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Firing tenured teachers can be a costly and tortuous task

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The eighth-grade boy held out his wrists for teacher Carlos Polanco to see.

He had just explained to Polanco and his history classmates at Virgil Middle School in Koreatown why he had been absent: He had been in the hospital after an attempt at suicide.

Polanco looked at the cuts and said they "were weak," according to witness accounts in documents filed with the state. "Carve deeper next time," he was said to have told the boy.

"Look," Polanco allegedly said, "you can't even kill yourself."

The boy's classmates joined in, with one advising how to cut a main artery, according to the witnesses.

"See," Polanco was quoted as saying, "even he knows how to commit suicide better than you."

The Los Angeles school board, citing Polanco's poor judgment, voted to fire him.

But Polanco, who contended that he had been misunderstood, kept his job. A little-known review commission overruled the board, saying that although the teacher had made the statements, he had meant no harm.

It's remarkably difficult to fire a tenured public school teacher in California, a Times investigation has found. The path can be laborious and labyrinthine, in some cases involving years of investigation, union grievances, administrative appeals, court challenges and re-hearings.

Not only is the process arduous, but some districts are particularly unsuccessful in navigating its complexities. The Los Angeles Unified School District sees the majority of its appealed dismissals overturned, and its administrators are far less likely even to try firing a tenured teacher than those in other districts.

The Times reviewed every case on record in the last 15 years in which a tenured employee was fired by a California school district and formally contested the decision before a review commission: 159 in all (not including about two dozen in which the records were destroyed). The newspaper also examined court and school district records and interviewed scores of people, including principals, teachers, union officials, district administrators, parents and students.

Among the findings:

* Building a case for dismissal is so time-consuming, costly and draining for principals and administrators that many say they don't make the effort except in the most egregious cases. The vast majority of firings stem from blatant misconduct, including sexual abuse, other immoral or illegal behavior, insubordination or repeated violation of rules such as showing up on time.

* Although districts generally press ahead with only the strongest cases, even these get knocked down more than a third of the time by the specially convened review panels, which have the discretion to restore teachers' jobs even when grounds for dismissal are proved.

* Jettisoning a teacher solely because he or she can't teach is rare. In 80% of the dismissals that were upheld, classroom performance was not even a factor.

When teaching is at issue, years of effort -- and thousands of dollars -- sometimes go into rehabilitating the teacher as students suffer. Over the three years before he was fired, one struggling math teacher in Stockton was observed 13 times by school officials, failed three year-end evaluations, was offered a more desirable assignment and joined a mentoring program as most of his ninth-grade students flunked his courses.

As a case winds its way through the system, legal costs can soar into the six figures.

Meanwhile, said Kendra Wallace, principal of Daniel Webster Middle School on Los Angeles' Westside, an ineffective teacher can instruct 125 to 260 students a year -- up to 1,300 in the five years she says it often takes to remove a tenured employee.

"The hardest conversation to have is when a student comes in and looks at you and says, 'Can you please come teach our class?' " she said.

When coaching and other improvement efforts don't work, she said, "You're in the position of having to look at 125 kids and just say, 'I'm sorry,' because the process of removal is really difficult. . . . You're looking at these kids and knowing they are going to high school and they're not ready. It is absolutely devastating."

'Really disheartening'

In his first major education speech in March, President Obama called for a system that would be the "envy of the world" -- one that nourishes good teachers and casts out the "bad" ones.

"I reject a system that rewards failure and protects a person from its consequences," he said. "We can afford nothing but the best when it comes to our children's teachers and the schools where they teach."

In many California school districts, that goal seems impossibly distant. Laziness, apathy or poor performance often aren't firing offenses, some school officials complain.

"We as administrators, knowing how difficult it is, tend to make excuses for the employee, and I think in some cases, accept mediocrity," said L.A. Unified Supt. Ramon C. Cortines.

Strapped districts are forced to keep tenured staffers they deem unworthy even as they must consider layoffs for less-experienced teachers, without regard to their talents.

"It's really disheartening," said Dr. Mitchell Wong, president of Act4Education, a group of parents trying to improve school performance in West Los Angeles. "What message does it send to the students, to the community and to the teachers who are doing their job?"

Kathleen Collins, associate general counsel for L.A. Unified, explained it this way: "Kids don't have a union."

Teachers have won strong job protections over the years, the legacy of labor battles in the early 20th century, when instructors could be fired for frivolous infractions. Some experts say the tenure system has outlived its usefulness.

