Education Week - October 28, 2015 - 11

Esquith Case
Spotlights L.A.
Investigations
CONTINUED FROM PAGE 1

A New Unit
Until recently, teachers in the Los
Angeles Unified School District who
were accused of misconduct were reassigned to spartan district offices,
colloquially known as "teacher jail";
now they are generally relegated to
paid home leave while the district
looks into the charges against them.
Following the Miramonte scandal, the district created the Student
Safety Investigation Team to coordinate misconduct investigations. The
SSIT, staffed mainly by former lawenforcement officials, presents its
findings to the school board, which
independently decides whether to
terminate the teacher's employment
or reinstate him or her.
Jose Cantu, the SSIT director and a
former principal, said in an interview
that the unit has completed some 106
investigations since Jan. 1, 2014, and
has 62 cases still open; not all of them
involve teachers. Of the completed
cases, about half have resulted in the
return of an educator to work, and a
third have led to dismissal proceedings, though not all of those cases
ended in termination.
And although the average case
takes more than 80 business days
to complete, the unit has reduced
the number of teachers under temporary reassignment, Cantu said.
"Most of the employees we investigate are being returned to their
worksites, where before they might
have sat at home not having done
anything," he said.
That 80-workday average (about
six months) is down from the 10month average that investigations
took before the creation of the SSIT,
according to a state audit last month.
Still, critics maintain that the SSIT's
probing of teachers has been overly
aggressive, with some cases amounting to "witch hunts" in which even
the charges are unclear. The lawsuit
brought by Esquith notes that misconduct allegations against him were
dismissed by the California Commission on Teacher Credentialing, which
oversees teacher certification.

Beatrice de Gea/Los Angeles Times-File

gations of misconduct in 2014 after
a teacher at Miramonte Elementary School, Mark Berndt, pled no
contest on 23 charges of sexual misconduct toward students and was
sentenced to 25 years in prison.
For the nation's second-largest
school district, with some 643,000
students, the situation amounts
to navigating between Scylla and
Charybdis. If its investigations are
too lax, it risks a repeat of the Miramonte scandal or of falling short in
costly teacher due process hearings.
But pressing too aggressively
risks raising concerns of profiling
or overzealousness. Indeed, the firm
representing Esquith, helmed by
big-name criminal-defense lawyer
Mark Geragos, has called the team
that investigated his client "an investigative hit squad."
Acclaimed educator Rafe
Esquith, who taught at
Hobart Elementary in
Los Angeles for 30 years,
was fired this month after
a district investigation
for alleged misconduct.

In August, the Los Angeles Times'
editorial board questioned the investigative process, citing three
different cases of popular teachers
who were put on extended leave for
seemingly dubious infractions and
subsequently cleared.
Under California rules, before
being fired, a tenured teacher can
request a due process hearing, usually before a three-member Commission on Professional Competence.
(Esquith's recent lawsuit seeks only
punitive damages; he and his lawyers had already filed a separate
defamation suit for reinstatement.)

Due Process Concerns

I think there's a way
to recognize that
student safety
is paramount, but
at the same time you
need to protect due
process rights as well."
BEN MEISELAS
Associate, Geragos & Geragos, APC

One possible reason for the
lengthiness of the investigations:
Due process hearings rarely lead to
firings unless the district precisely
adheres to the timelines and documentation required by state law.
The Los Angeles district learned
that lesson the hard way: Partly
because it had not fulfilled all the
steps required for due process, the
district ended up paying Berndt, the
Miramonte teacher, $40,000 to retire
rather than pursuing his dismissal,
an action that later generated outrage
from parents and the community.
But Esquith's lead attorney, Ben
Meiselas, disputes that the SSIT's
investigations protect due process in
any meaningful sense of the term.
"They completely and utterly violate
due process at every level," he said in
an interview, arguing that interrogation tactics used by the investigative
team reflect a bias against the accused. "They've predetermined the
outcome," he maintained.
United Teachers Los Angeles,
the district union, has not taken
a stance on Esquith's case. But it
has repeatedly expressed concerns
about whether investigators are targeting teachers for minor infractions
or reasons other than misconduct.
"Many of them are over 40. Many
of them are minorities. Many of
them are very active in the schools,"
UTLA President Alex Caputo-Pearl

told the news channel Al Jazeera
America in 2014.
Caputo-Pearl did not return inquiries seeking comment by press time.
Cantu said that his unit does not
keep analyses of the demographics
of the teachers it investigates and
could not comment on that matter.
Probably the closest parallel to
the Los Angeles conflict is in the
New York City district, the nation's
largest. As in Los Angeles, New York
has a team of former law-enforcement officials who help investigate
teacher misconduct. Teachers who
are suspended with pay pending an
investigation were at one point put
in reassignment centers infamously
dubbed "rubber rooms"; now, such
teachers are typically employed in
clerical duties in district offices.
And in both districts, hotly contested lawsuits at the state level
are shining a light on the issue of
teacher-dismissal processes. The
Vergara v. California ruling, in 2014,
declared current rules governing
teacher job protections unconstitutional, essentially saying they made
it too arduous to dismiss teachers.
In the Empire State, the lawsuit Davids v. New York has similar aims.
Only a small fraction of misconduct cases end up leading to criminal charges. In Los Angeles, the
results of the SSIT's investigations
aren't turned over to police unless
mandatory-reporting laws compel it.
But when law enforcement does
get involved, that can complicate
rather than aid districts' attempts
to fire teachers, said Daniel Weisberg, a former lawyer for the New
York City education department.
"We could not proceed through
the disciplinary process because the
district attorney did not want us
calling witnesses or presenting witnesses that might complicate the
criminal process," he said.
Weisberg, now the CEO of the
teacher policy group TNTP, said he is
sympathetic to Los Angeles teachers'
complaints about a lack of clarity on
charges, or the timeline for returning
to schools. But his organization also

backs revisions to due process laws.
"It is legitimate for teachers to demand that investigations be objective
and be done quickly," he said. "On the
other hand, we have overly legalistic
systems protecting teachers-this is
what Vergara is about-that have
such an incredibly high burden of
proof that it becomes almost impossible to discharge a teacher who really has done something wrong."

A Changing Landscape?
Adding to the complexity of the
matter, California's rules for teacher
due process were already changed
after the Vergara ruling.
The state legislature last year
created an expedited process for
dismissing teachers charged with
"egregious misconduct." Those hearings are held by an administrative
judge who issues a binding decision,
rather than the usual panel.
Has that tweak led to improved
outcomes or quicker determinations? Has it changed how misconduct charges are investigated? No
one seems to know, not even the
California Teachers Association, a
proponent of the change.
"Most people faced with dismissal
either end up resigning or, in some
cases, retiring if they are eligible,"
CTA spokesman Frank Wells said.
"We don't have a mechanism to
track those cases."
A representative for the California
Commission on Teacher Credentialing said the agency could track only
the outcomes of such cases, not the
statutory process a district used to
begin dismissal proceedings. Districts reported 636 new misconduct
cases in 2014-15, down from 731 in
2013-14, he said.
Whether the process has been
streamlined or not, Esquith's attorneys contend that it has gone awry
for many teachers in Los Angeles.
"I think there's a way to recognize
that student safety is paramount,
but at the same time you need to
protect due process rights as well,"
Meiselas said.

EDUCATION WEEK | October 28, 2015 | www.edweek.org | 11

http://www.edweek.org

Education Week - October 28, 2015

Table of Contents for the Digital Edition of Education Week - October 28, 2015