Wednesday, November 18, 2009
Good Reasons to Save Teacher Tenure
By Michael E. Kramer
General Counsel, Georgia Association of Educators
Of the 50 states in the United States, 49 have some form of teacher tenure, or "fair dismissal laws" protecting teachers from arbitrary firings. Most of these states clearly outrank Georgia on student testing and achievement in multiple categories. These states have no problem outshining Georgia on educational measures while also requiring administrators to justify the firing of public schoolteachers. Clearly, tenure laws are not holding back other states from achieving education reform or student progress and achievement. (In fact, Mississippi is the only state that has no statutory protections providing a due process hearing for teachers. Mississippi ranks lowest in most educational measures.)
How can anyone object to requiring an administrator "to have a good reason" for firing a public schoolteacher? Isn't this simply holding the administrator responsible for sound educational judgment? The Governor's reform legislation is supposed to be about accountability. Georgia's Fair Dismissal Act provides just such accountability of administrators' competency, both as to evaluating educators and as a safeguard against arbitrary, capricious, discriminatory, political, or retaliatory firings.
A case in point. Drew Hamernick, a 10-year biology teacher in the Cartersville City Public Schools was terminated last year by his Superintendent for insubordination, willful neglect of duties, and incompetency. Sounds like pretty strong stuff—you'd expect the Superintendent to have real good reasons to support those charges. He didn't. Instead, the Superintendent had his staff assemble student failure rate statistics from Mr. Hamernick's classes and attempt to pass them off as evidence of poor teaching. The only problem was that the statistics were falsely presented at the hearing, and actually supported Mr. Hamernick. The evidence showed that most of the students had also failed at least two or more of their other classes or had exceeded the number of allowable school absences under local board policy (mandating a failing grade). His classes were also filled with students in the non-academic track, for whom biology was also the most difficult subject in their schedule. When Mr. Hamernick taught students in the regular academic track, his pass rates were consistent with all other science teachers in the school system.
Students, parents, and business leaders came to testify on Mr. Hamernick's behalf—particularly testifying that he was a compassionate and effective teacher. One mother cried while testifying to her daughter's first signs of interest in any academic course. The local board of education which heard the case reinstated Mr. Hamernick to his teaching position for this school year. If the Superintendent hadn't had to justify the termination, Cartersville City would have lost a good and productive schoolteacher.
The Fair Dismissal Act actually reduces expensive court litigation. By having a statutory hearing process Georgia minimizes the number of state and federal lawsuits filed in court. Without the Act, teachers will have no other recourse but to go to federal or state court by filing breach of contract, employment discrimination, and First Amendment lawsuits to protect their rights. By providing an administrative hearing, everyone gets a cost-effective, fair and more efficient public airing which resolves most of these claims.
The public and journalists normally support access to government decision-making. Eliminating fair dismissal hearings will end public oversight. After all, if an administrator doesn't have to give any reason, let alone a "good reason" for a teacher firing, the public's inquiries will be met by silence. School administrators' personnel decision-making already takes place behind closed doors, subject to the exemptions under the Georgia Open Meetings Act and the Open Records Act. The fair dismissal hearing of a teacher is often the only public airing and accountability of school-based personnel decisions.
The Georgia Association of Educators supports ridding classrooms of incompetent teachers. GAE supports peer review, site-based decision-making, and a stronger evaluation process---which will help accomplish that goal and raise Georgia's educational accomplishments. The Governor failed to incorporate peer-review into his reform legislation.
Governor Barnes' strengthening of evaluations and accountability for low-performing schools will place all educators under a stronger magnifying glass. GAE supports a rigorous evaluation process. However, administrators in low-performing schools will be more likely to dismiss teachers just for the sake of showing they're taking action. You can bet that any teacher critical of the administrator's competence and leadership will be among the first to go. By eliminating fair dismissal protections the Governor will just empower unjust administrators to abuse their authority for the sake of their own protection.
Georgia has had fair dismissal since 1975, over 25 years. The first fair dismissal law was enacted in the United States 75 years ago. Of course, the last 75 years has seen the United States become the leading economic, political, and military power in the world. While educational systems can and should be constantly improved, its disingenuous to suggest that tenure has held education back.
It is relatively easy to fire a teacher, even for mediocrity, contrary to misrepresentations by some legislators and journalists of this fact. The Fair Dismissal Act provides minimum due process protections: the teacher can be fired for "any good and sufficient cause;" the hearing is held before the teacher's employer (the local school board decides the outcome); the decision is always upheld on appeal if there is "any evidence" in the record to support it; and decisions are therefore rarely reversed. In my experience, fewer than 100 teacher dismissal hearings are held per year statewide. Many more teachers with tenure elect to resign without invoking their right to a hearing because of the evidence against them. Of the 40 or so teacher dismissals that are appealed each year, over 90% are upheld. If an administrator is doing his or her job, and has a "good reason," then it is relatively easy under these rules to fire any teacher. This is a small price to pay for a fair hearing, and for protections that hold the line against arbitrary, political, and unfair firings.
