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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33513
Experience:  Retired (mostly)
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Background I teach within the California State University

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Background:

I teach within the California State University system and have a renewable three year contract with a specific state university. The contract can only be terminated if there is proof of incompetency. Each department sets its own period of evaluation and has an independent system of arbitrary, if not capricious, numerical standards that are solely based student evaluations (scantron) as well as in-classroom evaluation forms that are so arbitrary that two evaluators in one of my classes, who were simultaneously evaluating me, write entirely opposite evaluations. These numerical and written evaluations are used to justify whether or not a person will retain his/her teaching position.

Reseach: I have studied Code Civ. Pro. 1094.5; Pomona College v. Sup.Ct. (Corin) (1996) 45 Cal.App.4th 1716, 1726, 53 Cal.Rptr.2d 662, 668; Gutkin v. University of So. Calif. (2002) 101 Cal.App.4th 967, 976-977,125 Cal.Rptr.2d 115, 122-123. I read these as the process needs to be fair. I can argue that since the last step in my defense is arbitration, then any procedural issues can be corrected at the last step. Some times, it takes two years to reach arbitration and one can be out-of-teaching for that duration.

Question: I am asking for any case law or California Law that I can use to say that the process must be “corrected” when there is a know arbitrariness in the procedure and not wait until the last step. I wish to challenge the process in its initial stages.

Sabra
Submitted: 2 years ago.
Category: California Employment Law
Expert:  socrateaser replied 2 years ago.
Hello again,

I've been asked to weigh in again here, because no one has answered. As I'm sure you recall, I didn't have anything more to offer on this issue. However, where I believe you are at here is that you will not find a resolution for you issue in the case law.

Your issue is largely about how a court would view the fairness of the process under the constitutional microscope.

In Mathews v. Eldridge 424 U.S. 319, a case involving the administrative termination of Social Security disability benefits, the United States Supreme Court articulated a balancing test for resolving what process is constitutionally due. It reiterated: “ ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ Morrissey v. Brewer, 408 U. S. 471, 481 [33 L. Ed. 2d 484,XXXXX 2593, 2600] (1972)Morrissey v. Brewer, 408 U. S. 471, 481 [33 L. Ed. 2d 484,XXXXX 2593, 2600] (1972).” (Id. at p. 334.) “[T]he Court set forth three factors that normally determine whether an individual has received the ‘process’ that the Constitution finds ‘due’: [¶] ‘First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ [¶] By weighing these concerns, courts can determine whether a State has met the ‘fundamental requirement of due process’—‘the opportunity to be heard “at a meaningful time and in a meaningful manner.” ’ Id., at 333 [96 S. Ct. 893].” (Los Angeles v. David (2003) 538 U.S. 715, 716–717 [155 L. Ed. 2d 946,XXXXX 1895].)

The importance of the above test is two fold: It provides the court with an analytical framework for determining whether or not an administrative decision was fairly considered; and the extremely ambiguity of the test shows that a court can pretty much make whatever decision it wishes by crafting an analysis to produce a desired outcome.

This leads me to the reason for this answer. Your issue requires a strong orator who is capable of making a convincing emotional argument before the court -- rather than a legal argument where the law manifestly favors your position -- because, the law in this area is extremely vague, and that leaves the issue within the broad discretion of the court.

I do not believe that you will find your answer in case law, as much as you will find it in the ability of an advocate to convince a court that you have been unfairly treated.

Hope this helps.

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socrateaser, Lawyer
Satisfied Customers: 33513
Experience: Retired (mostly)
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