With some exceptions, government employees have a constitutionally protected interest in their continued employment that is subject to the 14th Amendment, which provides that no state may take a person’s life, liberty or property without due process of law. The protection in the present circumstance arises from a "property interest" that many government employees, such as tenured teachers, have been deemed by the courts to have in their employment. Accordingly, and unlike in the private sector, these employees may not be disciplined or discharged without cause, for to do so would be to violate the employee’s right to due process.
In due process analysis, "just cause" refers to contractually established standards of conduct that an employee must breach before he or she can be disciplined or discharged. Many school boards seem not to understand the implications of the "just cause" standard, as evidenced by the number of contracts that extend this standard to all employees in the bargaining unit — including probationary teachers still being evaluated for competence. After all, it sounds reasonable that no employee should be disciplined or discharged unless there was both justice and cause. However, the legal standard is not that simple.
The "just cause" standard and the resulting due process proceeding for employee discipline or discharge is a burdensome and time-consuming process for districts that wish to remove ineffective, unproductive or even criminal teachers from the classroom. Under this standard, a school board can face increased and unplanned expenses in processing employee discipline and discharge matters, including substantial liability for teacher reinstatement or back pay in the event of an unfavorable arbitration or tenure ruling.
Compounding the problem of discipline and discharge is the legal obligation of unions to represent their members. As explained by Linda Kaboolian, faculty chair of the Public Sector Labor-Management Program at Harvard University:
"In the evolution of labor relations law, the trade-off for the right to exclusive representation was the Duty to Fair Representation (DFR), a demand made by forces mostly hostile to unions to ensure that the unions treated their members fairly. When it was established, DFR was seen as strengthening democracy within unions; today, it is a legal obligation that seems, in the case of teachers unions, to hamper the rights of children.
"Every teacher union officer will tell you that 5-8 percent of the members consume 90 percent of their time and the union’s resources. The majority of these are people they would rather not defend."
To improve the situation, it should first be noted that school boards are legally obligated to provide "just cause" only to tenured teachers. School boards would therefore gain increased flexibility by limiting the just cause standard to include only tenured teachers and providing a less rigid standard for probationary teachers. In addition, the probationary status in the contract should not lessen the probationary period below what is required by Michigan law, currently four years. By avoiding "just cause" proceedings where they are not constitutionally called for, elected school boards can enhance their ability to manage.
Another improvement may be in adding peers to the review process. According to Kaboolian, "Teacher unions in some districts (Toledo, Ohio) have bargained a Peer Assistance and Review Program, which, over 25 years, has allowed for the firing of many tenured teachers without long waits and legal costs."