Waivers: Newark’s Unusual Route to Performance-Based Layoffs

John Mooney | February 25, 2014 | Education
With potentially hundreds of positions on the line, Anderson's request faces challenge from unions and prominent state senator

teacher layoff
It’s a process invoked by school districts across New Jersey only a few times each year, a request for a waiver from state regulations that gets into the minutia of school operations.

A district might want to hire a registered nurse instead of a certified school nurse as required by the rules, for example. Last year, a district wanted to put a school psychologist in as a guidance counselor.

Yet Newark’s School Superintendent Cami Anderson has upped the ante in the little-used waiver process by requesting that the Christie administration let her lay off potentially hundreds of teachers over the next three years based on performance first, and seniority second.

The waiver request, filed on Friday, maintains that there is leeway in the state statute that requires dismissals be based on seniority alone, a policy known as “last in, first out,” and that the state’s education commissioner has the discretion to allow what Anderson termed a “performance-based” system to be used when making dismissals.

The outcome is far from certain. Outgoing state Education Commissioner Chris Cerf may consider the request or possibly pass it on to his successor before his departure at the end of this week. Waiver requests typically take a couple of months to decide, officials said.

The formal request from Anderson, reported in NJ Spotlight on Monday, instantly drew heated rebuke from the district’s teachers union, the head of the school advisory board, and others in the city. Already the scene of intense protests against Anderson, a school advisory board meeting tonight is sure to bring still more protest.

“We’re going to make sure it doesn’t happen,” Joseph Del Grosso, president of the Newark Teachers Union, said last night. “If it does, our first step is to seek an injunction.”

Maybe the most pointed response came from the architect of the state’s new tenure law, which sought to give districts the means for removing ineffective teachers, but in a more gradual process.

“This undermines all the work we did,” state Sen. Teresa Ruiz (D-Essex), a Newark resident and chair of the state Senate’s education committee, said yesterday of Anderson’s request.

“There are severe questions to the legality of this, let alone whether it will even happen,” Ruiz said.

She said that two years of negotiation on the new tenure law had provided an opportunity to address the state’s seniority statute, but ultimately any changes were left out of the final legislation. The state’s dominant teachers unions had fought hard against any move to address seniority, a touchstone of debate for years, if not decades.

“In the end, we didn’t include [changes in the seniority law], but we provided the best tools to make sure we have the best professionals remain in the classroom,” Ruiz said.

“Nobody wants children without the best people before them in the classroom,” she said. “But the question here is about process, inclusion, and communication.”

Anderson and her chief talent officer, Vanessa Rodriguez, yesterday released a letter and presentation sent to a various city stakeholders — including clergy, parents groups, and others — that laid out the rationale for the request.

They said the district faced a $100 million shortfall over the next three years, largely due to falling enrollments caused by the rise of charter schools, and staff reductions need to be considered.

“Based on the financial realities, we have to look at our options,” Rodriguez said yesterday.

Anderson and Rodriguez said that nearly 1,000 of the district’s 3,200 teachers could face the possibility of layoffs in the next three years to match falling enrollments. And they wanted to ensure that it would be those who were least effective in the classroom and not those who were exemplary.

The system they have proposed is that layoffs would first come out of the pools of teachers from the lowest tiers of performance evaluations last year.

Within each those categories, the layoffs would then be based on seniority, but by the time it reached into teachers with “effective” ratings, only about a third of them would be affected. None of the teachers rated “highly effective” last year would be affected, they said.

Without a system based on performance — what they called a “quality-blind” process — as many as three quarters of teachers deemed “effective” and “highly effective” could face dismissal, they said.

Anderson and Rodriguez in the interview said they were well aware the request would be controversial, but the district faced few alternatives.

And Anderson said while she recognized that the new teacher tenure law — known as TEACHNJ — provided some avenues for removing the least-effective teachers, the district needed to move more quickly than through a process that can include extensive documentation and arbitration.

“It is inaccurate to think of TEACHNJ as a panacea for addressing ineffective teachers,” Anderson said. “It is still time-intensive and expensive.”

Still, the waiver process is in itself an unusual avenue for reversing literally decades of practice over how dismissals — or what are termed “reductions in force” — are conducted in schools.

“It is not something I understand to be common,” Jonathan Busch, an attorney with Schwartz, Simon, Edelstein and Celso, which represents close to 100 districts statewide, said of the waiver process.

Nonetheless, he and other school lawyers raised the possibility that the request could provide some discretion for the commissioner or his successor, who is expected to be named in the coming weeks.

Under the law, seniority must be the sole factor in determining dismissals. But the law also allows for the definition of seniority to be defined under “such standards” set by the commissioner and the State Board of Education.

Those standards are outlined in extensive administrative code that lays out how teachers’ experience is counted, down to the days, and it is those guidelines that Anderson seeks to waive and redefine with the addition of performance.

Under the waiver request Anderson sent to the state on Friday: “Seniority shall be calculated by placing teachers into performance categories from lowest to highest performance and then ranking all teachers within a given performance category first by tenure status and then by length of service.”

Education lawyers said it was an intriguing approach, compared with the typical path of changing those regulations through the state board, itself a lengthy process.

But a waiver could provide an alternative path, Busch said. ”There does appear argument that could be made that there is at least some wiggle room,” he said.