Due Process for Teachers

All contracts of employment of teachers in the public schools in the state shall continue in full force and effect during good behavior and efficient and competent service rendered by the teacher, and all contracts of employment shall be deemed to continue for the next succeeding school year unless written notice of intention to terminate a contract of employment is served by a board of education upon any teacher on or before May 1.A teacher shall give written notice to the board of education of a school district that the teacher does not desire continuation of a contract of employment on or before may 15 or, if applicable, not later than 15 days after final action is taken by the board of education upon termination of professional negotiation absent a binding agreement under article 54 of chapter 72 of Kansas Statutes Annotated, whichever is the later date.Terms of a contract may be changed at any time by mutual consent of both a teacher and the board of education of a school district.- (KSA Statute #72-5411) http://www.ksbe.state.ks.us/

The above segment specifies that all teachers can expect to be rehired if they are not notified in writing otherwise by May 1.The key term in this statute is the word notified.As I have found out during my research of this topic, not all teachers are governed by due process the same.Public schools are agencies of the state, thus the Fourteenth Amendment provides that no "State shall deprive any person of life, liberty, or property, without due process of the law." (Fischer et al, 2003, p225) The two concepts of this fourteenth amendment that most apply to teachers when dealing with issues of due process are "liberty and property".

When one looks at due process for teachers, they need to first look at the difference between a tenured teacher and a non-tenured (or probationary) teacher. The non-tenured or probationary teacher has a property interest only for the duration of the contract. Thus, if the probationary teacher is dismissed during the year of the contract, then notice, a hearing, and reasons for dismissal are required. There is an important difference between a dismissal during the term of the contract and a mere non-renewal. There is no violation of rights to not renew a non-tenured teacher. Unless, local law requires it, school districts are under no legal obligation to give reasons for not renewing the contract of a probationary teacher. If they give reasons, then the teacher has a right to notice, and a hearing where the validity of these charges can be exchanged and refuted. (Fischer et al, 2003, p227) Most teachers in this case site their reputation is stigmatized, thus their liberty interest is implicated.It is generally to the best interest of the district to give no reasons why renewal was not granted to a non-tenured teacher.  

The tenured teacher has a reasonable expectancy that their positions will be continuous. The courts have ruled that this expectation of a "continuous contract" is a sufficient "property" right and thus warrants the protection of the due process clause. (Fischer et al, 2003, p 226) I will further go through the due process for a tenured teacher later in the paper.

Many teachers, both tenured and nontenured, often claim rights to due process when the nonrenewal or reassignment of a supplemental contract. K.S.A. #72-5412a states:

A board of education of any school district may enter into a supplemental contract of employment with any employee of the district. "Supplemental contract" means a contract for services other than those services covered in the primary contract. The provisions of article 54 of chapter 72 of K.S.A. which relate to the continuation of teacher contracts and to the due process procedure upon termination of nonrenewal of a teacher's contract do not apply to any supplemental contract of employment.
(K.S.A. #72-5412a http://www.ksbe.state.ks.us/)

This statute contributed to a need of new a statute to have in addition to #72-5411 (listed on the top of page one). K.S.A. #72-5437 reads:

All contracts of employment of teachers, as defined in K.S.A. 72-5436, and amendments thereto, except contracts entered into under the provisions of K.S.A. 72-5412a, and amendments thereto, shall be deemed to continue for the next succeeding school year unless written notice of termination or nonrenewal is served as provided in this subsection.Written notice to terminate a contract may be served by a board upon any teacher prior to the time the contract has been completed, and written notice of intention to nonrenew a contract shall be served by a board upon any teacher on or before May 1.A teacher shall give written notice to a board that the teacher does not desire continuation of a contract on or before may 15 or, if applicable, not later than 15 days after final action is taken by the board upon termination of professional negotiation absent a binding agreement under article 54 of chapter 72 of Kansas Statutes Annotated, whichever is the later date.
(K.S.A. #72-5437 http://www.ksbe.state.ks.us/)

Once a teacher has achieved the status of tenure, they have the right to continued employment subject only to dismissal "for cause." (Fischer et al, 2003, p30) Even nontenured teachers who are terminated during the contract year may invoke the same rights as a tenured teacher.Most states provide specific procedures before tenured teachers can be dismissed.In Kansas, these procedures are as follows:

