BASIC DUE PROCESS FOR PENNSYLVANIA EDUCATORS

Copyright 1999 by Russell Dennis

 

The Role of the U.S. Constitution

The Tenth Amendment to the United States Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Since education is not mentioned in the Constitution, it is one of those powers reserved to the states. Of course, the United States Supreme Court can declare that something not mentioned in the Constitution is so closely related to something that is mentioned in the Constitution that the unmentioned power is a fundamental interest, which rises to constitutional protection. So far, the Supreme Court has not declared that education is a fundamental interest. Thus, states have plenary, or absolute, power in the area of education. However, the Constitution still has an effect upon certain employment issues affecting teachers.

Due process clause of the Fourteenth Amendment

The due process clause of the Fourteenth Amendment to the United States Constitution states"....nor shall any State deprive any person of life, liberty, or property, without due process of law...." The Pennsylvania Constitution gives plenary power over education to the General Assembly, which is the legislative branch of government. The General Assembly has created other bodies with which it has shared its power concerning education. Both the Pennsylvania State Board of Education and local school districts were created by the General Assembly. Therefore, school board members and school administrators act under the color of state law so whenever a liberty or property interest of a teacher is involved, the teacher must be given the basic due process rights guaranteed by the U.S. Constitution.

Liberty and property rights

Generally speaking, a teacher has a liberty right to a good reputation so any action that would stigmatize a teacher interferes with this liberty interest. The property right of a teacher concerns the expectation of employment so any action that would alter this expectation would interfere with this property interest. For example, if a teacher were to be dismissed both a liberty interest in terms of reputation and a property interest in terms of employment would be involved. The state can dismiss a teacher, but since both liberty and property interests are involved, the U.S. Constitution requires that the teacher be given due process before being dismissed. The type of process, which is due, is determined by state law.

Substantive and procedural due process

There are two aspects of due process, which are referred to as substantive due process and procedural due process. Substantive due process basically refers to the reason or cause for the deprivation of the liberty or property right, while procedural due process refers to the procedures, which must be followed before the liberty or property right is deprived by the state. The three major components of procedural due process are notice, hearing and appeal. Although federal courts will require that a state provide due process before a liberty or property right is denied, the actual substantive and procedural due process rights generally are located in state sources rather than in federal sources. Pennsylvania sources of these rights are the Pennsylvania Public School Code, the Regulations of the Pennsylvania State Board of Education, school board rules and regulations, case law, and, in some instances, collective bargaining agreements. Sometimes, federal courts including the Supreme Court, have declared that due process rights provided by states have violated the U.S. Constitution. In these cases, the states have been required to revise the procedures.

Three factors affecting property rights and due process

Before considering some basic employment issues, certain basic concepts are presented because these concepts define certain parameters, which affect the employment issues. First, the type of position must be considered. Basically, there are two types of positions: regular positions and substitute positions. Second, the duration of the position must be considered: is the position full-time or part-time? Third, the nature of the person occupying the position must be considered: is the person tenured or is the person untenured?

 Type of position  REGULAR  SUBSTITUTE
 Duration of position  FULL-TIME  PART-TIME
 Person occupying the position  TENURED  UNTENURED

 

Regular and substitute positions

The difference between a regular position and a substitute position is that a regular position is one that is more permanent than a substitute position. The term "substitute" is defined in Section 11-1101 of the Public School Code in reference to a person, rather than in terms of describing a position. A substitute position is one, which is occupied by a substitute during the absence of a regular employee. Upon the return of the regular employee, the substitute has no property rights. In contrast, a regular position is one which will continue on into the future.

Full-time and part-time positions

A part-time position is less than a full-time position: it can be one-half, two-thirds, etc. The person who occupies the position can either be tenured or untenured. Both regular and substitute positions can be full-time or part-time.

Tenured and untenured educators

In Pennsylvania, a tenured teacher is a "professional employe" while an untenured teacher is a "temporary professional employe". A teacher must serve a three year probationary period before being awarded tenure. Once awarded tenure, a professional employe is forever tenured. Professional employes include more than teachers; for example, principals and school counselors are also tenured. The terms "professional employe" and "temporary professional employe" are defined in Section 11-1101 of the Public School Code.

Combinations of the three factors

The combination of the type of position, the duration of position and the person occupying the position determines what process is due because the combination determines the nature of the property interest. For example, a tenured teacher who occupies a full-time regular position has a different property interest than an untenured teacher who occupies a full-time regular position. Because of this difference, the due process rights of the two teachers are different. Likewise, the property interest of a per diem substitute, whether tenured or untenured, is practically nonexistent!

 PERSON  POSITION  PROPERTY INTEREST
 Tenured  Regular  Continuing
 Untenured  Regular  Yearly contracts ,without unsatisfactory ratings, for three years
 Tenured/Untenured  Substitute  Until the person returns

 

It is important to remember that a tenured teacher can be a substitute. When this occurs, tenure provides certain protection until the regular occupant returns, at which time tenure provides no protection because the expectation of employment ceases with the return of the regular occupant. Likewise, if a tenured teacher accepts employment in a classification, which is not mentioned in Section 11-1101 (1) in the definition of "professional employe" and which has not been determined by the courts to be closely related to one of those classifications, the educator is no longer tenured unless s/he devotes "fifty per centum ( 50%)" of time " to teaching or other direct educational activities" as specified in Section 11-1141 of the Public School Code. For example, a teacher who is tenured and afterwards becomes certified as a principal and then hired by a school district as an assistant principal is tenured. Tenure was achieved as a teacher and another probationary period does not need to be served as an administrator. However, if that principal later takes a full-time administrative position which is not mentioned in Section 11-1101 (1) of the Public School Code, s/he ceases to be tenured.