Does the Fair Dismissal Act make it impossible to fire an incompetent or even a mediocre teacher? Of course not. All an administrator has to do is evaluate and document teacher performance. This isn't brain surgery. School systems have three full years—540 classroom instructional days--in which to observe and judge a teacher before granting hearing rights. If a school administrator can't figure out in 3 years whether a teacher is going to make a contribution to student progress and achievement, then maybe it's the administrator who should be held accountable. Thereafter, if an administrator doesn't have the competence or integrity to build a case against a teacher who ought to be fired, then perhaps the administrator should be fired.
Fair dismissal is not about protecting bad teachers. The solution to the problem of the "bad" teacher is not the abolition of a fair hearing for all teachers. The hearing process protects good teachers from arbitrary, retaliatory, political, and discriminatory actions. We should all support that goal.
The Fair Dimissal Act: Ten Mistakes School Systems Make
Georgia Fair Dismissal Act doesn’t apply to school administrators
The Clarke County Board of Education ousted Cedar Shoals High School Principal Tommy Craft without providing a reason for his termination. When board members refused to explain their decision to Craft or the public—citing the school board attorney's advice—Cedar parents like Chris Hale were frustrated. “It's an unfair situation for Dr. Craft and for us as parents —just the not knowing exactly why,” Hale said. Absent any explanation, Craft says politics, not performance, led the school board to let him go. He's even accused two board members of holding a grudge against him for a decision he made two years ago to pass over board member Sidney Anne Waters' son-in-law for an administrative position at the school. According to the school system’s attorney, Terrell Benton, the school board long has refused to comment on personnel decisions. The state Fair Dismissal Act—passed more than 30 years ago—offers some protection to teachers when their contracts aren't renewed. The law gives tenured teachers—typically a teacher who's taught at a school four years or more—the right to appeal or at least request a reason when the school board opts not to renew his or her contract. But changes to the law in 1995 meant most school principals no longer have that right. That doesn't mean school board members can't explain their reasons to fire a principal, Benton said, but he warns them they may expose the school system—and taxpayers—to a lawsuit.
Benton's advice is not uncommon in Georgia, where principals often are shown the door without an explanation. The state legislature removed administrators from the Fair Dismissal Act in 1995, approving a bill sponsored by the Georgia School Boards Association (GSBA), an entity that represents all 180 of the state's school districts. Principals are public figures, said GSBA's Angela Palm, and the law protects their privacy and protects taxpayers from lawsuits. But professional organizations like Georgia Association of Educational Leaders (GAEL) and the Professional Association of Georgia Educators (PAGE), each of which represent about 2,500 administrators in the state, see a different perspective. When local school boards aren't required to give a reason, they're rarely willing to explain, said Jim Puckett, GAEL's executive director. “Certainly the board doesn't want to have to defend itself in a lawsuit, so they have to determine the balance between risking going to court or the public relations issue because parents and the community are worried about what's going on. But typically, boards will err on the legal side.” But if school board members don't have to give a reason for firing a principal, maybe they don't have one, PAGE spokesman Tim Callahan said. “The idea of a fair dismissal law is that it protects people who may not always be politically correct or are willing to step on some toes,” Callahan said. “... I don't know if it's made principals more accountable. It's probably made them more gun shy and a little less willing to take risks.”
Source: Athens Banner-Herald, 1/27/08, By Benjamin Price
Georgia State Board Decisions
Former teacher files suit
Claims violation of Fair Dismissal Act
Ashley Payne, a former 9th and 10th grade literature teacher at Apalachee High School, has filed a lawsuit against the Barrow County School District, claiming she was forced to resign against her will and in violation of the Georgia Fair Dismissal Act.
Payne, who had just begun her third year at AHS, said before class began the morning of Aug. 27, Assistant Principal for Curriculum and Instruction Dorann Mansburger asked Payne to meet in her office. There, Payne said, Principal David McGee questioned Payne about the content of Payne’s Facebook page, saying there had been a complaint about her site.
Payne said her Facebook status at the time mentioned an event called "Bitch Bingo," and said McGee told her the parent of one of her students had complained to the superintendent about the word. According to Payne, McGee also had issue with photographs on the page depicting Payne with alcohol.
"My co-worker and I went all over Europe this summer," Payne said. "We went to a Guinness brewery up there (which is terrible and I didn’t drink all of it), and went to Italy and had wine there; we went to the Temple Bar District in Dublin."
She said the trip was not school-related, and the pictures merely showed her holding the beverages, not drinking them or displaying drunken behavior.
According to Payne, McGee told her he had spoken with Superintendent Dr. Ron Saunders, and disciplinary action against her would be taken. She said she assumed they had decided to suspend her.
"They went on to say that if it was just the language or just the picture that would be one thing, but since it was both, there was no way I could win this," Payne said. "I took this to mean there was no way to win my job."
