The major difference is the legislatively mandated procedure required to release a permanent teacher. Unlike many other public employees - including those with specific job protections such as peace officers² - the legislature has mandated an "extremely costly, time-consuming, and difficult" process for terminating permanent teachers.³ Like other public employees, teachers unquestionably are entitled to due process protections. But is the required process for terminating a permanent teacher worth the cost?

Purpose of Tenure
Over the last century, job protections for teachers have gone from the exception to the norm. In 1913, Arthur Lovejoy formed the American Association of University Professors. A founding principle of the organization was to establish tenure for college professors.⁴ In 1915, the AAUP explained that tenure should allow a professor to "interpret his findings and to communicate his conclusions without being subjected to any interference, molestation, or penalization because the conclusions are unacceptable to some constituted authority within or beyond the institution."⁵ Though the AAUP promoted tenure specifically for those in higher education, the principle of providing a guard against arbitrary, capricious, or discriminatory terminations spread to elementary and high schools as well. In 1927, California granted tenure to teachers in K-12.⁶

By today’s standards, the demands of the AAUP for basic tenure protections could be described as both modest and anticipatory. In a Statement of Principles issued in 1940, the AAUP called for educational institutions to guarantee:

• A written contract of employment that clearly set forth the precise terms and conditions governing the appointment;
• A probationary period of a specified maximum length; and
• Minimum procedural standards for the termination of a tenured appointment for cause.⁷

The principles envisioned by the AAUP have been nearly universally realized. For example, all permanent public employees, including teachers, now are constitutionally entitled to minimum due process rights before significant disciplinary action may be implemented.⁸ Those rights include the receipt of a written notice containing the grounds and facts that support the discipline, copies of the documents on which the discipline is based, and a meaningful opportunity to respond to the proposed charges before a final decision is taken.⁹

In addition, it is well established that all public employees enjoy constitutionally protected free speech rights regarding statements that address matters of public concern.¹⁰ A teacher cannot, therefore, be terminated merely for engaging in speech that is unpopular.¹¹ Moreover, federal and state laws prohibit employers - including public employers - from taking adverse action against employees on account of race, gender, disability, and a plethora of other protected categories.¹²

A Separate Process for Termination
The due process afforded to permanent K-12 teachers is unlike that of other public employees. In particular, the procedural hurdles required to terminate teachers exceed what is necessitated for other public employees. Moreover, the court-imposed standard that must be met when terminating a permanent teacher adds an additional level of complexity.

Opportunity to improve. Teacher terminations may be based only on statutorily listed causes.¹³ Before a school district may pursue termination of a permanent teacher based on charges of unprofessional conduct or unsatisfactory performance, it must provide the teacher with an opportunity to improve.¹⁴ Specifically, the governing board may not act on any charges of unprofessional conduct unless it has provided the teacher with written notice of the conduct that describes the specific instances of unprofessional behavior with particularity sufficient to allow the employee an opportunity to correct his or her behavior. The notice must also include a copy of the teacher’s last evaluation. The employee then is entitled to at least 45 days to correct the offensive conduct.¹⁵

If the charge is unsatisfactory performance, the requirements are similar. The governing board may not act unless the employee has been given at least 90 days to correct his or her behavior.¹⁶ The notice must be in writing and specify the nature of the conduct with sufficient particularity to allow the employee to correct his or her faults and to overcome the charges alleged by the district. The notice also must include the teacher’s last evaluation.¹⁷

These statutory prerequisites result in artificial time lines. Although all public employees are entitled to progressive discipline, the 45- and 90-day waiting periods that apply to permanent teachers seem arbitrary and do not appear to take into account egregious situations. Moreover, these time lines may encourage school districts to list alternative bases for termination. For example, instead of unprofessional conduct or unsatisfactory performance, teachers may be charged with evident unfitness for service. The legislature could simplify the process and ensure fairness merely through the proper application of modern principles of progressive discipline.

Unnecessarily complex and costly hearings.
Termination hearings for teachers are conducted under the Administrative Procedures Act.¹⁸ The APA provides for a more formalized hearing process than is typically provided in a collective bargaining agreement or the rules of other agencies, including school districts themselves. The procedures for discipline of classified employees, while fair and affording due process, are not nearly as complex.

For example, the APA permits pre-hearing written discovery.¹⁹ Likewise, the parties may demand the names of all potential witnesses.²⁰ The parties may depose witnesses using the same procedures that apply in superior court.²¹ If there is a dispute as to the production of documents, the APA provides a mechanism to compel discovery.²² The result is a hearing procedure that is more like litigation than arbitration in both complexity and cost.

