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A Constitutional Challenge to the Tenure Process under the New York Education Law
By Arthur A. Katz


Arthur KatzIn previous columns, I wrote about the Vergara litigation in California, which held that California’s teachers’ tenure laws violated the constitutional right of California students to an education.

This summer, two lawsuits were instituted against the New York State Board of Regents, and others, contending that the New York Education Law provisions regarding tenure, disciplinary procedures and seniority, in combination, prevent affected New York State public school students from obtaining the sound basic education that is guaranteed to them under Article XI of the New York State Constitution.

The first litigation (Mymoena Davids, et al., v State of New York, et al.), coordinated by the NYC Parents Union, was commenced in early July, and the second litigation (John Keoni Wright, et al. v State of New York, et al.), sponsored by the Partnership for Educational Justice, was commenced the end of July.  Both organizations are New York City based and are focused on public school reform, although the Partnership’s activities are not limited solely to reforms in New York. In each instance, the plaintiffs are New York public school children. The Complaints in both litigations are similar, although with a slightly different emphasis, and argue that several related New York State Education Laws make it difficult to terminate ineffective public school teachers resulting in a lack of quality education in affected public schools which, in turn, violates the New York State Constitutional provision requiring the affording of a sound basic education to all students.

On August 7, New York State Attorney General Schneiderman filed a motion for consolidation of the two litigations, which motion was granted on September.  On August 29, New York State United Teachers filed a motion to intervene, which was granted on September 30.

The principal laws involved in this constitutional challenge are Education Law § 3012 (tenure), Education Law §3020(a) (disciplinary procedures and penalties) and Education Law §3012 (seniority).

Tenure protection in the United States arose out of the labor struggles in the 19th century and initially was instituted at colleges to protect academic freedom and to limit the ability of the college from terminating a teacher for disagreeing with the college’s authorities or spending time on topics unpopular with the college’s benefactors.  These rules were made applicable to New York State public school teachers by the addition of provisions in the New York State Education Law more than fifty years later.

The purpose of tenure was not to guarantee permanence of employment, but to mandate an appropriate level of due process into termination proceedings for a tenured teacher. The tenure laws were enacted to protect public school teachers from what then was a lack of due process and rampart discrimination at a time when adequate protections just did not exist. Today, however, freedom of information laws, open meeting laws and anti-discrimination laws exist on both the federal and state level and have eliminated most “star chamber” termination proceedings. As a result, the tenure laws do not serve the same purposes for which they initially were enacted. Although the tenure laws probably have had the desired effect of inducing qualified individuals to enter into the teaching profession in lieu of other better-paying jobs not offering tenured positions, one still needs to determine whether such laws, as currently being utilized, continue to be appropriate on balance.

Tenure in New York, in accordance with Education Law §3012, is normally required to be granted no later than the third anniversary of a public school teacher’s employment.  However, in order to make this deadline, actions need to be taken by the school system after only two years of performance review, which many commentators contend is too short a period to adequately assess whether a teacher has earned a lifelong benefit of tenure. As the Wright Complaint states, “most studies indicate that teacher effectiveness is typically established by the fourth year of teaching.  After that, effective teachers tend to remain relatively effective and ineffective teachers remain relatively ineffective.” 

New York State has implemented an Annual Professional Performance Review (the “APPR”) to assist in evaluating the effectiveness of teachers.  Although each school district negotiates the specific terms of their respective APPR plans, these plans still are required to comply with the Education Law. Unfortunately, these locally determined evaluation methods have, in practice, invited variable definitions that do not always assure selection of the most effective teachers in determining whether to award tenure.

Once tenure is awarded, a teacher cannot be removed except (i) for just cause (i.e., insubordination, immoral character or unbecoming conduct, inefficiency, incompetency, physical or mental disability, neglect of duty or failure to maintain required certification) and (ii) in compliance with the process set forth in Education Law §3020(a). However, the prescribed process, as customarily effected, makes it prohibitively expensive, time-consuming and very difficult to dismiss an ineffective tenured teacher. Meticulously maintained and detailed documentation that is required has become a laborious and complicated process that must be completed within a defined time schedule. As a result, and because of the likelihood of an appeal after the process and the cost engendered by the process, many public school administrators appear to be loath to even commence the process. Moreover, disciplinary proceedings take time, and as mentioned in the Wright Complaint take well over a year from the time that charges are brought until a final decision. During this period, the affected teacher (while not teaching) must remain on the payroll, increasing the school district’s burden.

Lastly, and as both the Wright and the Davids Complaints point out, tenured teachers still can be laid off if a school district is decreasing its teaching staff.  However, in accordance with Education Law §2588, seniority must be used as the criteria, removing any arbitrary element from the process. Unfortunately, such criterion does not result in retaining the most-effective teachers. If anything, it may even allow an ineffective teacher to refrain from attempting to improve since the effort will not result in greater job security.

Interestingly, neither the Wright nor the Davids Complaint, while arguing that the system is flawed and does not encourage effective teachers, believe that all of the disputed Education Laws should be abolished, but that such laws should be revised in a way to better achieve the desired purpose. However, in the absence of taking any actions, they contend that such laws have an unconstitutional effect resulting in the unequal and insufficient education of New York State public school children.#



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