1. A teacher is given written notice of intention by a board to not renew or to terminate the contract of the teacher as provided in K.S.A. 72-5437.The written notice should include (a) a statement of reasons for the proposed nonrenewal or termination, and (b) a statement that the teacher may have the matter heard by a hearing officer upon written request filed with the clerk of the board within 15 calendar days from the date of such notice of nonrenewal or termination.
2. Upon the filling of any written request of a teacher to be heard by a hearing officer, the board has 10 calendar days to notify the commissioner of education that a list of qualified hearing officers is required.Such notice to the commissioner shall contain the mailing address of the teacher.With in 10 days after receipt of notification from the board, the commissioner shall provide to the board and to the teacher, a list of nine randomly selected, qualified hearing officers.
3. Within 5 days after receiving the list from the commissioner, each party shall eliminate four names from the list, leaving the one remaining individual on the list as the hearing officer. In this process of elimination, each party shall eliminate no more than one name at a time, alternating after each name has been eliminated.The first to be eliminated is chosen by the teacher, within 5 days after the teacher receives the list.This process of elimination shall be completed within 5 days thereafter.
4. Either party may request a new list be provided within 5 days after receiving the list.If such a request is made, the party making the request must notify the commissioner and the other party, and the commissioner will generate a new list and distribute it out to the parties in the same manner.
5. The commissioner of education shall compile a list of hearing officers comprised of residents of this state who are attorneys at law. Such list shall include a statement of the qualifications of each hearing officer.
6. In lieu of using the process of steps 2 and 3, if both parties agree, they may make a request to the American Arbitration Association for an arbitrator to serve as the hearing officer. If both parties agree to use this procedure, the parties shall make a joint request for a hearing officer within 10 days after the teacher files a request for a hearing. If the parties choose to use this procedure, the parties shall pay one-half of the cost of the arbitrator and of the arbitrator's expenses.

The above steps are taken from K.S.A. #72-5438 http://www.ksbe.state.ks.us/

The hearing provided for under K.S.A. 72-5438 shall commence within 45 calendar days after the hearing officer is selected unless the hearing officer grants an extension of time.The hearing shall follow procedural due process as follows:

1. The right of each party to have counsel of such party's own choice present and to receive the advice of such counsel or other person whom such party may select.
2. The right of each party or such party's counsel to cross-examine any person who provides information for the consideration of the hearing officer whose testimony is presented by affidavit.
3. The right of each party to present such party's own witnesses in person, or their testimony by affidavit or deposition. That testimony of a witness by affidavit may presented only if such witness lives more than 100 miles from the location of the district office, or is absent from the state, or is unable to appear because of age, illness, infirmity or imprisonment. When testimony is presented by affidavit the same shall be served upon the clerk of the board and upon the teacher in person or by first-class mail not less then 10 calendar days prior to presentation to the hearing officer.
4. The right of the teacher to testify in the teacher's own behalf and give reasons for the teacher's conduct, and the right of the board to present its testimony through such persons as the board may call to testify in its behalf and to give its actions, rulings or policies.
5. The right of the parties to have an orderly hearing.
6. The right of the teacher to a fair and impartial decision based on substantial evidence.

The above taken from K.S.A. #72-5439 http://www.ksbe.state.ks.us/

Unless otherwise agreed to by both the board and the teacher, the hearing officer shall render a written opinion not later then 30 days after the close of the hearing, setting forth the hearing officer's findings of fact and determination of the issues.The decision of the hearing officer shall be submitted to the teacher and to the board.The decision of the hearing officer shall be final, subject to appeal to the district court by either party as provided in K.S.A. 60-2101. (K.S.A. #72-5443 http://www.ksbe.state.ks.us/)

To quickly summarize, courts have interpreted laws so as to ensure that teachers who are to be terminated have first been given adequate warning of their behavior and its likely consequences, and that proper due process steps have been taken.Nontenured teachers are entitled to constitutional protections only when they can demonstrate that they have been deprived of a liberty interest or a property interest.Compare that to tenured teachers who have interest in continued employment and are always entitled to due process protections prior to dismissal.

Assignment: Analyze the following two scenarios and send your analysis to your instructor.

Case Scenario 1:

A non-tenured teacher is informed in early March that his contract would not be renewed for the next school year. When word that this teacher will be non-renewed, the community, and many parents, express anger and voice displeasures toward the board and administration.In mid April, The superintendent dismisses the teacher instantly from his position, and asks that he resign within one week from the day he is escorted out of his classroom.The superintendent gives the reason that the teacher violated the district computer usage policy.Is this teacher protected under due process?Did the superintendent follow correct procedure?Who will win?

Case Scenario 2:

In July, a letter informs a teacher that her position as sixth grade teacher is not needed because of a small class size of incoming sixth graders.The district reassigns her to the high school for the upcoming year to teacher English and Speech.She is not happy with this and contests that she will move to her new position.She sites that she is not certified to teach at the grade level she is reassigned to.What are her rights?Are the district actions legal?

References

Fischer, Schimmel, and Stellman. Teachers and the Law (6th edition), Person Education Group, Inc. 2003.

Kansas Education Statutes. http://www.kabe.state.ks.us/.Current through 2000 session.

Court cases to Consider:

Board of Regents v. Roth, (1972).

Hill v. Silsbee Independent School District, (E.D. Tex. 1996).

Winegar v. Des Moines Independent Community School District, (8th Cir. 1994).

Chandler v. Board of Educ. of City of Chicago, (N.D.Ill. 2000).

State ex rel. McKenna v. District No. 8, (Wis. 1943).

Eshom v. Board of Education of School District No. 54, Thayor and Nuckolls Counties, Nebraska, (1985).

MacReynolds v. North Central Kansas Technical College (2002).

 

Web sties to check:

http://www.ksbe.state.ks.us/

http://www.kasb.org/

http://ericae.net/db/edo/ED259448.htm

http://www.coe.iup.edu/wnich/educ442.html

http://www.jobweb.com/resources/profiledetails.asp?jfcode=59