Pace of Tenure Rulings Increases, But Decisions Still Go to Both Sides

John Mooney | July 14, 2014 | Education
Streamlined process for dealing with tenure charges gets more cases on the calendar -- and more decisions to litigants

While the political and policy debates continue as to how teacher evaluation will work in the future, tenure charges continue to be filed — and decided — at an accelerated rate.

By the start of July, 17 cases had been decided and posted by state arbitrators under the new teacher tenure law. At that pace, the total will exceed the 27 decisions posted in 2013, the first full year of the law.

The numbers are still small but are expected to increase rapidly with the statewide evaluation system dictated by the law finishing up its first year and entering its second. Ultimately, teachers receiving two straight evaluations of less than “effective” will almost be required to be brought up on tenure charges.

The pace of decisions under TEACHNJ, the new law, has already exceeded that of the previous statute. In the latter case, hearings went before an administrative law judge and could be far more time-consuming and expensive. Under TEACHNJ, tenure charges are brought before one of two-dozen state-appointed arbitrators in an expedited process.

And they have shown that the scope of the reasoning districts use in bringing cases — and teachers employ in fighting back — is in stark contrast to the debates currently underway over how much student test scores will count in determining a teacher’s rating. It’s a debate likely to be fueled this week with Gov. Chris Christie’s expected announcement of a compromise proposal.

But meanwhile, in most of tenure cases so far under the new law, the arguments have been over typically either individual incidents of alleged misconduct or longer patterns of teachers failing to improve their practices. Chronic absenteeism is a common issue, too.

And the current process has proven to be a fickle one, with districts by no means winning a preponderance of decisions.

Last week, six more cases were posted by the state Department of Education, five of them against teachers and the sixth involving a school secretary. And in three of the five teacher cases, the state arbitrators ruled in favor of the teachers, in two cases restoring them outright with full pay and in the other giving them a 10-day suspension.

One charge in Chathams schools was over a theater teacher’s lesson in which she surveyed of eighth-grade students to their personal and family experiences. some potentially embarrassing. The district lost, and the teacher was restored to her job with full back pay.

In a Cumberland County case, a high school teacher was brought up on charges her lessons in general were unplanned and carried forth, despite repeated warnings from her supervisors. The district won, and the tenure charges were sustained.

A Mullica Township case landed somewhere in between, where district brought up charges against a kindergarten teacher in whose class a boy and girl snuck off into the bathroom unsupervised, where there was possibly physical contact. The district lost on the charges, but the arbitrator did rule that the teacher faces a 10-day suspension for failure to properly supervise the children.

A similar case ended slightly differently in Belleville, where a teacher was charged with discharging a six-year-old student at the end of the school day without a parent or guardian, allowing her to walk home alone. The tenure charges also contended that she sought to cover up her lapse.

But the arbitrator sided with the teacher, but also upheld an unpaid suspension.

Still, beyond even the test scores issue, there continue to be adjustments to the current process, some of them contentious. The Christie administration has proposed new regulations that would codify an appeals process for teachers. Under the law, teachers can appeal based on mistakes in the evaluation process, not the outcomes themselves.

Ironically, it was the New Jersey Education Association, the teachers union, that has objected to the administration’s proposals, saying they would slow the process and take key decisions out of the arbitrator’s hands. The union said that such appeals should be handled through the grievance process.

“This procedure undoes the streamlined approach to tenure of TEACHNJ,” NJEA president Wendell Steinhauer said before the State Board of Education last week.

“Part of the law’s intent was to keep tenure issues out of the Office of Administrative Law (OAL),” he said. “This proposal will bring the tenure process back to OAL.”