Teacher Dismissal Suspension Hearing Process Samuel L Jackson

Teacher Dismissal & Suspension Hearing Process Samuel L. Jackson, Esq. Lewis, King, Krieg & Waldrop, P. C. Nashville, Tennessee 37219

Due Process Rights of Teachers – Tenured – Non-Tenured

Tenured • Tenured teachers have a constitutionally protected property interest in continued employment which cannot be extinguished without procedural due process. Kelley v. State of Tenn. , Dept. of Children’s Services, No. M 200602631 -COA-R 3 -CV, 2008 Tenn. App. LEXIS 211 (Tenn. Ct. App. April 3, 2008). • Before a dismissal, due process requires full notice of charges and a hearing. 22 Tenn. Juris. , Schools, § 19 (2004). • The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Kelley v. State of Tenn. , Dept. of Children’s Services, No. M 200602631 -COA-R 3 -CV, 2008 Tenn. App. LEXIS 211 (Tenn. Ct. App. April 3, 2008)

Non-Tenured • School authorities have the right to discharge a non-tenured teacher at any time for good cause. 22 Tenn. Juris. , Schools § 18; Johnson v. Jackson, 302 S. W. 2 d 355 (1956). • A school board has the right to dismiss or choose not to reinstate the contract of a non-tenured teacher for the next academic year, provided the board of education or director of schools gives the teacher written notice prior to May 15. See Malone v. Shelby County Bd. Of Educ. , 773 S. W. 2 d 256 (Tenn. Ct. App. 1989); See also Tenn. Code App. § 49 -5 -409 (wherein the 2010 amendment changed the date from April 15 to May 15).

Statutory Grounds for Dismissal or Suspension • • • Incompetence Inefficiency Neglect of Duty Unprofessional Conduct Insubordination

Incompetence • Incompetence includes being incapable, lacking adequate power, capacity or ability to carry out the duties and responsibilities of the position. • This may apply to physical, mental, educational, emotional or other personal conditions. • It may include lack of training or experience, evident unfitness for service, a physical, mental or emotional condition making the teacher unfit to instruct or associate with children or the inability to command respect from subordinates or secure cooperation of those with whom the teacher must work. Tenn. Code App. § 49 -5 -501(5).

Inefficiency • Inefficiency means being below the standards of efficiency maintained by others currently employed by the board for similar work, or habitually tardy, inaccurate or wanting in effective performance of duties. Tenn. Code App. § 49 -5 -501(6).

Insubordination • Refusal or continued failure to obey the school laws of this state, to comply with the rules and regulations of the board or to carry out specific assignments made by the board, the director of schools or the principal, each acting within its own jurisdiction, when the rules, regulations and assignments are reasonable and not discriminatory. • Failure to participate in an in-service training program as set up by the local board of education and approved by the state board of education. • Treason, or any effort to sabotage or overthrow the government of the United States. • Refusal by the teacher to disclose to the board whether or not the teacher is, or has been, a member of the communist or any other party that advocates the overthrow of the government. Tenn. Code App. § 49 -5 -501(7).

Neglect of Duty • Neglect of duty means gross or repeated failure to perform duties and responsibilities that reasonably can be expected of one in such capacity or continued unexcused or unnecessary absence from duty. Tenn. Code Ann. § 49 -5 -501(8).

Unprofessional Conduct • • • Immorality Conviction of a felony Crime involving moral turpitude Dishonesty Unreliability Continued willful failure or refusal to pay one’s just and honest debts • Disregard of teacher code of ethics as to make one obnoxious as a member of the profession Tenn. Code Ann. § 49 -5 -501(3)

Unprofessional Conduct Unprofessional conduct has also been characterized as conduct that violates the rules or the ethical code of a profession or that is unbecoming of a member of a profession in good standing, or which indicates a teacher’s unfitness to teach. Baltrip v. Norris, 23 S. W. 3 d 336 (Tenn. Ct. App. 2000).

