Dr. Don Uerling

A decision to terminate the employment of a public school teacher will usually be made only after the teacher has had an opportunity for a hearing. If there is a hearing, and if the law requires evidentiary support for a termination, then such a decision must be based solely upon the evidence adduced at the hearing. The purpose of this study was to research the law of evidence for teacher employment termination hearings. The major questions considered were: (1) What are the standards for the admission of evidence? (2) What evidence may be used to support a finding? Related literature from educational management, administrative law, and evidence law was reviewed. The research consisted primarily of an analysis of the judicial decisions and state statutes which relate specifically to public school teacher termination procedures. It is fundamental evidence law that facts having rational probative value are to be admitted unless some specific rule forbids. Three categories of rules of evidence have evolved--rules of relevancy, which define probative value; rules of exclusion, which protect probative value; and rules of privilege, which invoke extrinsic policies that override probative value. The formal rules of evidence used in judicial trials are not generally applied at teacher termination hearings. Instead, the more informal evidentiary procedures common to administrative agency proceedings are usually followed. Generally, when evidence is offered and objected to, the rules of relevancy are applied and the rules of privilege are recognized, but the rules of exclusion are not enforced. However, if a court examines the hearing record to determine whether there is an adequate evidentiary basis for the decision, the legal residuum rule might then be applied. That rule requires that an administrative finding must be based at least in part on evidence that would be admissible under the formal rules. The standard of relevancy is generally established by the notice to the teacher. Only evidence relevant to the charges in the notice should be admitted and used in support of a termination decision. The rules of exclusion are generally not enforced when evidence is introduced. However, these rules may be applied if a court examines the record to determine whether there is some legally admissible evidence to support the findings. The rule against hearsay is perhaps the most frequently invoked exclusionary rule. Rules of privilege are seldom an issue at these hearings. However, it seems that both the constitutional and common law privileges are generally recognized. The determination must be fairly based on the hearing proceedings. The teacher may introduce evidence showing that the tribunal is too biased to render an objective decision or that some unstated, impermissible reason may be the real basis for the termination. The burden of proof at the hearing, and therefore the evidentiary considerations, may vary depending upon the legal rights of the teacher. The school officials may be required to prove cause for termination; in other instances, the teacher is simply provided a forum. Perhaps one of the most effective means to insure that a decision has been made within the bounds of the law is to require that a termination be explained by written findings and reasons. However, such a requirement has not been consistently enforced. The Nebraska law regarding the major evidentiary questions considered has not been clearly established. Although a degree of procedural informality seems to be permissible, any decision should be solidly based on evidence admissible under the formal rules. The hearing procedures should promote a thorough consideration of the issues and the evidence. The objective should be a meaningful process leading to a just and rational decision.