AS A STATUTORY REASON FOR DISMISSING
NONPROBATIONARY TEACHERS IN COLORADO
James Neil Stamper
B.A, University of Colorado, 1966
M.A, University of Colorado, 1968
J.D., University of Denver, College of Law, 1984
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Educational Leadership and Innovation
1996 by James Neil Stamper
All rights reserved.
This thesis for the Doctor of Philosophy
James Neil Stamper
has been approved
W. Alan Davis
Stamper, James Neil (Ph.D., Educational Leadership and Innovation)
Unsatisfactory Performance as a Statutory Reason for Dismissing Nonprobationary
Teachers in Colorado
Thesis directed by Professor Michael J. Murphy
In 1990 the Colorado General Assembly enacted a new teacher dismissal
statute (the 1990 Act). It added unsatisfactory performance to the statutory
reasons to dismiss nonprobationary teachers. Until then, incompetence-defined by
case law as inability to perform as a teacherhad been the only performance-based
reason for dismissal. Unsatisfactory performance was intended to allow public school
administrators to dismiss poorly performing, but not legally incompetent,
nonprobationary teachers. The legislature did not define the termleaving that to the
This study assessed the effectiveness of the added standard by collecting
interview and documentary data from public school administrators who had
dismissed/counseled-out nonprobationary teachers under both performance standards.
The data show that the new standard has not made it any less difficult for
administrators to dismiss poorly performing teachers after 1990 than prior to 1990.
The data also show that: (1) the existence of legislation is less important to school
administrators, when dismissing teachers, than their own internal motivation; (2)
neither the 1990 Act, nor the case law, guide administrators in defining unsatisfactory
performance; (3) dismissal requires time-consuming, emotionally draining, and
extremely burdensome evaluation and remediation; and (4) administrators cannot
gauge when their evaluations prove unsatisfactory performance. Consequently few
performance-based nonprobationary teacher dismissals are initiated.
The 1990 Act gives nonprobationary teachers a property right to their
positions, yet school boards are obliged to retain only high quality teachers. Since the
tension between the rights of teachers and the rights of school boards is created
entirely by statute, it can be altered by legislation. This study suggests specific
legislative provisions to aid administrators in dismissing, or counseling out, poorly
Specifically, the study recommends that the legislature: (a) shorten timelines
for dismissal of nonprobationary teachers, (b) relax rules of evidence for teacher
dismissal hearings, (c) limit hearing officers ability to question the substance of
teacher evaluations, (d) limit the numbers of teacher evaluations done by building
administrators, (e) define unsatisfactory performance, and distinguish it from
incompetence, (f) and, mandate preponderance of evidence as the standard for
dismissing nonprobationary teachers.
This abstract accurately represents the content of the candidates thesis I recommend
Sincere appreciation is expressed to those who contributed in significant ways to this
Professor Michael J. Murphy, my thesis director, for his insightful suggestions,
continued assistance, encourgement, and commitment to my work. Dr. Murphy also
assisted me immeasurably by organizing a support group of Ph.D. candidates who
helped one another towards completion of their respective dissertations. Dr.
Murphys efforts in forming the group, and his faithful attendance at group meetings,
made this process much more bearableif not any easier. I am the last of the group to
finish my dissertation. All of us made it, thanks to each other, and thanks to Dr.
Dr. Alan Davis, my advisor in qualitative research, for his expertise, and suggestions
for improving the methodology used in the study. Dr. Davis helped me take the
methodology from its inceptionas a project in his Qualitative Analysis classto
completion, and was instrumental in shaping it.
Dr. Richard Koeppe, member of my graduate committee, who maintained contact and
interest in the progress of the studyeven after retiring from the University of
Colorado Department of Education faculty. Dr. Koeppe served as a school district
superintendent for 17 years in Colorado, and his experience in the area of
nonprobationary teacher dismissal provided valuable insight into the process.
Dr. Rodney Muth, chair of the Department of Administration, Curriculum and
Supervision, and member of my graduate committee, for his detailed proof-reading of
my drafts, his ideas on expansion of the study, and for his help on conforming to the
style of the Publication Manual of the American Psychological Association. Due to
the length of time I spent finishing this study Dr. Muth, and I, revised the study to
conform to the second, third and (finally) fourth editions of the AP A manual.
Dr. L. A Napier, member of my graduate committee, for her willingness to read the
manuscript with a critical eye, and suggest substantive and stylistic changes which
enhanced the overall quality of the final product. Dr. Napiers questions as to content
and organization led to significant improvements in this thesis.
Barbara Douglas, for her assistance and patience throughout my pursuit of a law
degree and this Ph.D. degree.
Annie Stamper, my daughterand a scholar in her own rightfor her patience, love
and understanding. I trust that her ambitions toward higher degrees will come to
fruition in a more timely manner than my own.
The Ph.D. support group, for many hours of reading, and discussing my work from
1989 to the present. Thank you to Drs. Cordia Booth, Darlene Ledoux, Barbara
Nash, Peggy Schwartzkopf Armistead Webster and Sarah White. We made it!!
Dr. Lynn Miller, a gifted teacher and friend, who gave me help, encouragement, and
support when I most needed it.
Dr. Craig Loper, a friend and colleague, who helped formulate my research questions,
and contributed in many ways to the completion of the studyincluding many readings
of the text over the course of many months. His work on in-depth interviewing
techniques influenced the methodology for this dissertation.
Dr. Robert Adams, a friend and colleague who rescued me from my own computer-
ignorance by recovering entire chapters that I had inadvertantly erased. Even Bob,
however, could not recover Chapter Four the final time I obliterated it. Actually, Bob
will be the first to admit that I increased his knowledge of computer technology
significantly, as he sought to remedy my mistakes.
While I gratefully acknowledge the support of these caring individuals, I am solely
responsible for the contents presented in this thesis.
1. NATURE AND PURPOSE OF THE STUDY...................................1
History of Tenure for Teachers in
the United States and in Colorado..............................2
Pre-termination Due Process for
Colorado Public School Teachers................................4
Legislative Attacks on the Tenure
Provisions of the 1967 Act.....................................5
Prelude to the 1990 Actthe Governors Task Force..............8
Purpose of the Study..........................................11
Importance of the Study.......................................14
Limitations of the Study...............................19
2. REVIEW OF THE LITERATURE.........................................21
Colorado Case Law on Incompetence
and Unsatisfactory Performance................................23
Case Law from Other Jurisdictions.............................30
Level of Proof Required................................30
Remediation Required in All Jurisdictions.............35
Remediation Must be Based on Published
Towards a Definition of Unsatisfactory Performance...........38
The Respondents .............................................45
Sources of Data..............................................47
Scope of Study...............................................50
Data Sources ................................................53
The Pilot Study.......................................55
Selected QuestionsHuman Resource Directors...........57
Selected QuestionsBuilding Administrators............59
4. RESEARCH FINDINGS...............................................66
Administrators Operational Definitions of the Terms
Incompetence and Unsatisfactory Performance
are Inconsistent, and Do Not Demonstrate that there is
a Significant Difference between these Terms in the
Minds of Administrators..........................................67
Incompetence is a Higher Degree of Unsatisfactory
Incompetence is the Inability to Understand the
Incompetence is an Attitudinal Problem....................73
Incompetence is Not Functionally Distinguishable from
Age and/or Experience was not Found to be a
Some Administrators believe the 1990 Act is Helpful in
Defining Unsatisfactory Performance and Incompetence 79
Unsatisfactory Performance as Insubordination....................80
Administrators Motivation for Dismissing Poorly
Performing Teachers Comes from Withinand it is
Not Affected by the Addition of a Lower Performance-
Based Standard in the 1990 Act.................................83
The Evaluation Process, Under the Evaluation Act, is
Onerous and Excessive for Building Administrators................90
The Legislative Purpose of Evaluation is to
Improve PerformanceNot to Build a Case
Against a Teacher.........................................91
The Sheer Numbers of Evaluations Required Under
the Evaluation Act Hamper the Administrators
Ability to Improve Teacher Performance, or to
Dismiss Poorly Performing Teachers on the Basis
The Complexity and the Scope of a Properly
Implemented Evaluation, Especially of Poorly
Performing Teachers, Frustrates the Ability of
Administrators to Utilize Evaluation to Dismiss
Poorly Performing Teachers.................................100
The Evaluation Act has not Produced a Set of Agreed-Upon
Standards that Provide Guidance to School Administrators . .106
The Burden of all Documentation, Including Evaluation, has
not been Eased by the 1990 Act.............................107
The Remediation Process is as Difficult and Time-consuming
as Prior to the 1990 Actand Sometimes Dangerous...........115
The Emotional Energy and Stress Involved is as Intense Under
the 1990 Act as it was when Trying to Prove Incompetence
Under the 1967 Act...........................................124
The Context Within Which the Principal Must Dismiss Poorly
Performing Teachers Has Become More Intense Because the
Union Fights Unsatisfactory Performance Vigorously, and
Consequently the Attorneys for the School District Demand
More Evaluation, Documentation, and Remediation..............133
The Bottom Line is that the Addition of Unsatisfactory
Performance to the Statutory Reasons for Dismissing
Teachers has not made it Significantly Less Difficult to
Dismiss Poorly Performing Nonprobationary Teachers...........139
5. ANALYSIS AND CONCLUSIONS................................................154
Legal Decisions in Colorado, and Other Jurisdictions do
not Encourage Building Administrators to Dismiss Poorly
Performing Teachers for Unsatisfactory Performance...........158
The 1990 Act Has Not Defined Unsatisfactory Performance
Sufficiently, Does Not Motivate Building Administrators,
is Emotionally Stressful, and Requires the Same or more,
Evaluation, Documentation and Remediation as
The Term Unsatisfactory Performance is not Defined,
which Makes It Difficult for Building Administrators to
Building Administrators are Motivated by Their Own Sense
of Outrage, and Ethical StandardsNot the 1990 Act...........167
Building Administrators are Discouraged from Dismissing
Poorly Performing Teachers Because of the Enormous
Burden of Evaluation, Documentation, and Remediation . . 168
The 1990 Act Failed in Its Primary Purpose, that is, to Make
It Less Difficult to Dismiss Poorly Performing Teachers..........171
Districts Should Change Policies and Procedures,
and Reallocate Resources to Facilitate
Change Building Administrators Perspectives
as to the Definition of Unsatisfactory Performance . .175
Change the Paradigm....................................176
The 1990 Act must be Amended to Meet the Needs of
The Legislature Must Shorten Time Frames
for Dismissal of Nonprobationary Teachers . . .178
The Legislature Should Broaden the
Evidence Allowed into Teacher
The Legislature Must Prohibit the Hearing
Officer from Substituting Her or His Own
Judgement for the EvaluatorsJudgement. . . . 181
The Legislature Should Limit the Number of
Teachers that Building Administrators are
Required to Evaluate, and Shorten and Simplify
The Legislature Should Enact a Preponderance
of Evidence" Standard of Proof for Teacher
Dismissal Hearings, and Should Shift the
Burden of Proof to the Teacher..................185
The Legislature Should Lengthen the Number of
Years that Teachers can be on Probation Within
a School District................................186
A. LETTER TO ADMINISTRATORS-PRELIMINARY
A-l. PRELIMINARY QUESTIONNAIRE............190
B. ADMINISTRATORS EXPERIENCE-
DISMISSAL AND OUTCOUNSELING...........192
C. LETTER TO ADMINISTRATORSINTERVIEW
C-1. INTERVIEW QUESTIONS-HUMAN
C-2. INTERVIEW QUESTIONS-BUILDING
D. START LIST OF CODES-UNSATISFACTORY
E. FINAL LIST OF CODES..................203
F. ADMINISTRATORS DEFINITIONS OF
INCOMPETENCE AND UNSATISFACTORY
G. RELATIONSHIP OF CHAPTER FOURS CLAIMS
TO CHAPTER FIVES SUGGESTED SOLUTIONS . 209
NATURE AND PURPOSE OF THE STUDY
Much hand wringing goes on these days about the tenure system which
allows poorly performing public school teachers to have a job for life without ever
being accountable for the results of their inferior performance. One reason for this,
according to the critics of teacher tenurenow called nonprobationary status in
Coloradois because the only statutory reason for dismissing poorly performing
teachers has been a category labeled incompetence or incompetency. The
requirements for dismissing teachers for incompetence were perceived as being too
onerous for public school districts to meet. As a result, according to the critics, few
teachers were dismissed for poor performance issues, and many such teachers
continued to teach ineffectively with no fear for their jobs.
Several states, Colorado among them, have tried to remedy this problem by
passing legislation which has as its objective the weakening of the so-called tenure
system. The primary method by which the legislature attempted this reform was to
create a lower level of performance-based dismissal labeled unsatisfactory
This study is designed to determine the perceptions of Human Resource
Directors (HRDs) and building administrators in the Colorado public school system
about the effect of adding unsatisfactory performance to the statutory reasons for
dismissing nonprobationary teachers. The research questions for this study seek to
answer questions about the topic which generally begin with how and why rather
than what or how many. These questions, set out in detail at the end of this
chapter, guide the research and form the bounds of the dissertation.
This chapter sets out the historical and legal background of the current statute
which sets forth the reasons for which nonprobationary public school teachers can be
dismissed, and the process for such dismissals. Chapter Two examines the available
research on nonprobationary teacher dismissal, and the case law from Colorado and
other jurisdictions on the issue. Chapter Three details the methodology of the
research. Chapter Four sets forth the results of the research in the words of the HRDs
and building administrators interviewed for the study. Chapter Five analyzes the data
collected, and seeks solutions to the problems identified by the HRDs and building
History of Tenure for Teachers in the United States and in Colorado
The first tenure law was enacted about 75 years ago in New Jersey. At that
time, job protection was seen as necessary because of prevalent nepotism, political
favoritism, and arbitrary dismissals (Christie & Board, 1995, p. 1). Administrative
practices also have been less than fair as they relate to the dismissal of teachers.
Historically, this has spurred the formulation of tenure policy in 46 of the 50 states
(Lockhard, 1973). Public policy has been formulated in an effort to solve the evident
problems surrounding the work of teachers, and the administrative practices relative to
teacher dismissal (Elrod, 1993, p. 20).
