Comments to Pending VDOE Licensure Regulations for School Personnel, 8 VAC 20-23-720, et. seq.

            The Virginia Education Association (VEA) represents more than forty thousand public school teachers and employees.  VEA also has Student Members preparing for careers in public education.  On behalf of these Members, VEA offers comments on pending regulations for school personnel.   VEA is concerned Part VII of the licensure regulations for school personnel at 8 VAC 20-23-720, et. seq. effective August 23, 2018 will have adverse impacts on public schools and students served by licensed educators.  The pending regulations do not provide teachers and school administrators with statutory and constitutional protections other licensed professionals enjoy in Virginia.  Students and schools suffer if educators are not protected.  Statutes, policies, and practices have changed substantially over the six years these regulations have been pending.  Failure to change course during this considerable delay creates unintended consequences, exposes all educators to risk of prosecution, and threatens students and schools with greater difficulty recruiting and retaining professionals.   License revocation and suspension are extremely serious actions.  Severe penalties should be used only in clear cases of misconduct.  Pending regulations include vague and overbroad grounds for revocation and suspension and sets the standard for filing license complaints and petitions so low that any school professional dismissed or denied reemployment could face license discipline.  Licensure and employment should be separate and distinct.  VDOOE should promulgate regulations that respect teachers as professionals and provide protections already enjoyed by other professionals licensed in the Commonwealth.

1. The Prohibition Against Misdemeanors Involving Drugs  ?Negatively Impacts Virginians And Especially Minorities.

            Criminal laws relating to marijuana use or possession and prescription medicine abuse have dramatically changed in Virginia and across the United States during the six years 8 VAC 20-23-720(A)(6) has been pending.  Drug addiction is recognized as a disease requiring medical treatment and management instead of criminal penalties. Other misdemeanor convictions, for offenses such as being drunk in public or driving under the influence, do not disqualify individuals for teaching license.  Conviction for drug possession should not be treated as posing a greater danger to public school students and schools. Further drug arrests and convictions are disproportionately higher among minority teenagers and young adults.  Public schools and students suffer if misdemeanor drug convictions bar minorities from being licensed public school teachers and administrators.

            At least eight states have legalized recreational marijuana and twenty-one states allow medical use or treat possession of small amounts the same as traffic violations.  Virginia is moving closer toward those states.    Teachers who used marijuana in Colorado, Maine, or Massachusetts would be allowed license reciprocity in Virginia but a Virginia teacher with a misdemeanor conviction for the same amount of marijuana is subject to license revocation.  This regulation does not protect Virginia students and VDOE should be cautious in any petitions filed based on misdemeanor drug convictions.  

                           2.   The Catchall Sections in the Reasons For Revocation And Suspension of Teaching                                      Licenses at 8 VAC 20-23-720 & 8 VAC 20-23-740 Are Vague And Overbroad. 

          Teaching licenses are valuable property protected by the United States and Virginia Constitutions.  The Commonwealth cannot abridge, suspend, or revoke teaching licenses without due process of law and only when clearly necessary to protect the health, safety, and welfare of the public.  Va. Code § 54.1-100.  Due process requires notice that specific conduct is prohibited or exposes a teacher to loss of his/her license.  Two of the grounds for revocation of a teaching license do not meet this standard.  8 VAC 20-23-720 states reasons for revocation of a teaching license including:

                 (7)        Conduct with direct and detrimental effect on the health, welfare, discipline, or morale of a                                    student or minor;

                (8)        Other good and just cause in the best interest of the public schools of the Commonwealth of                                Virginia.  [NOTE:  This is also a ground for suspension in 8 VAC 20-23-740]

            These grounds provide no guidance or advance notice to teachers about what conduct is allowed or prohibited.  They expose teachers to arbitrary and inconsistent results because what might be accepted or even applauded in one school division may be disfavored or punished by another. 

            Inviting a license complaint based on the “health, welfare, discipline, or morale of a [one] student” is an impossible standard.  It improperly requires teachers to satisfy all students and all parents and all administrators at the same time.  School is challenging and often uncomfortable for students.  Low grades or discipline may be viewed as detrimental for “a” student but deserved and necessary for that student and/or the rest of the class.  Some students might enjoy dancing or public speaking in class.  Others may be embarrassed and suffer low morale.  A teacher’s statement to or interaction with some students could be misinterpreted or distorted by other students or school employees.  Parents might disagree with lessons based on political ideas, religious beliefs, or the difficulty of the subject itself.  Detrimental effect on welfare or morale of a student is an unreasonable standard to apply to teachers.

