Illinois Appellate Court Overturns Board's Dismissal of Tenured Teacher on Due Process Grounds

The First District Appellate Court of Illinois, Fifth Division, recently decided a case where a tenured teacher claimed that her 14th Amendment due process rights had been violated when she was dismissed after 20+ years of service with only hearsay evidence to support the charges against her. Courts have long held that tenured employment is a protected property interest and therefore cannot be removed without sufficient process. Bd. Of Ed. Cmty. Consol. Sch. Dist. No. 54 v. Spangler, 328 Ill.App.3d 747, 755-56, 767 N.E.2d 452 (2002). However, the courts have not made clear exactly what process is required and that was the primary issue in this case. Kimble v. Ill. State Bd. Of Ed., 2014 IL App (1st) 123436.

In Kimble, the teacher was accused of pushing and choking a student on two occasions. However, these accusations were based almost entirely on the statements of the student that was allegedly pushed and choked. The student was not present at the teacher's dismissal hearing so the primary evidence against the teacher was the student's statements to an investigator made several months after the alleged incidents occurred. The school's witnesses against the teacher did not observe the incidents and offered little to corroborate the student's accusations.

The Plaintiff argued that she was denied due process because the admission of the accusing student's hearsay testimony denied her the ability to confront her accuser. The court acknowledged that due process does not require administrative hearings to mirror judicial proceedings and does not require conformity with the strict rules of evidence applied in those proceedings. Nevertheless, relying on Colquitt v. Rich Twp. High Sch. Dist. No. 227, 298 Ill.App.3d 856, 699 N.E.2d 1109 (1998), the court found that the hearing's outcome was dependent on the credibility of the absent accuser and without competent evidence to corroborate the hearsay testimony, the Plaintiff was denied due process.

At the conclusion of the due process analysis, the court emphasized the facts and nature of this specific case in supporting the conclusion:

"We must emphasize that, in the case at bar, a tenured teacher is being terminated from her employment of over 20 years based almost entirely on the hearsay statements of one student, who was not present at the hearing. There were no eyewitnesses to the alleged incidents, and the only other evidence of the incidents considered by the Board was two witnesses who observed the student entering a room quickly and wearing a wrinkled shirt, respectively; the teacher denies the conduct and testified to only taking the student's hand to remove him from the class line. While we have no way of knowing what actually occurred on October 28 and 30, 2008, it is simply unjust to terminate a tenured teacher's employment without giving her the opportunity to cross-examine her accuser, and we cannot find that such a procedure comports with due process."

Thus, the court's opinion may be read narrowly to apply only to similar extreme circumstances in which a long-time tenured employee is dismissed almost entirely on the hearsay statements of the accusing student, not present at the hearing. After all, the degree of process required by the 14th Amendment depends largely on (1) the significance of the interest lost by the Plaintiff and (2) the risk of erroneous deprivation of that interest. Colquitt, 298 Ill.App.3d at 863 (citing Matthews v. Eldridge, 424 U.S. 319, 334 (1976)). The court also seems to completely neglect the third consideration fromEldridge - the significance of fiscal and administrative burdens that the additional procedural requirements would entail - which could diminish its applicability and authority. Nevertheless, the case has potentially broad implications for the procedural requirements of schools in their administrative hearings where hearsay evidence is often relied on to avoid removing students and teachers from class and to protect accusing students.

Perhaps more significant than the increase to process requirements for dismissal of tenured employees is the court's reliance on Colquitt to reach this conclusion. Colquitt was a student expulsion case rather than an employee dismissal case, so the court would presumably apply the same increase to procedural requirements for long-term suspension and expulsion of students. This could be particularly problematic when the accuser's safety is at risk. Fortunately, Colquitt leaves open the possibility of relying on statements of absent accusers in these situations if the school can provide evidence to show a significant risk of harm to the accuser. Colquitt, 298 Ill.App.3d at 865-66. It is unclear what evidence is sufficient to make this showing.

Colquitt seemed to lose some weight after the U.S. Court of Appeals for the 7th Circuit rejected a student's argument that he had a right to cross-examine his accusers and explicitly refused to applyColquitt. Coronado v. Valleyview Pub. Sch. Dist. 365-U, 537 F.3d 791, 796 (7th Cir. 2008). However, Kimble may have given new life to Colquitt and a potential right to cross-examine accusers in administrative hearings, at least in situations where there is very little evidence of misconduct beyond the accuser's hearsay statements.