The basic purpose of a tenure act is to assure continued employment to
teachers who have been employed in a school district for a probationary period of
time, usually three years, and have performed satisfactorily. The tenured teacher is
assured notice, a statement of causes or reasons for termination, and a hearing before
the school board, arbitrator, or hearing officer. The teacher can usually appeal the
decision of the board, arbitrator or hearing officer to the courts of the jurisdiction.
Tenure can be provided by law through a state statute, or tenure can earned
throughout a period of continuous employment which is part of the contractual
agreement. In Colorado, public school teachers obtain nonprobationary status after
three continuous years of half time, or more, employment. Upon achieving a contract
for the fourth continuous year, Colorado public school teachers may only dismissed
for a limited number of reasonswhich are specified in the statute.
In establishing statutory tenure, a legislature may create a contractual
relationship that cannot be altered without violating constitutional guarantees. The
United States Constitution, Article 1, Section 10, provides that the obligations of a
contract cannot be impaired. The United States Supreme Court found such a
contractual relationship in the 1927 Indiana Teacher Tenure Act, which prevented the
Indiana state legislature from subsequently depriving teachers of rights conveyed under
the statute. However, a statutory relationship that does not have the elements of a
contract can be altered or repealed at the legislatures discretion (State of Indiana ex
rel. Anderson v. Brand. 1938)thus the continuing contract reference in the Colorado
Teacher Employment, Dismissal and Compensation Act of 1990 (Christie & Board,
1995, p. 1).
Pre-termination Due Process for Colorado Public School Teachers
The history of pre-termination due process for public school teachers in
Colorado begins in 1921. The Colorado Supreme Court held that, prior to
termination, a school board must give a teacher notice of deficiencies and an
opportunity for the teacher to be heard, in his or her own defense, by the board of
education fRoe v. Hannington. 1921).
In 1949, the Colorado General Assembly formalized the right to a pre-
termination hearing. The 1949 statute provided that a teacher may request a hearing
before the board of education (Heaton, 1983). This right to a hearing was limited by
the fact that the hearing was conducted by the very entity that had already voted to
dismiss the teacher, thus rendering the outcome somewhat predictable.
The legislature further expanded teachers rights in 1957 by providing that the
pre-termination hearing be held before a three-member panel. One member was
chosen by the teacher, one member was chosen by the board of education, and the
third member was chosen by the first two panel members. The panel heard evidence
and made findings of fact. The panel also recommended to the board of education that
the teacher be dismissed, retained, or placed on a one-year probation (Heaton, 1983).
Remarking on this historical pattern, the Colorado Court of Appeals surmised:
We can only presume from this continuing pattern of statutory changes,
resulting in a significant expansion of teacher rights, that the legislature
intended to harness the unrestricted power of the school board and assure
tenured teachers of greater protection of their rights. fLovett v. Blair. 1973, p.
In 1967, the legislature enacted a tenure statutethe Teacher Tenure,
Employment and Dismissal Act of 1967 (1967 Act)that ensured an elaborate and
extensive set of due process protections for tenured teachers. A teacher became
tenured once he or she had completed three years in the same school district on full-
time status. On the first day of her or his fourth year of full time employment, the
teacher was entitled to all of the statutory due process protections. The 1967 Act
listed incompetency as one of several reasons for the dismissal of a tenured teacher.
Legislative Attacks on the Tenure Provisions of the 1967 Act
However, tenure was not a popular concept with public school boards and
officials. Many public school administrators complained to policy makers that
dismissing tenured teachers who are recalcitrant and unqualified was next to
impossible (Elrod, 1993, p. 8). Calhan superintendent Dennis Desario testified before
the House State Affairs committee that the cost of firing a teacher$ 125,000was
equal to 10% of the small school districts entire 1987 budget (Elrod, 1993, p. 8).
Thus, between 1967 and 1990, several attempts were made to weaken or
eliminate due process rights for teachers who achieved tenure status. With the
exception of the 1983 legislative session, these attempts were unsuccessful.
In 1983, a stronger attack than most was launchedbased on the idea of
adding a new reason (unsatisfactory performance) for dismissing tenured teachers.
This standard would not replace incompetency but would be easier for administrators
to document and prove.
The 1983 session of the legislature failed to pass a bill (House Bill 1431) which
sought to add the unsatisfactory performance provision as an amendment to the 1967
Actin large part because of intense lobbying against the bill by the Colorado
Association of School Executives (CASE). A school board attorney representing
CASE testified that HB 1341 would actually hamstring school boards by requiring
them to publish written performance standards in advance as a yardstick for
satisfactory performance (Shoeberline, Testimony before the House Education
Committee, March 21, 1983). The CASE spokesman argued that no document listing
standards of satisfactory performance would list all possible teacher behaviors. Not
listing the particular behavior could create loopholesmaking it more difficult for
school boards to dismiss poorly performing teachers (Shoeberline, Testimony before
the House Education Committee, March 21, 1983).
Other testimony, however, set the stage for debate which continued after the
end of the 1983 legislative session and ultimately prompted Governor Roy Romer to
create a task force, in 1986, to recommend changes in the tenure law for consideration
by a future legislative session.
Witnesses testifying before the House Education Committee on March 21 and
23,1983, in favor of adding unsatisfactory performance, testified that: (a) proving
incompetence is time consuming, expensive andultimatelynearly impossible; (b)
adding a provision on dismissal for unsatisfactory performance is helpful to
administrators attempting to cull poorly performing teachers and increase the quality
of instruction in Colorados public schools; (c) a term such as unsatisfactory
performance is no more vague than existing terms such as incompetency or
neglect of duty, which, if proven at a hearing, can lead to a recommendation of
dismissal; (d) school districts have to define satisfactory performance which should
lead to more effective teacher evaluation; and (e) academic freedom for teachers
would not necessarily be negatively affected (Shoeberline, Desario, Adkins,
Testimony before the House Education Committee, March 21 and 23, 1983).
At least one national authority on managing poorly performing teachers agrees
with the testimony cited above:
If state legislatures replace incompetency with marginal performance as
grounds for dismissal, administrators can hold tenured teachers accountable for
a higher and more reasonable standard than now exists. Moreover, since
marginal performance is easier to prove than incompetence, administrators are
more apt to be willing to confront teachers who are shortchanging students in
the classroom. (Bridges, 1992, p. 17)
Many witnesses testified against HB 1341. The gist of their testimony was
that: (a) the present list of statutory reasons for dismissing tenured teachers is
sufficient without adding another vague term which could allow arbitrary dismissals;
(b) administrators do not lack legislation to help them dismiss unsatisfactory teachers;
rather, they just lack the guts to do so; (c) the statutory three-year probationary
period prior to teachers achieving tenure status provides plenty of opportunity to weed
out unsatisfactory teachers; (d) the current due process procedures result in dismissal
of about 50% of the teachers charged under the tenure statute; (e) good, but
unconventional, teachers are often the ones in conflict with administrators, and would
be the victims of a lower standard such as unsatisfactory performance; and (f) only a
small percentage of teachers are incompetent or unsatisfactory (Heaton, Johnson,
Smith, Markle, Testimony before the House Education Committee, March 21 and 23,
Prelude to the 1990 Actthe Governors Task Force
Governor Romer convened a diverse task force (Governors Task Force),
with members from all the stakeholder groups, in 1986, to suggest amendments to the
1967 Act for consideration by the Colorado General Assembly in 1987. Among other
conclusions, the Governors Task Force determined that: (a) tenure is not an evil
concept per se, (b) due process must be preserved for teachers who have completed a
probationary period, (c) only a small group of teachers are not performing
satisfactorily, (d) the 1967 Act must be modified to deal with such unsatisfactory
teachers (Report of the Governors Task Force, 1986, p. 4) .
The Governors Task Force concluded that incompetency as a reason for
tenured teacher dismissal relates more to an inability to teach rather than a low quality
of teaching. It also concluded that unsatisfactory performance should be added to the
statutory reasons for dismissing tenured teachers so long as sufficient procedural
safeguards were in place to ensure fairness in the dismissal process (Report of the
Governors Task Force, 1986, p. 8). The principal safeguard recommended by the
Governors Task Force was that all school districts be required to establish
reasonable written standards for satisfactory performance to be given to all teachers
in advance of their performance evaluation. Further, any teacher deemed to be
performing unsatisfactorily must be afforded specific notice of deficiencies, as required
in the Certificated Personnel Evaluation Act of 1985 (the Evaluation Act), and
warned that continued unsatisfactory performance could result in dismissal (Report of
the Governors Task Force, 1986, p. 8).
The Governors Task Force also recommended that the administrator write a
remediation plan and allow for a remediation period of 90 to 180 days. The
administrator would then write a summative evaluation relative to the teachers
progress toward improving the identified performance problems. This summative
evaluation must be discussed 'with the teacher prior to further administrative action-
such as a recommendation for dismissal (Report of the Governors Task Force, 1986,
After many false starts between 1987 and 1990, the General Assembly finally
repealed and re-enacted the 1967 Act (effective July 1, 1990), and re-titled it The
Teacher Employment, Compensation and Dismissal Act of 1990 [codified at C.R.S.
22-63-101 et seq. (the 1990 Act)]. The 1990 Act implemented most of the
Governors Task Force suggestionsincluding adding unsatisfactory performance to
the list of reasons for the dismissal of what were termed tenured teachers in the 1967
Act-termed nonprobationary teachers in the 1990 Act.
As a practical matter, the difference is largely semantic. Both the 1967 Act
and the 1990 Act provide that after a three-year probationary period of employment of
half-time or more, within a particular school district, both tenured and
nonprobationary teachers are automatically re-employed each succeeding year. Unless
good cause is proven in an elaborate due process hearing, such teacherswhether
termed tenured or nonprobationaryare guaranteed a contract for each succeeding
year until they resign or retire. The due process procedures outlined in the 1990 Act
are not significantly different from the due process procedures in the 1967 Act.
Thus, on July 1, 1990 Colorado joined a then-growing number of states
(Arizona, Arkansas, Illinois, Iowa, Minnesota, Nevada, New Mexico, North Carolina,
Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Washington, West
Virginia and Wyoming) that have unsatisfactory performance, or its functional
equivalent, as a statutory reason for firing nonprobationary teachers (Christie &
Board, 1995, pp. 3-12).
CASE and the Colorado Association of School Boards (CASB) lobbied in
favor of the new provision. The advent of the new unsatisfactory performance
provision was hailed in advance, by CASE in its newsletter (Goodbye incompetence.
March 19, 1990); and by the CASB in its newsletter (Tenure, the final curtain is about
to falL February 23, 1990). Both organizations believed that the addition of
unsatisfactory performance would be a major step forward in dealing with poorly
performing teachers. Both organizations believed that the standard of unsatisfactory
performance is more provable than incompetencethus, making less work for the
administrator who wants to rid the school staff of deadwood.
Since 1990, only one case regarding a nonprobationary teachers dismissal has
made it to the appellate level in the Colorado court system. In this case, Heimer v.
Adams County School District No. 50T the issue was not unsatisfactory performance
per se, but whether or not a school board could ignore the recommendation of a
hearing officer to retain a teacher dismissed for unsatisfactory performance. Only
three cases of unsatisfactory performance have been heard at the hearing officer level
which is the lowest statutory level of the nonprobationary teacher dismissal process.
These three cases demonstrate that unsatisfactory performance is not a lower standard
than incompetence when administrators seek to dismiss nonprobationary teachers.
Purpose of the Study
The purpose of this study is to determine how the passage and the
implementation of the unsatisfactory performance provision of the 1990 Act has
affected the perceptions of Human Resource Directors, in selected districts in
Colorado, about the problems associated with their efforts to dismiss unsatisfactorily
performing nonprobationary teachers. In addition, the study will determine if the 1990
Act has changed the manner in which the Human Resource Directors and building
administrators approach termination actions for poorly performing teachers.
The ultimate issue here is to answer the question: Is a principal of a public
school in Colorado more likely now, because of the addition of unsatisfactory
performance to the statute as a purportedly lower standard for dismissing poorly
performing teachers, to move to dismiss a poorly performing teacher?
The testimony surrounding the addition of the unsatisfactory performance
provision to the 1990 statute indicated a belief on the part of the legislators and the
other witnessespublic school administrators among themthat incompetency was too
high of a standard to reach when dismissing a teacher for poor classroom performance.
The testimony also indicated that administrators, given this new tool, would be more
willing than they were prior to 1990 to initiate remediation and dismissal proceedings
against poorly performing teachers. Administrators would be less burdened when
developing evidence against poorly performing teachers and more willing to start the
process of either counseling poorly performing teachers out of the profession or
starting the dismissal process.
This study will test these assumptions by examining the motivation and
procedures of building administrators who must actually use the 1990 Act, as
compared to the motivation and procedures of these same building administrators
prior to the implementation of the 1990 Act.
Has the unsatisfactory performance provision of the 1990 Act made a
difference in how and why they proceed with poorly performing teachers? Only nine
teachers were dismissed statewide for performance during 1993-1994the latest year
for which the Colorado Education Association has complete figures (Houser, CEA
Employment Survey. 1993-1994).
Are other factors more important to building administrators, when considering
how to deal with poorly performing teachers, than the addition of unsatisfactory
performance to the 1990 Act? Other factors would include: (a) the number of
evaluations building administrators must complete, (b) the other documentation
required to be developed by building administrators^ (c) the intensity of the
remediation process, (d) and the emotional side of dismissal.
In addition, the role of the union will be examined as it relates to the teacher
dismissal process. Most of the respondents indicated that the union representatives
were not interested in protecting poorly performing teachers. However, the Colorado
Education Association fights unsatisfactory performance cases vigorously.
Importance of the Study
A review of the research on tenure and teacher dismissal reveals no study
which documents the experiences of HRDs and building administrators in dealing with
unsatisfactory performance provisions in the various states where it is part of the
statutory scheme for nonprobationary teacher dismissal. While such a study may exist,
the researcher could not find one. Nor could the research staff of the Education
Commission of the Statesa Colorado-based educational policy and research
organization (K. Christie, personal communication, August 30, 1995).
