Boards of education and superintendents often find the task of terminating employees to be complicated. No other responsibility seems fraught with the same number of legal issues and the same potential for exposure to litigation. In considering whether to terminate an employee, the superintendent and board must consider a number of questions? Is the employee an “at will” employee or one under contract for a definite term? If the employee is under contract and will not be rehired, does the employee have “tenure” rights? Is the employee likely to claim a violation of some federally protected right? Are there board policies in place which affect how termination decisions are made? Before any of these questions can be answered, of course, a thorough understanding of Georgia’s Fair Dismissal Act is necessary. This Chapter attempts to provide a guide to the procedural and substantive requirements of the Act. In so doing, it will discuss at some length how certificated employees in Georgia acquire what has become known as tenure.

No term in school law seems to be more misunderstood or is more controversial than “tenure.” In fact, for over 20 years, the General Assembly studiously avoided the use of the word tenure when proscribing under what circumstances professional educators have the right to challenge a decision not to re-employ them for another school year. Tenure, as it exists in Georgia, is a statutory right of certain educators who have served under contract with the same board of education for a specified number of years to expect that their employment with a school district will continue from year to year unless the school district has specific legal grounds not to rehire them for the following school year and provides them a process to challenge the existence of those grounds. Tenure is not, by any means, a right to a job; it is a right to a process if the school system proposes not to rehire a teacher with tenure rights. Unlike post-secondary education, tenure is not awarded by vote of a committee or by the decision of some administrator. Tenure status is acquired when a teacher has been offered and has accepted the requisite number of consecutive contracts with the same school district.

In 1995, the General Assembly determined that new administrators would not be permitted to acquire tenure in leadership positions, although those who had acquired tenure would be able to retain its protection under certain conditions.  The commonly held opinion that tenure is a bar to terminating incompetent employees is simply not true. Competent documentation of ineffective performance coupled with a commitment from the board and administrative staff to rid the system of employees who cannot or will not be effective is all that is required legally to support such a decision in Georgia.

Finally, as will be discussed in questions toward the end of this chapter, charter systems (and schools) and certain districts with a Strategic Waiver Contract have waived some or all of the provisions of the Fair Dismissal Act, making the question of what happens when an educator transfers to a new job subject to analysis on an individualized basis.