Will the union further control and water down Kentucky’s teacher discipline procedures?

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With the brouhaha over improper testing activities at Louisville’s Male High School now headed to the Kentucky Educational Professional Standards Board (EPSB), I wondered if any initial action by that board might be planned for its next meeting on July 20-21, 2014. So, I checked out the agenda book for the meeting, which recently showed up in the EPSB’s web site.I didn’t find any mentions of Male High or the three individuals who are currently implicated for problems at the school, but I did stumble across something else that may be equally, if not more, serious.

A “Retreat Guidesheet” regarding “Disciplinary Review” starting on Page 82 (use Adobe Acrobat’s page number feature, there are no printed page numbers in the agenda book) provides cause for concern.

It seems like the teachers’ union is trying to further control and dilute the school staff discipline process.

Here are just a few things in the proposed changes in the agenda book that look bothersome. On Page 83 of the booklet, a change proposal says:

"Within 30 days of receipt of a written complaint from an identified source (emphasis added), a three person disciplinary subcommittee comprising three K‐12 members of the full EPSB will determine whether the complaint establishes an act prohibited by KRS 161.120(1). The disciplinary subcommittee members will be appointed by the chair and will serve one (1) year terms. At least two members of the disciplinary subcommittee will be classroom teacher representatives who are not administrators (emphasis added)."

Note the committee that decides if there even is going to be a discipline case would be dominated by classroom teachers (majority vote rules). This provision essentially gives control of the discipline process to the teachers union.

By the way, even given the general principle in this country that we should be judged by our peers, this stipulation isn’t even logical. Some cases coming before the EPSB don’t involve classroom teachers. The current situation with Male High School (which I have been discussing since mid-May) is a great example. The former Male principal, David Mike, and a Male High counselor, Rhonda Branch, are going to be considered for sanctions. They are not classroom teachers now; Mike at least has not been one for some time. In general, someone with teaching credentials who is working in a district office or school office staff position might also face EPSB inquiries but isn’t a classroom teacher, either. So, this isn’t about being judged by peers. It just looks like an attempt by the union to exert more control over what happens in our school system.

Also note that under the proposed change, anonymous complaints can never trigger an investigation at EPSB. That’s a bad idea.

Consider the Male High School situation. The investigation at Male was triggered by reports of problems, but I have not seen the names of the individuals who made those reports identified anywhere, including in the formal Kentucky Assessment Allegation Report from the Kentucky Department of Education’s investigation.

The Allegation Report only indicates the original complaints came in two separate calls to a “Hot Line” at the ACT, Inc.’s office. However, following an extensive investigation that took place over the period from December 2013 through May of 2014, information was uncovered that is now captured in the formal Allegation Report.

But, what if the Male hot line callers had contacted the EPSB first? If anonymous allegations were not acceptable as a way to launch an investigation at EPSB, the Male misbehavior could have gone unnoticed.

The Allegation Report provides another clue that anonymous complaints are critical to correcting wrong-doing in the education area. One of the findings says:

“Ms. Greenberg threatened to overstaff individuals if they did not comply.”

Decoded, this means if teachers didn’t go along with the testing misbehavior, they would be pushed off the staff at Male High School and forced to seek a position somewhere else in the Louisville school system. This is a serious threat because Male is an exclusive magnet school and a much sought-after teaching assignment in the city. Facing such threats, it is very unlikely a teacher would come forward in the open with a complaint.

As an aside, I find it “interesting” that, so far, the teachers’ union voice has been notably absent regarding the situation at Male. It appears teachers were threatened with firing if they didn’t go along with misbehavior. That is exactly the sort of management misbehavior that unions are supposed to deal with for their members.

In any event, the change in complaint filing requirements for the EPSB probably would shut down chances for EPSB to uncover misbehavior by school staff.

By the way, there is a bit of nonsense in the agenda book proposal where it says on Page 83 that:

"Anonymous complaints cannot be verified."

That is silly. Investigations often start with an anonymous allegation which is then verified by appropriately trained investigators. The presence of this nonsense comment provides more concerns about the thinking behind these changes; are they mostly an attempt to shut down meaningful investigation of educator wrong-doing at EPSB?

There is also a discussion on Page 83 about what happens to any evidence submitted to the EPSB if a decision is made to not go forward with a disciplinary case. The proposed change says:

"The information will not form the basis of any future disciplinary action against the teacher."

The intent is further amplified on Page 85 where it says:

"Cases shall be dismissed with prejudice, meaning that the circumstances presented by the complaint do not support disciplinary action and cannot form the basis for any subsequent action by the EPSB."

This will destroy preservation of circumstantial evidence that could be of value in a future investigation if other allegations of wrong-doing later surface. It is a change from current EPSB practice which keeps allegations on file even if they are not found strong enough to support action by themselves. The existing policy discussion on Page 85 explains why such a change is a bad idea:

(Note: Current Policy) "The dismissal may not be based upon the merits of the case, but rather some other aspect, such as weak facts, incomplete reporting, lack of cooperation from witnesses, etc.; therefore, subsequent action on the complaint is not prohibited."

The comment about lack of cooperation of witnesses is very pertinent in the on-going Male High cheating incident. In the formal Allegation Report it says that some teachers withheld knowledge and information in the initial phase of the investigation and only came forward much later when the principal started to carry through on reducing staff positions at the high school. Under the proposed rule, a similar situation might prevent the EPSB from taking any action on a case.

Several places in the agenda book indicate the proposed changes to the discipline rules will significantly limit the amount of time the EPSB legal staff will have to conduct an investigation. For example, on Page 86 the change would read:

"Attorney investigates initial complaint and any other matters that come to light during Investigation...for a period of 90 days after the board votes to hear the case."

This may excessively limit the ability of the legal staff at EPSB to conduct a thorough investigation, especially in cases where outside support is needed from organizations such as a testing company.

For example, as mentioned earlier, the Male High School investigation has been going on for more than half a year. Given initial reluctance of Male teachers to share what they knew and the need to coordinate with the ACT, Inc., such an amount of time does not seem unreasonable. However, EPSB would be prevented from conducting such an investigation in the future.

In another example, the ACT cheating incident in the Perry County School District about four years ago also took time to conduct thoroughly. Probably, a 90-day restriction would have prevented appropriate action in that case, too.

Page 87 comments indicate a desire to largely hide the findings of the EPSB discipline process. The proposal there says:

"Other than the information contained in the board minutes, no information about suspension or revocation will be made available by any means other than a properly tendered Open Records request or valid subpoena."

This will largely hide all EPSB actions concerning misbehavior by certified school staff. The media rarely pay attention to EPSB board activities and are unlikely to report on sanctions unless a press release (which would be prohibited by this rule change) is made.

In closing, I want to make it clear that the actions of the EPSB need to be fair to our professional school staff. However, when educators misbehave, we must have solid procedures in place that insure our students and honest educators are protected from such misbehavior and also have appropriate and safe ways to report such problems.

I am concerned that the proposed changes to go before the EPSB don’t meet muster and need more work. They are a good deal for the union, but a bad deal for all the rest of us.