Judge Rolf Treu's decision in the Students First
case is effectively an indictment of the termination process of all
California public school employees, not just teachers. Under
current law, California public school employers are forced to
expend significant resources to terminate employees who are
ineffective, engage in misconduct, or whose job performance
continues to fall below standards. This applies both for
teachers (or "certificated" employees) and non-teachers
(or "classified" employees), though the termination
process is more long-drawn and expensive for teachers. The
criticisms of the current process for terminating teachers
generally apply, perhaps on a lower scale, to classified
employees.
The reality of the mandated termination process is that it is
excessively expensive. School districts are having to spend
what little funds they have on attorneys' fees and
administrative costs just to terminate a few employees whom
everyone agrees should be fired, and then to defend such
terminations in administrative and judicial proceedings.
"Bad apple" employees are often placed on administrative
leave pending the outcome of the process, leave which the law
requires to be paid. Because of all the hurdles and hoops
school districts must jump through, many districts make tough
decisions to not pursue the termination of some ineffective
employees. Pursuing termination is reserved for only the
worst cases, such as criminal misconduct. And when districts
pursue termination, they are faced with fierce resistance from both
the employees and their union representatives. In some cases,
even the union representatives know and would admit "off the
record" that the employee they are defending in an
administrative proceeding did engage in misconduct worthy of
disciplinary action. The union's duty of fair
representation, however, obligates it to represent its members in
such proceedings, and it will continue to do so even where the
evidence clearly supports the employee's ultimate
termination. This results in prolonging the process and
increasing its costs.
Judge Treu found the termination process for certificated employees
unconstitutional in part because of the reality that this process
results in retention of ineffective teachers, particularly by
school districts in economically depressed and ethnically diverse
areas. This finding—which a future case may reach with
respect to classified employees—does not mean that the
process itself, without consideration of its practical impacts and
current context, is unconstitutional or unsupported by public
policy reasons. It may have been a well-intended process that
protected academic freedom at a time when such freedom was truly
under attack (e.g., McCarthyism), but it has since become a
financially prohibitive process for the state's poorest school
districts to terminate not just ineffective teachers, but also
employees who engage in workplace misconduct. If Judge
Treu's decision is upheld on appeal, school districts will
finally be able to hold all teachers accountable and to swiftly but
fairly toss the "bad apples." Districts may
suddenly have substantial amounts of money they can dedicate to
areas of need, and activists may look for opportunities to
challenge the termination process mandated for classified
employees.
This article was first published in JD Supra Business Advisor.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.