Due Process Rights: Teacher Dismissal
Basic procedural due process in disputes over the dismissal of teachers usually includes notice of intended actions, the right to some explanation for proposed adverse employment actions, and the dismissed individuals’ rights to respond to the planned action. Teacher dismissals refers to the termination of employment contracts either during academic years for just cause or, for teachers with tenure, at the end of a given school year. Such employment actions are considered dismissals at the end of academic years, because tenure, sometimes referred to as continuing contract status, entitles teachers to an expectation of continuing employment from year to year. This entry discusses the evolution and application of due process in teacher terminations.
Reduction-in-force (RIF) is the term used when the basis for teacher dismissals deals with organizational factors and not with any personal fault on the part of individuals who may have property rights in their jobs. In the RIF process, for example, tenured teachers could be excellent and have done nothing wrong, but their employment contracts are terminated without cause due to such factors as declining enrollment or the discontinuation of programs. Depending on state law and board policy, tenured and nontenured teachers are placed on call-back lists, meaning, typically, that if their jobs become available again, they must be given the opportunity to be returned to their jobs before others can fill the vacant positions.
When school boards elect not to renew the expiring contracts of teachers who have yet to achieve tenure, this is not a termination, because the employment relationship has run its course. Accordingly, these teachers have no right to procedural due process, unless it is conferred by state law or collective bargaining contracts. For instance, Ohio provides basic due process rights to teachers whose contracts are not renewed.
There was a time when most teachers were at-will employees without much of a right to due process. This situation changed in light of judicial interpretation of the due process rights of employees under the U.S. Constitution’s Fourteenth Amendment, which includes the clause “nor shall any state deprive any person of life, liberty, or property, without due process of law.” Courts and legislatures agree that teacher dismissal involves a property interest, because salaries are property.
Another argument can be made that liberty interests involving the good reputations of teachers can sometimes be relevant, particularly when actions infringe on the ability of individuals to procure future employment. At the same time, these arguments have not changed the responsibility of school officials to evaluate and dismiss incompetent teachers truthfully and fairly. In light of the wide acceptance of these ideas, school boards must provide procedural due process in teacher evaluations, especially if an individual’s teaching ability is at issue.
In most states, due process laws require that teachers who are being dismissed must have been informed about their deficiencies and urged to improve. While school boards may use rationales other than job performance in dismissals, such as when teachers or other employees commit immoral acts with students, regardless of whether in or out of school, these individuals are still entitled to the basic due process rights described above.
In addition to notice of intended actions and their rationales, employees have the right to present their side of the issues. The Supreme Court specified the right of teachers to some form of a pretermination hearing in Cleveland Board of Education v. Loudermill (1985). In Loudermill, the Court clearly distinguished between the procedure for dismissal and the reasons supporting such a decision. Subsequently, other courts have strongly protected procedural due process while being hesitant to interfere in the substantive decisions of school boards. State laws typically provide that while courts may intervene on procedural issues, school boards have “sole discretion” over the decision itself, free from judicial review.
Most, if not all, states have enacted detailed legislation that provides basic due process rights even for first year or nontenured teachers, the minimum due process rights to which all educators are accorded. For example, in Ohio, the law not only mandates strict time lines but also identifies who must conduct classroom observations as part of the evaluation process. Specifically, the law requires that there must be observations of not less than 30 minutes carried out by administrators as part of formative evaluations that must be completed prior to sharing written summative evaluations with individual teachers no later than January 25 of each school year. The law adds that the results of another set of two 30-minute observations must be shared with teachers prior to April 10. Under this law, officials must give teachers the required criteria prior to conducting observations, and if their contracts are to be terminated or not renewed, they must be apprised of the criteria that were used in making such decisions. The law adds that school boards must offer assistance plans to help teachers correct the inadequacies revealed in their evaluations. Teachers who are tenured may have even greater rights, and administrators may need to provide more documentation if their employment is to be terminated due to poor performance.
If, following evaluations, school boards are considering the dismissal of tenured teachers, officials must follow both their own policies and state law. These procedures sometimes include more specific requirements and time lines for documenting the rationales that boards use in terminating or not renewing teacher contracts. For these situations, some boards have developed policies or contractual agreements that require administrators to meet with teachers to discuss instructional objectives prior to observations and to agree on scheduling of observations. While these additional requirements may not be applicable everywhere, in effect, teachers cannot be dismissed unless their school boards follow these due process procedures. If, for example, teachers are not able to relate with students who are thus not learning, classroom observations must document this or any other deficiencies that may eventually lead to the teachers’ dismissals. If boards follow their own procedures (and, of course, state law) to the letter of the law, then the courts ordinarily uphold their actions.
Returning, once again, to Ohio as the source of an illustration, if administrators choose not to renew the contracts of teachers, then they need to follow all district policies and contractual agreements. In addition, at a minimum, school officials have to document that they informed teachers about the criteria used to evaluate their work. Then, officials must schedule two 30-minute observations to gather evidence supporting proposed dismissals along with providing teachers with copies of detailed written plans for improvement. While it is not explicitly clear exactly how long the periods would have to be, teachers must be given sufficient time to improve their deficiencies. If teachers fail to measure up to the minimum standards set in the specified performance criteria in their improvement plans, then their school boards are free to terminate their employment contracts.
A. William Place
- Dickinson, R. J., & Schmitz, P. J. (2005). Nonrenewing employees. Columbus: Ohio School Boards Association.
- Macy, N. (1988). A perspective on due process in teacher evaluation. Journal of Personnel Evaluation in Education, 2, 53–57.
- Van Berkum, D. W., Richardson, M. D., Broe, K., & Lane, K. E. (2005). Teacher dismissal. In K. E. Lane, M. J. Connelly, J. F. Mead, M. A. Gooden, & S. Eckes (Eds.), The principal’s legal handbook (3rd ed., pp. 289–300). Dayton, OH: Education Law Association.
- Young, I. P. (2008). The human resource function in educational administration (9th ed.). Upper Saddle River NJ: Pearson Prentice Hall.
- Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).