A process governed by the APA, however, is not reason enough to consider a teacher termination case particularly complex. After all, the APA regulates administrative hearings for all state employees as well as for academic employees at community colleges.²³ What unduly burdens the termination process is the way in which it has been altered specifically for K-12 teachers. Termination hearings for K-12 teachers are unlike those held for other permanent employees. In community colleges, for example, a termination hearing for an academic employee is conducted by a mutually selected arbitrator or, if the parties cannot agree to one, an administrative law judge appointed by the Office of Administrative Hearings.²⁴ Other public agencies (including school districts in classified discipline cases) use a similar process for selecting a neutral party to hear the case.²⁵

For permanent K-12 teachers, however, the hearing is not decided by a single hearing officer chosen from a randomly produced list or by mutual agreement of the parties. Instead, the Education Code requires that a Commission on Professional Competence hear the case.²⁶ The commission is made up of three members. One is an administrative law judge selected by the Office of Administrative Hearings, one is selected by the employee (usually by the teacher’s union), and one by the school district.²⁷

There are limitations as to who the employee and school district may choose to serve on the commission. Neither may choose someone related to the employee or employed by the district initiating the dismissal. Moreover, the individuals selected by the employee and the district must "hold a currently valid credential and have at least five years’ experience within the past 10 years in the discipline of the employee."²⁸ This limitation effectively eliminates highly experienced administrators from serving on the commission since it is unlikely that during the past 10 years they have taught in the same discipline as the employee being terminated.

Further complicating the hearing process is the requirement of a threeperson panel, which is meant to provide some balance between legal reasoning and the realities of teaching. While the experience of educators may be advantageous when considering certain charges, that same consideration does not apply in all situations. A single administrative law judge, for example, could weigh expert testimony on the issues being considered. Moreover, when hearing cases dealing with issues other than satisfactory performance in the classroom (e.g., dishonesty or sexual harassment of students), one need not have classroom experience to render a decision.

The three-person panel is problematic for other reasons as well. When conducting factfinding, one of the purposes of the panel is to reach a consensus, if possible. In a teacher termination hearing, that goal is less likely to be achieved. As a practical matter, the union representative and management representative frequently vote with their constituency. As a result, the argument of the parties usually is directed at the administrative law judge.

Finally, requiring each party to select a representative makes the hearing more inconvenient than necessary. The representatives need time off from their own employers to serve on the commission. This can become a serious problem, particularly when the average hearing takes weeks, not days, to complete. As a result, the strain of a teacher termination hearing is spread beyond the school district initiating the termination to the districts employing the two additional panel members.

Another costly difference between the K-12 system and that governing other public employees is the Education Code provision that a school district must by and large continue to pay a teacher his or her regular salary and benefits until the commission has rendered its decision.²⁹ This provision is unique to the K-12 system. Academic employees at a community college, for example, do not continue to receive salary and benefits through the conclusion of the hearing.

The employee only receives compensation for 30 days after receiving the statement of charges from the governing board.³⁰ Similarly, classified employees generally are off payroll during the appeal process. This idiosyncrasy in the law not only greatly increases the cost for a school district, it provides permanent teachers with an economic incentive to pursue a hearing regardless of its merits.

The requirement that teachers continue to receive pay during the termination process adds to the already significant costs and length of the hearings. Numerous examples can be found. One case in the Los Angeles area cost the school district approximately $150,000. In San Diego, a termination proceeding took more than four years and cost more than $300,000 in legal fees.³¹ By one estimate, the average cost of terminating a tenured teacher can be approximately $200,000.³² Of course, "every dollar a district spends on teacher dismissals is one less dollar available for basic educational programs and services that improve the performance of students."³³

Extending teacher probationary periods would not lessen the costs of these hearings. Even in states with longer probationary periods for teachers, the cost and time required to terminate a permanent teacher are extreme.³⁴ For example, in New Jersey, teachers do not obtain tenure until their fourth contract year. Nonetheless, the process required to terminate a tenured teacher may take years. In 2005, "three out of five [teacher termination cases] took more than a year to decide. The shortest of the five took two months; the longest, more than two years."³⁵ The costs were equally onerous.³⁶

A Separate Standard for Termination
In most non-teacher discipline cases, the "central concept permeating discipline and discharge...is ‘just cause.’"³⁷ This standard generally requires that employers provide employees with adequate due process, sufficient notice, and opportunity to improve.³⁸ If these conditions were met, the discipline should be upheld even though reasonable minds might differ as to its appropriateness.³⁹ For permanent teachers, however, a standard more stringent than "just cause" applies.