The Education Commission of the States surveyed all fifty states as part of an
effort to determine the effect of tenure legislation on teacher dismissal and was unable
to unearth any comparable study. The Education Commission of the States has
indicated an interest in publishing the results of this study (K. Christy, personal
communication, August 30, 1995).
In addition, the Colorado Association of School Boards legislative task force
has utilized aspects of the study, prior to its completion, to help formulate arguments
to present to the legislature as part an effort to amend the law (K. Christie, personal
communication, August 30, 1995). Christie determined that no studies outlining the
effects on central office personnel administrators and building administrators were
extant in any research forum examined by the Education Commission of the States
research staff as of this writing (K. Christie, personal communication, August 30,
As of 1992, incompetent teachers are estimated to constitute 5%-15% of the
teachers in the United States. This adds up to between 100,000 and 500,000 teachers
(Bridges, 1992, p.12). Assuming a student teacher ratio of 19/1, approximately two
million students are affected each year by substandard teaching. Bridges notes that
this constitutes more students than are enrolled in the 14 smallest states (Bridges,
1992, p. 12 ). Bridges may be wrong in his estimate (which was based on a survey of
administrators responding a broad definition of incompetence) but his data must be
considered. If, in fact, unsatisfactory performance requires less proof than
incompetence, it may well be that more teachers would be found unsatisfactory
because of the lower standards of proof required. With more states adopting the
unsatisfactory performance standard the issue becomes more important to study. This
study will add to the knowledge base about a category of teachers that is growingif
for no other reason than the legislation dealing with poorly performing teachers is
casting a wider net by adding terms such as unsatisfactory or inadequate
performance with the avowed purpose of making it less difficult to dismiss
nonprobationary poor performers.
Colorado may not have as many incompetent teachers as the national average
found by Bridges. And, any such teachers may be concentrated in lower-paying or
isolated districts. As noted above, the Governors Task Force found that there were
not many poorly performing teachers in Colorado. Nonetheless, the Governors Task
Force did determine that there were enough unsatisfactorily performing teachers in
Colorado that legislation adding unsatisfactory performance to the reasons for
dismissing nonprobationary teachers was required (Report of the Governors Task
Force, 1986, p. 4).
Thus, a law that purports to make it significantly less difficult for public school
administrators to dismiss or counsel out poorly performing teachers must be
considered very important indeed, given the numbers of teachers who are likely to be
poor performers. And, a study that analyzes the policy behind the 1990 Act and
determines if the law is effective in achieving its objectives is also important.
In addition, the results of the study may have a positive effect on the drafting
of future legislation. Indeed, Representative Jeanne Adkins (R-Parker), sponsor of
HB 1159 (now codified as the 1990 Act) attempted to make important revisions based
on complaints from building administrators around the state-one of them is cited in
this studyin the last legislative session. The members of the Colorado Association of
School Boards and Representative Adkins are studying the possibility of future
revisions (L. Kingsbery, personal communication, August 30, 1995; Presentation,
September 28, 1995).
This researcher has been contacted for input on future legislation, based on this
research study. The contacts were from Representative Jeanne Adkins (R-Parker),
the original sponsor of the legislation, and CASB on how the Act can be amended to
make it less difficult for building administrators and human resource directors to
dismiss poorly performing teachers.
A preliminary summary of this study is now on the Internet. Richard Weber,
the executive director of CASE asked, and received, permission to make a summary of
the preliminary results available on Colorado Education Online (Weber, personal
communication, October 5, 1995).
The importance of the policy analyzed by this research, and the preliminary
interest already shown by the individuals and entities most affected by this research,
indicates that the information contained herein will be utilized. This is the ultimate test
of the importance of research.
Research questions must focus the study on the problem to be studied. Such
questions must be narrow enough to be reasonably researched, but broad enough to
encompass all aspects of the problem The research questions which guide this study
meet both of these criteria based on the theoretical framework suggested by Bridges
Bridges (1992) theorized that if state legislatures replace incompetency with
marginal performance as grounds for dismissal, administrators would be able to hold
nonprobationary teachers accountable for a higher and more reasonable standard than
now exists. He also opined that since marginal performance is easier to prove than
incompetence, administrators are more apt to be willing to confront teachers who are
shortchanging students in the classroom.
The researcher tested this theory by asking questions investigating the details
of the research questions, listed below, of five HRDs in five different districts, and 18
building level administrators with experience dismissing or counseling out poorly
performing teachers both prior to, and after, the implementation of the 1990 Act.
The following questions outline the basic parameters of the research:
1. Did the addition of unsatisfactory performance to the 1990 Act, make it less
difficult for public school administrators to dismiss poorly performing nonprobationary
teachers? If so, how?
2. Are building administrators and/or HRDs more likely to initiate dismissal
proceedings under the 1990 Act than under the 1967 Act? Specifically: (a) Did the
1990 Act help public school administrators operationally define unsatisfactory
performance so that it has become possible to identify teachers who can be dismissed
for poor performance short of incompetence? (b) To what degree has the 1990 Act
been an independent motivating factor in attempts by HRDs and building
administrators to rid their faculties of poorly performing teachers who are not
necessarily incompetent? (c) How, if at all, has implementation of the 1990 Act
changed the context (particularly evaluation, documentation, remediation and the
dismissal hearing) within which HRDs and building administrators operate to facilitate
proceeding to dismiss poorly performing teachers.?
3. How has the role of the union changed, if at all, in nonprobationary teacher
dismissal as a result of the 1990 Act?
Limitations of the Study
This study is subject to certain limitations inherent in qualitative research.
Qualitative research is necessarily limited to an in-depth study of a few cases. Public
education governance structure divides Colorado into 176 school districts. This study
involves only five of them as the primary districts and three more where building
administrators or HRDs were involved in cases, reported and unreported, which dealt
with unsatisfactory performance as an issue.
As a result, the breadth of the study is limited. However, the five primary
districts where administrators were interviewed in depth, educate just under one-half
of the students in Colorado. If the administrators interviewed in the secondary
districts are added to the total, the number of students educated in all the districts
studied is over one-half of the students in Colorado. Thus, the range of experience of
the HRDs and the building administrators is representative of the Front Range region.
Indeed, since the districts from which the respondents hailed are large, and represent a
mixture of urban and suburban, the possibilities of the administrators encountering a
wide range of problems is greatly enhanced.
The study only interviewed 23 of the possible hundreds of administrators in the
designated districts. This could be a limitation on the study. However, the number of
building administrators who have been involved in teacher termination efforts is very
limited. Those who fit the researchers criteria of having been involved in termination,
or out-counseling efforts, both before and after 1990 is even more limited. It is
impossible to know the number of such building administrators with any exactitude,
but this researcher believes he has interviewed a significant percentage of them.
The review of the literature, described in Chapter Two, reveals no specific
study of the effect of statutory provisions for unsatisfactory performance, or its
functional statutory equivalent in other jurisdictions, on HRDs and/or building
administrators. As noted above, a survey of the 50 states by the Education
Commission of the States could not find a study comparable to this study (BCChristy,
personal communication, August 30, 1995). The case law for jurisdictions outside of
Colorado which have such provisions in the statutory scheme for dismissing
nonprobationary teachers on the basis of performance, shows that unsatisfactory
performance dismissals appear to be no different than dismissal for incompetence in
Colorado. Chapter Two discusses the literature and the case law on performance-
based dismissal in more detail.
REVIEW OF THE LITERATURE
This chapter reviews the educational and legal literature nationally on
unsatisfactory performance and incompetence as statutory reasons for dismissing
poorly performing teachers. In addition, it reviews relevant statutes and existing
case law in Colorado and other jurisdictions! The review targeted unsatisfactory
performance, or its functional equivalent, as a statutory reason for dismissing
poorly performing nonprobationary teachers.
The review reveals no study in the educational literature specifically
comparing the relative difficulty of dismissing or counseling such teachers out of
the profession for unsatisfactory performance. Three educational studies were
found which compared incompetence to unsatisfactory performance (Bridges,
1986; Bridges, 1992; Scriven, 1988).
Very little case law defines unsatisfactory performance in the jurisdictions
where it is a reason for teacher dismissal. The researcher was unable to fmd much
case law, and a study by the Education Commission of the States on the incidence
of dismissal for unsatisfactory performance also found very little on the topic (K.
Christie, personal communication, August 30, 199S). Christie and Boards data
(199S) also show that no studies exist which utilize the case-study method-
generating a rich and in-depth mass of data on this specific topic.
Bridges (1986) summarizes studies which analyze incompetence as a basis
for dismissing poorly performing teachers. Bridges data indicate that school
administrators cast a broad net to identify poor performers in the classroom, and
use various techniques to detect incompetence and unsatisfactory performance.
Among the most common techniques are (a) supervisors ratings, (b) complaints
from students, (c) complaints from parents, (d) complaints from colleagues, (e)
results of student surveys, (f) student test results, (g) student and parent exit
interviews, and (h) follow-up interviews of former students (Bridges, 1986, p.
Bridges (1986) first measure of teacher performance is supervisor ratings.
Two studies of that measure are contradictory. One shows that supervisors ratings
are questionable indicators of how much students are actually learning (Latham &
Wexly, 1981), and one study shows a modest amount of correlation between
supervisor ratings and student achievement (Muraane, 1984).
However, courts give much weight and credence to supervisor ratings as
long as they are based on adequately documented classroom observations (Fowler
v. Young, et. al. 1945). Since the courts will ultimately decide whether a teachers
performance is sufficiently wanting to merit dismissal, the case law in the area of
incompetency and unsatisfactory performance is of paramount importance.
Colorado Case Law on Incompetence and Unsatisfactory Performance
In Colorado, the standard to prove a teachers incompetence is set quite
high. The court must be convinced that the teacher is unable to perform to the
requisite standard of achievement (Benke v. Neenan- 1983). To prove such
inability is difficult but not impossible (Bridges, 1986). Indeed, the court in Benke
v. Neenan (1983) upheld the hearing officers decision to dismiss a tenured teacher,
Julia Benke, for incompetence. The hearing officer found that Ms. Benke, a high
school art teacher, was in the habit of using Pizza Hut coloring books-used by the
restaurant chain to keep children busy while waiting for their pizza to be servedas
her lesson plans. Partly as a result of the uninteresting and unchallenging nature of
the lessons, she could not maintain discipline. The hearing officer found that this
was sufficient to dismiss for incompetence. In upholding the hearing officer, the
court refutes her argument that the term incompetence," which is undefined in the
statute, is too vague to be constitutional by noting that a person of ordinary
intelligence can determine the standard to meet for competence by going to a
dictionary. Thus the term is not unconstitutionally vague (Benke v. Neenan, 1983).
According to the general counsel for CASB, Ms. Lauren Kingsbery
(September 28, 1995), only three reported cases of unsatisfactory performance exist
in Colorado. These cases are currently at the appellate level. One of these cases,
Heimer v. Adams County School District 50. (1996) was decided by the Colorado
Supreme Court in June, 1996-but not on the issue of unsatisfactory performance.
At the hearing officer level, however, the issue centered on the definition of
unsatisfactory performance and the amount, and quality, of documentation and
remediation afforded to the teachers. Hearing officers in two of the cases
interpreted the 1990 Act to make it significantly harder for the school districts to
dismiss teachers than even under the incompetence standard. Both hearing officers
indicated that the teachers would be considered to be unsatisfactory under the facts
shown at hearing. However, the hearing officer in the Heimer case did not trust the
integrity of the evaluator; and the hearing officer in the Eller case (discussed more
fully below) deemed the teacher to be so unsatisfactory in her performance that he
ordered more time for remediation.
In the Statutory Findings of Fact and Recommendatiomto the Board, issued
to the Colorado Springs School District 11 school board in In Re the Matter of the
Teacher Dismissal Hearing of Rosebinda Eller. ( 1994), the hearing officer found
that the school district had shown that the teacher failed to meet school district
standards of satisfactory performance in classroom instruction and management
domainsthereby proving its case of unsatisfactory performance thoroughly.
However, the hearing officer recommended against dismissal because the teacher
was performing so poorly in so many instructional and classroom management areas
that she could not possibly meet the school district standards for satisfactory
performance in these areas without more remediation than had already been given.
The teacher had received help from the principal, other administrators
within the district administration, and other teachers within her school for eleven
months. However, the 1990 Act specifies that the remediation plan is the statutory
charging document which officially notifies the teacher of the remediation period.
The remediation plan was drafted and was being followed, but it was not signed
until five weeks before the summative evaluation. Since the remediation plan is the
statutory charging document, and since the teacher was deficient in so many
respects, the hearing officer decided to recommend more time for remediation and
against dismissal (In Re The Matter of the Teacher Dismissal of Rosabinda Eller.
The opinion reads in relevant part:
Such deficiencies strike at the very heart of a teachers competence to
perform her duties. Combined with the other corrective measures listed in
the remediation plan, the teacher is required to change her complete style
and manner of teaching. In the context of changing the professional
conduct of a teacher who has taught for twenty-five years, these
recommendations constitute a major directional change in her professional
life. .It is clear to the Hearing Officer that taking the factual evidence
presented as a whole that sufficient grounds exist to discharge Ms. Eller for
her teaching quality. However, the statutory scheme under C.R.S. 22-9-
106, points out that the purpose of evaluation is to give a reasonable
opportunity to measure satisfactory performance. .Even though both the
District 11 plan [formulated in compliance with the statutory mandate] and
the statute require a reasonable period of time for remediation be allowed,
that did not occur in this case (In Re The Matter of the Teacher Dismissal
of Rosabinda Eller, 1994, p. 8).
The hearing officer also stated that the remediation plan was much broader
in scope than the deficiencies documented, and that it would not be fair to the
teacher to require such a big change so quickly fin Re The Matter of the Teacher
Dismissal of Rosabinda Eller. 1994). The hearing officer recommended retention
of the teacher. The school board disagreed that insufficient time had been allotted
for remediation and rejected the recommendation of the hearing officer. The board
voted to dismiss the teacher. The board, in its Resolution and Order of Dismissal.
rejecting the hearing officers recommendation, found:
That Rosebinda Ellers unsatisfactory performance and incompetency were
not corrected over a period of eleven months, and following a reasonable
period after the issuance of the Remediation Plan, despite substantial efforts
made by her superiors and others. This Board of Education determines that
such conduct is detrimental to the educational process in this School District
fin Re The Matter of the Teacher Dismissal of Rosabinda Eller. 1994, p.
