Ninth Circuit makes it easier to put derogatory information in teacher's files

Teachers do not have a due-process-protected property interest entitling them to a hearing before derogatory information is placed in their personnel file, according to an unpublished ruling from the Ninth Circuit (available here).

This interesting case arose out of the legal theory that under some circumstances, government employees have a constitutionally protected "property right" that triggers due process rights when an employer's action threatens their employment. Here, teacher Brian Dougherty sued two of his supervisors for placing derogatory information in his personnel file, and in the lawsuit, argued that he had a due process right to a hearing before the information was put in his file.

For educators employed by the State of California, the procedures for notice of charges relating to unprofessional conduct or unsatisfactory performance are governed by California Education Code § 44938. The Ninth Circuit ruled that the statute guaranteed written notice and an opportunity to correct conduct before being discharged, but did NOT guarantee a hearing.

Here's the statute in full - if you work in California public education and manage or hire/fire educators, you need to be aware of these procedures:

California Education Code § 44938:

(a) The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unprofessional conduct, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.

(b) The governing board of any school district shall not act upon any charges of unsatisfactory performance unless it acts in accordance with the provisions of paragraph (1) or (2):
(1) At least 90 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unsatisfactory performance, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.
(2) The governing board may act during the time period composed of the last one-fourth of the schooldays it has scheduled for purposes of computing apportionments in any fiscal year if, prior to the beginning of that time period, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unsatisfactory performance, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.

(c) “Unsatisfactory performance” as used in this section means, and refers only to, the unsatisfactory performance particularly specified as a cause for dismissal in Section 44932 and does not include any other cause for dismissal specified in Section 44932.

“Unprofessional conduct” as used in this section means, and refers to, the unprofessional conduct particularly specified as a cause for dismissal or suspension in Sections 44932 and 44933 and does not include any other cause for dismissal specified in Section 44932.

The meanings of "unsatisfactory performance" and "unprofessional conduct" have been discussed at length by the Courts - you are probably familiar with news stories about just how hard it is to fire teachers who aren't doing their jobs, and tenured professors who don't show up for work. For an interesting read about a real world situation where California Education Code § 44938 played out, I recommend this series of stories in the Los Angeles Times (available here).

Finally, a disclaimer. Nothing in the above is intended to create an attorney-client relationship with the reader or to provide legal advice. This blog is provided as a service to clients, and is not intended as an advertisement. Every case is different and I always recommend you contact an attorney who will help you apply the facts of your specific case to the law.