Paul Blume's Columns - You're fired or not (November 2009)

Law makes it harder for schools to dismiss probationary teachers

My faithful canine friend, Mary Margaret, is a senior pooch. She has been on the job (eating, sleeping, being petted) for a number of years now. As a result, she is nonprobationary. We’re going to keep her, and she knows it. Perhaps that’s why, every so often, she decides that it’s OK to conduct some, well, personal business in the house. My wife considers that to be a firing offense, and I might agree with her when I have to buy new carpeting for the house. But by that time (since it probably would be treated similarly by Mary Margaret), she (the dog) will have gone to her reward. No sense in giving her new fields to, as it were, plow.

If Mary Margaret were a new, probationary pooch, I might have sent her elsewhere for her sins, but not now. I forgive her. (My wife, on the other hand, does not, and does not consider it her Christian duty to do so. Hard woman.)

Since we’re speaking of probationary and nonprobationary things already, let’s have a go at the distinctions between probationary and nonprobationary teachers. Seems a natural segue.

Everyone (just about) knows that teachers are probationary until they complete three consecutive years in one school district. After that, they may go on the rug. Oh, wait. That’s not right.

After that, they become nonprobationary. (Better!) “But,” you ask, “what does that mean?” Surprisingly enough, it means that the teacher now has more restrictions on her rights than her probationary colleagues. That’s right. If a probationary teacher is dismissed, she has more options in suing you than a nonprobationary teacher, according to the Arkansas Teacher Fair Dismissal Act (TFDA).

Being probationary does not mean that a teacher may be dismissed without the same type of notice and hearing that is required for dismissing a nonprobationary teacher. The procedure is the same, and your board will be having the same type of quasi-judicial, potentially protracted hearing (expensive lawyers all around) for the probationary teacher that you’ll have for the nonprobationary teacher. So, no benefit to the district there.

OK, so let’s say that a probationary and a nonprobationary teacher are dismissed, whether terminated or nonrenewed. Then what? Well, they probably will sue. Yes, they both can sue, but in different ways and in different time frames.

A nonprobationary teacher can sue the district through an appeal under TFDA. That means a hearing before a judge, no jury, with the judge basing almost all of the decision on the transcript of the board hearing that the court reporter prepared. (Note: ALWAYS hire a court reporter to record your dismissal hearings). As for lawsuits in state circuit court, such an appeal is, according to the TFDA, the teacher’s “exclusive remedy.” Oh. And the nonprobationary teacher has only 75 days from the teacher’s receipt of written notice of the board’s action. Seventy-five days. Remember that.

Probationary teachers may not appeal under TFDA, but that doesn’t mean they can’t sue you to get their job back. The most popular option is a lawsuit for breach of contract. This is very different from a TFDA appeal: A jury may be present (because they often get a very warm, satisfied feeling when they can give away other people’s – or school districts’ – money); and the lawsuit is not primarily decided, necessarily, by what went on in the hearing. Not to mention – get this – that, for the probationary teacher, the statute of limitations on a contract lawsuit – that is, the time in which a lawsuit must be filed or the teacher loses the right to sue – is three years.

That’s right. A nonprobationary teacher has only 75 days to file a lawsuit, but the probationary teacher has three years to go after you.

So, what’s the advantage in dismissing a probationary teacher over a nonprobationary teacher? None. Zero. Zilch.

The current status of probationary versus nonprobationary teacher makes no sense (as you already have figured out). It’s a goofy aspect of the law that, perhaps, can be fixed in a close-by legislative session. Clearly, probationary teachers should be easier to send to the showers than a nonprobationary teacher, since there is more likelihood that newbies will have problems carrying out their duties.

As for Mary Margaret, she doesn’t care one way or the other. She has other things on her mind. There are Milk-Bones to be eaten. And there’s that unmarked patch of carpet over there.

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