Courts & Committee Wrestle With Due Process

Jan 24, 2018 by

(AP Photo/Orlin Wagner)

Kansas NEA supports full restoration of due process and fair dismissal rights for all Kansas teachers.

Action in the Supreme Court

Today, Kansas NEA General Counsel, David Schauner, argued before the Supreme Court that the action taken by the Kansas Legislature in 2014 effectively took away earned property (due process rights) and did so without any due process and in violation of the 14th Amendment.  Today’s case was brought before the court on behalf of two teachers, KNEA members, who are unwilling to allow their property rights – and ultimately those of thousands of their colleagues – to be taken from them by the government without challenge.  If these teacher members of KNEA prevail and the Supreme Court finds that the state did unlawfully strip them of their rights in 2014, it will not mean a full restoration of due process for all Kansas teachers.  However, with a bill to do just that sitting in the House Education Committee, KNEA and its members are demonstrating absolute resolve and determination to restore these rights for all Kansas teachers.

An attorney for Flinthills USD 492, where one of the teachers worked prior to having been terminated without cause in 2015, argued that the only recourse for citizens challenging an action of the Legislature was to cast a ballot in an election.  One of the Justices asked the school district’s attorney if he believed that a dead-of-night ‘lock-in’ by the legislature represented sufficient due process to pass a bill that had no hearing and was amended to include the elimination of due process for teachers.  He answered in the affirmative.

We can’t help but wonder how the complainant school districts in the ongoing Gannon school funding case reacted to hearing an attorney representing a school district argue that the only remedy for what may be a defective legislative process is a vote on election day.  Apparently, this school district believes that once voted into power, the Kansas Legislature has unlimited authority to pass any law, anytime, and without any opportunity for public input – including the taking of property.

It hasn’t gone unnoticed by anyone with an eye on the current Kansas Legislature that the chambers have a long history of defective and deceptive practices.   An investigation by the Kansas City Star found that the Kansas Legislature has made a practice of working in secret, refusing to identify themselves as bill sponsors and routinely practicing a procedure known as “gut and go” in which bills are stripped of their original contents and filled with completely unrelated policy in order to advance ideas that might find opposition in a public hearing.

Just this week, bills have been introduced to clean up these processes and afford citizens true transparency in order to see clearly what their elected officials are doing in Topeka.  We believe that Senate Substitute for House Bill 2506 passed in 2014 is the living legacy of a legislative defect.  It was the bill that log-rolled the elimination of teacher due process and a number of other controversial issues into it, while most Kansans were sound asleep.

As for today’s case, we’ll have to wait and see if the Supreme Court agrees with KNEA and with many in the Legislature today that defective Legislative processes shouldn’t cost citizens their 14th Amendment property rights.

Action in the House Education Committee

What might have started as a promising hearing in the House Education Committee ended as it did last year with the Chairman, Rep. Aurand (R- Belleville) ignoring the will of the committee.  A bill before the committee (HB 2483) seeks to restore due process only for those teachers who earned it prior to legislative action to eliminate due process in 2014 AND who have also maintained uninterrupted employment in the same district.  No other teachers would have due process rights nor could they earn them.  Effectively, this bill creates a two-class system and as those who would have their rights restored leave the profession, due process would be phased out entirely.

The only proponent of this bill was the committee Chairman Rep. Clay Aurand.  Rep. Aurand first sought to use the tiered KPERS system as an analog for what this bill would accomplish.  KNEA’s lobbyist Mark Desetti pointed out in his comments that the KPERS tiered system came about through many discussions, open hearings and in response to a need to stabilize the system.  However, due process rights were stripped from teachers without any hearing (or even a bill introduction) and in the dark of night in April of 2014 and only after Representatives were locked into the House Chamber to secure a final vote.

Rep. Aurand continued to suggest that compromise is needed in order to craft a new fair dismissal policy for teachers.  What Aurand failed to acknowledge is that a compromise would require one group (KNEA) to forfeit one of its core values.  KASB has already stated a position indicating support for having school boards be the final arbiter in termination disputes. In effect, they have no need to compromise because their position is already assured.  It should be noted that Rep. Aurand is also a sitting school board member in Kansas.

Comments from committee members indicate that a majority support fair dismissal procedures for all Kansas teachers.  As the hearing drew to a close, Rep. Stogsdill (D- Prairie Village) made a motion to bring last year’s bill (HB 2179) which restores due process for all teachers, up for action in the committee.  However, Chairman Aurand ruled the motion out of order.  He then stated that he has no intention of working either bill without substantive compromise.  Rep. Ousley (D- Merriam) then pointed out that Rep. Aurand acknowledged earlier during the hearing that the full House of Representatives passed the bill restoring full due process for all teachers last year, establishing a House position.  Rep. Ousley suggested that Chairman Aurand was directing the House to compromise their own position.  It would appear that Chairman Aurand believes that the will of a committee Chair should supersede the will of the majority of the Kansas House of Representatives.

No further action has been indicated at this time.  We will continue to advocate for the full restoration of due process rights as they existed prior to 2014.  We will keep you informed as the session moves forward.