Statutory Grounds for Reduction in Force • When there is a decrease in enrollment or for other good cause, the board has the power to reduce the number of teaching positions available and dismiss teachers as may be necessary. The board must provide each dismissed teacher with written notice of dismissal explaining fully the circumstances or conditions making the dismissal necessary. • A tenured teacher who has been dismissed because of abolition of position must be placed on a preferred list for reemployment in the first vacancy the teacher is qualified by training and experience to fill. • The Director of Schools retains the power to determine the fitness of the teacher for reemployment in such vacancy on the basis of the director of school’s evaluation of the teacher’s competence, compatibility and suitability to properly discharge the duties required in the vacancy considered in the light of the best interest of the students in the school where the vacancy exists; provided; however, that the action shall be in accordance with board policy and any locally negotiated agreement. • The right to remain on the preferred list lasts until (1) the teacher refuses a bona fide offer for a comparable position within the LEA or (2) the teacher has been on the list for two consecutive years, receives notice from the director of schools to that effect, and fails to notify the director of schools of the desire to stay on the list by April 15 of each subsequent year. Tenn. Code Ann. § 49 -5 -511(b).

The Hearing • • Liability of School Officials Notice to the Teacher of Charges Teacher’s Right to Demand a Hearing Selection of an Impartial Hearing Officer Procedures, Generally Teacher’s Rights Witnesses Final Determination & Appeal

The Hearing – Liability of School Officials Neither the director of schools nor other school officials can be held liable, personally or officially, when performing their duties in prosecuting charges against any teacher(s) in accordance with these rules. Tenn. Code Ann. § 49 -5 -512(b).

The Hearing – Notice to the Teacher of Charges • If the board of education determines that charges against a teacher warrant dismissal, the director of schools must give the teacher written notice of this decision, which should include a copy of the charges and copy of a form, provided by the commissioner of education, that advises the teacher as to the teacher’s legal duties, rights, and recourse. Tenn. Code Ann. § 4 -5 -511(5). • The notice of charges must be sufficient in substance and form to fairly apprise the teacher of the charge against him and enable him to prepare his defense in advance of the hearing. 22 Tenn. Juris. , Schools, § 19; Turk v. Franklin Special School Dist. , 640 S. W. 2 d 218 (Tenn. 1982).

The Hearing – Teacher’s Right to Demand a Hearing After a tenured teacher receives notice of charges, the teacher may demand a hearing within thirty (30) days through written notice to the director of schools. Tenn. Code Ann. § 49 -5 -512(a).

The Hearing – Selection of a Hearing Officer The director of schools must name a hearing officer within five (5) days after receipt of the request. Tenn. Code Ann. § 49 -5 -512(a)(2).

The Hearing – Selection of a Hearing Officer An “impartial” hearing officer is one that has: 1. No history of employment with the board or director of schools, 2. No relationship with any board member, and 3. No relationship with the teacher or representatives of the teacher. Tenn. Code App. § 49 -5 -512(a)(3).

The Hearing – Selection of a Hearing Officer Duties of the Hearing Officer include: • Notifying the parties of his/her assignment, • Directing the parties and/or their counsel to meet before the hearing to simplify issues and schedule a hearing, and • Setting the hearing within thirty (30) days of receipt of the notice demanding a hearing. Tenn. Code Ann. § 49 -5 -512(a)(2).

The Hearing – Procedures, Generally • Due process requires the opportunity for the party charged to be heard before an impartial tribunal. Cooper v. Williamson County Bd. of Educ. , 803 S. W. 2 d 200 (Tenn. 1990). • Hearing may be private upon request of the teacher or at the discretion of the board. Tenn. Code Ann. § 49 -5 -512(a)(8). • The parties may have the opportunity to file briefs, proposed findings of fact and conclusions of law, and proposed initial or final orders. Tenn. Code Ann. § 49 -5 -512(9). • The party who brought the charges will go first, and the burden of proof being upon the party who prefers charges. 22 Tenn. Juris. , Schools, § 19; Williams v. Pittard, 604 S. W. 2 d 845 (Tenn. 1980).

