David Schauner, general counsel for the Kansas National Education Association, said the bill can’t apply retroactively to teachers who already have due process – a protection granted to most teachers in their fourth year on the job.
“There’s some Kansas Supreme Court language to that effect by virtue of interpretation, and we may end up litigating that question,” Schauner said Monday. “We’re certainly prepared and stand ready, willing and able to do that.”
A bill passed by both the House and Senate over the weekend allocates millions more in funding to Kansas schools but also strips public school teachers’ right to due process hearings that was established by a 1957 Kansas Supreme Court case.
Schauner said the bill doesn’t eliminate due process. Rather, it changes the definition of “teacher” to exclude K-12 teachers but leave others, such as community college instructors, covered by the law.
Advocates of the bill said it would allow districts to get rid of bad or under-performing teachers.
“It’s exciting reform in our eyes because we see this as being a win for the kids in Kansas,” said Jeff Glendening, state director for Americans for Prosperity-Kansas.
“There hasn’t been the ability in the past for school districts to get rid of teachers, to replace teachers that weren’t performing as they should have been performing with teachers that are great,” he said. “There was a chilling effect because they didn’t want to get wrapped up in lawsuits and whatnot.”Due process hearings
Hundreds of Kansas teachers filled the state Capitol building over the weekend to protest the bill, which they said could undermine teachers’ ability to advocate for students without fear of losing their jobs.
Due process is not lifetime employment protection, said Mark Desetti, the KNEA’s legislative director. Districts can and do terminate tenured teachers.
Teachers in their first three years can be fired or not have their contracts renewed without cause. Once a teacher achieves non-probationary status, districts wanting to fire a teacher must give a reason, offer the teacher time to improve and document his or her performance over time, Desetti said.
After that, the teacher may request a due process hearing, where the district and teacher make their cases before an independent hearing officer and agree to abide by the ruling. Most terminations are settled without hearings, Desetti said.
“Very often, if the district’s got a solid case, if it’s really clear, we even will counsel a teacher to move on,” he said. “Because it’s not in the teacher’s best interest to fight it if they’re going to lose.”
He said there are typically “less than a dozen” due process hearings a year statewide. In Wichita since 2012, two dozen non-probationary teachers have been fired or not had contracts renewed and none went to a due process hearing, district officials said.
Of the Wichita district’s 4,000 teachers, 918 are probationary, meaning they don’t have due process protections, said Susan Arensman.
Desetti said the due process provision offers security to teachers who might bring up safety concerns in a school building, lobby for costly special education services for a student or teach materials a parent objects to. It also protects them from being forced to alter grades because of pressure from a parent or administrator, he said.
“My job as a teacher is to fight for my students, to fight for their education, and sometimes that means that I have to tell my principal or another administrator, ‘You’re wrong.’ What allows us to do that is the knowledge that we can’t just be fired” without cause, he said.
In its ruling in Million v. Board of Education in 1957, the Kansas Supreme Court wrote that the state had a duty “to protect competent and worthy instructors and other members of the teaching profession against unjust dismissal of any kind – political, religious or personal, and secure for them teaching conditions which will encourage their growth in the full practice of their profession, unharried by constant pressure and fear.”
And while due process “grants tenure to those who have taught the requisite period, it nonetheless empowers Boards of Education to discharge them for just cause in an orderly manner by the procedures specified,” the court wrote.What it means
Wichita teachers and school officials said they were still trying to understand what the bill, on its way to the governor’s desk, will mean for local districts.
Tracy Callard, an elementary gifted teacher at Horace Mann Dual Language Magnet, said she and colleagues who protested the bill and watched the vote from the Statehouse gallery over the weekend found it “demoralizing.”
“We don’t take a Hippocratic Oath but we do have, philosophically, an oath: We put children first, and we are willing to buck the system to speak on behalf of what children need,” Callard said. “If we can’t do that without fear of being terminated where does that leave us?”
She said controversial education policy measures, including tax breaks for corporations that donate to scholarships for private schools, seemed to be “dropped into that bill in the dark of night,” without proper testimony or debate.
Diane Gjerstad, lobbyist for the Wichita district, said she’s not sure what the bill will mean, fiscally or policy-wise, for the district because on Monday it had not even been published.
“The dilemma is that because the legislative process was short-cut, we did not have the opportunity for input,” she said. “We didn’t talk about implications. We weren’t able to talk about what do you want to achieve, what does it do? We weren’t able to fully analyze the impact.”
Schauner, the KNEA attorney, said the bill does not prevent school districts from negotiating contracts with local unions that still include due process by stipulating a right to arbitration.
The Wichita teachers union and district officials are set to begin contract talks soon. They have agreed totry a process called interest-based bargaining
this year, a less adversarial method of negotiating.
Randy Mousley, president of United Teachers of Wichita, said he thinks preserving due process “should be an issue for everyone in the community, not just teachers.” A section on teacher protection inthis year’s Wichita teachers contract
notes the state law on due process and states, “No teacher shall be disciplined without just cause.”
Mousley would not say whether the local union would propose adding a more specific due process requirement to next year’s contract.
“It would not be appropriate for me to make a comment in regard to that because we don’t have proposals,” he said.
Larry Smith, who teaches history at East High School in Wichita, said he was disappointed by bill’s passage but encouraged by the number of teachers, parents and others who rallied to protest it.
“This is going to be an issue now that is going to start uniting teachers like never before,” Smith said. “I think at least some people in the Legislature will probably regret waking up the sleeping bear.”