Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

I am the principal of a middle school and, recently, the parent of a seventh-grade student here called me to complain about a teacher. I am fortunate to work in a civilized community, and such complaints are fairly rare. I admit that I was annoyed with the complaint, given that one’s grades in middle school are not a factor in college admissions. But to be safe, I asked her to come in and talk personally with me about her concerns.

When we met, I was impressed with the parent’s sincerity. As I went through the evidence she showed me, I had to agree that the midterm and semester grades that the teacher had given the student didn’t seem to make sense. I thanked the parent for sharing the information with me and I told her that I would be getting back to her.

I next met with the teacher. Later I learned that he asked if he should have union representation when my secretary called him to schedule the appointment. Being a kind soul, my secretary told him that that would not be necessary. When we met, however, I realized that he should have brought a union representative, maybe even a good lawyer. He started out by trying to blame the parent as a grade-grubber, but, as we got into the facts, it was clear that the teacher had not kept good records and for all appearances he had just made up the grades he had assigned. To make matters worse, as we talked it through, it was clear that the teacher had not kept student work product or other documentation that would permit him, albeit after the fact, to reconstruct grades that accurately reflected student performance.

I need to get back to the parent; and, I certainly need to deal with this teacher. Can I fire the teacher and just give the student an A?

Thank you,
Making (Up) the Grade

Dear Making (Up):

The answers are maybe and no.

As to the teacher, you are justified in considering this situation a serious threat to the teacher’s continued employment, but you should not get ahead of yourself. First, your secretary gave the teacher bad advice, because a teacher (or any other union employee) has the right to have union representation at any interview in which they reasonably fear for their job security. To be sure, you may argue that your secretary was not authorized to speak for you on this point and, apparently, the teacher did not repeat his request when you met with him. However, it would be best to reconvene the meeting with the teacher, this time with union representation, and go over the facts one more time.

Once you have completed that new interview, you should again consider the information you gathered. If you believe that grounds exist for termination, make that recommendation to the superintendent. At that point, district officials, including you, should conduct a “Loudermill” hearing, i.e., a pre-termination hearing at which the teacher, again with union representation, can respond to the charge that he should be fired for his unprofessional conduct. Based on his response and a review of all the evidence, the superintendent will have to decide whether to initiate termination proceedings.

As to the student, assigning grades is a professional responsibility of the teacher and, as the principal, you have the right to supervise the teacher as he fulfills that responsibility. If you conclude that the teacher failed to grade students appropriately, you have the right and responsibility to take remedial action. However, changing grades is a matter of great sensitivity. You don’t want to be accused of the same professional failure as the teacher. On what basis would you give the student an A? Would you be making up a grade in the same way the teacher did – out of whole cloth?

The better course is to make a finding that the grade given is not a reliable and accurate measure of the student’s performance. Based on that finding, it would be appropriate for you to vacate the grade. Also, presuming that you are able to show that the student participated successfully in the course (by reviewing student work or by student and/or teacher report), you should grant the student credit for the course in a pass/fail model (though in seventh grade, credit does not have the same significance as in high school). Moreover, if you conclude that none of the grades the teacher assigned in that class were validly assigned, you should take similar action with all the other students in the class and the grades that they received.