In Adams County School District No. SO v. Heimer. the second of the two
cases referenced above, the hearing officer took issue with the fairness of the
evaluation process as applied to the particular teacher by the principal who was her
evaluator. The teacher argued that the principals evaluations of her were unfair
because for 25 years she had been evaluated as satisfactory or above average. Also,
the assistant principal in the building had found only minor fault with certain
portions of her teaching. She argued that the remediation techniques had never
been modified by the administration-in spite of a record of two years of
unsuccessful remediation efforts. This proved that the process was biased and
unfairaccording to Ms. Heimer. The hearing officer agreed.
Finally, as in In Re The Matter of the Teacher Dismissal of Rosabinda Eller
(1994) the hearing officer found that the number of areas found deficient were
overwhelming. The hearing officer ruled that such huge problems could not
possibly be addressed in the time available for remediation.
The hearing officer found that the evidence the district presented showed
that the teacher fell far short of fulfilling her remediation plan. He concluded,
however, that the evaluation process which proved the unsatisfactory performance
part of the districts case could not be relied on to show the truth of the matter.
The hearing officer felt that such bias existed that it tainted every piece of proof the
district offered in that regard. The hearing officer specifically noted that if he had
believed the evidence, however, he would have found unsatisfactory performance.
The principal in this case did seven observations and had numerous
conferences with a teacher who resisted two years of remediation, and refused to
fulfill the requirements of the remediation plan to which she had agreed. In
addition, other administrators from the school district were brought in to observe,
and came to the same basic conclusions as the principal about the teachers
unsatisfactory performance. Despite the hearing officers own statement that he did
not believe that the principal was out to get Heimer," he nonetheless concluded
that the evaluations were biased. Thus he . .agrees that sufficient evidence of
bias or unfairness exists such that it cannot be presumed that this evaluation system
has accurately or reliably portrayed the sufficiency of Heimers performance"
(Adams County School District 50 v. Heimer. 1994, p. 9). The hearing officer
notes the efforts of the administration to provide remediation, but concludes that:
. .the evaluations which led to these efforts are suspect, and the failure to
improve based upon those evaluations thus does not take on the significance
to which it might otherwise be entitled. In any event, the initial attempts at
remediation were based upon a fairly heavy-handed approach (given the
observations to that date), and further remediation plans were so extensive
that it would be difficult for the teacher to focus on any particular need for
improvement. Further, the facts led to a reasonable perception by Heimer
that their evaluations were not fairly arrived at. Under these circumstances,
Heimers resistance is understandable, if not justifiable, and the continuation
of the basic format of remediation over a period of years, despite its lack of
success, speaks as much to the deficiencies in the concept behind the
improvement plans as it does to the deficiencies in Heimers teaching.
Given the lack of fairness and credibility of the initial observations and
evaluations and the excessive attempts at remediation that followed, the fact
that Heimer did not improve does not lead to a conclusion that she is unable
to do so (Adams County School-District 50 v. Heimer, 1994, pp. 9-10).
Thus, not only did the evaluation process negate the evidence of
unsatisfactory performance, in the hearing officers mind, it also mitigated the
teachers neglect of duty and insubordinate actions:
Heimer has been found to have committed acts of neglect of duty and
insubordination as discussed above. These acts, when considered in the
context of all of the reasons for which she was terminated, do not stand by
themselves as cause for dismissal. Her conduct of insubordination and
neglect of duty are matters which could be corrected by less drastic means
than termination. With regard to her failure to cooperate with the fall,
1992, improvement plan, that failure is sufficiently intertwined with the
history of events that it does not stand alone as a reason for termination.
(Adams County School District SO v. Heimer, 1994, p. 13)
The hearing officer essentially excuses Ms. Heimers failure and/or refusal
to carry out the remediation plan and determined that the major reasons for
Heimers termination had not been established. He recommended that Heimer be
retained (Adams County School District 50 v. Heimer. 1994, p. 13).
The Adams County School District No. 50 board of education rejected the
hearing officers recommendation. The case went to the appeals court on the issue
of the power of school boards to dismiss teachers in the face of a hearing officers
recommendation to retain the teachernot on whether the hearing officers
conclusions about unsatisfactory performance, insubordination and neglect of duty
were correct. The teacher won at the appeals court level. (Adams County School
District 50 v. Heimer, 1994) The school district appealed to the Colorado
The Colorado Supreme Court decided in favor of the school district because
it reasoned that the decision of the local school board must be given great deference
unless its act was arbitrary, capricious, or legally impermissable" (Adams County
School District No. 50 v.Heimer. p.ll).
In the third case (Jefferson County School District No. R-l v. Lynch. 1994)
the school district prevailed, but only after two years of evaluation and remediation.
However, the hearing officer did find that the 1990 Act:
. .permits the discharge of marginal teachers. Marginal teachers should
not be assured of continued employment merely by performing to a
minimum level of sufficiency. When the legislature added unsatisfactory
performance as a separate ground for termination, the legislature
demonstrated a clear intent to permit Districts to set standards above a level
of incompetence and to dismiss teachers who fail to meet those standards.
(Jefferson County.School District No. R-l v. Lynch. 1994, p 60)
The hearing officers conclusion is heartening to school districts. However,
such language has not made it into the holdings of any appellate cases in Colorado.
Case Law from Other Jurisdictions
There are no Colorado appellate cases on the issue of satisfactory
performance, per se. However, several other jurisdictions have statutory provisions
which are the same as, or the functional equivalent of, unsatisfactory performance.
There are a few appellate court cases which examine teacher dismissals for poor
performance in these jurisdictions. These cases, and this researchers analysis of
their significance to Colorado, are set forth below.
Level, of Proof Required
One of the issues in dismissing teachers for unsatisfactory performance in
other jurisdictions is the kind and amount of proof required to demonstrate poor
performance. It is instructive to examine case law from other jurisdictions and
compare the proof required by them for unsatisfactory performance to the level of
proof currently required in Colorado for incompetence. Colorado hearing officers
and judges will look to cases from other jurisdictions on unsatisfactory performance
for guidance when the question is examined at the hearing level andespeciallyat
the appellate level. Unfortunately, the existing state of Colorado case law does not
address the real issues required to define and limit unsatisfactory performance
Not all of the jurisdictions listed in Chapter One as having unsatisfactory
performance, or its functional equivalent, as a statutory reason for dismissing
poorly performing nonprobationary teachers, have reported cases where teachers
have been dismissed for poor performance. The reported case law from those few
jurisdictions which have considered the question will be examined, below, for
important clues as to what a Colorado hearing officer or appellate court would
require in order to uphold the dismissal of such a teacher. The following cases
indicate what must be proven in order to dismiss a teacher for unsatisfactory
performance, or its functional equivalent.
In Iowa, the standard is "unsatisfactory performance just as it is in
Colorado. In Wilson v. Des Moines Independent School District (1986), a court of
appeals case, the court record showed that over a period of one and one half years a
tenured teacher was evaluated and informed of her professional shortcomings. She
received a "needs improvement rating for poor planning and lack of discipline
based on numerous classroom observations. She also left her students unattended
while she left the building on unauthorized trips home. In addition, she was
persistently tardy to work (even after repeated warnings). She called school
officials at inappropriate times, had problems with other faculty members, and
made disruptive and inappropriate calls to parents from the school office. She was
also reprimanded for teaching her classes from the hallway outside of her
The school district warned her that she could be dismissed for failure to
comply with the districts standards for satisfactory performance. She was given a
three-day disciplinary suspension prior to charges of dismissal being brought to the
board of education.
The court upheld the dismissal noting that: The record reveals no evidence
that demonstrates petitioners good faith attempt to improve her professional skills
or in any way rise to the standards stressed to her in her evaluations." (Wilson v.
Des Moines Independent School District. 1986, p.685, emphasis added).
The length of time for remediation and the strength of the case against the
teacher would have easily met the Colorado standard of incompetence, as the facts
of Benke v. Neenan (1983i7 outlined above, demonstrate.
In order to meet the supposedly lower standard of unsatisfactory
performance, the administrators in Wilson v Des Moines Independent School
District (1986) had to prove much more serious violations of school policy and
much more remediation than the school district in Benke v. Neenan (1983) had to
North Carolina has had an inadequate performance standard, in addition to
incompetence, since 1973. In Crump v. Durham County Board of Education
(1985), a tenured teacher was discharged for inadequate performance. The charges
reflected a serious failure to maintain order in the classroom.
The principal and the department chair worked with the teacher for almost
two years to help her with her discipline techniques. In spite of the remediation
attempts, the teacher still could not maintain proper discipline on a consistent basis.
The North Carolina Supreme Court upheld the dismissal, noting that the teacher had
failed to maintain . .any semblance of good order and discipline in her classroom
on innumerable occasions (Crump v. Durham County Board of Education. 1985,
In another North Carolina case, Nestlerv. Chapel Hill/Carrboro City
Schools Board of Education (1984), a tenured chemistry teachers discharge for
inadequate performance was upheld by the North Carolina Supreme Court. The
dismissal was based on two and one-half years of fair to unsatisfactory"
performance evaluations of his teaching. The teachers problems included poor
anticipatory set, failure to establish a clear objective for the lesson, inadequate
comprehension checks, monotonal lectures, too much lecturing, weak laboratory
experiments, and inadequate homework assignments. The facts of these two North
Carolina cases also show enough evaluation and remediation to be sufficient for an
incompetence case in Colorado. Thus, they are not too helpful for school district
attorneys seeking to use them in a Colorado dismissal for unsatisfactory
Pennsylvania still uses an incompetency" standard, but the determination of
incompetency is based on an unsatisfactory performance rating that measures the
teachers personality, preparation, teaching techniques, and pupil reaction to the
teacher. Two consecutive unsatisfactory performance ratings, supported by
anecdotal records, are required to find incompetency. The classroom observations
must be conducted by qualified observers, such as administrators and/or department
chairs who are trained in evaluation techniques (P. Zirkel, personal communication,
December 17, 1993). No reported Pennsylvania cases could be found to determine
how this standard compares to reported cases in Colorado.
Washington State does not dismiss teachers for unsatisfactory performance
as such. Sufficient cause is the statutory standard. This term is not well defined,
but the case law indicates that it means a showing of conduct which materially and
substantially affects a teachers classroom performance (Simmons v. Vancouver
School District No. 37, 1985). For behavior to have the requisite material and
substantial effect on teaching performance, it must be more than one instance
(Sargeant v. Selah School District No. 119. 1979). The Washington standard of
sufficient cause appears to be a lower one than the incompetence standard in
In one reported Iowa case, Briggs v. Board of Directors of Hinton
Community School District (1979), unsatisfactory performance of a tenured teacher
was at issue. Some of the language, although not crucial to the outcome of the
case, could be helpful in establishing a Colorado standard-assuming that the court
relied on it in its holding. There, the court stated that tenured teachers could be
dismissed for conduct which:
[D]irectly, or indirectly, significantly and adversely affects what must be the
ultimate goal of every school system: high quality education for the districts
students. It relates to job performance, including leadership and role model
effectiveness. It must include the concept that a school district is not
married to mediocrity, but may dismiss personnel who are neither
performing high quality work nor improving in performance. (BliggS V.
Board of Directors of Hinton Community School District. 1979, p. 744,
Remediation is Required in All Jurisdictions
Most states which include unsatisfactory performance as a reason for
nonprobationary teacher dismissal also have statutes which require giving the poorly
performing teacher an opportunity for remediation. In this regard, the Arizona
Supreme Court reasoned as follows:
The professional integrity of a teacher is classroom performance. To
impugn it surely strikes at the very heart of a teachers professional
standing. It is reasonable to conclude that the stigma of not being rehired for
poor classroom performance is far greater than tbit of not being rehired for
tardiness, unkempt appearance, inability to cooperate with coworkers, etc.
(Wheeler v. Yuma School District No. 1. 1988, p. 866.)
Remediation Must be Based on Published Performance Standards
Section 22-9-106 of the Evaluation Act requires that all Colorado school
districts publish written performance standards for teachers prior to evaluation. It
also requires remediation when the teacher is judged deficient in any performance
area. Under the provisions of the 1990 Act, when the superintendent of a district
recommends discharge of a nonprobationary teacher because of unsatisfactory
performance, the superintendent: .shall establish that the teacher had been
evaluated pursuant to the written system to evaluate certificated personnel adopted
by the school district pursuant to section 22-9-106." (C.R.S.22-63-302(2)(g
An Oregon case, School District No. 48 v. Fair Dismissals Appeals Board
(1973), emphasizes the importance of written performance standards which have
been adopted by the school board and published to the teachers. The Oregon statute
is similar to the 1990 Act. It requires written evidence of failure to meet the
published standards before dismissal of nonprobationary teachers for inadequate
In this case, a nonprobationary teacher was dismissed for inadequate
performance. The dismissal was based on ineffective communication with students,
use of limited teaching techniques, and involving students in a dispute between the
teacher and the administration.
However, the school district had not complied with the statutory mandate to
publish standards. As a result of this failure, the school district could not prove
that the teacher had performed inadequately. The court reinstated the teacher and
admonished that: If a school district seeks to apply standards of its own to tenured
teachers, it is incumbent upon its board to adopt and publish them to its teachers"
(School District No. 48 v. Fair Dismissals Appeals Board. 1973, p. 1118).
Courts are adamant that school districts must follow their own standards of
procedure. Due process requires notice of expected behavior, and notice of
consequences if the expected behavior is not followed. Once such standards are set
forth in writing, and clearly communicated to the teachers, courts do not hesitate to
enforce standards-assuming the school districts are able to sustain their burden of
proof in court proceedings.
Evaluation is a key to dismissal of poorly performing nonprobationary
teachers for incompetence or unsatisfactory performance. Most often evaluations are
not challenged on the basis of the substantive content. Rather, the challenges come
from failure to follow the procedural guidelines of law or school district policy. The
policies governing evaluation in the subject school districts all require a minimum
number of observations, and a minimum number of minutes per observation. If the
teacher can show that the minimum procedures were not followed it is often sufficient
to call the substance of the evaluation into question, or negate the evaluation
altogether. Many a promising start to remediation and/or dismissal of a poorly
performing nonprobationary teacher has been wasted because of failure to follow
procedural minimums. Courts regard policies on evaluation as sacrosanct. And, if the
procedures are not followed, it could invalidate nonrenewals or dismissals.