The Hearing – Teacher’s Rights Pursuant to Tenn. Code Ann. § 49 -5 -512(a)(4), a teacher has the right to: • • • Be represented by counsel, Call and subpoena witnesses, Examine all witnesses, Require that all testimony be given under oath, and Have evidence deemed relevant by the submitting party included in the record of the hearing, even if objected to by the opposing party. Regardless of the particular statutory scheme involved, a tenured teacher cannot be required to prove his/her innocence or show why he/she should be able to continue as a teacher. Williams v. Pittard, 604 S. W. 2 d. 845 (Tenn. 1980).

The Hearing – Witnesses • The impartial hearing officer shall administer oaths to witnesses, who testify under oath. Tenn. Code Ann. § 49 -5 -512(6). • Witnesses are entitled to witness fees and mileage, and shall be paid by the party issuing a subpoena or calling the witness to testify. Tenn. Code Ann. § 49 -5 -512(5). • On request of either party, witnesses may be barred from the hearing except as they are called to testify. Tenn. Code Ann. § 49 -5 -512(8).

The Hearing – Final Determination & Appeal • The determination must he made by the hearing officer within ten (10) days after the close of the hearing. Tenn. Code Ann. § 49 -5 -512(a)(9). • The hearing officer must immediately thereafter give the board and the teacher written notice of his finding, conclusions of law, and a concise and explicit statement of the outcome of the decision. Tenn. Code Ann. § 49 -5 -512(a)(9). • Both parties have the right to appeal the final decision of the hearing officer, in whole or in part. Tenn. Code Ann. § 49 -5 -512(c)(1), (5).

The Administrative Appeal • • • General Information Preparing the Record The Hearing The Final Determination Right to Judicial Review

Administrative Appeal – General Info. • Both parties have the right to appeal the final decision of the hearing officer, in whole or in part. • If either party decides to appeal, it must first exhaust the administrative remedy of appealing the decision to the board of education within ten (10) working days of the hearing officer’s delivery of the written findings of fact, conclusion, and decision to the affected employee. Tenn. Code Ann. § 49 -5 -512(c)(1)(5).

Administrative Appeal – Preparing the Record • A record of the hearing must be prepared and all decisions of the hearing officer must be reduced to writing and included in the record, together with all evidence submitted. Tenn. Code Ann. § 49 -5 -512(a)(7). • Within twenty (20) days of receipt of written notice of appeal, the director of schools must transmit a copy of the proceedings, transcript, documentary, and other evidence presented to the board. Tenn. Code Ann. § 49 -5 -512(c)(2).

Administrative Appeal – The Hearing • The teacher has the right to appear in person or by counsel and argue why the decision should be modified or reversed. • The board will hear the teacher’s appeal on the record and no new evidence will be permitted to be introduced. Tenn. Code Ann. § 49 -5 -512(c)(3).

The Administrative Appeal – The Final Determination • The board must render a decision within ten (10) working days after the conclusion of the hearing. • The board may: – Sustain the decision – Send the record back for additional evidence – Revise the penalty – Reverse the decision • Before any findings and decision are sustained or punishment inflicted, a majority of the membership of the board must concur in sustaining the charges and decision. Tenn. Code Ann. § 49 -5 -512(c)(3).

The Administrative Appeal – Right to Judicial Review • Within thirty (30) days of receiving the dated notice of the board’s decision, either party may appeal to the chancery court in the county where the school system is located. • If either party appeals to the chancery court, the board has the duty of transmitting the entire record and other evidence to the court. • The review of the court shall be de novo on the record of the hearing held by the hearing officer and reviewed by the board. Tenn. Code Ann. § 49 -5 -512(c)(4).

