Are teachers, hired prior to 2015 and on probation, and completed 3 years of service in different schools, entitled to due process termination hearings?

No. Probationary teacher, Ivy H. Lin, taught at New Utrecht High School during the 2012-13 school year. In January 2013 while monitoring the Regents Exam she witnessed and reported a teacher who was helping a student while the student was taking the exam. Lin was observed both prior to and after this incident and received unsatisfactory observations and two letters to her file. At the time of her three year probationary period Lin was terminated. She was given a hearing by a review panel which, by split decision, affirmed the termination. The Collective Bargaining Agreement, in effect at the time, provided for full due process hearings for teachers who served in a school for the three years. See Article 21 Section D(2).

This provision provided that “[t]eachers on probation who have completed at least three years of service on regular appointment in the school shall be entitled, with respect to the discontinuance of their probationary service, to the same review procedures as are established for tenured teachers under” Education Law § 3020-a.

Lin commenced a proceeding challenging her termination based upon retaliation as well as the denial of a hearing pursuant to the CBA. The Court found that her argument was unpersuasive. The four unsatisfactory observations and two letters of misconduct were sufficient to support the DOE’s position that her termination was not retaliatory. Also, since Lin had taught in two different schools during her three years of teaching the CBA provision did not apply since the CBA wording states “in the school,” which, according to the Court, meant the same school.

In the Matter of Ivy H. Lin, Appellant-Respondent, v. New York City Department of Education et al., Respondents-Appellants. 191 A.D.3d 431 (2021)Appellate Division of the Supreme Court of New York, First Department. February 4, 2021.

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Can a school district constitutionally terminate teachers for ineffective performance based on a secret value-added algorithm?

No. The Houston Federation of Teachers brought an action against the Houston Independent School District based on the claim that a teacher evaluation system based, at least partly on student exam scores, violated disciplined teachers’ procedural due process rights under the 14th Amendment.

Student exam scores were subjected to a “secret” algorithm to determine whether students’ performance was increased. This algorithm was the proprietary property of a private computer firm. Affected teachers had no right to view or test the computer code making review of their scores nearly impossible.

While the plaintiff challenged the evaluation system on both procedural and substantive due process claims the Federal District Court in the Southern District of Texas held that the refusal to permit teachers to fully review their scores might deprive them of a property right in violation of their procedural due process rights and denied the District’s motion for summary judgment.

The Court held, “On this summary judgment record, HISD teachers have no meaningful way to ensure correct calculation of their EV AAS scores, and as a result are unfairly subject to mistaken deprivation of constitutionally protected property interests in their jobs. HISD is not entitled to summary judgment on this procedural due process claim.”

Houston Federation of Teachers, Local 2415, et al., Plaintiffs v. Houston Independent School District, Defendant, United States District Court, Southern District of Texas, Civil Action H-14-1189 (May 4, 2017)