Thursday, November 8, 2012

School Law 201

School Law 201: current issues

Educator Evaluation:
Seriously, folks: we have stopped doing so much else to talk about this. The number of PD hours, SC hours, contractual negotiation hours...all of this, is overwhelming.
cases that have been decided under the education reform act
dismissal or discipline based on evaluation: general principles that can be abstracted
to think and understand how an arbitrator looks at a case
clarity of purpose, clarity of standard

  • arbitrators look for compliance with procedural steps: must not cut corners on the process (and it is a very time-consuming process)
  • arbitrators look to see that evaluators are given enough time and enough leeway to do all of the steps: cases are left on procedural grounds; that has to be our first priority for our administrative team: following the rules for the observation reports

need proper following of sequence of requirements

  • arbitrator looks for comments that are balanced: cannot be all good or all bad
  • arbitrator will want to know that there was sufficient time to improve: employee must have time to get better or fix it...a year, possibly longer.
  • are they being given opportunities to improve? What actions are being taken to help people? Was there acceptance of the help?
  • level of assistance provided is crucial; expectation that after a certain number of years, the employee has earned the right to have certain help in improving
  • statutory rights of pupils: best interest of students must be primary; it is about whether kids are learning
  • reference of elevation of performance standards
  • in some cases, past discipline is considered: no prior discipline is considered in cases
  • bias: those are the easiest for the arbitrator to rule against the administration; sometimes you want to shift the assignment of evaluation to another evaluator
"we think we have fixed this problem; I think not. So far it is very much a work in process."
  • good cause vs. just cause: just cause evolves from an old industrial system...when you're talking about teachers, that model doesn't fit that well. Tougher mix
arbitrations are hard to overturn; there's a public policy consideration
  • cannot over turn an arbitrator if they make a mistake of law or of fact...pretty broad. We can make public policy arguments. 
Model contracts for evaluation: much that is covered within the model contract language on teacher evaluation
show attempts to improve: conferences, workshops, reading, modeling for the teacher
These are things that are embedded in the model contract; now will be required by the model contract. 
Selection of an arbitrator matters!
Reaction of the parties can effect future arbitrator's decisions
Deficient teachers now are on an improvement plan: if they take the year, then go on an improvement plan, if the requirements of that are not met, they are dismissed
Model contract attempts to deal with procedural problems that occur: meeting dates. Gives some cover to superintendents and principals
What if your previous contract has higher standards than the model contract? At what point can I say that I've bargained in good faith? Interest based arbitration
If you go to arbitration, you're stuck with the result. Proceed with caution.
Leave some room in the contract for human error. 
There will be a claim of disparate treatment, that some teachers are having more attention paid than others: argument is that some teachers need more attention than others.
How are the administrators going to be sure that they are writing things up as required? 
Opposition to email notification from union side, also resistance to use of specific software for use
A resistance to technology use

Student discipline:
case in Weston: went to SJC this year: expelled for possessing and distributing a cookie containing marijuana on Weston school property
father directed son not to respond to questions from school administration; admin expels son "indefinitely"
admin moves to have a formal hearing; mutual date not agreed upon (can't avoid meeting in order to avoid consequence); principal expels student
father appeals to superintendent; superintendent upholds expulsion; preliminary injunction filed
judge asks student when he last used marijuana; student says months ago; has student take urine test; comes back positive
judge directs school to readmit student with urine tests and up to date on schoolwork
parents and school cannot agree on plan; back to court; court adopts most of parents plan
to SJC
SJC: this is a preliminary injunction: none of the rules were followed; seen as "an abuse of discretion" by court
Weston's motion for summary judgment granted
student back to school (and graduated) under school's plan
"watch out for those kids that are juniors or seniors, because judges will delay"

Must provide continuing education for kids who are in process of being disciplined or as the result of a suspension or an expulsion
may include or not limited to tutoring, online learning, or alternative education option
costs of other educational options can be applied for under the circuit breaker "subject to appropriation"
(that last phrase is always the "gotcha")
significant issues imposed; due process requirement: know that they are being suspended, know why, allow appeal
suspensions or expulsions have to be reported to DESE
appeal must be allowed; parent must be included; can only take place in absence of parent if written notice can be shown that an effort was made to include parent
student/parent must be able to cross examine witnesses (which is new)
no student shall be expelled from school for more than 90 days
much of this DOES NOT TAKE EFFECT until 2014
MASC interested in how this will impact districts; please let them know! If there's going to be changes made, the changes need to be made THIS legislative year.

Courts give great leeway to school districts in school discipline cases.

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