Ohios supreme court recently ordered a school district to rehire a music
teacher, and give her back pay, because of a similar failure to follow state statutes
mandating minimum procedures for evaluation. The principal in the school failed to
stay the minimum of 30 minutes in the second of two required observations. A
boards decision to nonrenew [a teaching contract] is not valid if the board does not
follow the dictates of state law (Snyder v. Mendon-Union Local School Board of
Education. 1996, p.1028).
Towards a Definition of Unsatisfactory Performance
Courts generally refuse to do more than determine if the facts of the case
show unsatisfactory performance or its equivalent. Only one case even suggested a
partial definition for the term inadequacy of classroom performance. In Arizona
this is a statutory reason for dismissing poorly performing non probationary
teachers. In Wheeler v. Yuma School District No. One (1988) the court defines the
term as including .those factors which pertain to teaching ability, technique and
effectiveness. It encompasses the broad scope of a teachers professional activities
that enhance or detract from the instructional process. (p. 863)
E.M. Bridges (1986), the only educational researcher with a definition of what
he labels marginal performance, states that it is when a teachers performance falls
just short of fulfilling one or more of the professional duties of a teacher as defined by
Scriven(1988). Scriven suggests that the basic duties of a teacher should include: (a)
knowing the subject matter, (b) designing instruction, (c) selecting and creating
materials, (d) constructing tests, (e) grading student performance, (f) providing
information to students, parents/guardians and administrators, (g) using resources
effectively; (h) managing the classroom, (i) engaging in self-evaluation and self-
development, (j) rendering service to the profession, and (k) acquiring useful
knowledge about the school and the community.
Harper and Gammon (1981) suggest a comprehensive definition of the term
inadequate performance. The authors suggest that:
A teacher performs inadequately when he habitually Ms to perform his duties
with the same degree of quality and accuracy usually displayed by other
persons or teachers similarly situated, or when he commits a specific act clearly
demonstrating a Mure to meet the minimum standard of acceptable
performance expected of other persons or teachers similarly situated.
Inadequate performance may be due to lack of ability, lack of experience or the
result of inattention or carelessness, (p.91)
One legal scholar describes unsatisfactory performance in terms of breach of
duty by teachers. Some of the parameters of dismissals of nonprobationary teachers
on the basis of breach of duty are as follows:
Dismissals based on unsatisfactory teaching performance must be grounded in
evidence of some breach of duty created by statute, reasonable regulations,
contracts of employment, collective bargaining contracts, or the status of
public trustee susceptible of inclusion within one of the statutory grounds of
dismissal in addition to having the duty of competent instruction, teachers are
required not to be excessively absent or tardy, to maintain proper discipline, to
prepare lesson plans, and reports, to supervise extracurricular activities for
students, to grow professionally, to cooperate with school officials and staff,
and to protect students under their in loco parentis duties. (Rapp, 1993, Vol.
Case law also demonstrates what is bqÂ£ unsatisfactory classroom
performancewhich is the Arizona statutory term equivalent to Colorados provision.
In Roberts v. Santa Cruz Valiev Unified School District No. 35 (1989), a non-tenured
teacher was dismissed in the middle of the contract year (thus triggering the hearing
requirement which applies to tenured teachers) for physical abuse of his students. He
also conducted a game where students, encouraged by Roberts, would physically
abuse one another. He would also encourage student to student physical abuse when
students broke classroom rules.
The district charged him under the unprofessional conduct section of the
statute and did not charge him with inadequate classroom performance. The teacher
admitted the conduct but argued that it was not unprofessional conduct. He
contended that his conduct was inadequacy of classroom performance. The teacher
hoped to gain some time with this ploy because a teacher can be discharged for
unprofessional conduct without a required remediation period, whereas a discharge
for inadequacy of classroom performance requires a minimum of a 90 days for the
remediation plan to be implemented.
The Arizona Court of Appeals held that physical abuse was, in fact,
unprofessional conduct, and that no remediation was required. The court noted in
its ruling that inadequacy of classroom performance was a more restrictive term than
incompetenceapplying only to the classroom activities of the teacher. The court also
noted that an earlier Arizona case had held that physical abuse was unprofessional
conductnot incompetence. Thus, the court reasoned, inadequacy of classroom
performance, being more restrictiveiy defined than incompetence, could not
encompass physical abuse. In New Mexico, however, this kind of physical abuse has
been held to be unsatisfactory work performance (Morgan v. New Mexico State
Boaf-d. of-Education. 1971).
In Baxter v. Poe (1979), a North Carolina case with facts regarding
inappropriate physical discipline similar to Morgan v. New Mexico State Board of
Education (1971), the court found insubordination. The court mentioned, in passing,
that inadequate performance might also have been a basis for dismissal.
The review of the literature and the existing reported case law from Colorado,
and other jurisdictions with statutory provisions for dismissing nonprobationary
teachers similar to Colorados new unsatisfactory performance standard, shows that
very little literature or case law exists. Very little in case law or educational literature
focuses on the practical effect of adding unsatisfactory performance as a reason for
dismissing nonprobationary teachers as it relates to the ability of school administrators
to dismiss such teachers. Such laws were enacted with much hope on the part of
legislators that unsatisfactory performance, as an less difficult standard to meet than
incompetence, would enable building administrators to cull the deadwood from their
faculties and improve the overall quality of teaching in their schools.
The cases which have gone to the hearing officer level in Colorado generally
are not decided on the grounds of unsatisfactory performance because lawyers always
throw in every possible grounds for dismissal. The cases are usually decided on the
other grounds since they are more fully defined in the case law. In the Colorado cases,
In &s-Ih.g-Mattgr-of.thg. Teacher-Dismissal pfRosabindfl-EJUer (1994), and Adams
Countv School District SO v. Heimer (1994), the school districts exhaustively
documented the teachers deficiencies in so many performance areas that the hearing
officer found for the teacher. This was not because the district had failed to prove
unsatisfactory performancebut because it had shown it so well that the hearing
officer felt more time for remediation was necessary. The hearing officers in these two
cases noted that statutory requirement for a reasonable time period for remediation
to take place and recommended retention of the teacher so that another, longer,
remediation cycle could take place.
No studies could be found which document the progress of school districts in
implementing standards of satisfactory performance in Colorado. Likewise, no
information is available relative to the differences in the preparation of documentary
and testimonial evidence, and/or the types of evidence required to dismiss
nonprobationary teachers. Except for In Re The Matter of the Teacher Dismissal of
Rosabinda Eller (1994), Adams C.PUnty-S.ohQfllBistrict-50 y,.Heimer (1994), and
Jefferson Countv School District R-l v. Lynch. (1994), no information is available
about the amount and nature of evaluation data needed. Nor is there any information
available in the literature which explores the emotional toll that starting the dismissal
process for unsatisfactory performance takes on building administrators.
The case law from other jurisdictions, and the administrative hearing-level
cases in Colorado, indicate that little or no difference exists between incompetence and
unsatisfactory performanceat least as regards building and proving a case against a
Chapter Four outlines the experiences and opinions of 18 building
adminstrators and five Human Resources Directors, as they have grappled with the
problems inherent in performance-based dismissal and the effect of adding
unsatisfactory performance to the statutory reasons for dismissing poorly performing
Colorado public school teachers.
This research study is designed to determine the perceptions of Human
Resource Directors (the HRDs) and building administrators about the effect of
adding unsatisfactory performance to the statutory reasons for dismissing
nonprobationary teachers. This is a qualitative research study. As such, it is designed
to produce findings which quantitative studies cannot reveal-such as findings about
the hurdles building administrators face when seeking to dismiss poorly performing
nonprobationary teachers (Strauss & Corbin, 1990).
As noted in Chapter One, the following questions outline the basic parameters
of the research:
1. How, if at all, did the addition of unsatisfactory performance as a reason for
dismissing poorly performing nonprobationary teachers to the 1990 Act, make it less
difficult for public school administrators to dismiss poorly performing
2. Are HRDs and building administrators more likely to initiate dismissal
proceedings under the 1990 Act than under the 1967 Act?
Specifically: (a) Did the 1990 Act help public school administrators
operationally define unsatisfactory performance so that it has become easier to identify
teachers who can be dismissed for poor performance short of incompetence? (b) To
what degree has the 1990 Act been an independent motivating factor in attempts by
HRDs and building administrators to rid their faculties of poorly performing teachers
who are not necessarily incompetent? (c) How, if at all, has implementation of the
1990 Act changed the context (particularly evaluation, documentation, remediation,
and the dismissal hearing) within which HRDs and building administrators operate to
facilitate proceeding to dismiss poorly performing teachers.?
3. How has the role of the union changed, if at all, in nonprobationary teacher
dismissal as a result of the 1990 Act?
The most knowledgeable and experienced actors within the educational
establishmentand the ones most familiar with the effects of the 1990 Actare the
HRDs and building administrators in public school districts who must implement it on
a day to day basis. The HRDs see the overall effect on a district of the difficulty of
dismissing poorly performing nonprobationary teachers. The principals and assistant
principals are the ones burdened by the requirements of the law of evaluation and
remediation. The school district attorneys must evaluate the case against the poorly
performing teacher, and advise the school district on how to proceed.
Thus, the researcher decided to interview HRDs and building administrators.
They were the ones most able to determine the effect of the 1990 Act concerning
whether or not it achieved its primary objective of making it less difficult to dismiss
poorly performing nonprobationaiy teachers. The researcher also attended
presentations on the topic by school district attorneys, and asked questions pertinent
to the issue of performance-based nonprobationary teacher dismissal.
This study is a bounded study, as described by Stake (1988), in that it
focuses on the impact of a single law on school administrators in Colorado between
the years 1990 and 1996. In that sense, it is a case study (Yin, 1989), but it is also a
policy analysis. The analysis of the policy of adding unsatisfactory performance to the
statutory reasons for dismissing nonprobationary teachers is based on the information
gained from the case studies of school administrators.
Policy studies have a broader scope, in both the time period covered and the
range of questions asked, than do traditional quantitative studies which seek to test a
single hypothesis (Adler, 1992; Baldwin, 1992).
The focus in this approach is on in-depth, long-term interaction with the people
or events to be studied. This approach assumes that events in social settings
are complex and require attention to the context of the people or events to be
studied.... Thus, qualitative approaches cut across the boundaries between
various institutions and the social and cultural contexts in which they exist to
tell a story of why things happen as they do. Policy studies use both the
quantitative and qualitative methods, but the focus is on a specific sets of
public policies. (Adler, 1992, p.l)
Yin (1989) stated that the distinctive need for a case study arises out of the
desire to understand complex social phenomena (p. 14); and is preferred in
examining contemporary events ... when the relevant behaviors cannot be
manipulated (p. 19). Qualitative studies seek to understand phenomena in their
entirety in order to develop a complete understanding of a person, program, or
situation (Rudestam & Newton, 1992, p. 32). This study, using case studies of
district and building-level public school administrators, provides an in-depth look at
the effect of a law that legislators hoped would ease the burden on such administrators
when dismissing poorly performing nonprobationary teachers. The in-depth nature of
the information will provide school and legislative leaders with information about how
legal issues have interacted with the social and cultural circumstances of other
communities in order to try to prepare for the reaction in their own communities
(Adler, 1992, p. 4).
Qualitative studies are endorsed by legal researchers in school law and are
frequently utilized in policy analysis (Adler, 1992). The experiences of HRDs and
building administrators in attempting to implement an unsatisfactory performance
standard for the dismissal of poorly performing nonprobationary teachers is, thus, an
apt subject for a qualitative study.
Sources of Data
The research relied primarily on in-depth interviews of HRDs and building
administrators. In some cases, especially those involving data from the attorneys
quoted in the study, the data were collected in meetings where the researcher and the
attorneys were participantscited in the text as personal communications. In such
cases, documentation is in the form of field notes taken by the researcher, and the date
of the meeting is noted in the textbut not the reference list.
Documents were also collected and utilized. The documentary data consisted
of school district policies, teacher evaluations, reported cases of teachers dismissed for
incompetence and unsatisfactory performance, as well as reports produced by CASB,
the Education Commission of the States, and the CEA. Relevant information from
meetings and presentations attended by the researcher was integrated into the research
and findings. These documents are listed in the reference section and referred to as
they are utlized within the study.
In-depth interviews of multiple informants at each of the five (primary school
district) sites allowed the researcher to triangulate findings across sources and to test
the reliability and validity of the data (Marshall & Rossman, 1989). A primary
district is one where the researcher interviewed the HRD and obtained names of
building administrators who fit certain criteriaincluding having dismissed, or out
counseled, poorly performing nonprobationary teachers, both before and after 1990.
The researcher also followed up on leads within two other school districts (secondary
districts) and interviewed administrators in those school districts.
In this study, site is defined as the school building since only one
administrator was interviewed at each building. The exception to this pattern is
Principal L and Assistant Principal Mwho were interviewed together as a team,
working at one building, in District D.
The researcher used a purposive sampling technique (McMillan &
Schumacher, 1989). The sampling was purposive in that only school districts which
have incorporated the standards of satisfactory performance required by the
Evaluation Act into their evaluation scheme, and have also developed operational
definitions of such standards were chosen. The Evaluation Act requires that all
Colorado school districts have such standards. However, the quality of the standards
of satisfactory performanceespecially the indicatorsvaried sharply among and
between the primary districts.
The study was also purposive in that it was limited to school districts along the
Front Range. Front Range is defined as from Fort Collins in the north to Pueblo in
the south. The term includes districts such as Fort Morgan and Sterling on the eastern
plains. Such districts have the vast majority of Colorado public school teachers and
students within their boundaries.
The researcher also interviewed HRDs from Colorado Springs School District
11, and Adams County School District No. 50, about the circumstances surrounding
two Colorado cases decided recently at the hearing officer level. These cases are
discussed in Chapters Two and Five.
Scope of Study
The study focused on HRDs of five districts, and building administrators that
they recommended. The five districts (primary districts) are located on the Front
Range and educate student populations ranging from 10,000 to 35,000.
