Articles

Back-to-School Edition Fall, 2009

Education Watch

Probationary Teachers Lose Pair of Appellate Proceedings

Minnesota Court of Appeals rejects claims for continuing contracts by educators in Bemidji, Shakopee

As teachers and other participants in the education process return to school for the upcoming school year, educators are disturbed by a pair of recent rulings of the Minnesota Court of Appeals which denies continued contract rights to probationary teachers.

In two cases decided concurrently this summer, the Appellate Court ruled that school districts could terminate the contracts of probationary teachers who had not achieved tenure under the state tenure law, which applies after a teacher has completed three years of teaching and is then given a contract for the upcoming school year.

Both cases involved some twists from the usual tenure tussles. But the upshot in both cases was that the teachers were out of luck and out of jobs, too. Under the Teacher Tenure Law in Minnesota, Minn. Stat. § 122A.40, most teachers must teach for three consecutive years in a school district in order to be qualified for tenure. If they have taught elsewhere for three years, and moved to a new school district, they must teach for one year on a probationary basis in the new district in order to receive tenure. In both of these cases, decided concurrently by the Appellate Court, teacher tenure claimants were rebuffed on grounds that the respective school districts could decide not to renew their contract because they had not completed their probationary status.

Education Exit

The Community Education Director with the Bemidji School District was properly denied renewal of a contract after the first year of employment in Tchida v. ISD No. 31, Bemidji Area Schools, 2009 WL 1919615 (Minn. App. 2009) (unpublished). The Teacher Tenure Law requires that, during the first three years, a probationary teacher be given three performance evaluations annually. The ousted Director was only given one performance evaluation before being told, at the end of the school year, that her contract would not be renewed.

The Court of Appeals upheld the determination, holding that while there was only one "real performance evaluation," coupled with a pair of vague memoranda, the performance review law, Minn. Stat. § 122A.40, subd. 5(a) is only "directory," not mandatory. Therefore, by furnishing one "real" performance evaluation along with two supplemental memoranda, the school district substantially complied with the statute. Accordingly, the community education director's exit from the school district was upheld, even though the school district did not fully comply with the performance review law.

Continuity Case

A teacher whose probationary contract was not renewed after the third year by the Shakopee School District was denied tenure in Wilson v. ISD No. 720, Shakopee, 2009 WL 1920051 (Minn. App. 2009) (unpublished). The teacher claimed that she had taught at a technical school, which formerly was governed by the school district for about four years, several years earlier, and that time period should be counted to reach her three year tenure.

But the Appellate Court disagreed. While a teacher obtains tenure if a contract is renewed after three years, if a teacher who has taught for more than three years elsewhere moves to a new district, after only one year of probation is required. But this teacher's prior service did not count because there was no evidence that she was "required" to be licensed for the technical school teaching she had done much earlier.

Because there was no required licensure at that time, she was not classified as a "teacher" under the Tenure statute. Therefore, the time she spent teaching at the technical college did not count towards her tenure in the new school district. The school district, therefore, could terminate her after the third year by not renewing her contract.

U.S. Supreme Court decides strip-search case

High Court issues guidelines for ‘zero tolerance’ policies in public schools

An important case involving the strip-search of an 8th grade student decided recently by the U.S. Supreme Court may lead to important guidelines for school officials in enforcing zero tolerance policies. The case, entitled Safford Unified School District No. 1 v. Redding, 129 S.Ct. 2633 (2009). The case was heard by the High Court in late April, and a decision issued this Term before the Court ended its 2008-09 Term.

The lawsuit arises out of a strip search of an 8th grade honor student in a public school in Arizona by an assistant principal who was enforcing the school’s anti-drug policies. The student was suspected of possessing prescription strength ibuprofen pills. She was required to strip to her underwear, but no pills were found. Her mother, furious at school officials, sued, and the 9th Circuit Court of Appeals, sitting in San Francisco, ruled that school officials violated the prohibition in the 4th Amendment of the U.S. Constitution against unreasonable searches. 531 F.3d 1071 (9^th Cir. 2008).

The High Court agreed. In a decision written by retiring Justice David Souter, it held that the strip-search constituted a violation of the prohibition against unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution. But it held that, because the law was not "clearly established," the student could not recover damages against school officials. The case was sent back to the lower court for further proceedings.

The case has created a firestorm among school officials and others around the country regarding the permissible scope of school searches. It also reflects the tendency of courts to become involved in challenges to school disciplinary methods regarding zero tolerance policies. In recent years state and federal courts have been hearing an average of about 60 such cases per year, more than one per week.

"The decision could have wide-ranging implications for discipline in public schools," observed Phillip J. Trobaugh, an attorney with the law firm of Mansfield, Tanick & Cohen, P.A., who heads the law firm's Education Law Department. Mr. Trobaugh, who handles school student disciplinary cases, stated that the outcome will depend upon how lower courts balance the rights of school officials to enforce discipline policies against the rights of students to be protected from unreasonable intrusion by school officials.

Music educator receives law firm award

Michael Bogle, D.M.A. (center) recently received the Education Law Award from the law firm of MANSFIELD TANICK & COHEN, P.A. The Award was presented to Professor Bogle, a musician and music educator, at a ROUNDTABLE dinner program conducted by the law firm at its St. Paul office as part of its annual SALUTE TO ST. PAUL night. Professor Bogle was recognized for advancing the legal rights of tenured faculty members in Minnesota. A certificate commemorating the Award was presented to him by Marshall H. Tanick (left) and Phillip J. Trobaugh (right) of the law firm’s Education Law Department. The Award also consists of a donation by the law firm to Jazz Education Network a charitable organization selected by Professor Bogle. Professor Bogle also is a music arranger, composer, and performer. More information about his music work and his, CD "Eternal Family" is available at www.MikeBogle.com.