Firing a tenured teacher in California can be tough

She pulled a 5-year-old special-needs student from his chair, then kicked him as he lay on the ground.

But while parents in the Brentwood Union School District railed against district officials this week for failing to fire teacher Dina Holder for her actions, those who have studied the laws governing teacher dismissal said the outcome is all too easy to understand.

Firing a tenured teacher who poses a threat to students takes too long and is too expensive, according to lawmakers, child advocates and teacher union representatives — but none of them agree on how to fix the problem.

Holder retained a job even though she pleaded no contest to a misdemeanor child abuse charge in the 2010 incident. She was transferred to another school, where she taught until a legal settlement reached this month mandated her removal from the classroom.

Like their counterparts across California, Brentwood school district officials had to contend with cumbersome state education laws requiring extensive documentation and a long and expensive appeal process. California has more than 1,000 school districts and 300,000 teachers, yet only 667 dismissal cases were filed with the Office of Administrative Hearings between January 2003 and March 2012, according to the Los Angeles Unified School District’s chief labor and employment counsel, Alex Molina. Only 130 of those actually got to the hearing stage, and 82 resulted in dismissals — fewer than 10 a year.

One youth law expert points to the powerful California Teachers Association as the biggest obstacle to removing troublesome teachers from the classroom. A bill that would have expedited the firing of teachers was shot down last summer in committee, but has been reintroduced.

The union says its members deserve due process and that current law, if followed properly by districts, allows for dismissals.

Threshold for dismissal

A felony conviction is automatic grounds to start the dismissal process, but a misdemeanor conviction needs to involve “moral turpitude,” according to the education code.

Robert Henry, an attorney who has represented dozens of Bay Area school districts, said a hypothetical case of a teacher convicted of misdemeanor child abuse would provide “sufficient grounds” to pursue, but not guarantee, a dismissal.

“It would not be an open-and-shut case. It would be an issue reasonable lawyers would argue,” he said.

Laurie Juengert, the Brentwood district’s attorney, told parents Wednesday that education code prevented a dismissal process for Holder, who taught at Loma Vista Elementary and Krey Elementary. That left the district with no option other than giving her a Notice of Unprofessional Conduct, a serious reprimand that could lead to dismissal if repeated, Juengert said.

However, what may have jeopardized any Holder dismissal was the district’s failure to perform her 2010 performance review. In her testimony in a civil case deposition, assistant superintendent Margaret Kruse said transferring Holder to another class seemed an acceptable option.

“I think there was a sense that it might be better for her to work in a different setting where students were a little older and more verbal in case there was some kind of problem or situation,” Kruse said.

That’s little comfort for parents who just learned about the teacher’s history.

“I’ve lost complete faith and I’m completely disappointed with the board members. I just have had a pit in my stomach ever since I found out about this,” said Stephanie Stewart, whose son Dylan has Down syndrome and spent two years in Holder’s Loma Vista class.

“I wake up in the middle of the night asking myself, ‘Did I miss something? What could I have done differently to protect my son?'”

The Brentwood case has spurred youth law expert William Grimm to begin pushing for legislation to make firing a bad teacher easier.

“If you have a conviction for child abuse … the district can get rid of those people and they need the courage to do it and the staying power to do it,” said Grimm, the senior attorney at Oakland’s National Center for Youth Law. “I mean, my god, this woman abused a child not outside the classroom, but inside the classroom. It’s reprehensible and immoral, if not outright illegal. … Oftentimes, the right thing is not done because of the teachers union.”

Union’s power

While Brentwood teachers are not unionized, the state teacher lobby has swayed elections, killed legislation and crafted education code language to benefit the profession, Grimm said.

“It’s startling to see the amount of money they put into campaigns,” Grimm said. “The CTA and local chapters virtually control the elections of local school boards.”

Henry said the biggest obstacle in firing a teacher is weighing the financial risk. The law mandates a district pay its own and the teacher’s attorney fees if it loses and its own lawyer fees if it wins, he said. An average case costs $100,000 in attorney fees for each party, Henry said.

“You’ve got to win the case, or not only is the teacher back in the classroom, but you lose $200,000,” Henry said. “It’s a very sobering problem.”

Dean Vogel, president of the California Teachers Association, acknowledged that it takes too long and is too expensive in California to dismiss a bad teacher. He also stresses the importance of due process and the application of the existing laws by administrators.

“The dismissal cases vary so much from district to district. Of course we want to protect the rights of teachers, but the very first thing is to protect the safety of the students,” Vogel said. “Every situation is different and that’s why we have the process we have. … We have to make the decision grounded on what really happened.”

In addition to the state education code procedures, each unionized district has its own collective bargaining agreements that could add further layers of due process for dismissals, Grimm said.

“The CTA wields a tremendous amount of power in Sacramento and any change in these processes … are immediately opposed by CTA,” Grimm said.

Legislation obstacles

In June, the CTA and other teachers unions opposed SB1530, a bill to speed the dismissal process on the most serious criminal cases; the bill was killed in the Assembly’s education committee. State Sen. Alex Padilla (D-Pacoima) wrote the bill after the sex abuse scandal at Miramonte Elementary School, where a teacher was arrested on suspicion of molesting 23 students.

The Los Angeles district could not fire Miramonte teacher Mark Berndt immediately because of due process laws, so they paid him $40,000 to quit.

Padilla’s bill would have allowed school boards to immediately suspend without pay a teacher given a notice of dismissal for “serious and egregious” conduct involving sex abuse, drugs or violence toward children. The bill would have given school boards ultimate firing authority.

Currently, a three-member administrative panel with one judge and two teachers decides cases, but Padilla’s new law would have only the judge, and in an advisory role. It also would have allowed evidence older than four years to be used in dismissal cases and removed the summer break moratorium on termination notices.

Assemblywoman Joan Buchanan, a former San Ramon Valley Unified School District trustee who sits on the education committee, voted against SB1530.

“The problem is not that districts cannot dismiss certificated employees who abuse children. We can and do,” Buchanan said of her vote. “Districts immediately put these employees on administrative leave, notify proper authorities, hire an attorney to investigate, and proceed accordingly. … The problem is that the dismissal process takes too much time and is too costly for all types of dismissals. We need a better process that works for everyone — one that is fair, ensures due process, and can be done in a timely and cost-effective manner.”

Teachers could be punished after only being accused of a crime, not formally charged with one, Vogel said. “We don’t want vigilante action in the statute,” he added.

A month after a November state audit found the dismissal process too lengthy and costly, Padilla introduced SB10, similar to his earlier bill. It is pending in the Legislature.

“Such cases should not be allowed to languish in a process that can last for years and consume significant school resources,” Padilla said.

Contact Matthias Gafni at 925-952-5026. Follow him at Twitter.com/mgafni.