HRDs were interviewed to give a district perspective. In addition they
suggested the names of principals and assistant principals to contact who had dealt
with poorly performing nonprobationary teachers both before and after 1990. The
characteristics of the administrators from the primary districts are described in
Fifteen principals and two assistant principals were interviewed from the five
primary districts on the Front Range of the Rocky Mountains in Colorado. In
addition, the researcher interviewed one principal (Principal O) from another large-
sized district on the front range.
In all, 23 administrators from seven Front Range districts were interviewed as
part of the study. Most of the interview material, however, comes from the five HRDs
and the 17 building administrators from the five primary districts.
The researcher asked the HRDs from the school districts to respond to an
initial set of survey questions. Appendix A-l contains a complete list of the questions.
The survey determined the district response to the 1990 Act. The survey also
asked about the districts written and published standards of satisfactory performance
in their evaluation process. In addition, HRDs were queried as to whether the district
HRDs knew of principals or assistant principals who met the researchers criteria for
principals and assistant principals, and proposed questions for an in-depth interview
(both for HRDs and for building administrators). Finally, the survey asked whether
the HRD would be willing to participate as a respondent in the study and facilitate
contacts with principals and assistant principals for the researcher.
HRDs from qualifying districts quickly responded. Most of these HRDs noted
that they would be able to name three or four building administrators, who had
dismissed or counseled out poorly performing nonprobationary teachers before and
after the 1990 Act went into effect. Experience in counseling a poorly performing
nonprobationary teacher out of the profession counted as experience in dismissal if the
evaluation, documentation, remediation, and preparation for the hearing was the same,
or substantially the same, as would have been done for a dismissal.
The researcher chose five primary districts from those responding favorably to
the initial survey and labeled the districts A, B, C, D, and E. The HRDs were labeled
according to their district affiliation. Thus HRD A was the HRD in District A, and so
forth. The principals and assistant principals were labeled A through R. All but one
of the building administrators were from the primary districts. They were interviewed
in no particular order. Building administrators are not identified by district except
when it is important to do so.
The reason for using multiple school districts is because it is difficult to
generalize from single cases. Accordingly, the research focused on cross-site analyses
that identified major patterns (Herriot & Firestone, 1984), and multiple sources of data
No single method ever adequately solves the problem of rival causal
factors .... Because each method reveals different aspects of empirical reality,
multiple methods must be employed. This is termed triangulation. I now offer
as a final methodological rule the principle that multiple methods should be
used in every investigation. (Denzin, 1977, P.28)
Patton (1980) further elaborated the need to use multiple methods of
observation: "Where possible, triangulation is to be highly recommended. Indeed, the
capability to implement a strategy of triangulation means that evaluators must include
in their repertoire of skills the ability to use qualitative methods (p. 109).
Triangulation in this study was done by specifically asking questions in the
interviews that would allow for comparison of answers of different administrators, in
several different school districts, to the same questions. The documents and other
forms of written evidence were used to verify information the respondents in the
The use of triangulation recognizes the need to inform major policy makers of
the importance of local variation (Marshall & Rossman, 1989). Since one purpose of
the study is to provide information for legislative policy makers it is important to be
able show that HRDs and building administrators from different school districts
answered the questions in much the same way. The researcher found that, while there
were variations in viewpoints, the pattern of the answers were remarkably consistent in
the most significant aspects of the study.
All respondents had similar backgrounds and experiences with out counseling
efforts or dismissals, but their perceptions sometimes conflicted strongly. All
principals and assistant principals had been involved in at least one pre-1990
nonprobationary teacher dismissal/out counseling, and one post-1990 effort. Nine of
the principals or assistant principals had been involved in two or more such projects.
Of the nine administrators involved in more than one dismissal/out counseling effort,
six of them had initiated three or more; and three had initiated more than three.
All of the HRDs, because of their district-wide responsibilities, had worked
with building administrators in multiple nonprobationary teacher dismissal or out-
counseling attempts. HRD C had been in the position for 13 years, and estimated that
he/she had been involved in 25 or 30 teacher dismissals or out counseling attempts.
The major set of primary sources for this study were the in-depth interviews
with the HRDs and the building administrators. However, archival records, school
district policies and procedures [official documents are a particularly strong source of
data (Anderson, 1984)], and personal notes and memos were also used as primary
Specifically, the primary sources used were: Drafts of bills designed to reform
tenure, letters and memoranda, reports from study committees and the Governors
Tenure Task Force, and transcripts from official tapes of the of legislative hearings
testimony and debate-relevant portions of which the researcher personally transcribed.
In addition, the researcher studied the legislative history in the legislative journals of
the various sessions of the Colorado General Assembly in which the issue was
Secondary sources consisted of: Legal opinions, handouts from presentations
by school district attorneys, speech transcripts and reports, journal and research
articles, law cases as listed in the resource list, the researchers field notes from the
interviews of HRDs and building administrators, research reports from the Legislative
Council (a research arm of the General Assembly), newspaper articles, and articles in
the newsletters of interest groups such as CASE and CASB. All but the field notes
addressed the historical and legal background surrounding the addition of
unsatisfactory performance to C.R.S. 22-63-301, 302. The field notes recorded
highlights of the interviews and served as a backup in case of tape recorder
The documents, in conjunction with the interviews, present a more complete
picture of the impact of the 1990 Act on the dismissal of nonprobationary teachers and
serve to cooborate data gathered from the respondents in the interviews. Data from
the primary and secondary sources enabled the researcher to triangulate on the
information obtained in the in-depth interviews. Comparison of information obtained
from interviews to information gained from documents gave depth and meaning to
each For instance, the researcher studied the evaluation policies of each district.
However, to understand the true effect of such policies it was helpful to ask the HRDs
and building administrators the practical effect of implementing the policies. In this
manner the triangulated data is enriched.
The most important aspect of the data collection process were the interviews
with HRDs and building administrators. A pilot study was designed to test the
interview piece of the data collection model.
The interview questions were piloted in what became District A in the study.
The questions were modified as a result of the pilot study in order to more effectively
answer the research questions.
The preliminary drafts of the questions served as interview material for HRD A
and three building administrators that HRD A suggested. The researcher recorded
each interview on an audio cassette tape and kept field notes as a back-up. The field
notes also served as a quick reference when double-checking quotes from respondents
in Chapter Four.
In addition to testing the questions, the method of selecting building
administrators, by asking the HRD in each district which building administrators might
fit the research criteria, proved to be effective. The building administrators were
readily identified and all that were contacted agreed to be interviewed.
The modifications to questions, as a result of the pilot study, were minor and
so the researcher decided to use the pilot district as part of the study. The pilot district
became District A in the study.
Once the pilot study was complete, the other HRDs from districts chosen to
part of the study were interviewed concerning their knowledge of dismissal cases
within their districtsincluding comparing cases of dismissals of nonprobationary
teachers under both the 1967 Act and the 1990 Act.
The building administrators suggested by the HRDs were contacted. Once
they agreed to participate, they were interviewed to determine the problems and
pitfalls under both the 1967 Act and the 1990 Act.
The interviews averaged 55 minutes for each respondent. The shortest
interview was with Principal G. It lasted only 25 minutes. The longest interview was
an hour and 20 minuteswith Principal H.
Data were also collected at meetings. In particular data were gleaned from
the CASB Teacher Employment Issues Task Force, and at meetings of the Colorado
Association of School Personnel Directors (CASPA).
As noted above, the primary form of data collection was the in-depth, tape
recorded interviews. The interviews were based on the questions in Appendix C-l, for
HRDs; and in the questions in Appendix C-2, for building administrators. The
interview questions were developed to get at the concepts embodied in the general
research questions listed above.
The interviews followed the same basic format for each interviewee. The
questions were tailored to reflect the differences between HRDs and building
administrators, but were designed to answer the research questionsespecially as
regards the effect of the addition of unsatisfactory performance on the
administrative efforts to rid faculties of poorly performing teachers. The questions
focused on the personal experiences of the HRDs and the building administrators in
dismissing and/or counseling out tenured/nonprobationary teachers. The
interviewees were asked to reflect on their experiences and interpret them in
reference to the 1967 Act and the 1990 Act.
All questions were asked of all HRDs and building administrators. The
researcher asked questions to clarify and/or have the interviewees expand on
answers which were considered particularly relevant.
The complete list of questions is too lengthy to set out in full. However, the
most important questions are listed below:
1. What is the school district policy concerning the poorly performing
nonprobationary teacher? Where is it embodied? How was it developed? How is it
2. How has the addition of unsatisfactory performance as a statutory reason
for dismissing poorly performing teachers changed the policy, if at all, since 1990?
3. Does District_______have standards of satisfactory performance? How
long have they been in place? How are they communicated to the teachers?
4. If you could change the manner in which the school district deals with
poorly performing teachers, how would you change it?
5. Describe a situation in which you helped a principal to dismiss a poorly
performing nonprobationary teacher who did not respond to remediation attempts and
did not meet district standards. How did you assist the principal? Why did you assist
the principal in that fashion?
6. How do you perceive the relative difficulty of dismissing poorly performing
nonprobationary teachers prior to 1990, and after the addition of unsatisfactory
performance to the statutory reasons for dismissing such teachers?
7. Why do you decide that it is time to dismiss the poorly performing
nonprobationary teacher? What factors go into your decision to dismiss?
8. Can you think of any difference that the addition of unsatisfactory
performance to the statutory reasons for dismissal of nonprobationary teachers in your
decision making process? What are they? How did these differences affect the
process of dismissal of such teachers?
9. Comparing pre-1990 to the present, do you see any differences in the ease
with which you and the principal were able to dismiss or counsel the poorly
performing nonprobationary teacher out of the professionor at least out of your
Selected Questions-Building Administrators
1. Do you think the school district policy on dismissing poorly performing
nonprobationary teachers is effective? Why or why not? What do you think are the
most effective elements of the policy? What do you think are the least effective
2. If you could change the manner in which the school district deals with
poorly performing nonprobationary teachers, how would you change it?
3. In your opinion, what are the characteristics of a unsatisfactory
nonprobationary teacher? How is that different from an incompetent teacher?
4. Why do think that some nonprobationary teachers cannot perform
satisfactorily? Is there a pattern that you can discern?
5. Once you have identified an unsatisfactory nonprobationary teacher, how
do you deal with him or her? Describe your interactions with such a teacher in as
much detail as possible using an actual case that you had to handle as a principal or
assistant principal in a building. Why did you use the method you described?
6. What is the role of the teachers union in dismissal proceedings? How did
you deal with the teachers unionif it was involved?
7. Describe two cases in which you initiated the dismissal process on a
nonprobationary teacher. One case must be before the advent of HB 1159 in July of
1990 (with the addition of unsatisfactory performance); and the other must be after it
was in effect. Address the following as part of your response:
(a) Why did you decide to act? What is it that motivates you to start
this long and difficult process? (b) What process did you use to come to your
decision to act? (c) Describe how easy or difficult it was to meet the operative
standard for dismissal (either incompetence or unsatisfactory performance) in terms of
documentation, and the effort needed on your part to satisfy yourself the HRD, and
the school district lawyer that you had a defensible case against the teacher. Discuss
this question as it relates to before and after 1990.
8. How, if at all, did the addition of unsatisfactory performance as a statutory
reason for dismissing nonprobationary teachers influence your decision to start the
dismissal proceedings that you have described above?
9. Has the addition of unsatisfactory performance made any difference in how
you proceed once you have decided to dismiss or counsel a teacher out of the
professionor at least out of your district?
As Elrod (1993, p. 60) found in her study of the enactment of the 1990 Act,
the respondents appeared to be comfortable with the questions and were willing to
disclose personal feelings and emotions about their experience. Indeed, most of the
respondents were eager to share their experiences. It was almost a catharsis for
several of the building administratorsnotably principals E, H and Ito be able to tell
someone of the frustrations and difficulties they encountered while trying to dismiss
nonprobationary teachers who, in their judgement, were damaging the education of
The HRDs and building administrators were assured of confidentiality and
anonymity. They were assured that the information and opinions that they provided
would be for the purposes of this study only-including using the data collected in an
effort change the law of teacher dismissal at some point in the future. To honor the
commitment of anonymity, the researcher ensures that HRDs and building
administrators are always identified by letter designations only, and that their gender is
My background and experiences were useful in building rapport with the
respondents. I was an assistant principal at a large suburban high school at all relevant
times. I had also been an assistant principal at a large, urban high school-with a
majority of minorties in the student body. In addition, I had served as a school district
attorney, prosecuting cases of poorly performing nonprobationary teachers, in two
school districts on the Front Range.
Once collected, the data were classified. The data classifications were
developed as a result of identifying patterns from both the documents and the
interviews. In the classification of teacher evaluation, for instance, the interviewers
all indicated the process was burdensome and complex. Documentary data such as the
Evaluation Act and the school district policies, as well as samples of actual teacher
evaluations, all supported this conclusion.
Interviews and documents were coded according to these data classifications.
The data were organized using the categories of information and the coded
classifications. For example the classification of remediation data from the
Evaluation Act, interviews, school district policies, and actual evaluations were
grouped together to determine the cumulative effect of the addition of unsatisfactory
performance on the dismissal of poorly performing nonprobationary teachers. Thus,
there were groups of data by source within each data classification. These groups of
data formed the basic units of analysis.
Additional classifications of data emerged from the data alone. For instance,
the connection between the Evaluation Acts requirement of remediation and
dismissing a teacher for unsatisfactory performance emerged as significant factor. The
researcher had not anticipated this connection.
As Rudestam and Newton (1992) noted: Qualitative data are usually reduced
to themes or categories and evaluated subjectively (Rudestam & Newton, 1992, p.
32). The emphasis is on using description to develop ... categories for
understanding human phenomena, and the investigation of the interpretation, and
meaning that people give to events they experience (Pollringhome, 1991, p. 112).
The analysis was based on a start list of codes (Mies & Huberman, 1984)
developed prior to the first pilot interview and more fully developed after the pilot.
The full set of pilot interviews were transcribed and analyzed by the researcher and
outside auditors (this process is more fully discussed below). By that time the codes
were well settled, and amended as necessary to fit the data. The codes did not change
significantly throughout the rest of the study.