Judicial Review – Chancery Court • • • Petitioning for a Writ of Certiorari Effect of Filing the Petition Notice to the Board and Defendants Responding to the Petition The Trial & Appeal

Judicial Review – Petitioning for a Writ of Certiorari • A teacher with permanent or limited tenure who is dismissed or suspended by action of the board may petition for a writ of certiorari from the chancery court of the county where the teacher is employed. • The tenured teacher must file the petition within thirty (30) days from the receipt of notice of the board’s decision. • The petition should: – Briefly state the issues, substance of the order of the board, or the respects in which the petitioner believes the order of the board is erroneous, and prayer for accordant review, and – Should be addressed to the presiding chancellor and name as defendants members of the board and such other parties of record as were involved in the hearing before the board. • The petitioner must give bond for costs, as in other chancery suits, or oaths of paupers in lieu. Tenn. Code Ann. § 49 -5 -513(a-c).

Judicial Review – Effect of Filing the Petition • Filing the petition suspends the order of the board pending a decision by the chancellor. • The teacher shall not be allowed to return to teaching pending the final disposition of the appeal. Tenn. Code Ann. § 49 -5 -513(e).

Judicial Review – Notice to the Board and Defendants • Upon filing the petition, the clerk and master must immediately send notice of the filing and a certified copy of the filing to the chair of the board. • Notice should be sent registered return receipt mail. • The clerk must also send a similar notice to each other party named as a defendant or have each defendant personally served with a subpoena to answer. Tenn. Code Ann. § 49 -5 -513(d).

Judicial Review – Responding to the Petition • All defendants named in the petition must answer within thirty (30) days from the date the petition was filed, unless extended by the court. • Grounds of demurrer should be included in the answer. • Any person who may be affected by the decision made by the court may intervene and file an answer. • Amendments may be granted as in any other chancery procedures. Tenn. Code Ann. § 49 -5 -513(f).

Judicial Review – The Trial in Chancery Court • • • Time for Trial Burden of Proof Order of Proof Scope of Evidence Standard of Review The Appeal

The Trial in Chancery Court – General Info The cause must stand trial and be heard and determined at the earliest practical date and takes precedence over other litigation, except suits involving state, county, or municipal revenue. Tenn. Code Ann. § 49 -5 -513(g).

The Trial in Chancery Court – Burden of Proof The burden of proof remains on the party preferring charges against the teacher. Cooper v. Williamson County Bd. of Educ. , 746 S. W. 2 d 176 (Tenn. 1987).

The Trial in Chancery Court – Order of Proof • The order of proof is shifted under the statute to the party filing the petition for review. – Plaintiff: The plaintiff must demonstrate the error in the board’s action. – Defendant: Once the plaintiff establishes a prima facie case, the defendant then bears the burden of showing that the action taken by the board is appropriate and that the evidence is sufficient to justify the board’s action. – Plaintiff: The plaintiff may then have the opportunity to rebut any proof proffered by the defendant. Cooper v. Williamson County Bd. of Educ. , 746 S. W. 2 d 176 (Tenn. 1987).

The Trial in Chancery Court – Scope of Evidence • Generally, the review of the court is limited to the written record of the hearing before the board any evidence or exhibits submitted at that hearing. Sykes v. Richardson, No. M 2001 -02097 -COA-R 3 -CV, 2002 Tenn. App. LEXIS 592 (Tenn. Ct. App. Aug. 13, 2002). • Additional evidence or testimony is only admitted to establish arbitrary or capricious action or violation of statutory or constitutional rights by the board. Tenn. Code Ann. § 49 -5 -513(g). The trial court may hear new evidence and must make independent findings in this regard. Sykes v. Richardson, No. M 2001 -02097 COA-R 3 -CV, 2002 Tenn. App. LEXIS 592 (Tenn. Ct. App. Aug. 13, 2002). • The scope of evidence allowed on appeal was broad until subsection (g) was amended in 1992 limiting review to the record from the school board hearing, unless that evidence addressed arbitrary or capricious conduct on behalf of the school board. See Lee v. Franklin Special Sch. District Bd. of Educ. , 237 S. W. 3 d 322 (Tenn. Ct. App. 2007); Lannom v. Bd. of Educ. for the Metro Gov’t of Nashville, No. M 1999 -00137 COA-R 3 -CV, 2000 Tenn. App. LEXIS 133 (Tenn. Ct. App. March 6, 2000).