Union leaders say tenure and collective bargaining are not the problem, nor is it fair to use egregious cases to indict the entire system.

"The union is bound by law to defend our members, and we do," said A.J. Duffy, president of United Teachers Los Angeles. "That should in no way deter the resolve of the district to do their job, which is to help failing teachers to get better, or, if they can't, to work to get rid of them."

Outspoken teachers can be victimized, union leaders say, and principals and parents sometimes take aim at people they simply don't like. Teachers, they say, are entitled to a presumption of innocence.

Cynthia Acerno was a last-minute hire at an elementary magnet school in the San Diego Unified School District, according to a summary of her case by a review commission. Though known for being strict, the district veteran had had no previous problems.

But "vocal, politically well-connected" parents accused her of being a "menace," and started unfounded rumors that she was screaming at children, drinking and using drugs, the panel found. Some pulled their children from her class.

"The case against her was a cocktail of hearsay on hearsay with an ill-will chaser," the panel commented in its ruling in favor of Acerno, who could not be reached for comment. ". . . Many of these scurrilous and damaging things were said in front of the children of this class by parents. This was shameful."

Despite such problems, the system in California provides teachers protections that go beyond what they receive in many other states. Teachers here can gain tenure after two years instead of three, which is common elsewhere.

Proposing changes can amount to stepping on a political third rail. Last week, when Los Angeles school board members Marlene Canter and Tamar Galatzan introduced measures to streamline the firing process, more than an hour of debate ensued in which UTLA leaders, a state senator and fellow board members warned against hasty action and an end-run around the unions. A milder motion was approved to create a task force to discuss the issue further.

The process has remained more or less the same for years:

The onus initially is on principals to document their case. Their evidence must pass muster with district officials and lawyers, who decide which cases should be taken to the school board.

Once the board approves a dismissal, teachers may appeal to Commissions on Professional Competence, review panels that have final administrative authority on who gets fired or laid off in California schools. In many other states, such appeals are handled by administrative law judges alone. But California panels also include two educators, one appointed by the school district and the other by the employee under review.

The grounds for termination seem clear enough. They include immorality, persistent violation of school rules, unprofessional conduct, commission of a felony or sexual harassment, unsatisfactory performance and the catchall "evident unfitness to teach." In practice, however, even the panelists can disagree on whether these grounds are met, and if met, whether they merit firing in a particular case.

Districts complain that in review hearings, where lawyers go head to head, the testimony of student witnesses is often discounted because their memories have faded, they are scared or reluctant to talk about traumatic events, or they can't withstand intensive cross-examination.

But it is not uncommon for districts to sabotage themselves with technical missteps. In Polanco's case, for example, L.A. Unified administrators began firing proceedings before giving him the required 45 days' "notice of unprofessional conduct" -- one factor in the commission's decision to overturn his firing.

And if the teacher or district is dissatisfied with the commission's decision, each has the right to appeal the case to superior and appellate courts, which sometimes force the panels to reconsider.

Records show that from the time principals tagged teachers for possible termination, hundreds of cases were dropped or settled -- often through district buyouts -- between 1994 and 2008. No specific documentation was available, however, on how each case was resolved.

Even so, the cases reviewed by The Times open a window onto the firing process from start to finish, showing many of the ways it works or does not along the way.

District struggles

L.A. Unified officials have struggled with the system more than most. Of the 15 tenured employees on record as fighting their terminations before review commissions in the last decade and a half, nine won their jobs back.

The main reasons: Commissions did not find the district's evidence damning or persuasive enough.

The district wanted to fire a high school teacher who kept a stash of pornography, marijuana and vials with cocaine residue at school, but a commission balked, suggesting that firing was too harsh. L.A. Unified officials were also unsuccessful in firing a male middle school teacher spotted lying on top of a female colleague in the metal shop, saying the district did not prove that the two were having sex.

The district fared no better in its case against elementary school special education teacher Gloria Hsi, despite allegations that included poor judgment, failing to report child abuse, yelling at and insulting children, planning lessons inadequately and failing to supervise her class.

Not a single charge was upheld. The commission found the school's evaluators were unqualified because they did not have special education training. Moreover, it said they went to the class at especially difficult periods and didn't stay long enough.

Four years after the district began trying to fire Hsi, the case is still tied up in court, although she has been removed from the classroom. Her lawyer declined to comment on her behalf. The district's legal costs so far: $110,000.