The researcher coded the transcribed interviews using a system to organize the
transcripts based on the list of codes. Documents gathered during the interview
process were also coded using open and axial coding to classify and organize the data
(Strauss & Corbin, 1990). The start list (Appendix D) and the final coding list
(Appendix E) were based on concepts derived from the problem statement and the
research questions. The initial coding was focused on:
1. The extent of implementation of the standards of satisfactory performance;
2. The administrators perception of the ease of dismissing poorly performing
nonprobationary teachers under the 1990 Act as compared to the 1967 Act;
3. Comparisons of HRD and building administrators experiences relative to
operationally defining unsatisfactory performance and incompetence, evaluation of
teachers, documentation of deficiencies, remediation of deficiencies, dealing with the
union, and preparing for hearings under both the 1967 Act and the 1990 Act.
To increase their validity, the codes were audited and tested on samples from
the pilot interviews. The testing was performed by trained and experienced outside
auditorsgraduate students in the School of Education at the University of Colorado-
The outside auditors used the coded sections without the codes attached and
with a description of each code. The outside auditors read each excerpt from the pilot
interviews and assigned a code or codes to the section of the interview. The outside
auditors coding of the excerpts was compared to the researchers initial coding and
the codes were validated by the exercise. Some changes were made in the coding
scheme as a result of the coding exercise.
To analyze the mass of data accumulated by use of the primary and secondary
sources listed above, the researcher engaged in a process whereby he progressively
reduced broad categories of data to simpler groups. From these groups it was
possible to begin to posit interpretations, nuances, and answers to the research
As noted above, the researcher shared certain characteristics and biases of the
respondents. Of course, the researcher had to guard against his understanding of and
empathy for, the difficulties faced by building administrators. To guard against the
researchers possible bias, the questions were designed to be neutral in tone and the
coding was also neutral. In addition, the researcher endeavored to ask the questions,
and follow-up questions, in a neutral manner. To further insure an unbiased treatment,
the outside auditors were enlisted to read drafts of this study, and point out areas
Chapter Four is the result of the sorting of the data gathered. As the data were
sorted, according to the coding criteria, certain patterns began to develop. Chapter
Four reports those patterns using the thoughts and words of the administrators
interviewed for the study.
The final step was synthesizing and evaluating the data so as to determine
those data which could be of use to the legislature when further considering the
nonprobationary teacher dismissal process. Chapter Five contains the results of this
synthesis and the elements of what the researcher believes to be necessary in legislation
on the topic. The researcher has been, and will be, a resource to the Colorado
Association School Boards in its attempt to modify and improve the 1990 Act.
The research findings in this chapter are organized first to explore the Human
Resource Directors (HRDs) and building administrators definitions of
unsatisfactory performance. The definitions of unsatisfactory performance are
compared to the HRDs and building administrators definitions of incompetence to
determine if these administrators can discern any significant differences.
The chapter also contains the examination of the motivation for dismissing
poorly performing nonprobationary teachers as expressed by the respondents. The
issue is whether or not the addition of a supposedly lower standard for dismissal of
nonprobationary teachers increased motivation for action by HRDs and/or building
The next section explores the evaluation process prior to the 1990 Act as
compared to after. The question is whether the addition of unsatisfactory performance
is more easily evaluated than incompetence in light of the requirements of the
Evaluations documenting deficiencies in classroom performance are the most
common method of identifying poorly performing teachers. However, much more
documentation is required beyond the evaluations of classroom performance. The
next section includes the examination of the problem of documentation before and
after the 1990 Act.
Next, the question of whether remediation for unsatisfactory performance is
less difficult than remediation for incompetence is examined from the point of view of
the HRDs and building administrators. Since emotional stress is most often the most
intense during the remediation process, the building administrators and HRDs
responded to how such emotional stress has changed, if at all, as a result of adding
unsatisfactory performance to the statutory reasons for dismissing nonprobationary
The context of the entire process is the topic of the next section. Here, the
role of the union and the preparation for the hearing is determined in light of the new
The ultimate question, of course, is whether, in the opinion of the interviewed
administrators, the 1990 Act has significantly eased the burden of dismissing poorly
performing nonprobationary teachers. The final section explores this issue.
Administrators Operational Definitions of the Terms Incompetence and
Unsatisfactory Performance are Inconsistent, and do not Demonstrate that there is a
Significant Difference Between these Terms in the Minds of Administrators
The theory behind the 1990 Act is that incompetence is too high a standard for
school administrators to meet when evaluating, and otherwise documenting, poor
performance by teachers. As outlined in Chapter One, the legislative proponents who
testified in the hearings before the Senate State Affairs committee and the House
Education committee in the spring of 1990 consistently testified that creating a lower
standard would allow administrators to dismiss the deadwood among their teachers
more easily. However, like several of the other reasons (for example, incompetence,
neglect of duty, immorality, and other good and just cause) in C.R.S. 22-62-
301 for dismissing nonprobationary teachers, unsatisfactory performance is not
defined. It is left to the case law to define such terms. At the time of this writing, no
case law existed at the Colorado appellate court level to help define unsatisfactory
Yet, before a building administrator can move to dismiss a teacher for
unsatisfactory performance, that administrator needs to have an operational definition
of the term One would expect the building administrator to know the difference
between incompetence and unsatisfactory performance, and be able to document
unsatisfactory performance in the teachers teaching, and be able to articulate to the
teacher what is unsatisfactory and why. Appendix F demonstrates that HRDs and
building administrators do not have a firm grasp of the difference between
incompetence and unsatisfactory performance.
In addition, a building administrator must be able to fashion a remediation plan
which is designed to correct the observed deficiencies in the teachers performance.
Without a firm definition of unsatisfactory performance in mind the administrator will
not be able to create a workable remediation plan.
Building administrators experience often included long and detailed
conferences with the HRD and/or the school districts attorneys about the definition of
incompetence and unsatisfactory performance. Also, all of the HRDs and building
administrators interviewed had been through all or most of the stages leading up to a
dismissal for unsatisfactory performance. All of the HRDs, and 12 of the 18 building
administrators had counseled poor teachers out after going through all of the steps
required by the law for documentation and remediation. All of the districts studied
conducted regular in service presentations on teacher dismissal. One of the principals
interviewed for this study, Principal H, had trained the administrators in District B in
evaluation of teachers as required by the 1990 Act. Principal H reported that the
administrators were carefully trained to define unsatisfactory performance as the
absence of satisfactory performance indicators as outlined in District Bs evaluation
policy (Principal H, Interview, April 28,1994). All of the HRDs responded that their
administrators had been trained in a similar manner.
In spite of such concentrated training, the building administrators interviewed
had widely differing definitions of incompetence and unsatisfactory performance. The
building administrators also were widely divergent in their descriptions of how
incompetence differed from unsatisfactory performance. Appendix F summarizes
definitions of incompetence and unsatisfactory performance as described by the HRDs
and the building administrators in a chart formwhich highlights the variety of
understandings displayed by the administrators interviewed.
fasompstencg is-a-Highgr pggrgg gf Unsatisfegtoi^PgrfQpqangg
All of the building administrators tied their assessments of the teachers
performance to the school district standards of satisfactory performance as found in
their districts evaluation policies. All of the HRDs made reference to the standards of
satisfactory performance as well. However, once the teacher was evaluated as
unsatisfactory the answers as to why the teacher did not meet the particular standard
diverged from one another significantly.
Six of the 18 building administrators and one of the five HRDs believed that
incompetence was simply a higher degree of unsatisfactory performance.
Alternatively, they stated that repeated instances of unsatisfactory performance
eventually add up to incompetence.
Principal B, one of the six building administrators who saw unsatisfactory
performance as a lesser degree of incompetence is typical of the building
administrators in this regard. Principal B notes the following as bases for poor
performance with incompetence consisting of the same basic deficienciesbut to a
Lack of organization. Not knowing how to have it [the lesson] unfold in the
classroom. Not knowing how to prepare it in their own mind. Also not being
able to communicate with me and/or the parents. Being late with assignments.
Lack of sensitivity as to who they are working with, for example, students and
parents. Not being able to work with different types of kids. Such teachers
have their own program, and if the students cannot do that program, then
they fail. (Principal B, Interview, December 8,1993)
Principal C (Interview, February 1, 1994) also believes that unsatisfactory
performance is a lesser degree of the same characteristics that mark the incompetent
teacher and is where . .the teacher is only having trouble in one or two areas, and
need some strategies to be successful. These teachers are not performing up to district
standards but have the ability to do so. Principal I (Interview, September 7, 1994)
refers to the district standards and indicators of satisfactory performance, and defines
incompetence as repeated unsatisfactory performance.
In general, these six building administrators answers to questions concerning
motivation for dismissal, and their experiences with dismissal and/or out counseling,
were more positive about the ease of dismissalonce the documentation was
complete. As will be discussed below, documentation and remediation often proved to
be the stumbling block for these building administrators who felt that the addition of
unsatisfactory performance gave them positive leverage for dismissing poorly
Incompetence is the Inability to Understand the Teaching/Leaming Process
All building administrators and HRDs stated that lack of ability to understand
the teaching/learning process and apply theory to practice in the classroom constitutes
incompetence-regardless of what other factors are operating. However, all of the
building administrators and HRDs also believed that such a lack of understanding
could also be unsatisfactory performance.
The data show that there is no bright line in the administrators minds that
could easily translate into a definition that would be operational. However, some
themes emerged from the interviews and, if a teacher does not have the ability to
understand about the teaching and learning process, it is much easier to make the leap
to incompetence for HRDs and building administrators.
For example, HRD D finds that poorly performing nonprobationary teachers
often cannot articulate the intellectual side of their teaching philosophy, and cannot put
it into effect in the classroom: This type of teacher is not able to initiate instruction-
related conversation with his colleagues... As a result, he is not trying anything
new. He uses old handouts and outlines year after year (HRD D, Interview,
September 28, 1994). Such teachers cannot make the connection between their
actions and their students failure to learn.
Principal D separates the incompetent teacher from an unsatisfactory teacher
relative to overall intellectual capacity, and also believes it is irremediable:
A teacher that doesnt have it cannot get it, and no amount of
remediation is going to change that fact: They also have to be bright
enough to get it." Im sorry, I dont know any other way to put it. Is there
another way to say it more professionally? (Principal D, Interview, February
Principal I relates a very frustrating experience with a teacher who was
performing poorly and could not get it :
It is as if there is a wall between us even though I would go to incredible
lengths to show how a gifted student could not be satisfied with the same
manipulatives, for example, that would satisfy a more limited student. As hard
as I worked with this particular teacher, I could not get through to her. This
. _rvcnhihitorl \A/ithniit npriniQQinn
was over a two year period of time. We finally came to an impasse. She
would say I just cannot see where you are coming from. (Principal I,
Interview, September 7, 1994)
The HRDs and building administrators who believed that incompetence (and to
a degree unsatisfactory performance) was largely a matter of inability to understand
the teaching/learning process responded more positively on their likelihood of moving
for dismissal. While recognizing the difficulties surrounding documentation, they felt
that lack of the ability to understand how teaching works was irremediable.
Incompetence is an Attitudinal Problem
Six building administrators and two HRDs saw incompetence in terms of a
negative attitude towards improvement (whereas poorly performing teachers with a
good attitude were merely unsatisfactory and, therefore, potentially salvageable). The
negative attitude problem manifested itself in several ways--all interrelated, and seen as
irremediable by these building administrators and HRDs. The most common attitude
problem was denial by the teacher that he or she had a problem meeting the district
standards for satisfactory performance.
Principal A sums it up for these administrators noting that unsatisfactorily
performing teachers are not defensive, and can be worked with to improve their
[incompetent teachers] cannot recognize or admit that they have a
problem. They are defensive. Trying to remediate them is like a tug-of-war.
Their attitude is prove that I am incompetent. They will not take
responsibility for their own behavior. They try to maneuver the evaluators into
i i/'tir\n nmhihitpri without nfirmission.
developing behaviors which are outside of themselves. Then they have
someone to blame it on if it doesnt work. . The only pattern I can discern
is attitude, attitude, attitude. (Principal A, Interview, December 7, 1993)
HRD D sees a pattern in that many poorly performing teachers have a
persecution complex about remediation. Incompetence is not being able to get
beyond this complex, and boost performance to an acceptable level (HRD D,
Interview, September 28, 1994).
Principal J states that unsatisfactory performance has to do with a broader
range of problems including the attitude that teaching is just a job versus the attitude
that it is a career. If the attitude is so ingrained that teaching is a job rather than a
careerthen it becomes irremediable incompetence (Principal J, Interview, October 20,
Relational problems are often brought on by poor attitude but form a
significant subset of their own. The basic building block of teaching and learning is the
positive relationship between the teacher and the learner. If that is missing, than an
otherwise curable deficiency becomes irremediable, that is, incompetence.
If it is a matter of working with someone on classroom management or having
them beef up their subject matter knowledge those problems are fixable. It is
when they do not have the ability to relate to children that I find the pattern
irreversible (Principal D, Interview, April 9, 1994).
Principal F agrees that techniques exist to help poorly performing teachers who
are having technical problems with their teaching. For example, the administrator can
arrange for the teacher to observe other teachers who are exceptional in the areas the
poorly performing teacher is missing. Teachers can also obtain more content
knowledge. But if the problem is relational, it is more likely to be irremediable
This leads to management and respect problems. The chances for remediation
are less on the relational side than on the instructional side. People come into
teaching with characteristics that have been learned and ingrained as they were
growing up. The prognosis for changing some of those things is not good.
They are habits and part of their fabric. (Principal F, Interview, March 23,
Principal G agrees that incompetence is more a relational problem than
anything else, resulting in the teacher not being able to motivate students to learn:
As I think back on the people that I have dismissed, it is because of
interpersonal relationships. I think what motivates a student is the
relationship with the teachernot the subject matter. If the teacher does
not have good interpersonal relationships and other characteristics that are
necessary, and if they cannot model to the kids, and if they expose
undesirable characteristics to kids then you cannot teach successfully.