In the seminal case of Morrison v. State Board of Education,⁴⁰ teacher Marc Morrison engaged in a consensual homosexual relationship with another teacher, Fred Schneringer. Approximately one-year later, Schneringer informed the school district of the relationship. As a result, the district revoked Morrison’s teaching credential. The district terminated Morrison after determining that the relationship constituted immoral and unprofessional conduct, as well as an act involving moral turpitude.

The California Supreme Court overturned the decision. The court determined that the school district was motivated by animus for Morrison’s conduct and that the district could not demonstrate a reasonable nexus with his position as a teacher. The court noted:

The board offered no evidence that a man of petitioner’s background was any more likely than the average adult male to engage in any untoward conduct with a student. The board produced no testimony from school officials or others to indicate whether a man such as petitioner might publicly advocate improper conduct....This lack of evidence is particularly significant because the board failed to show that petitioner’s conduct in any manner affected his performance as a teacher.⁴¹

Before the district could fire Morrison, it needed to demonstrate "an adverse effect on fitness to teach."⁴²

The court, in reaching its decision, noted that it had considered similar cases of unprofessional conduct or moral turpitude. For example, a lawyer could not be denied admission to the bar for participating in civil rights demonstrations because those acts did not "bear a direct relationship to [his] fitness to practice law."⁴³ Instead, the state bar would need to "provide a reasonable basis" for the decision.⁴⁴

To assist those considering teacher termination cases, the court provided guidelines for understanding whether particular conduct indicated an unfitness to teach.⁴⁵ To make that determination, the court stated that a school district may consider a number of factors.⁴⁶ Those considerations, known as the Morrison factors, are as follows:

• The likelihood that the conduct adversely affected students or fellow teachers;
• The degree of such adversity anticipated;
• The proximity or remoteness in time of conduct;
• The type of teaching certificate held by the party involved;
• The extenuating or aggravating circumstances, if any, surrounding the conduct;
• The praiseworthiness or blameworthiness of the motives resulting in the conduct;
• The likelihood of the recurrence of the questioned conduct; and
• The extent to which disciplinary action may inflict an adverse impact or chilling effect on the constitutional rights of the teacher involved or other teachers.⁴⁷

Though these factors may appear to be merely a variation of "just cause" for teachers, the effect has been to create a higher standard. Morrison has been broadly interpreted. Commissions and courts do not restrict themselves to examining only whether there is a reasonable nexus between the alleged conduct and the teacher’s fitness to teach.⁴⁸ Rather, the Morrison factors have evolved from recommended guideposts into a formulaic test when considering a teacher termination case.⁴⁹ Therefore, unlike other public employers who are properly bound by "just cause," a school district must go beyond simply demonstrating a reasonable decision based on a nexus with the teacher’s responsibilities.⁵⁰

Conclusion
Teachers, perhaps more than other public employees, are required to explore unpopular positions and to challenge conventional thinking. Their role certainly places them in a uniquely demanding and important profession. Yet, the legislatively created procedures meant to guard permanent teachers against arbitrary, capricious, and discriminatory termination may not be worth the cost.

Permanent teachers undoubtedly are entitled to all of the legal protections provided to other public employees. When it comes to process and standards for teacher termination, however, the legislative protections may be doing more harm than good. The current procedures required to terminate a permanent K-12 teacher clearly are atypical and have resulted in a process that is inefficient both in terms of time and cost. The legislature should consider reforms.

¹ Ed. Code Secs. 44929.20-44929.29.

² The Public Safety Officers Procedural Bill of Rights Act, Gov. Code Secs. 3300 et seq.

³ California School Boards Association: Report by the Task Force on Teacher Tenure, 1996.

⁴ Lawrence White, "Academic Tenure," 44 St. Louis ULJ 51, 62-63 (2000).

⁵ W. Stuart Stuller, "High School Academic Freedom," 77 Neb. L. Rev. 301, 308 (1998).

⁶ See: "Tenure of California Teachers" (1936) 24 Cal.L.Rev. 441 and "Teacher Tenure Laws" (1966) 39 S.Cal.L.Rev. 593. Teachers were given a three-year probationary period from 1927 until 1983 when the legislature reduced it to two years. Ed. Code Sec. 44929.21.

⁷ White, supra, at 68.

⁸ Board of Regents v. Roth (1972) 408 U.S. 564, 92 S.Ct. 270.

⁹ Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 539 P.2d 774, 45 CPER 19.

¹⁰ Garcetti v. Ceballos (2006) 126 S.Ct. 1951, 179 CPER 21.

¹¹ Perry v. Sindermann (1972) 408 U.S. 593, 92 S.Ct. 2694.

