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LFT attorney explains Act 1 - part 2

FROM THE LAWYER’S DESK
By Larry Samuel, General Counsel
Louisiana Federation of Teachers

This law is a farce.  It is a sham.  It is an insult to every educator in this state. It makes a mockery of fairness.

This is the second in a series of articles that will attempt to explain Acts 1 and 2 of the 2012 legislative session, which contain provisions that directly affect classroom teachers throughout the state.  This article will focus on the changes to the tenure law as a result of Act 1. 

 As I pointed out in the initial article, it is difficult to explain this law because of sentences that are unclear and ambiguous, and sentences that even contradict other sentences in the law. 

1. How many years are necessary to attain tenure?

 Under previous law, teachers were required to serve a probationary term of three years.  During the three-year probationary period, a school board could dismiss or discharge any probationary teacher based upon any “valid reasons” stated by the superintendent. 

 Because of Act 1, effective July 1, 2012, it is necessary for a teacher to be rated “highly effective” for five years within a six year period pursuant to the performance evaluation program in order to attain tenure.

 2.  Under the new tenure law, what is the process to terminate a “probationary” (non-tenured) teacher?

 A superintendent may terminate the employment of any non-tenured teacher after providing such teacher with written reasons and giving the teacher an opportunity to respond.  The teacher shall have seven days to respond, and such response shall be included in the teacher’s personnel file. 

 3. Under the new law, what are the grounds to terminate a tenured teacher?

 Under Louisiana law in effect prior to July 1, 2012, there were four grounds to remove a tenured teacher from office: incompetency, willful neglect of duty, immorality and dishonesty. Because of Act 1, there are now five grounds.  The legislature added “poor performance.”

 The prior law did not use the word “termination” or “dismiss”.  The prior law used the phrase “remove from office”.  A removal from office included not only a termination but a suspension without pay.  Consequently, under the prior law, teachers could not lawfully be suspended without pay until the school board held a hearing and found the teacher guilty of the charge(s) and a suspension without pay or termination was necessary.  Because of Act 1, tenured teachers may now be lawfully suspended without pay as more fully explained below. 

 Under prior law, the process to remove a tenured teacher from office consisted of the following procedure:  First, the superintendent was required to prepare written and signed charges of incompetency, willful neglect of duty, immorality or dishonesty.  Following this, the elected members of the school board convened a “tenure hearing” which consisted of a trial.  The tenure hearing consisted of a full due process opportunity for the teacher to give his or her account of the situation.  The elected members of the school board had the final authority to determine the teacher’s innocence or guilt and to decide whether to terminate, suspend, impose other discipline, or no discipline at all. 

 This procedure has been completely changed as a result of Act 1.  Comment: You may want to sit down before you read this.

 1. The superintendent must furnish the tenured teacher with written and signed charges of poor performance, willful neglect of duty, incompetency, dishonesty or immorality.  Comment: other than “poor performance,” this is the same as the prior law.

 2. The teacher must then be given the opportunity to respond (and has seven days to do so). The response must be included in the teacher’s personnel file. 

 3. At the end of this seven-day period, the superintendent may terminate the teacher, however, a teacher shall not be terminated because of an “ineffective” performance rating until completion of the grievance procedure if a grievance was timely filed.  Comment: it is essential for teachers who which to challenge the termination to submit a grievance.

 4. Within seven days after dismissal, a teacher may request a hearing, which shall be granted.  

 5. The school board no longer conducts the actual tenure hearing.  Instead, the “tenure hearing” is conducted by a three-person panel.  The panel consists of a person appointed by the superintendent, a person appointed by the principal and a person appointed by the teacher. 

 Comment: Two of the three members of the panel consist of a person who is designated by the superintendent who already terminated the teacher, and a person appointed by the principal who in most situations recommended termination. Fairness apparently was not a concern to the governor and to the legislators who voted for this to become law.

 But not to worry: the law states that “in no case shall the superintendent, the principal…or teacher designate an immediate family member or any full-time employee of the school system by which the teacher was employed and who is under the supervision of the person making the designation”. We suppose that because the governor and the legislature felt that everyone else would surely be fair, the process must be fair.

 6. The teacher shall have the right to subpoena witnesses to compel their attendance at the hearing, and shall have the right to legal counsel. Comment: same as the prior law.
 
 7. The hearing must begin within seven business days after the school district receives the teacher’s request for a hearing.  Comment: Seven days to prepare for the hearing and for witnesses to be subpoenaed? Fair?

 Now here’s the best part.  This three-person panel conducts a hearing.  But:

 8. After the hearing is concluded, the three-person panel shall submit its recommendation to the superintendent.  Comment: they only have the authority to make a recommendation. And to whom is the recommendation made? Read on.

 9. The recommendation is made to – you guessed it – the superintendent…the same person who terminated the teacher in the first place. The law states that the superintendent may chose to reinstate the teacher, but is not required to do so even if the three-person panel rules in favor of the teacher!  If the superintendent does not reinstate the teacher, then the superintendent shall notify the teacher of his final determination, in writing.  Comment: this is fair?

 10. The teacher may not more than 60 days from the postmarked date of such written notification petition a court to review whether the superintendent’s action was arbitrary or capricious. 

 In other words, the three-person panel conducts nothing more than a “feel good” event, and then makes a recommendation that the superintendent (who has already terminated the teacher anyway) has the right to reject. 

 The stated premise for this law was that (1) it was necessary to simplify the process because the old tenure law imposed such great burdens on school boards, and (2) school districts needed flexibility. What that suggests to me is (1) school districts weren’t willing to exert the effort to try to remediate teachers who are perceived to need assistance, and (2) they wanted a process that makes it virtually automatic for educators to be fired in Donald Trump fashion. Legislators could have implemented many procedures that would have been fair, but they didn’t. Instead they followed the governor without question in lock-step fashion.

 The outcome is that this law is a farce.  It is a sham.  It is an insult to every educator in this state. It makes a mockery of fairness. The governor and the legislatures who voted for this bill have demonstrated their intent to do nothing more than to give lip service to treating teachers with dignity. 

 I encourage each and every teacher to contact their legislator to ask them to repeal this absurd law this coming March.

 As we stated in our initial article, LFT has filed suit, challenging the constitutionality this Act.  Our lawsuit claims that Act 1 violates a provision in the Louisiana Constitution that states that bills presented to the legislature must have a “single object”.  One purpose of the “single object” provision is to limit the content of legislation so that a legislator is not placed in the dilemma of having to consider two or more unrelated matters when casting a single vote on a bill.  Act 1 has a multitude of objects, ranging from superintendent contracts, to changes in the reduction in full law, to requirements involving salary schedules and changes in tenure.  We have asked the court to declare the law to be unconstitutional.  If the judge rules in our favor, then the old laws will resume and will not be replaced with the new provisions in Act 1. 

 Next article: an update on Act 1… and information about Act 2.