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California debates teacher tenure, dismissal, seniority

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Charles McElwee Charles McElwee


Charles McElwee is a Charleston lawyer with the firm Robinson & McElwee PLLC. The views expressed are his own.

A tentative decision of a California Superior Court Judge issued June 10 determined that three California statutes pertaining to public school teachers, tenure, dismissal and seniority, violate the equal protection clause of the state’s constitution and enjoined their enforcement.

Tenure is subject to certain conditions in both states. A California teacher achieves permanent employment (tenure) after two years of teaching, absent an employer’s timely decision “not to re-elect” made prior to the end of that period. A West Virginia teacher is granted a “continuing contract” (tenure) after three years as a “probationary teacher,” if the employing county board of education enters into a new contract with the teacher.

California is only one of five states with a period of two years or less for tenure, and 32 states, including West Virginia, have a three-year period. Nine states have four- or five-year periods. Four states have no tenure system at all.

As stated in another context, the purpose of tenure is to protect teachers from arbitrary and unreasonable dismissals by county boards of education. Prior to the tenure laws, teachers served at the pleasure of these boards, and with their authority to dismiss unchecked, some boards engaged in a variety of questionable and arbitrary practices.

Tenured teachers have property interests in their employment protected by the due process clauses of the federal and state constitutions. Conversely, the government employer has a corresponding interest in quickly removing an unsatisfactory employee. Employees’ protected property interests in employment entitle the tenured teacher at least to written notices of the dismissal charges against him or her, an explanation of the evidence supporting the charges and an opportunity for the teacher to present his side of the story to the county board of education prior to the board’s decision to dismiss the teacher.

Due process also may require the tenured teacher be provided an opportunity to administratively and perhaps to judicially challenge a dismissal. The California statutes provide for dismissal of permanent (tenured) employees for unsatisfactory performance, as does legislation in West Virginia.

This article would become too lengthy for its purposes were it to detail the pre-dismissal and post-dismissal administrative and judicial procedures for dismissing tenured teachers in both states. Suffice it to say the California court described its state’s dismissal statutes as constituting “uber due process,” apparently meaning as being beyond what due process requires. That may also be true with regard to West Virginia’s dismissal legislation.

The California court described its LIFO (Last In, First Out) statute as mandating that the last-hired teacher be the first-fired one when layoffs occur. When a county board of education in West Virginia is required to dismiss teachers based upon a lack of need for their services, a statute requires that the reductions “be made on the basis of seniority.”

The California court determined that the state’s equal protection clause guarantees basic equality of educational opportunity for public school students. Accordingly, the court said it had to decide from evidence whether the challenged statues of the state, teacher tenure, dismissal and seniority, caused the potential and/or unreasonable exposure of grossly ineffective teachers to all California students in general and to minority and/or low income students in particular, in violation of the state’s equal protection clause.

Upon reviewing the evidence, the court found the plaintiffs had met their burden of proof on all issues presented. The Supreme Court of Appeals of West Virginia has ruled that the concept of equal protection of the laws is inherent in the State Constitution’s due process clause, and that the scope and application of this protection are coextensive or broader than that of the fourteenth amendment to the United States Constitution.

All sides to the litigation agreed that competent teachers are a critical, if not the most important component of success of a child’s in-school educational experience, and that grossly ineffective teachers substantially undermine the ability of that child to succeed in school.

Among other evidence, witnesses testified:

  • A single year in a classroom with a grossly ineffective teacher costs students $1.4 million in lifetime earnings per classroom;
  • Students in the Los Angeles United School District who are taught by a teacher in the bottom 5 percent of competence lose 9.54 months of learning in a single year compared to students with average teachers;
  • 1-3 percent of teachers in California are grossly ineffective, which constituted a range from 2,750 to 8,250 teachers;
  • A teacher reelected by a school district for a third year of employment by March 15 of the second year may not be recommended for credentialing after the close of the induction program in May, leaving the applicable district with a non-credentialed teacher with tenure;
  • Time restraint results in non-reelection based on “any doubt,” thus depriving teachers of an adequate opportunity to establish their competence, and students of potentially competent teachers;
  • It could take anywhere from two to almost 10 years and cost $50,000 to $450,000 to bring dismissal cases to conclusion resulting in grossly ineffective teachers being left in their classrooms because school officials do not wish to go through the time and expense to investigate and prosecute these cases; and
  • Because of the seniority rule, no matter how gifted the junior teacher, and no matter how grossly ineffective the senior teacher, the junior gifted one is separated from his/her students and a senior grossly ineffective one is left in place.

It cannot be predicted how a West Virginia court would rule were the state’s teacher tenure, dismissal and seniority statutes challenged as in California. The ruling would depend on the court’s interpretations of these statutes, the due process (equal protection) clause of the state’s constitution, and the weight of the evidence presented.

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