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Teacher Evaluation: The Legal Factors

By Kimberly M. Bandy, Natalie C. Schaefer, and Roberta F. Green
February 2013, Volume 36, Issue 6

Among school principals’ many responsibilities is oversight of performance evaluations. In recent years, efforts have been made to reform evaluations, with the ultimate goal of maximizing teacher effectiveness. However, there are other important aspects of a teacher’s performance that are not addressed in most formal evaluation processes. In our increasingly litigious society, principals must also be aware of teachers’ behaviors that could potentially give rise to legal action—specifically, illegal conduct and teaching noncompliance.

Problematic Conduct
Teachers are often a school’s front line of compliance with the law. They cannot engage in prohibited conduct, such as harassment, discrimination, or abuse. When these situations arise, they are often isolated and rare events. It is unlikely that such behaviors would be detected as part of any formal teacher evaluation process. Nonetheless, a school may find itself being held responsible for a teacher’s conduct, even if a teacher’s evaluations are otherwise positive. Principals must be on the alert for reports of problematic conduct—such as inappropriate or excessive discipline, or inappropriate familiarity or fraternization with students—and implement a response method that includes documentation, investigation, and correction.

Teaching Responsibilities
Teachers may be unaware of, or underperform, their legally mandated teaching responsibilities. Teachers are required by law to perform certain duties for students with Individualized Education Programs (IEPs). While a teacher’s ability to complete the IEP process and comply with its terms—such as goal setting and conducting planning sessions—may be addressed within formal teacher evaluations, in most instances, it is not. Nonetheless, schools can be held responsible for IEP failures. Therefore, principals must keep an eye on instances of noncompliance. As with addressing problematic conduct, principals must address noncompliance and implement methods for documentation, investigation, and correction.

In the event that a lawsuit results from problematic conduct or noncompliance of teaching responsibilities, the claimant will often attempt to place fault on the employer as well as the offending employee. Usually the claimant will allege that the school and principal knew—or should have known—about the teacher’s offenses, or that the offending teacher’s supervisor did not take sufficient steps to detect the behaviors or to prevent the behaviors from recurring. An employer who has prior knowledge of a problem and does nothing to intervene may be held liable for the behavior, even if the employer was not aware of the specific instance giving rise to the lawsuit.

What Should You Do?
Consider the following as you evaluate regularly and document accurately:

  • How do you know that the teacher is always even tempered and restrained in dealing with problem students?
  • How do you know that on the occasion of your observation, the teacher handled the specific problem behavior effectively?
  • Are you reviewing and assessing compliance with IEPs?
  • Do you have a peer review process or teacher at-risk process in place?
  • What feedback can you support with evidence if a problem arises? Think in terms of what you can defend, what you know, and document only that.

Countervailing Threats
Principals also face the countervailing threat of legal or administrative action from employees who may disagree with a disciplinary action or claim to be the subject of discrimination. Ideally, schools should have clearly written procedures and policies that deal with faculty and staff discipline, so that principals and other supervisors are insulated from such actions while operating within the procedures and policies and documenting their actions and decisions. Determine whether your school is properly prepared by considering the following:

  • Does your school have a procedure in place for dealing with provocatively dressed teachers?
  • Does your school have in place a protocol for intervening in abusive classroom discipline?
  • Does your school have a process for progressive discipline that conveys the right message of concern and caring, modifies staff behaviors, and insulates the school from the fallout?

Documentation may seem burdensome, but it may prove to be a valuable resource as legal action can take place several years after the events giving rise to it occurred. Memories inevitably fade over time, but documentation is the best way to preserve a record of the steps you have taken and the reasons for your actions and decisions, preparing you to be able to defend them should the need arise. Following these simple steps may help provide some insulation from potential liability.

This article is brought to you by Kimberly M. Bandy, Natalie C. Schaefer, and Roberta F. Green of Shuman McCuskey & Slicer, PLLC, Charleston and Morgantown, West Virginia.

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