Dismissal for Poor Performance: West Virginia

2011 Exiting Ineffective Teachers Policy

Goal

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.

Meets a small part
Suggested Citation:
National Council on Teacher Quality. (2011). Dismissal for Poor Performance: West Virginia results. State Teacher Policy Database. [Data set].
Retrieved from: https://www.nctq.org/yearbook/state/WV-Dismissal-for-Poor-Performance-10

Analysis of West Virginia's policies

In West Virginia, tenured teachers who are terminated have multiple opportunities to appeal. After receiving written notice of dismissal, the teacher may—within five days—request a level three hearing. The state does not specify a time frame for the hearing, just that the administrative law judge must issue a decision within 30 days of the hearing's conclusion. The decision may be appealed to the circuit court.

West 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: "immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the conviction of a felony or a guilty plea or a plea of nolo contendere to a felony charge." The state does stipulate that "a charge of unsatisfactory performance shall not be made except as the result of an employee performance evaluation."

Citation

Recommendations for West Virginia

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 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 be 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 impact a teacher's right to practice. West Virginia should ensure that appeals related to classroom effectiveness are only decided by those with educational expertise.  

State response to our analysis

West Virginia was helpful in providing NCTQ with the facts necessary for this analysis. 
In addition, the state noted that NCTQ made certain assumptions based upon the wording of Section 18A-2-8, which is admittedly less than clear, and that appeals of teacher terminations are governed by statutes enacted by the Legislature. The West Virginia Board of Education and the West Virginia Department of Education have no input or governance authority. They are simply employers subject to the same grievance procedures as are the county boards of education.  
The state also pointed out that the typical process for termination of a teacher employed by a county board of education is that the teacher is provided notice that the county superintendent will recommend to the county board of education that he or she be terminated.  The teacher has a right to have a hearing before the county board of education.  It is usually held within two weeks. The county board votes on the superintendent's recommendation at the conclusion of the hearing. The vote is memorialized in a letter sent by the county superintendent.

The state added that regardless of whether the teacher requested a hearing before the county board, the terminated teacher then has a statutory right to file a grievance and almost always proceeds directly to a level three hearing, which is heard de novo. The Grievance Board has the authority to issue subpoenas and there is an opportunity to conduct limited discovery, unlike the hearing before the county board of education.  There has been an effort in recent years to employ more hearing officers to expedite the process.

In addition, West Virginia pointed out that it is true that all grievance decisions are appealable to the Circuit Court of Kanawha County, where the State Capitol is located.  But the Circuit Court reviews the record; it does not take any evidence. Often times, the parties submit briefs and do not make oral argument.

Finally, the state said that "the West Virginia Department of Education doubts whether the Legislature politically could carve out an exception to the grievance process for professional personnel being terminated for incompetence or unsatisfactory performance and give them less due process than a teacher being terminated for something more serious, such as cruelty, or a school custodian being terminated for any reason.  Even if it did, the Department anticipates that the Supreme Court of Appeals of West Virginia would regard such a differentiation as a denial of due process. The expeditious process that NCTQ envisions could only come about if the Legislature abolished the entire Public Employees Grievance Board system and the Supreme Court abolished the common law concepts of writs of mandamus and prohibition (basically an appeal to a Circuit Court from a public agency if the petitioner has no avenue of direct appeal)."

Last word

The issue of long, protracted dismissal processes that cost districts hundreds of thousands of dollars has earned national attention.  It has recently been addressed by a number of states, including Florida, Indiana and Oklahoma.  West Virginia may find its legislature more willing to revisit this issue than it believes.  

How we graded

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 usually 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.

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.

Research rationale

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://www.tntp.org/.

For information on the high cost of teacher dismissals, see Steve Brill, "The Rubber Room," New Yorker, August 31, 2009 at: http://www.newyorker.com/reporting/2009/08/31/090831fa_fact_brill.
 
Also, see Scott Reeder, "The Hidden Costs of Tenure: Why are Failing Teachers Getting a Passing Grade?" Small Newspaper Group, 2005 at:http://www.nctq.org/nctq/research/1135269736359.pdf.