Classroom ineffectiveness is hard to prove, administrators and principals said. "One of the toughest things to document, ironically, is [teachers'] ability to teach," Wallace, the Daniel Webster principal, said. "It's an amorphous thing."

District officials thought they had a strong case against fourth-grade teacher Shirley Loftis, including complaints and other evidence they said dated back a decade.

According to their allegations before the commission, Loftis, 74, failed to give directions to students, assigned homework that wasn't at the appropriate grade level and provided such inadequate supervision that students pulled down their pants or harmed one another by fighting or throwing things. One child allegedly broke a tooth, another was hit in the head after being pushed off a chair, a third struck by a backpack.

The commission, however, sided with Loftis. It acknowledged that she showed signs of burnout and "would often retreat from student relationship problems rather than confront them."

But it said the district did not try hard enough to help her and suggested administrators find her another job -- perhaps training other teachers. "She's obviously an intelligent lady, and such a program might well succeed."

When the district took the case to Superior Court, lost and appealed, Loftis retired. The district agreed to pay $195,000 for her attorney's fees. Through her attorney, the former teacher declined to comment.

Collins, whose first case with L.A. Unified was Loftis', recalled being frustrated because, although the problems allegedly had gone on many years, the district was allowed to present just four years of evidence under the state education code.

"This is not an LAUSD story -- it is a statewide reality," Collins said in an e-mail.

But L.A. Unified doesn't pursue as many firings as other major districts, considering its size. The district, which has about 30,000 tenured teachers, fires 21 a year -- well under 1 per 1,000 -- according to district statistics for the last five years. Long Beach fires 6 per 1,000, and San Diego fires about 2 per 1,000.

Evidence suggests that L.A. Unified does a poor job of tracking teacher performance overall, making it tough to prove anyone is a bad apple.

A one-time study of teacher evaluations from the 2003-04 academic year, for instance, showed that 98.9% of all tenured teachers were said by supervisors to have "met standards."

The only categories in which a substantial percentage were said to have needed improvement concerned punctuality and attendance. Five percent had difficulty showing up on time.

Even some teachers union representatives said they do not believe the evaluations accurately portray the quality of teacher performance. Joshua Pechthalt, a United Teachers Los Angeles vice president, said the process is "fraught with problems" and results in teachers, especially young ones, not getting the guidance they need.

"I don't know any workplace where 98% of the people are doing a good job," Pechthalt said.

Contrition can help

In other districts, as well, review panels found officials to be too harsh, or determined that their firings weren't supported by "the preponderance of evidence" -- a standard also used in most civil cases.

San Diego Unified administrators tried and failed to fire an elementary school reading teacher who one district evaluator said could not follow a lesson plan.

"It was evident . . . that the teacher was likely not the most gifted or skilled," the commission said in reversing the dismissal. "However, her performance was not 'unsatisfactory' simply because she was not the most capable or the quickest study."

In many instances, an apology -- or at least an acknowledgment of error -- went a long way.

One teacher and coach from the San Ramon Valley Unified School District in the Bay Area was contrite after being accused of leering at teenage swimmers, making sexually charged remarks to students and instructing girls to "bark like seals" while they did push-ups.

"There is good reason to believe the respondent's conduct will not recur," the commission wrote of the teacher, who had worked in the district for 24 years.

In several cases, the commissions were torn. Ronald Hafner, a choral teacher with a long history of favorable evaluations in the Lake Elsinore Unified School District, was accused of serious misconduct during a trip he led with 24 students and five chaperons to Las Vegas. According to a commission summary, the district accused him of drinking alcohol in front of students, making offensive remarks -- such as suggesting that girls in his charge should apply to be strippers -- and touching a female student inappropriately.

Hafner disputed many of the accusations and argued in the hearing that he was the subject of a "witch hunt" by fundamentalist Christians. He could not be reached for comment.

In 2005, the panel found that Hafner's behavior was "shameful and inexcusable and demonstrates a severe lapse of judgment." But the teacher kept his job, because the district's allegations were not fully proved and did not warrant dismissal, according to the panel majority.

A middle school assistant principal on the panel wrote a sharp dissent:

"As a parent I would not allow my child in his classroom. As a colleague I cannot condone his conduct or attitude. As an administrator I could not trust him beyond my sight."

Too daunted to try

Faced with such frustrations, many principals don't even attempt to navigate the firing process. Letting a bad teacher slide or making him someone else's problem is far easier than trying to document his failings, some say.