The Trial in Chancery Court – Standard of Review • The chancery court’s review is de novo, wherein the court does not attach a presumption of correctness to the school board’s findings of fact, nor is it confined to deciding whether the evidence preponderates in favor of the school board's determination. Taylor v. Clarksville Montgomery County Sch. Sys. , No. M 2009 -02116 -COA-R 3 -CV, 2010 Tenn. App. LEXIS 522 (Tenn. Ct. App. Aug. 17, 2010); See also Lee v. Franklin Special Sch. Dist. Bd. of Educ. , 237 S. W. 3 d 322, 328 (Tenn. Ct. App. 2007). • It is presumed that the actions of school boards are reasonable, and therefore not arbitrary and capricious, unless there is clear evidence to the contrary. Taylor v. Clarksville Montgomery County Sch. Sys. , No. M 2009 -02116 -COA-R 3 -CV, 2010 Tenn. App. LEXIS 522 (Tenn. Ct. App. Aug. 17, 2010).

The Trial in Chancery Court – Appeal • Any party may appeal as provided by the Tennessee Rules of Appellate Procedure, where the cause will be heard on the transcript of the record from the chancery court. Tenn. Code Ann. § 49 -5 -513(i). • The appellate court reviews the chancellor’s findings of fact accompanied by a presumption of correctness unless the evidence preponderates otherwise. See Lee v. Franklin Special Sch. District Bd. of Educ. , 237 S. W. 3 d 322 (Tenn. Ct. App. 2007); Taylor v. Clarksville Montgomery County Sch. Sys. , No. M 2009 -02116 COA-R 3 -CV, 2010 Tenn. App. LEXIS 522 (Tenn. Ct. App. Aug. 17, 2010).

Practical Tips for School Officials Strengthening Your Position 1. Establish Performance Criteria 2. Work with Failing Teachers 3. Keep Good Documentation

Tip 1 – Establish Performance Criteria • Adopt and publish reasonable criteria for teacher performance. • The criteria both encourage teachers to excel and provide a legal basis for dismissal if necessary. Thomas I. Ellis, “Dismissing Incompetent Teachers. ” Educational Resources Information Center Clearinghouse on Educational Management: ERIC Digest No. 5 (1984).

Tip 2 – Work with Failing Teachers • Administrators should work with a failing teacher to establish objectives and strategies for improving the teacher’s performance. • The teacher’s behavior should be monitored carefully and measured against objectives and with continuing feedback. Thomas I. Ellis, “Dismissing Incompetent Teachers. ” Educational Resources Information Center Clearinghouse on Educational Management: ERIC Digest No. 5 (1984).

Tip 3 – Keep Good Documentation • “For the protection of our children, school administrators must have the knowledge and expertise to prepare the documentation necessary for dismissing a marginal teacher. ” C. Edward Lawrence et. al. , The Marginal Teacher: A Step-by-Step Guide to Fair Procedures for Identification and Dismissal ix (Corwin Press 1993). • “The documentation system becomes an essential ingredient in preparing the district’s principal not only for a hearing before the board of education, but for appeals and lawsuits filed with a state commissioner of education, an arbitrator or a court. ” Kelly Frels & Janet L. Horton, A Documentation System for Teacher Improvement or Termination 2 (National Organization of Legal Problems of Education 1988) (1982).

Tip 3 – Keep Good Documentation serves three purposes – 1. Enabling the principal to follow a teacher’s actions and performance and pinpoint weaknesses and problem areas; 2. Enabling the teacher to understand what problems he or she may have and take what corrective steps are necessary; and 3. Serving as concrete evidence to support a recommendation for termination if the teacher’s performance does not improve. Kelly Frels & Janet L. Horton, A Documentation System for Teacher Improvement or Termination 3 (National Organization of Legal Problems of Education 1988) (1982).