Part III: Annual Contracts and Due Process
The first article in our series of how Florida’s education policies are undermining student success focused on teacher pay. Part two of the series began the examination of bad policy by looking at Value-Added Modeling (VAM). In part three, we continue our examination of bad policies by looking at yet another significant aspect of 2011’s Student Success Act.
There is quite a bit of jargon used in this article; to help readers understand, we’ve provided a list of definitions that can accessed here.
Why Due Process Matters to Students and Parents
Every student deserves a teacher who is willing to fight for them, to stand up for what is in in the child’s best interest. Every student deserves a teacher who has academic freedom to teach without having to worry about losing their job for teaching established scientific knowledge such as evolution, or because they were teaching controversial books such as “To Kill a Mockingbird” or “The Catcher in the Rye.” History and government teachers need to be able to teach without fear of reprisal.
However, a recent poll by PDK shows that almost 30% of parents are either somewhat or very concerned that civics class might “contain political content they disagree with,” and a full 40% of K-12 parents surveyed indicated they do not think civics should be a required course. The reality is in today’s polarized age, almost any act of teaching could be deemed controversial.
When you combine that with the reality that many Florida teachers have an annual contract – meaning that their contract expires at the end of every year and the school board must take an affirmative action to rehire the teacher – it is a scary time to be a teacher in Florida.
This might seem like hyperbole, but for too many teachers this fear is of losing their job for no reason at all is very real. At the end of the 2018-19 school year, multiple teachers in St. Johns County who had been rated effective by their administrator did not have their contract renewed despite their principal never having “a conversation…about perceived problems with their instruction.” This is a widespread problem happening all over the state of Florida.
Mind you, at the start of the 2019-20 school year there are at least 300,000 students in a classroom without a qualified teacher due to Florida’s teacher shortage. Yet, districts are allowing great teachers’ contracts to expire and providing no reason for doing so.
This has created a culture of fear, a culture where teachers are worried that if they speak up for student needs, if they speak out against their administration for any reason, they will deemed not a “good fit” and their contract will be terminated at the end of the year even though they have demonstrated themselves to be effective or highly effective in the classroom.
When teachers don’t have the authority to challenge the status quo without fear of reprisal, it is students who lose in the end.
If you would like to read more about how due process protects teachers and students, read this article from the Summer 2015 edition of American Educator.
But, Doesn’t Due Process Protect Bad Teachers?
In a word: no.
Due process ensures that teachers must be provided a reason for their employment being terminated and they must have the opportunity to contest their termination in front of an impartial party. It provides protection for good teachers to be sure they are not fired for bad reasons as discussed above.
Around half of teachers in Florida – those who were hired in 2008 and before and who have not changed school districts – have the opportunity to be on a professional services contract (PSC). Unlike more recently hired teachers, these teachers with PSC do have a right to due process. However, they are by no means guaranteed a “job for life” as some critics of due process would like to claim.
Florida Statues 1012.34 very clearly delineates the process through which teachers with PSC can be held accountable and placed on a 90-day probationary period. During those 90 days the teacher receives coaching and increased observations from their administrators. At the end of the 90 days, hopefully the teacher has grown as a professional and has demonstrated their ability to effectively teach.
However, that is not always the case, and when that is not the case the principal can recommend termination of the teacher’s contract. The teacher is afforded the opportunity to contest their termination in front of either the local school board or an administrative law judge assigned by the state’s Division of Administrative Hearings.
Due process strikes the balance between a teacher’s right to academic freedom and to stand up for what they know is best for their students with students’ rights to have an effective teacher in front of them every single day.
Other Impacts (or lack thereof) of Removing Due Process
As we detailed in Part I of the series, Senate Bill 736 was a massive change to Florida’s education laws and a significant encroachment on local control. One aspect that was changed was the elimination of professional services contracts which could be earned only after demonstrating three years of effective teaching.
Those who supported SB 736 maintained that this removal of due process was one of the most essential elements of the bill; former Governor Rick Scott even suggested that this would help with recruitment and retention. This flies in the face of reason and logic.
As of 2015, Florida was one of only three states in the US where due process was not afforded to teachers after completing a probationary period. Let’s remember that teachers in Florida can be highly effective, can meet all of the expectations set for them by the state and their principal and still be fired for no reason. Knowing this, why would a young person who has just graduated college –likely with a mountain of debt — and is ready to start their teaching career come to Florida to teach when they could go almost anywhere else in the country and know they will have stable employment as long as they do their job well?
Echoing these sentiments at the time SB 736 was passed Representative Alan Williams remarked,
“No successful business would allow the dismissal of its highest performing employees who did more with less without giving them a reason.”
Professional educators knew what Williams knew when the bill was passed: eliminating due process would make teaching in Florida less desirable than the rest of the country. Sure enough, eight years after the passage of SB 736 there are currently at least 300,000 students who don’t have a qualified teacher because of Florida’s teacher exodus.
Eliminating due process wasn’t just about recruitment and retention, however; these same politicians promised the removal of due process would lead to increased student achievement as principals now had the ability to fire “bad” teachers. Regardless of the inherent lie imbedded in that claim – principals have always been able to fire bad teachers – there is now research on the impact that eliminating due process had on student achievement.
