Teachers accused of misconduct should have their cases decided within 100 days, said Kenneth Feinberg, the arbitration expert investigating teacher discipline at the request of the American Federation of Teachers. Feinberg will release his plan next week for how to deal with accusations against teachers like absenteeism, corporal punishment and sexual abuse. However, his call for a quick response, while seemingly in the interests of schools and teachers, may actually undermine teachers’ right to due process.
His report calls for:
- Objective criteria, rather than vague and subjective allegations
- Immediate notice to the accused teacher
- A preliminary process for screening out meritless complaints and informally resolving meritorious complaints quickly and, when possible, without a full-blown hearing
- Hearing Examiners chosen and trained by the Program Administrator should be given full authority to supervise discovery and conduct a hearing culminating in a written final decision
Feinberg correctly notes that one existing problem with teacher discipline is that some state statutes allow punishment for vague and subjective infractions like “moral turpitude and immorality,” “neglect of duty” and “general cause.” However, Feinberg’s calls for a revamping of criteria do not entirely solve this problem, leaving substantial room for subjectivity and vindictiveness on the part of administrators. Here are just a few of his recommendations below (in black) and my criticisms (in red).
- “Conviction or allegation of a felony or other crime involving moral turpitude.” This still allows for the subjective determination of what constitutes a “moral” infraction.
- “Improper use of physical force” and “Inappropriate physical contact.” Again, these still allow for the subjective determination of what is “improper” or “inappropriate.”
- Excessive and repeated absenteeism and or tardiness is also subjective. What if a teacher or their child has a chronic health condition that requires repeated absenteeism?
Another problem with the plan is that it does not specify how evidence shall be collected or weighed. For example, if a student accuses a teacher of making a racist comment, will that accusation be the only evidence considered? Will the principal be allowed or required to interview student witnesses? If so, will the principal be allowed to “cherry pick” witnesses or be required to interview all witnesses or a random sampling? Will the teacher be allowed to bring in eye witnesses and character witnesses?
How this evidence is weighed is of critical importance. Statements by teachers who were not present, but who “know” about the accused teacher’s misconduct through rumor and innuendo by students and other teachers should not be allowed as evidence, as it is not proof that the accusation is true. Yet administrators sometimes do bring up such accusations to support their case. Furthermore, even statements by eyewitnesses are not entirely reliable, as they can be biased or inaccurate, especially in the case of students who have “an axe to grind” with the accused teacher (e.g., unhappy over grades or strict discipline policy).