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Educators and Due Process
It may surprise you that, as educators, not every
action taken against you by your campus or school district
allows for the same level or type of due process
(including notice and the opportunity to defend yourself).
In fact, educators’ due process rights in relation to
personnel actions are contingent on the circumstances of each specific incident. Here’s why.
The 14th Amendment of the U.S. Constitution states that the government shall not "deprive
any person of life, liberty or property without due
process of law." At its most basic level, due process
exists to ensure that there is an opportunity for fairness
in government decisions involving these
rights.
However, life and liberty interests are rarely at stake
for public school employees involved in work-related
incidents. More often implicated are property interests,
which include things such as accumulated leave, the right
to continued employment during a contract term and the
right to file a grievance. Such legally recognized interests are acquired by
contract or state or federal law, and once they
are created, they may not be taken away without due
process of law.
However, the type of process that is due you, as a
public school employee, varies depending upon the type of
right that is implicated and the nature of the harm that
would ensue from loss of that right. For instance, due
process generally requires notice and an opportunity to be
heard, but depending upon the significance of the violated right, the notice can be either very
general or very specific. Similarly, the opportunity to be
heard might be simply a chance to communicate with the
decision maker (as in a grievance), or it might be a full-blown hearing where
evidence is presented and witnesses are cross-examined (as
in a contract termination).
Similarly, not every personnel
action requires due process before the action is taken. For instance, all public school
employees have the right to grieve personnel actions, but
that right might not arise until after the action has been taken.
For example, a supervisor may write up an employee without
having to talk to the employee about the incident
beforehand; the employee would then have the right to file
a grievance after the write-up is completed. In contrast,
when a more significant property right is involved, due process might require
that the opportunity to be heard come before the act. For example, an employment contract,
which creates a property right to a job, may not be terminated in
the middle of the year unless the employee has an
opportunity for a hearing before the termination takes
effect.
Obviously, the legalities of due process laws can be
tricky. Eligible ATPE members who feel their due process rights have been or are being
violated, should contact the ATPE Member Legal Services Department at
(800) 777-ATPE.
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The legal information provided on this website is for general purposes only. It is not intended as a substitute for
individual legal advice or the provision of legal services. Accessing this information does not create an
attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an
attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our
online system, MLSIS.
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