¹² See, for example, California’s Fair Employment and Housing Act, Gov. Code Secs. 12940 et seq.; Americans With Disabilities Act, 42 USC Secs. 12101 et seq.; Title VII, 42 USC Sec. 2000e et seq.; Title IX, 20 USC Secs. 1681 et seq. The FEHA protects individuals on the basis of actual or perceived race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. Individuals who are harassed or discriminated against because of their association with members of a protected class likewise are protected.

¹³ Those grounds are: (1) immoral or unprofessional conduct; (2) commission, aiding, or advocating the commission of acts of criminal syndicalism...; (3) dishonesty; (4) unsatisfactory performance; (5) evident unfitness for service; (6) physical or mental condition unfitting him or her to instruct or associate with children; (7) persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State Board of Education or by the governing board of the school district employing him or her; (8) conviction of a felony or of any crime involving moral turpitude; (9) violation of Sec. 51530 or conduct specified in Sec. 1028 of the Government Code...; (10) knowing membership by the employee in the Communist Party; or (11) alcoholism or other drug abuse which makes the employee unfit to instruct or associate with children.

⁴ Ed. Code Sec. 44938; McKee v. Commission on Professional Competence (1981) 114 Cal.App.3d 718.

¹⁵ Ed. Code Sec. 44938(a).

¹⁶ Ed. Code Sec. 44938(b).

¹⁷ Ibid.

¹⁸ Ed. Code Sec. 44944(d), which refers to Gov. Code Secs. 11500 et seq.

¹⁹ Gov. Code Sec. 11507.6.

²⁰ Ibid.

²¹ Gov. Code Sec. 11511.

²² Gov. Code Sec. 11507.7.

²³ See, for example, Ed. Code Sec. 87675.

²⁴ Ed. Code Secs. 87674 and 87678. California State University has a similar provision. See Ed. Code Sec. 89539.

²⁵ This is true even for negotiated collective bargaining agreements. Also, see the process for academic employees at the California State University, Ed. Code Sec. 89539.

²⁶ Ed. Code Sec. 44944.

²⁷ Ibid. Each party is allowed one peremptory challenge against the administrative law judge. ICCR Sec. 1034.

²⁸ Ibid.

²⁹ Ed. Code Sec. 44939.

³⁰ Ed. Code Secs. 87672 and 84673.

³¹ School Services of California, "Liability Litigation and California’s Schools," 1998, p. 10.

³² Ibid.

³³ School Boards Association: Report by the Task Force on Teacher Tenure, 1996, p. 10.

³⁴ Proposition 74, in 2005, which would have lengthened the probationary period from two to five years and was defeated by voters, may have done little to address the time and cost issues related to teacher termination cases. While Prop. 74 would have offered some relief by permitting termination based on two consecutive unsatisfactory performance evaluations, it did not address the underlying problems relating to the complexity and cost of terminating a permanent teacher.

³⁵ "Tenure Helps Good Teachers and Shelters the Bad Ones," July 19, 2006, North Jersey.com.

³⁶ Ibid.

³⁷ Norman Brand, editor, Discipline and Discharge in Arbitration (1998), p. 29.

³⁸ Id. at 31-33.

³⁹ Ackerman v. State Personnel Board (1983) 145 Cal.App.3d 395.

⁴⁰ Morrison v. State Board of Education (1969) 1 Cal.3d 214.

⁴¹ Id. at 236.

⁴² Id. at 226.

⁴³ Id. at 379-380, quoting Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447.

⁴⁴ Ibid.

⁴⁵ Id. at 386. Though Morrison dealt specifically with immoral or unprofessional conduct, later cases have extended what have come to be know as the Morrison factors to other grounds for dismissal. See, for example, Board of Trustees v. Judge (1975) 50 Cal.App.3d 920 (applying the Morrison factors to charges of evident unfitness for service); Bassett Unified School Dist. v. Commission on Professional Competence (1988) 201 Cal.App.3d 1444, 78 CPER 53 (applying the Morrison factors to charges of dishonesty).

⁴⁶ Morrison, supra, at 386.

⁴⁷ Ibid.

⁴⁸ See, for example, California Teachers Assn. v. State of California (1999) 20 Cal.4th 327.

⁴⁹ Compare Board of Trustees v. Stubblefield (1971) 16 Cal.App.3d 820, 826, which, quoting Morrison, noted that a teacher "is entitled to a careful and reasoned inquiry into his fitness to teach by the Board of Education before he is deprived of his right to pursue his profession" (italics in original) with Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1445, 93 CPER 21. "These criteria [the Morrison factors] must be analyzed to determine, as a threshold matter, whether the cited conduct indicates unfitness for service."