The prospect of union grievances, and a protracted battle against labor representatives and attorneys, makes the endeavor even less appealing.

Joseph Walker, a former principal of Grant High School in Van Nuys, was sued by a special education teacher whom he tried to dismiss for alleged repeated sexual harassment. A civil jury sided with Walker -- but the review commission decided the teacher shouldn't be fired. The case, now in the courts, has dragged on seven years.

Confronting uphill battles like this, Walker said: "You're not going to fire someone who's not doing their job. And if you have someone who's done something really egregious, there's only a 50-50 chance that you can fire them."

Walker is now principal of Discovery Charter Preparatory Academy in Pacoima, where he said he had fired three teachers so far this year. None were fired during his three years as head of Grant. The difference: His school's teachers are not unionized and can be fired at will.

On regular public school campuses, some principals simply pass problem teachers from school to school.

Judith Perez, principal of Hancock Park Elementary School in Los Angeles, recalled a situation in which a fellow principal had one more teacher than he needed. Under union rules, the teacher with the least seniority was to be transferred. Instead, the principal pushed out a poorly performing veteran by threatening to make her life miserable with frequent observations of her classes, Perez said.

The teacher ended up at Perez's school. When Perez called the principal for information, he quickly apologized. "I'm so sorry," she recalled him saying.

Perez soon found out why, concluding that her new teacher was "a total incompetent. . . . She had no idea how to conduct a lesson in reading or math."

Perez committed herself to either making this teacher improve or forcing her out.

"I was a [teachers] union leader," Perez said. "I believe in teachers' rights and protections. . . . But my bottom line is I'm in this profession for children. . . . Basically, I dedicated my year to getting rid of this teacher."

She kept a detailed diary, conducted a series of formal meetings with the teacher and her union representatives -- all called for under the teachers' contract -- and finally persuaded the woman to quit.

A principal at Le Conte Middle School in Hollywood got a very different result.

To Linda Del Cueto, David Daniel's physical education class looked more like recess than an instructional period.

Half or more of the students refused to change into gym clothes, and it sometimes took Daniel more than 15 minutes to get enough control to take roll, administrators reported in commission and court documents.

Del Cueto and her assistants repeatedly observed Daniel, counseled him and offered help, compiling meticulous records over three years.

But the commission sided with Daniel, saying the evaluations by Del Cueto and her staff were so frequent that they undermined Daniel with his students.

"Students at the middle school level are very perceptive," the commission wrote. "This atmosphere led students to believe that they could openly defy [him]."

Essentially, the administrator was faulted for making too many observations.

"When that decision came out," Del Cueto said in an interview, "I really thought it was a classic example of damned if you do, damned if you don't."

Daniel agreed to resign from the district in late 2006. As part of a settlement, the district agreed to pay lifetime health benefits and $50,000 in attorney fees. Daniel's attorney said the former teacher did not want to comment.

In the Polanco case, as in Daniel's, there was no shortage of documentation. The account of the history teacher's interactions with the apparently suicidal boy came primarily from his teaching assistant, who wrote a detailed letter to administrators. In addition, students submitted written statements that were introduced at Polanco's hearing.

One student wrote that Polanco had told the boy that he "should cut himself more bigger next time (cuts himself like a little wussy)." Another wrote: "Polanco tell [him] that he should cut himself with something sharper." A third wrote that "Polanco would call [him] 'the cutter kid' and would sometimes call [him] stupid."

Polanco testified at his hearing that he had not made these remarks and instead had told the boy -- who was not named in the commission documents -- that he was glad his suicide attempt had not succeeded. The documents suggest he had showed concern about the boy, asking a counselor about his well-being.

"Knowing that I caused pain, whether I did it on purpose or without knowing it, it's a weight on my shoulders because I'm responsible [for] what happened in my classroom," testified Polanco, who declined to comment for this story.

The commission accepted the accounts of the teacher's aide and students as accurate. But it did not see the statements of Polanco, an otherwise well-regarded teacher and former union representative, as goading or callous. The teacher, the panel concluded, was trying "to defuse the awkward situation."

The Times could not determine what became of the boy. As for Polanco, he now teaches at East Valley High School in North Hollywood.

jason.song@latimes.com

Times staff writer Seema Mehta contributed to this report.

latimes.com /teachers Reaction, background Readers' comments, documents concerning cases in the story and an interactive graphic are online.

Copyright © 2014, Los Angeles Times
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