Because the particular combination of type of position, duration, and person occupying the position dictates what process is due, careful attention must be given to each individual employment issue. Care should be taken to specify the exact nature of each position so that proper due process is given. Some school districts employ very long-term substitutes who are professional employees and who substitute for many different teachers who are absent. Under the law, there is no obligation for any due process when the final absent person returns. Of course, collective bargaining agreements can give additional protection so they should be consulted also. Likewise, if a teacher becomes absent through illness and a professional employe is hired as a substitute and the absent teacher resigns, when the position is advertised as a regular position the professional employe serving as a substitute, under the law, has no expectation of future employment because s/he has been serving as a substitute even though tenured. S/he does not even have to be considered for employment for the advertised regular position. Of course, if s/he were to be terminated during the course of the employment as a substitute, s/he would be given the due process rights of a professional employe.

Types of employment issues

Due process is affected by the gravity of deprivation. As a general rule: the greater the deprivation, the greater the process that is due. The major employment actions which can be taken in regards to educators are listed below in descending order of severity of deprivation of the property interest, with the annulment of certification being the most severe and transfer being the least.

 Annulment of certification  Complete loss of livelihood as an educator because the certificate has been revoked
 Suspension of certification  Temporary loss of livelihood as an educator because the certificate has been suspended
 Dismissal  Loss of employment with a particular school entity but employment as an educator is still possible with another school entity.
 Suspension  Lay-off by a particular school entity but employment as an educator either with this or another school entity is possible.
 Demotion  Reduction in salary and/or authority but still employed by the school entity.
 Transfer  Transfer to a different school building within the school district or to a different class or subject within the teacher's area of certification.

 

 

The above table lists the employment actions in regards to deprivation of a property interest. The same order is true generally in regards to deprivation of a liberty interest, which would be the reputation of the employee. Dismissal is more stigmatizing than suspension because the reasons for dismissal stigmatize the employee while those for suspension do not. For example, incompetency is a ground for dismissal and substantial decline in enrollment is a ground for suspension. The employee is personally responsible for the first but not for the second. However, demotion can be more stigmatizing than suspension depending on the type of demotion. There are basically three different types of demotion, which are all in terms of salary and/or authority. These three types are listed below in descending order of severity of the liberty interest of the employee.

 Demotion for discipline  Educator is unable to perform in a satisfactory manner.
 Demotion for efficiency  There is a change in the organization to improve the administration of the school.
 Realignment demotion  This occurs as a result of the suspension of professional employes because the school entity must realign its staff.

 

In the school code, suspension refers to "furlough", "lay-off" or "reduction-in-force". In case law, there are two other ways in which suspension is used, which are described below.

 Suspension pending dismissal  This can be with or without pay and occurs prior to and during the dismissal hearing. This involves a liberty interest and can involve a property interest.
 Disciplinary suspension  This is imposed instead of dismissal for one of the causes for dismissal. It is suspension without pay and involves both a liberty and property interest.

 

 

Sources to be consulted for employment issues

Various sources should be consulted for information concerning due process in regards to employment issues. The major sources, including a brief description of each, are presented below. The specific content of each source that is relevant to the employment issues of dismissal, demotion, and suspension can be found in "Issues in Pennsylvania School Law."

 Pennsylvania Public School Code  This contains the laws passed by the General Assembly, which is the legislative branch of government.
 Regulations of the Pennsylvania State Board of Education  The regulations of the State Board of Education are located in volume 22 of the Pennsylvania Code
 School board policies  Each of the 501 school districts in Pennsylvania has the authority to adopt rules and regulations governing employees. These are published in school district handbooks.
 Basic Education Circulars  BECs are published by the Pennsylvania Department of Education and are utilized by the Department to communicate with school districts
 Collective bargaining agreements  Collective bargaining agreements in the form of written contracts are negotiated in each school district between the teacher's organization and the school board.
 Case law  Numerous cases have been decided by Pennsylvania courts concerning employment issues in the courts of common pleas, the Pennsylvania Commonwealth Court and the Pennsylvania Supreme Court.

 

Using Issues in Pennsylvania School Law for employment issues

Information concerning the due process requirements for the employment issues of dismissal, demotion and suspension ( furlough) is presented in Issues in Pennsylvania School Law. In order to use this resource, click on "Issues Concerning Teachers" and then click on the appropriate issue (Dismissal, Demotion or Suspension); the appropriate person ( "professional employe" or "temporary professional employe") must be chosen for either Dismissal or Suspension. Under Dismissal, there is a choice between School Code or Arbitration for both professional employe and temporary professional employe because the Public School Code, in Section 11-1133, allows arbitration as an alternative to School Code procedures for dismissal if it has been so negotiated in the collective bargaining agreement in the school district. Professional employes have the choice to file a grievance under the collective bargaining agreement or request a school board hearing but not both. Under the law, the temporary professional employe has no rights concerning either Demotion or Suspension, but since both Demotion and Suspension concern "other terms and conditions or employment", which are permissive subjects of bargaining under Act 195 of 1972 ( the "Public Employe Relations Act"), these issues might be addressed for temporary professional employes in the collective bargaining agreement negotiated in the local school district.

Information is arranged for each employment issue concerning the sources, which have to be consulted. By clicking on each source, the content relevant to the particular employment issue is presented. Only the content of that source that is relevant to that particular issue is presented. In addition, two other categories are listed under each issue. First, two basic sources are referenced to the issue; second, the appeals process is given for each issue.

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