Just like the predictions about recruitment and retention turned out to be wrong, so was the gamble that removing due process would have a positive impact on student performance. The Brookings’ Institute study concluded,
“Florida’s ‘game changing’ tenure reform law of 2011 did not precede a large change in statewide student achievement, but under a quasi-experimental microscope, we find limited and circumstantial evidence that SSA (SB 736) slightly increased student test achievement…”
Any professional educator could have told you this. When teachers’ academic freedom is threatened, students will never win.
Amendment, after amendment, after amendment was filed to SB 736 simply to ensure that no teacher could be fired without at least the courtesy of being given a reason why. All of these amendments failed. Here’s the cold, hard truth: Those who supported the removal of due process knew all along that it would not help with recruitment or retention. They knew it would not help increase student achievement.
Like the other policies we will explore in this series, the removal of due process was an intentional step to undermine the teaching profession and student success. Rather than investing in the schools that the vast majority of Florida’s students attend, these policies have been put in place to pave the way for charter schools and voucher schools to take an ever-larger share of money dedicated to public education.
The Path Forward
Florida’s teacher shortage crisis which hurts students every day did not appear out of thin air. It is the direct result of policies like the removal of due process. While it is essential that Florida’s teachers are paid better, better pay is not enough. The detrimental policies of the past two decades must start to be unwound, and it must start now.
By any measure, the promised gains of removing due process have failed to materialize. An entire generation of teachers lives in a constant fear that they might not be a “good fit,” and that despite their proven record of increasing academic success, they will not see their contract renewed. This is no way for Florida’s politicians to show that they value educators or students.
The Florida Education Association understands the importance of having a qualified teacher in front of every single student every day. We understand that there are some individuals who despite their best efforts and despite the mentorship of their peers and administrators just do not belong in the classroom. We don’t want those teachers in the classroom, either. And the good news if Florida has a process to ensure those teachers get mentorship and if they still don’t cut it, they lose their job.
But what we do not accept, what we can never accept, is great teachers losing their job because they challenged their administrator, or because they teach a controversial subject. Without the freedom to teach without fear, our teachers do not have the freedom to teach.
Due process is such a fundamental American belief that it is enshrined in the United States Constitution not just once, but twice. Both the 5th and 14th amendments to the Constitution ensure due process rights when it comes to “life, liberty, or property.” It was a shameful day in 2011 when the Florida Legislature attacked the profession of education by removing due process protections for new teachers.
It is time to right that wrong. It is time for the Florida Legislature do what the rest of the country does – what Florida did for decades until 2011 – and ensure that no teacher is ever fired without being given a reason why and a hearing in front of an impartial body if they so choose. It is time to repeal the annual contract provisions contained in SB 736 and to once again allow teachers the ability to earn a professional services contract.
Annual Contract: An employment contract for a period of no longer than one school year which the district school board may choose to award or not award without cause.
All instructional personnel who did not have a professional services contract prior to July 1, 2011 must be placed on an annual contract. Additionally, those who had a professional services contract but moved districts after 2011 must be placed on an annual contract.
Instructional personnel with annual contracts are afforded due process rights during the term of their annual contract, but they do not have due process rights at the end of the school year.
Due Process: The right for an employee to know why their termination is being sought by their employer and a right to have their employment decided by an impartial body. Due process does not prevent teachers from being terminated, but it does require that employers show “just cause” for termination.
Just Cause: Reasons for ending the employment of instructional personnel with a professional services contract. These reasons include, but are not limited to the following:
- two consecutive annual performance evaluation ratings of “unsatisfactory”
- two annual performance evaluation ratings of “unsatisfactory” within a 3-year period,
- three consecutive annual performance evaluation ratings of “needs improvement” or a combination of “needs improvement” and “unsatisfactory”
- gross insubordination
- willful neglect of duty
- misconduct in office
- being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
Probationary Contract: An employment contract for a period of one school year awarded to instructional personnel upon initial employment in a school district. Probationary contract employees may be dismissed without cause or may resign without breach of contract. A district school board may not award a probationary contract more than once to the same employee unless the employee was rehired after a break in service for which an authorized leave of absence was not granted.
Instructional personnel with probationary contracts do not have due process during the probational period.
Professional Services Contract (PSC): A contract that shall be renewed each year unless the district school superintendent, after receiving the recommendations required by s.1012.34, charges the employee with unsatisfactory performance and notifies the employee of performance deficiencies as required by s. 1012.34; or
the employee receives two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under s. 1012.34, or three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s.1012.34.
Senate Bill 736, passed in 2011, made it illegal for school districts to award any additional PSCs after July 1, 2011. Since teachers had to teach for three years to earn PSC status, this in effect means that any personnel hired in 2009 or later are only eligible for annual contracts.
Instructional personnel with PSC have due process rights.
Tenure: A term that doesn’t really have much meaning in PreK-12 education in Florida. There used to be tenure afforded in several counties in Florida, but not any longer. If someone is discussing tenure in relation to PreK-12 instructional personnel in Florida they are really discussing “due process.”
Want more in-depth coverage of the ramifications of two decades of Bad Policy and Low Pay? Check out Part IV of our series, which focuses on the Test Mania that steals time from genuine teaching and learning.