachers, Gilles said, illustrates why educators need strong safeguards against unjustified termination.

“That teacher has the right to say, ‘excuse me?’ ” Gilles said, holding up a hand. “Because I will say, the administration’s idea of what is effective is not necessarily mine.”

Individual school administrators lauded Buchanan’s recent breakthrough, which they say will help them jettison the worst teachers. But they said those shocking cases tend to be easier to bring and win. They express frustration about resolving the more ambiguous unsatisfactory performance category: school employees who have not committed a clearly repugnant offense but are simply not effective teachers.

“The problem is the ones that are grayer: the unsatisfactory performance, the one that isn’t the most responsible, diligent employee in the world, the ones that are more subjective,” said Rick Rogers, superintendent of the Oakley Union Elementary School District.

For cases that fall into that gray area, administrators typically rely on evidence like classroom observations and witness testimony from peers, parents and students to prove their point. They must collect ample evidence of a teacher falling short and give the teacher an opportunity to improve through professional development.

“It’s an immense amount of documentation, and the onus is on the employer to have multiple, multiple ways to prove your point,” Krause said.

Reformers cite those difficulties as signs that schools must change how they gauge teachers and choose which ones to retain or offer tenure.

The idea of judging teachers based on test scores has become a flashpoint, prized by reformers and assailed by teachers unions (Vogel called the notion “embarrassingly simple and simple-minded”). A closely watched lawsuit in Los Angeles Superior Court, Vergara v. California, is challenging a cluster of state teacher employment laws as unconstitutional.

“There’s inequality that’s baked into the system: some kids are getting highly effective teachers and some are getting grossly ineffective teachers,” Theodore J. Boutrous, an attorney for the plaintiffs – a group of students recruited by the organization Students Matter – said in his opening statement. Teacher dismissal rules, he continued, “make it virtually impossible to terminate a teacher who everyone would agree is grossly ineffective.”

Disciplining teachers

Pending legislation, Assembly Bill 215, would create a new category of "egregious misconduct" to speed resolution of the most horrific teacher discipline cases. Critics contend the whole system needs an overhaul. Here’s an overview.
 Egregious misconductImmoral or unprofessional conductUnsatisfactory performance
How it works now• No separate category for "egregious misconduct." Offenses like child molestation fall under broad "immoral or unprofessional conduct" category.• Includes conflicts with co-workers, insubordination, disobeying regulations.
• Dismissal charges can only be filed Sept. 15 to May 15.
• Appeal heard by a three-person panel (judge and two educators).
• Hearings must commence within 60 days but do not have to be concluded within a given window.
• Unlimited process of discovery (evidence gathering).
• District can decide to remove teacher from classroom and suspend pay under certain circumstances; teacher can challenge lack of pay in Superior Court.
• No evidence more than 4 years old allowed.
• Includes ineffective teaching.
• Method of evaluating teachers for effectiveness bargained by districts.
• Dismissal charges can only be filed Sept. 15 to May 15.
• Appeal heard by a three-person panel (judge and two educators).
• Hearings must commence within 60 days of hearing request but do not have to be concluded within a given window.
• Unlimited process of discovery (evidence gathering).
• No evidence more than 4 years old allowed.
What AB 215 changes• Adds "egregious misconduct" category that includes molestation, abuse and drug dealing.
• Dismissal charges can be filed any time.
• Appeals go before administrative law judge.
• Hearing must commence within 60 days of request for hearing, with a maximum extension of 30 days.
• Evidence of egregious misconduct more than 4 years old allowed.
• Dismissal charges can be filed any time.
• Hearing must commence within six months of employee requesting hearing and conclude within seven months of request.
• Seeks to speed process with limits on discovery (evidence gathering). Judge can hear evidence disputes.
• Allows evidence older than 4 years old if it involves child or sex abuse.
• Administrative law judge decides teacher challenge to unpaid suspension.
• Dismissal charges can only be filed during regular school year.
• Hearing must commence within six months of teacher requesting hearing and conclude within seven months of request.
• Seeks to speed process with limits on discovery (evidence gathering). Judge can hear evidence disputes.
• Allows evidence older than 4 years old if it involves child or sex abuse.
What else do critics want?• Category expanded beyond child molestation, child abuse and drug dealing to include offenses like teaching while intoxicated.• Make it more difficult for teachers to win tenure and acquire job protections.• Make it harder for teachers to win tenure and acquire job protections.
• Allow administrators to evaluate teachers for effectiveness based in part on student test scores.
Source: Bee research


Call Jeremy B. White, Bee Capitol Bureau, (916) 326-5543.

Read more articles by Jeremy B. White



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