Payne claimed McGee encouraged her to immediately resign, telling her a suspension would only hurt her chances of future employment. She also claimed that Mansburger helped her write a resignation letter, which stated she was leaving for personal reasons.
Those actions, if proven true, may violate the Georgia Fair Dismissal Act. By law, teachers who are suspended can only be put on suspension for 10 days and must be given a hearing. Furthermore, they must be paid until that hearing takes place. Payne said she was never told any of this, and was led to believe she had to make a decision -- to resign or be suspended -- right away.
"I did trust him, and I trusted that he was telling me everything, and that was not the case," Payne said. "I didn’t have time to look at my options or look at the process, or even process in my mind until I got out of that room."
"In a sense, our position is that her principal held a gun to her head and forced her to resign, and in effect he did so under false pretenses," said Richard Storr, one of Payne’s attorneys.
McGee declined to discuss personnel matters, as did Saunders.
"Our school system has a long-standing practice not to discuss personnel issues in the public," Saunders explained. "We just don’t think it’s beneficial to the district, its employees or its former employees...to hash these things out in public."
Storr and his associate, Robert Friedman, will soon take Payne’s case before a judge, hoping the judge will order the Barrow County Board of Education to give Payne her hearing. They have petitioned for a writ of mandamus, which a judge can issue when a state entity does not comply with state law.
"We don’t know what the judge is going to do, but we hope he’ll give us a hearing," Friedman said. "We don’t know what the board will do, but we hope they’ll reinstate Ms. Payne."
Friedman went on to say that, no matter the board’s decision on Payne’s employment, the important thing is that she get her hearing.
"We’re not asking that Ashley be automatically reinstated; we just want fairness, what’s called due process," he said. "We would accept whatever decision the board decides."
They are also asking that Payne be paid for the time from her resignation until her eventual hearing.
As she waits for her day in court, Payne said she is convinced she did nothing worthy of punishment.
"It just doesn’t seem inappropriate or unethical to me. I didn’t have a caption that said ‘Ms. Payne thinks all her students should drink this,’" she said. "I don’t promote drinking alcohol to my students and I don’t talk about drinking alcohol with my students, and I never intended for them to see photos of me with alcohol...What matters is how I am as a teacher and what I do [in the classroom.] It just upsets me that the focus on what I do in my classroom has shifted to what I do in my personal life, when that has nothing to do with [my job.]"
At the time, the school district had no policy governing social networking sites – although such a policy is now being discussed by the Board of Education -- and the 2009 Code of Ethics for Educators only prohibits alcohol use during school functions, on school property, or while supervising students. Payne doesn’t believe her actions violated that code of conduct.
"It’s the same thing a student would see if I were having a margarita at Applebee’s and a student walked by and saw me," she said. "There’s nothing unethical about it."
Regarding her use of the word "bitch," Payne said there is stronger language in "Of Mice and Men" and other books she used as part of her literature curriculum.
Payne said she has no idea how a student and parent had access to her Facebook page.
"I’m very sure [my Facebook page] was always set to private, and I wasn’t friends with any of my students. Keeping my personal life personal was very important to me," she said.
The crux of Payne’s case is whether her lawyers can prove the district is in violation of the Fair Dismissal Act, which outlines eight situations that justify suspension or termination of a school employee.
Those eight grounds are incompetency, insubordination, willful negligence of duties, immorality, inciting or encouraging students to violate any law or policy, reducing staff due to loss of students, failure to secure and maintain educational training, and "any other good and sufficient cause."
Additionally, the Fair Dismissal Act states that employees may only be suspended for 10 days and must be given a hearing, and that "the names of the known witnesses and a concise summary of the evidence to be used against him."
Payne said she was never told the name of the student or parent who complained, or told specifically what photo was objectionable.
Friedman said that should the judge deny them a hearing before the Board of Education, the case could be taken to federal court. Payne and her lawyers have not discussed this step.
"We want to take it as it comes, and hopefully get it resolved in the easy part," Storrs said.
The evidenciary hearing before the judge has not yet been scheduled, but Friedman expects to present their case within the month.
As a thank you for years of support and patronage, BODIES…The Exhibition, one of New York’s leading educational atractions, is thanking teachers by hosting Free Teacher Tuesdays.
Beginning Tuesday December 1st 2009, teachers can explore BODIES…The Exhibition free-of-charge. There they will have the opportunity to see what historically has been accessible only to the medical profession ~19 real human bodies dissected to show various internal systems as well as over 250 individual healthy and diseased organs.
A downloadable, free comprehensive Teacher’s Guides for elementary, middle, high school and post-secondary levels with experiential classroom activities aligned to the National Academic Standards and the State Content Standards for New York, New Jersey, Connecticut, Rhode Island and Pennsylvania, is also available.
Teachers must provide proof of employment as a teacher and must attend during normal operational hours, Tuesdays 10am-6pm.
Please let me know if you would like more information.
Rogers & Cowan
919 Third Avenue
New York, NY 10022