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.
New legislation in New Mexico requires that nonprobationary employees rated minimally effective or ineffective on performance evaluations be placed on a 90-day performance growth plan. If, after the 90 days, the teacher has not made progress, "the local superintendent shall determine whether to discharge or terminate the employee."
New Mexico 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 the state articulates vaguely as "just cause."
Tenured teachers who are terminated have multiple opportunities to appeal. After receiving written notice of dismissal, the teacher has five days to request a hearing. The local superintendent then has five days to provide written reasons for the notice of termination, and the teacher has 10 days to respond. Within 15 days, the board must conduct a hearing, and it has another five days to issue a decision. The aggrieved teacher may appeal to an arbitrator within five days of receipt of the decision. The appeal hearing must be held within 30 days, and the decision rendered is final. There is no time frame specified for issuing the appeal.
N.M.A.C. 18.104.22.168 New Mexico Code 22-10A-24, -25
Ensure that teachers terminated for poor performance have the opportunity to appeal within a reasonable time frame. Nonprobationary teachers who are dismissed for any grounds, including ineffectiveness, are entitled to due process. New Mexico should articulate policy that provides nonprobationary teachers an opportunity to appeal district decisions to terminate their contracts. However, cases that drag on for years drain resources from school districts and create a disincentive for districts to attempt to terminate poor performers. Therefore, the state must ensure that the opportunity to appeal occurs only once and only at the district level. It is in the best interest of both the teacher and the district that a conclusion is reached within a reasonable time frame.
Distinguish the process and accompanying due process rights between dismissal for classroom ineffectiveness and dismissal for morality violations, felonies or dereliction of duty. While nonprobationary teachers should have due process for any termination, it is important to differentiate between loss of employment and issues with far-reaching consequences that could permanently affect a teacher's right to practice. New Mexico should ensure that appeals related to classroom effectiveness are decided only by those with educational expertise.
New Mexico 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.