The state should articulate that ineffective classroom performance is grounds for dismissal and ensure that the process for terminating ineffective teachers is expedient and fair to all parties.
Colorado specifically identifies classroom ineffectiveness as grounds for dismissal. For teachers who receive "a performance rating of ineffective, the evaluator shall either make additional recommendations for improvement or may recommend the dismissal of the person." Under the state's dismissal statute, teachers may be dismissed for unsatisfactory performance and one of the purposes of the evaluation system is "to serv[e] as documentation for an unsatisfactory performance dismissal proceeding." In addition, a teacher reverts to probationary status after two consecutive years of ineffective evaluations.
Although Colorado has attempted to address issues of due process and dismissal by reverting ineffective teachers to probationary status, the state also retains other policy that does not distinguish the due process rights of teachers dismissed for ineffective performance from those facing other charges commonly associated with license revocation such as a felony and/or morality violations. The process is the same regardless of the grounds for cancellation, which include "physical or mental disability, incompetency, neglect of duty, immorality, unsatisfactory performance, insubordination, the conviction of a felony or the acceptance of a guilty plea, a plea of nolo contendere, or a deferred sentence for a felony, or other good and just cause."
Tenured teachers who are terminated may appeal multiple times. After receiving written notice of dismissal, the teacher may request a hearing within five days. A hearing officer must then be selected within five days, and then within three days, the hearing office schedules the hearing, which must take place within 30 days. The teacher may then file an additional appeal in the court of appeals. According to the state, this review is given precedence and is "heard in an expedited manner"; however, a specific time frame is not articulated. Another appeal, to the Supreme Court, is also possible.
Colorado Revised Statutes 22-63-301; 302 and 22-9-106 (4.5)(b) Rules http://www.cde.state.co.us/EducatorEffectiveness/downloads/rulemaking/1CCR301-87EvaluationofLicensedPersonnel11.9.11.pdf
Align dismissal statute to support evaluation policy.
Colorado should ensure that its dismissal policies are in step with the state's rigorous evaluation requirements. It should be clear that classroom ineffectiveness is grounds for dismissal for any teacher, regardless of tenure status. The dismissal policy should also avoid using euphemistic terms to describe poor performance.
Ensure that the appeals process occurs within a reasonable time frame, and that due process rights are distinguished between dismissal for classroom ineffectiveness and dismissal for morality violations, felonies, or dereliction of duty.
Although probationary teachers who have earned such status due to unsatisfactory evaluations may not be subject to the state's dismissal laws, the state could do more to distinguish the due process rights of teachers dismissed for ineffective performance from those facing license revocation for dereliction of duty or felony and/or morality violations. In addition, the state should ensure that the opportunity to appeal occurs only once and only at the district level. The decision should be made only by those with educational expertise.
Colorado recognized the factual accuracy of this analysis.
States need to be explicit that teacher ineffectiveness is grounds for dismissal.
Most states have laws on their books that address teacher dismissal; however, these laws are much more likely to consider criminal and moral violations than performance. When performance is included, it is too often in a euphemistic term such as "incompetency," "inefficiency" or "incapacity." These terms are ambiguous at best and may be interpreted as concerning dereliction of duty rather than ineffectiveness. Without laws that clearly state that teacher ineffectiveness is grounds for dismissal, districts may feel they lack the legal basis for terminating consistently poor performers.
Due process must be efficient and expedited.
Nonprobationary teachers who are dismissed for any grounds, including ineffectiveness, are entitled to due process. However, due process rights that allow for multiple levels of appeal are not fair to teachers, districts and especially students. All parties have a right to have disputes settled quickly. Cases that drag on for years drain resources from school districts and create a disincentive for districts to attempt to terminate poor performances. Teachers are not well served by such processes either, as they are entitled to final resolution quickly.
Decisions about teachers should be made by those with educational expertise.
Multiple levels of appeal almost invariably involve courts or arbitrators who lack educational expertise. It is not in students' best interest to have the evidence of teachers' effectiveness evaluated by those who are not educators. A teacher's opportunity to appeal should occur at the district level and involve only those with educational expertise. This can be done in a manner that is fair to all parties by including retired teachers or other knowledgeable individuals who are not current district employees.
Dismissal for Poor Performance: Supporting Research
One of the greatest shortcomings of teacher performance appraisals has been school systems' unwillingness and inability to differentiate instructional competency. The New Teacher Project, 2009, "The Widget Effect: Our National Failure to Acknowledge and Act on Differences in Teacher Effectiveness" at http://widgeteffect.org.
See NCTQ, State of the States: Trends and Early Lessons on Teacher Evaluation and Effectiveness Policies (2011) as well as studies by The New Teacher Project of human resource and dismissal policies in various districts at: http://tntp.org/ideas-and-innovations.
For information on the high cost of teacher dismissals, see Steven Brill, "The Rubber Room," The New Yorker, August 31, 2009 at: http://www.newyorker.com/reporting/2009/08/31/090831fa_fact_brill;
Also, see S. Reeder, "The Hidden Costs of Tenure: Why are Failing Teachers Getting a Passing Grade?" Small Newspaper Group, 2005 at: http://thehiddencostsoftenure.com.