O'Connell v. School District of Springfield R-12

THOMAS, Judge,

dissenting.

I respectfully dissent. Section 168.116.2, RSMo 1986, requires that the teacher shall be given a “warning in writing, stating specifically the causes which, if not removed, may result in charges.” (Emphasis added.)

The majority opinion quotes from Selby v. North Callaway Bd. of Educ., 777 S.W.2d 275 (Mo.App.1989), that “[t]he purpose of § 168.116.2 is to give the teacher an opportunity to know exactly what the complaints against [her] are and afford [her] an opportunity to cure the situation before charges are brought.” Too much information can obscure understanding just as effectively as no information. Broad generalizations without specific information is often the fundamental equivalent of no information at all. The language of the warning letter sent to the appellant was lifted from the performance-based teacher evaluation system that the District had adopted three years earlier. Each of the “specific causes” listed in the warning letter was one of the sixteen general performance criteria to be met by each teacher under the overall performance evaluation system. Each of these criteria is broken down in the Handbook and further described by no fewer than four, and no more than thirteen, specific performance sub-criteria called “descriptors.” These sixteen areas of performance criteria constituted the entire evaluation system, and they were presumably broad to cover every conceivable area in which a teacher could be deficient so as to justify her discharge. Appellant’s warning letter said she was deficient in nine of these sixteen areas. In other words, if each category were of equal breadth and importance, the appellant was being told that she was a failure as a *419 teacher in 62.5 percent of all of the areas in which the system was designed to evaluate performance under any circumstance. Under the heading of “Instructional Process,” appellant was told she was deficient in six of the eight possible categories. These were as follows:

1. Failure to use a variety of effective teaching techniques and methodologies.

2. Failure to use instruction time effectively.

3. Failure to demonstrate effective planning skills.

4. Failure to communicate effectively with students.

5. Failure to provide effective student evaluation.

6. Failure to provide opportunity for individual differences.

Each of the foregoing categories was backed up by more specific criteria called “descriptors.” For example, the sub-criteria for item # 1 are as follows:

1. Reviews and previews (i.e., establishes anticipatory set).

2. States instructional objectives.

3. Presents subject matter which is accurate and appropriate for the objective.

4. Uses a variety of teaching techniques appropriate to student needs and subject matter (e.g., lecturing, modeling, questioning, experimentation, role-playing, active learning).

5. Uses a variety of teaching methods appropriate to student needs and subject matter (e.g., cooperative learning, inquiry).

6. Checks for understanding during the learning process.

7. Provides a variety of activities to ensure successful understanding (i.e., guided practice, alternative experiences, audiovisuals, supervised activities).

8. Provides appropriate independent practice or activities which require application of the skills and concepts taught.

9. Provides opportunity for creative and/or critical thinking skill development.

10. Establishes closure.

11. Varies techniques and methods to improve instruction and facilitate increased student learning.

In all, the nine performance criteria areas listed in appellant’s warning letter were broken down into eighty-six sub-criteria descriptors. Some of these descriptors were sufficiently specific so that if they, in fact, were applicable, appellant would have been adequately informed as to the deficiency being warned of by that specific sub-criteria. For example, in the letter under item number 3 stating “[fjailure to demonstrate effective planning skills[,]” sub-criteria number 8 specified that she failed to provide adequate plans and procedures for substitute teachers. Query whether this really was one of the deficiencies leveled against appellant? On the other hand, many of the sub-criteria were so general that even they would not specifically inform appellant of a particular problem. For example, consider any of the eleven sub-criteria quoted above. It is a virtual certainty that the District did not intend to warn appellant of a problem in all eighty-six of the sub-criteria descriptors covered by the nine general performance criteria areas listed in the letter. If this is true, then appellant is left with the question of, “Which sub-criteria am I being warned about, and which am I not being warned about?” The basic problem with the warning letter is that it represents an effort by the District to use the language and structure of the performance evaluation system as a ready-made check list for the preparation of the warning letter; this requires the language and structure of the evaluation system to perform a function it was not designed to accomplish and is not adequate to perform. The warning letter really told the appellant nothing because it told her too much in too general terms.

The majority relies upon the fact that appellant had been meeting with her superiors and they had been counseling with her for a period of approximately 27 *420 months, during which she had received nine formative evaluations and two summative evaluations, which, it is granted, contained very specific information as to complaints and suggestions for improvement of her teaching. In my view, the volume of previous information and advice she had received actually enhanced her need for a specific warning letter. At best, her warning'letter said to her, “Your problem is everything we have told you in the last twenty-seven months.” Was appellant to assume that the improvements she had worked on and the suggestions she had followed for that period of time had been complete failures and nothing had been improved to a satisfactory level, or that some areas had been improved to a satisfactory level but others had not, and, if so, which were which? The warning letter she received gave her no answers to any of these reasonable inquiries.

Litigation lawyers, who often engage in discovery disputes involving the production of documents in preparation for trial, sometimes refer to the less-than-admirable strategy known by the jargon phrase of “warehousing your opponent.” This refers to the practice of producing such a large volume of documents, i.e., a whole warehouse full, that the opponent is unlikely to find the documents that are important to the case. Using that jargon to describe the warning letter appellant received, it could be said she got a “warehouse warning letter.” The letter told her so much in such broad terms, it did not tell her anything.

The majority takes the position that since she had received large volumes of specific information over the prior twenty-seven months preceding the warning letter, a meaningful warning letter was not necessary. While this conclusion may be valid, in view of the requirements of the statute, I believe this to be a decision which the legislature made when it enacted § 168.-116.2. In the face of the clear statutory language mandating a specific warning letter, I do not believe it was intended that this Court should have the prerogative to read out of the statute the requirement that the teacher be given a “warning in writing, stating specifically the causes which, if not removed, may result in charges.”

I would reverse the trial court and the District because the warning letter did not meet the requirements of the statute.