(Principal G, Interview, June 8,1994)
Principal H expands the notion of relationships beyond just student-teacher
relations. The satisfactory teacher must have a wide range of relationship skills such
as cooperation and flexibility:
For instance, it is not satisfactory to be able to do a good lesson but not be able
to work with teammates, or not be able to control students, or not call back
parents in a timely manner. All of the requirements for teaching must be done
at a satisfactory level. (Principal H, Interview, April 28,1994)
Principal J argues that skills can be learned but if you do not like kids your
work as a teacher is just going to be hard. If you do not like kids, you are not going
to be satisfactory-no matter how skilled you are from a technical standpoint (Principal
J, Interview, October 20, 1994).
r..4UA^ i/-v+i/-\n r\rnhihitoH \A/ithnilt nPriTliSSiOn.
Since attitude is the crucial difference between incompetence and
unsatisfactory performance, the addition of unsatisfactory performance to the reasons
for dismissal did not necessarily make it less difficult to dismiss poorly performing
teachers in the opinion of, especially, the building administrators. Such building
administrators extend themselves to try to work with the unsatisfactory teacher, that
is, the poorly performing teacher with a good attitude. They move to dismiss only the
incompetent ones, that is, those poorly performing teachers with a negative attitude
towards improvementor other irremediable relationship problems.
All five of the HRDs, and all 18 of the building administrators interviewed
noted that discipline problems often interfere with the teachers ability to impart
knowledge to the students. According to HRD E, this leads to parent complaints
which contribute to attitude problems and defensiveness on the part of the poorly
performing nonprobationary teacher. This attitude of defensiveness is one aspect of
relational problems as an attribute of unsatisfactory performance (HRD E, Interview,
November 9, 1994).
All six of the building administrators, and both of the HRDs, who believe that
attitude is the essence of incompetence agree, that when attitude is an issue, the entire
tone of the process changes. For instance, in District A the evaluation policy mandates
a team approach for teachers who are placed on a remediation plan. The policy
provides that specially trained teachers from other buildings within the school district
are to help the poorly performing teacher with specific performance strategies. If the
r1. am i-/i /i+ ian
-.//ihihitoH iA#ithnnt nprmissinn
teacher accepts the help, it is truly a cooperative effort with the teacher, the assistance
team, and the administrator working together to improve performance. If, however,
the teacher is uncooperative and blaming everybody but himself, the point no longer is
to help the teacher. Rather, it becomes necessary to build a case against the teacher.
At this point the formal aspects, such as adhering strictly to time lines and the order in
which things are done, become more important than the teachers improvement (HRD
A, Interview, November 17, 1993).
Assistant Principal P worked with a hostile teacher throughout the 1994-1995
school year. Assistant Principal P describes the effect on the role of the assistance
team, and the abrupt change in its procedures because of the teachers outspoken
hostility and written and verbal personal attacks on the team members:
After the attacks, we all concentrated more on the procedure and less on the
substance. We were trying to cover our behinds because we felt her attitude
was such that she was more likely to file a grievance than to improve.
(Assistant Principal P, Interview, June 4, 1995)
Incompetence is Not Functionally Distinguishable from Unsatisfactory. Performance
Eight building administrators did not see any practical difference at all, that is,
they believe that unsatisfactory performance is not a lower standard. Principal A is
representative of this group:
I have never been able to determine what the law means by incompetent,
that is, what behaviors which are observable are those of an incompetent
teacher. They are not well defined in my opinion. The attempt to define
standards of satisfactory performance was an attempt to define, in reverse,
unsatisfactory performancewhich was in turn an attempt to define
incompetence. (Principal A, Interview, December 7, 1993)
i-.iMirm nrnhihitPft without DOriTliSSion.
This view is more fully articulated by Principal K who believes that one cannot
observe competence-only performance. This is no different than prior to 1990, and
the addition of unsatisfactory performance is not particularly helpful as it is not
qualitatively different than incompetent performance on the part of a poorly
Before 1990, we had to go through a process of observing
performance, and then we went through remediation. If that did not work we
made a mental leap saying: Since we have done everything we can do to try to
improve performance, and that has not worked, this guy must be incompetent.
So we can move to terminate because this guy is unable to perform.
(Principal K, Interview, November 7, 1994)
Principal K notes that after the 1990 Acts addition of unsatisfactory
performance, the mental leap from poor performance to a conclusion of incompetence
is not necessary. However, the evaluator must still go through the same hoops of
evaluation, documentation, and remediation. Thus, the difference between
incompetence and unsatisfactory performance is no different in practicethough it
may be in theory (Principal K, Interview, November 7, 1994). Principal K is
encouraged that the mental leap is no longer necessary, but sees no real difference.
The building administrators who perceived no difference between the standard
of incompetence and the new standard of unsatisfactory performance were the least
likely to move for dismissal since they did not see that it would be any less difficult to
dismiss for unsatisfactory performance than it had been using incompetence as the
Age and/or Experience was Not Found to be a Significant Eactor.
Age and/or experience were not factors which were ever singled out for
mention by building administratorsexcept by Principal K. Principal K noted that
some people are not suited to be career teachers, but by the time they realize it they
are trapped economically. These teachers often begin to slack off and must be
prodded by administrators to keep up the pace (Principal K, Interview, November 7,
Principal D noted that these aspects were definitely not part of the equation as
it related to patterns of unsatisfactory performance (Principal D, Interview, April 9,
1994). The failure of building administrators and HRDs to mention that older, more
experienced, teachers tend to be unsatisfactory performers, refutes an assumption
often made by educational critics that older teachers are less satisfactory than younger
Some. Administrators Believe the 1990 Act is Helpful in Definipg Unsatisfactory
Performance and Incompetence.
Not all of the HRDs and building administrators believed that it was all that
difficult to separate unsatisfactory performance from incompetence. Four building
administrators and one HRD very strongly believed that the standards of satisfactory
performance required by the Evaluation Act coupled with the ability to dismiss
teachers for unsatisfactory performance helps define and give urgency to the concept
of unsatisfactory performance.
i i/-'+i/~\n nmhihitoH without normission.
HRD B and five building administrators, including Principal D, believe that
unsatisfactory performance, as distinguished from incompetence, is more definable
under the 1990 Act.
I mean, it was like before 19901 would say Incompetence? What is
incompetence? I mean, describe it to me. Now I can go to certain sections in
the policy and say this is unsatisfactory, and I can at least put the person on
remediation. It is a more effective tool. (Principal D, Interview, April 19,
Principal D, however, recognizes that the real problem is proving it. Principal
D also notes that the remediation process can be very longsometimes two years.
The difference between incompetence and unsatisfactory performance for
Principal H is pronounced. Principal H knows incompetence when it is present but
does not believe it is provable: To me it means that you can hardly function as a
human being. Principal H believes that unsatisfactory performance, however, is
provable and that the new standard is a very useful one to administrators (although the
same amount of documentation and remediation is required):
But what does incompetence look like? Under the (1967 Act)
there was never enough specificity. The term was too hard to use.
There were no real standards to help define it. Now, with unsatisfactory
performance comes standards which are more specific and less difficult to use.
In policy its more specific, for example,. Listens to students. Either the
teacher does or he does not to a satisfactory level. We can figure that out
more easily than incompetent. (Principal H, Interview, April 28, 1994)
Unsatisfactory. Peiformanceas Insubordination
Principal L and Assistant Principal M are both from the same school and act as
a team when evaluating/dismissing poorly performing teachers. When interviewed as
to what they believe is the definition of unsatisfactory performance, they discount the
notion of unsatisfactory performance as a performance issue at all. Rather, they
contend that it is insubordination. Their theory is that once a performance standard
has been clearly articulated to a poorly performing nonprobationary teacher, and the
teacher fails and/or refuses to meet the standardthis meets the definition of
insubordination. Thus, no need arises to document anything beyond one failure and/or
refusal to meet the performance standard and no need for a remediation period
(Principal L and Assistant Principal M, Interview, October 21, 1994).
Four school district attorneys, whose law firms represent several different
school districts (Bump, Presentation, September 28, 1995, Bums, Presentation,
September 28, 1995, K. DeLay, personal communication, August 30, 1995, and S.
Everall, personal communication, May 5, 1995 ) have suggested that insubordination,
based on noncompliance with directives short of a remediation plan (as required by
statute if unsatisfactory performance is the basis for the action), is a more viable route
to go with poorly performing nonprobationary teachers. Such teachers can be placed
on more frequent evaluation cycles and, if their specific behavior falls short of what
has been directed, they can be dismissed for insubordination. Case law from Colorado
and Arizona supports insubordination as a reason for dismissal when a teacher does
not follow a reasonable remediation plan (Thompson v. Board of Education 1983;
Siglin v. Kaventa Unified School District. 1982).
.rrM'\vs\r4i irviirtn r\rr\hihi+<^rl XAlithnilt nfirmiSSlOn.
Dismissal for insubordination is a much less difficult process than a
performance-based dismissal and could be the administrative equivalent of Alexander
the Great dealing with the Gordian Knot-just cut through all of the performance
issues, and base dismissal on the teacher disobeying the reasonable orders of a
supervisor (Warev. Ft. Morgan School District. 1986). This is pushing the
envelope of the law in this area, but may be a future basis of action against poorly
performing nonprobationary teachers when unsatisfactory performance is too
burdensome to prove. (In fact, as noted in Chapter Two, the hearing officer in Adams
County School District 50 v. Heimer, found insubordination when the teacher failed to
complete the remediation planbut recommended retention based on his perception
that the school districts case depended on unsatisfactory performance more than
insubordination. The school district accepted the insubordination finding but rejected
the recommendation of retention (M. Semple, personal communication, October 19,
Indeed, HRD A and Assistant Principal P (both in District A) were advised by
the attorney for District A to write strict, measurable directions as to the poorly
performing teachers classroom behavior, for example, More than 50% of the
students will participate in any discussion and answer questions from the teachers at a
level higher than a mere yes, no or, fill-in-the-blank-type of answer (Assistant
Principal P, Interview, June 4, 1995). The attorney for District A believed that,
because the teacher had sporadically and inconsistently performed at a level that was in
\Aii+hr\i it normiqqinn
compliance with district standards, a hearing officer would not find for the school
district in an unsatisfactory performance case.
As can be seen from the above illustrations, considerable ambiguity exists
relative to defining incompetence and unsatisfactory performance. As a result, HRDs
and building administrators are more hesitant to bring an unsatisfactory performance
Administrators Motivation for Dismissing Poorly Petformin^Teachers
Comes from Within-- and is Not Affected bv the Addition of a Lower
Did the addition of unsatisfactory performance as a purportedly lower standard
for dismissing poorly performing teachers motivate building administrators to start
proceedings on such teachers more than when incompetence was the sole
performance-based reason for dismissing teachers? For three of the HRDs and 14 of
the building administrators, the answer is unequivocally No~it is an ethical and
moral issue. But for two of the HRDs and four of the building administrators it is a
qualified Yes because it encourages building administrators to start the
conversation earlier about performance-related problems (Principal D, Interview,
April 9, 1994).
All of the HRDs and building administrators interviewed stated that their
primary motivation is student welfare. The addition of unsatisfactory performance was
noted by the two HRDs and the four building administrators who said a qualified yes
,___________c,,rthor rpnmriiir.tion orohibited without permission.
as a reason for starting the remediation process sooner-but not as a major motivator
for dismissing poorly performing nonprobationary teachers.
The HRDs unanimously stated that the addition of unsatisfactory performance
was not the primary motivation for their building administrators to go after poorly
performing nonprobationary teachers. The comments of the HRDs stress the effect of
the poorly performing teachers on students, colleagues, administrators, and on the
public perceptions about educators and education. In addition, the likelihood of
success in dismissing the poorly performing nonprobationary teachersby a counseling
out process or by dismissal proceedingsalso influenced their motivation to begin the
long and arduous road to forcing the teacher out of the classroom.
HRD A lists the factors and notes that it is the same as before 1990when
HRD A was a principal and had dismissed poorly performing nonprobationary teachers
under the 1967 Act:
There is simply no change. I am motivated to start because the poorly
performing teacher is not meeting the standards of the evaluation system.
Also, the poorly performing teacher begins to have a negative impact not only
on direct instruction to the students but to also on the credibility of the school.
Parents and staff are wondering why the teacher is not fired. They are
wondering if the poorly performing teacher is protected. The poorly
performing teacher begins to have a negative impact on the energy of the
administration in propping up and supporting him or her. Finally, and most
importantly, the poorly performing teacher is hurting kids. (HRD A,
Interview, November 2, 1993)
As noted, none of the building administrators reported that the addition of
unsatisfactory performance, in and of itself, increased their motivation to dismiss
poorly performing nonprobationary teachers. The decision to go for dismissal came
nrnhihitorl u/ithnnt nprmission.
from otherprimarily ethical, educational, and moralfactors. Principal B is typical of
most building administrators interviewed when he states I decide to move on a
teacher based on whether they are doing the job or not. That decision is based on the
same considerations as prior to 1990 (Principal B, Interview, December 8, 1993).
Principal Â£ declares that, where learning is suffering and can be documented, it
is time to move toward dismissal:
I decided to proceed because when I sat down with about 12 anecdotal
records for a three-month period and read them, I zeroed in on what the
kids in his classes were doing. It turned out to be very little to do with
learning. I shared them with him in just that fashion and asked him to
describe what kids were doing and how it related to learning and
instructional objectives. When he got defensive I decided he was not going to
improve and so began the process formally. This is not dependent on the
existence of a statute. (Principal E, Interview, June 1, 1994)
Principal G asks a pertinent question:
What makes this one teacher have a greater value than the 1500 students that
they are going to teach over the next 10 years? I would like to say to every
union representative in the country: Arent the kids just as important as this
teacher you are representing? (Principal G, Interview, June 8, 1994)
Principal I has not changed in regard to this issue as a result of the law:
I am out there observing, supervising, and evaluating daily. So, when I see
poor teaching I am going to respond to it. Ultimately, I go through it all for
the children. With elementary students, especially, it is not fair to expose
them to inferior teachers. They have no recourse but to be in school. If they
do not come to school there are consequences. To live with myself, I have to
be sure that they are in a good, safe, appropriate learning environment. I will
just not turn away from something that is not being done right. (Principal I,
Interview, September 7, 1994)