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. This goal was consistent between 2015 and 2017.
Link to ineffectiveness: Virginia makes teacher ineffectiveness grounds for dismissal. A teacher may be dismissed for incompetence, and incompetence is defined as "consistent failure to meet the endorsement requirements for the position or one or more unsatisfactory performance evaluations."
Due process distinction: Virginia 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 "incompetency, immorality, noncompliance with school laws and regulations, disability as shown by competent medical evidence when in compliance with federal law, conviction of a felony or a crime of moral turpitude or other good and just cause."
Appeals process: Virginia's tenured teachers who are terminated may appeal multiple times. After receiving written notice of dismissal, the teacher may, within five days, request a hearing, which must take place within 15 days. The decision must then be rendered within 30 days. The teacher may file an additional appeal with the appellate court within 10 days. The appellate court must hear the appeal within 10 days of receipt of the request for an appeal.
Virginia Code 22.1-307; 309; 311; 313; 314
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. However, cases that remain open over multiple years drain resources from school districts and disincentivize districts from terminating poor performers. Therefore, Virginia 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 between the process and accompanying due process rights for dismissal for classroom ineffectiveness and dismissal for morality violations, felonies or dereliction of duty.
Although 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. Virginia should ensure that appeals related to classroom effectiveness are decided only by those with educational expertise.
Virginia asserted that it distinguishes the due process rights of teachers dismissed for ineffective performance from those who have engaged in conduct that is a basis for revocation or other adverse licensure action based on reasons such as conviction of a felony, conviction of a misdemeanor involving moral turpitude, or conduct detrimental to students. Procedures relating to the process by which an adverse licensure action is taken include a right to appear at a local school board hearing and, at the state level, an appearance before the Superintendent's Investigative Panel and the Virginia Board of Education. No adverse licensure action is taken without a license holder having an opportunity to appear at a hearing.
Virginia also indicated that the employment of public school personnel is the responsibility of local school boards. Any teacher who has attained continuing contract status who is dismissed for ineffectiveness is entitled to due process through the grievance process, which includes the right to a hearing before the local school board or a hearing officer.
The hearing process referenced by the state in its response is related to license revocation. This analysis concerns the appeals process
for dismissal. Virginia's response underscores the fact that states too often fail to differentiate the process for termination for reasons such as poor classroom performance from the process that would result in license revocation and the permanent end to a teacher's right to practice.
States need to be explicit that teacher ineffectiveness is grounds for dismissal.
Most states have laws on their books that address teacher dismissal; however, until recently these laws were much more likely to consider criminal and moral violations than performance. While many states have amended their dismissal policy to be more explicit about classroom ineffectiveness, some still retain euphemistic terms 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. Non-probationary 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 teachers for poor performance. 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.