UPDATE to “Teacher Rights” in Vergara v. California:

Since writing this article, Vergara is no longer pending on appeal.  On August 22, 2016 the California Supreme Court in a 4-3 decision declined to review the Court of Appeal decision upholding the LAUSD teacher assignment practices.  Justice Liu and Justice Cueller broke with tradition to issue statements objecting to the denial of review.  Both opined that the Court owed it to children to examine closely the merits of the appeal.  The implication of their position is that a minimal education standard is a fundamental constitutional right.  The current status of California education laws:  nothing has changed.

Due Process Required to Deprive Teacher of Job

Public employees have a property interest in their jobs.  This right separates them from their private employment peers.  Non-public employees have only a contractual right to employment or rights conferred by state and federal statutes.  Public employees in contrast have a constitutional right to due process of law.  This “due process” means the government may deprive teachers of further employment with a hearing.  Of course, public employees may also form Unions.  These Unions exercise considerable lobbying power.  Teachers are one such group. California teacher rights are found in the Education Code, together with the California Government Code.  These statutes reflect the political influence of the Teacher’s union to secure added job protection.

The Political Forces Behind Teacher Discipline

The story of teacher job rights is closely tied to union membership.  In California, School employees are predominately represented by two unions.  Non-teaching school employees are “classified” employees working in support and administrative roles. Classified employees generally are members of an AFL-CIO union, the California School Employees Association, or “CSEA.”  But teachers have their own union, the California Teachers Association, or “CTA.” CTA Home Page.  CTA represents not only teachers but other “certificated” school employees working as counselors, school librarians, social workers, psychologists, and nurses.  The CTA states it has 325,000 members who work in 1,000 school districts.  In speaking of union and statutory rights, the difference between “classified” and “certificated” is important. Generally, “certificated” employees have even greater job protections than “classified” employees.  And, the state teaching licensing agency can act to revoke or suspend the teacher’s certificate to teach.

The antipode to the CTA is the Association of California School Administrators, or “ACSA.”  ACSA Home Page. This group is less organized and powerful politically than the CTA.  Among other matters, it provides training to administrators on how to hire, manage and discipline teachers.  If students are the focus, then the CTA and ACSA have a joint vision.  On the other hand, if prerogative and power become the focus, students lose.

The Wild Card for the Future of Teacher Discipline

No review of California teacher rights is current without reference the to Vergara v. CaliforniaWiki Background. The plaintiffs are minority students who claim that various statutes providing teacher job protections are unconstitutional.  Specifically, the students claim they are denied equal educational opportunity because administrators assign incompetent teachers to their schools.  They allege teacher protection statutes allow seniority to trump competency.  They argue that unqualified teachers are retained while qualified teachers are dismissed.  They allege these unqualified teachers are assigned to their schools because their schools are in poor districts with high minority populations.  A trial court found for the Plaintiffs.  A Court of Appeal reversed the trial court.  On May 29, 2016, the students appealed to the California Supreme Court.  The currency of this article will depend on the outcome of that appeal.

Overview of Disciplinary Procedures

One thing is clear.  The laws are complex.  Either school employee or School District may falter procedurally.  The result is lost rights.  Lawyers are perceived as a necessary tool to guide administrators through a teacher discipline process.  Likewise, Unions and teachers recognize the need for legal assistance to challenge statutory violations in the discipline process.  The time, energy, attention, and money used to fire a teacher have made the process difficult for everyone.  While the Schools complain it is too difficult to terminate a teacher, it is also difficult for the teacher acting without legal counsel to complete each step in the process.

The Education Code lists ten reasons to fire a teacher.  Administrators must provide teachers pre-termination notices and opportunity to respond.  The various causes for termination cannot relate to matters over four years in the past.  The Education Code requires a “Statement of Charges” to be served on the teacher.  The statutes in 2014 were changed as applicable to teachers to remove the need for the issuance and service of a second document, “the “Accusation.”  This document was often duplicative of the “Statement of Charges.”  The “Statement of Charges” is the document electronically filed with the “Committee on Professional Competency” if the certificated employee requests and serves a “Request for Hearing and Notice of Defense” on the Board of Education.  The “Statement of Charges” appears very much like a formal court complaint in a civil action in Superior Court.  The “Request for Hearing and Notice of Defense,” which must be filed as a single document, appears very much like an unverified “general denial” with “Affirmative Defenses” often used in civil cases as the “Answer” to a civil Complaint.

Upon receipt of the Request for Hearing,” the Board then can elect to proceed or dismiss.  But if the District elects to proceed, it must promptly file a request with the Committee on Judicial Performance [“CPC”] to set the matter for hearing.  The CPC will provide a hearing before a panel of three arbitrators, one from the Office of Administrative Hearings, one selected by the certificated employee, and one by the local Board of Education.  This Committee conducts an evidentiary hearing, and makes specific findings of fact that support its written decision.

The statutes require an early automatic exchange of all witnesses and documents in the possession of each party, and potential evidence not exchanged cannot be later introduced.  Full discovery is permitted under the statutes, but there is a rapid timeline to date of hearing, and discovery requests must go out almost immediately upon the Request for Hearing.

The hearing is a true evidentiary hearing.  An Administrative Law Judge from the Office of Administrative Hearings conducts the procedural aspects of the arbitration.  The District must carry its burden of justifying the dismissal.  The District must prove its case by a “preponderance of the evidence” on each element of each statutory reason for dismissal.

Pre-hearing motions are permitted, but to be successful to eliminate one or more of the written charges, the motion must go to a matter that is both substantive and jurisdictional.  Clearly, not all technical errors and omissions by a District merit dismissal.  Some however do.  For example, those statutes that employ the word “shall” rather than “may” and that specify the consequence of non-compliance.

Teachers Learn the Hard Way that Union Protections May Not Be Enough.

Teacher unions have a duty to protect their teachers from unjust terminations.  The termination process is sometimes used for retaliatory reasons rather than correcting performance.  Sometimes the evidence of poor performance is simply lacking, based only on the hearsay of unreliable sources.  Complaints can issue from disgruntled parents unwilling to be co-responsible or by manipulative students seeking to shift blame.  Reforms to the Education Code have eliminated some of the hurdles to reaching a fair final decision, but those protections still in place are reasonable and necessary safeguards to avoid arbitrary administrative action.

If your Union fails to represent you diligently, take action to hire your own representative.  As a union “certificated employee,” you have the right to a representative to be present at disciplinary proceedings.  Your union will usually provide you with a written consent to select your own representative. If the matter proceeds to an administrative hearing held by an arbitration panel, the rules of procedure and evidence become critical considerations.  You need expert legal assistance at that stage to present admissible relevant evidence in your defense.  You have the right to select your own attorney as your counsel in an arbitration.  If you rely on the Union’s selection of counsel, the Union will ordinarily pay that cost.  But what if the Union has not been looking after your interests?  Will you will get the representation you need at the Arbitration?   Hiring your own counsel is an attractive option. If you settle, the District may pay some or all your attorney’s fees.  If you prevail in the arbitration, you are entitled to recover your attorney’s fees.  The cost of the Arbitration itself is covered by the District whether you win or lose.

Finally, if the California Supreme Court in Vergara v. California reverses the Court of Appeal, large swaths of the Education Code protections will be invalidated as unconstitutional.  I predict even the liberal members of the Court will refuse to “take the bait.”  The students in Vergara invite the Supreme Court to design social policy on a hot political topic.  I predict the Court will decline to step into the role of School administrators or legislators.

 

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