            The “other good and just cause” is equally vague and overbroad. Any conduct could meet this standard.  Read literally, walking on freshly seeded grass or playing a video lesson too loud could constitute misconduct and be “good and just cause in the best interest of the public schools”. Grounds for dismissing a teacher include incompetency, defined as “one or more unsatisfactory performance evaluations” or “other good and just cause”.  Va. Code § 22.1-307(A).  Since one of the pending regulatory reasons for revocation is substantially the same as one of the statutory reasons for teacher dismissal, teachers could potentially face a license complaint every time he/she is dismissed from a school division.  The same may apply for every nonrenewal of a teaching contract.

            These two reasons for license revocation violate the statutory mandate that the Commonwealth cannot abridge, suspend, or revoke teaching licenses only when clearly necessary to protect the health, safety, and welfare of the public.  Va. Code § 54.1-100. They are unconstitutional because they are so vague and overbroad they do not give educators holding valuable state teaching licenses any notice of what conduct is prohibited and could lead to license discipline.  They could potentially turn every dismissal of a teacher from a school division into a license case. 

3.The Decreased Standard for Filing License Complaints Complaints And Petitions Exposes Teachers To Potential Abuse

Existing regulations create a duty for superintendents, principals, and responsible school employees to file license complaints “in any case in which he has knowledge that a holder of a license is guilty of any offense”.8 VAC 20-22-690(B)(1).Pending regulations change this to require license complaints “in any case in which he has knowledge that a basis for the revocation of a license exists.8 VAC 20-23-720(B)(1).

The substantially lower standard exposes teachers to license complaints without any credible proof at all.And, teachers are vulnerable to license complaints with no advance notice of what specific conduct might be improper until someone complains.This is particularly true when you read the low standard for a license complaint in conjunction with the vague and overbroad grounds for license revocation.Rumor or a statement by an angry parent or disgruntled students claiming that a student’s “welfare or morale” was detrimentally affected are enough to trigger a principal’s duty to file a license complaint.There is no requirement for proof, facts, or evidence to trigger a school or Virginia Department of Education investigation.During this time, a teacher will likely be removed from the classroom and placed on administrative leave.Dozens of students are deprived of the teacher’s talent and expertise and school divisions must bear the costs of substitutes. Moreover, there are no standards, guidelines or training for school divisions or the VDOE on when and how license complaints should be investigated.

The threshold standard for filing a license petition is also substantially lower.Under the existing regulations, the division superintendent had to conclude “that there is reasonable cause to believe that a complaint against the holder of a license is well founded”.8 VAC 20-22-690(C).Under the pending regulations the standard for filing a license petition is “reasonable cause to believe that a basis for revocation of the license exists”.Like the standard for filing a complaint, the standard for filing a petition is impossibly low.“A basis” for teacher conduct with a “detrimental effect on the health, welfare, discipline or morale of a student or minor” can be nothing more than rumor, gossip, retaliation or even a disagreement about best practices.

Moreover, the duty to file license petitions when “a basis” for revocation of the license exists” combined with the “other good and just cause in the best interest of the public schools of the Commonwealth of Virginia” leaves teachers vulnerable to license petitions in every case where they are notified that a school division wishes to terminate their employment.Virginia probationary teachers can be denied renewal of annual teaching contract for no reason or any reason during the probationary period.Continuing contract teachers can be dismissed for a variety of reasons including “incompetency” defined as one unsatisfactory performance evaluation or “other good and just cause”.Va. Code § 22.1-307(A) & (B).This “other good and just cause” language is similar to the reasons for revocation of a teaching license in 8 VAC 20-23-720(A)(14).Pending regulation exposes every teacher denied reemployment or recommended for dismissal to license revocation eliminating important separation and differences between standards for licensure and employment.

1. VEA Opposes The Pending Regulations Because They

Harm Teachers Without Protecting Students Or Schools.

VEA opposes the pending license regulations because they are vague, overbroad and require license petitions without proof of actual misconduct.  This ambiguity is bound to lead to arbitrary, inconsistent, and abusive results.  Teaching licenses are valuable property protected by the United States and Virginia Constitutions.  The Commonwealth cannot abridge, suspend, or revoke teaching licenses without due process of law and only when clearly necessary to protect the health, safety, and welfare of the public.  Virginia public schools and students suffer from teacher turnover and difficulty recruiting and retaining professionals. 

Data obtained through Virginia Freedom of Information Act (“VFOIA”), shows an average of 45 license cases per year from 2013 through 2016 where Virginia Board of Education denied, suspended or revoked a teaching license.  In 2017, that number spiked from 45 to 70 cases representing a 62% increase in teacher license cases.   The number of cases published through March 2018 appear to be on the same trajectory.

Virginia Department of Education is pursuing license discipline more aggressively under existing regulations. Pending regulation is not needed to protect schools or students.  To the contrary, unintended consequences could have adverse effects making it more difficult to recruit and retain minority and other professionals, making it harder for Virginia Schools to recruit qualified professionals, and exposing teachers and administrators to risk and uncertainty because the difference between licensure and dismissal or nonrenewal from employment is erased.