Will the suspension of teacher for speaking with the subject student of a corporeal punishment matter be upheld where the teacher was directed not to have contact with the student however the student was not immediately removed from the class?

No. The petitioner, a tenured teacher in the Roosevelt Union Free School District, was charged with misconduct for allegedly inappropriately putting his hands on a student, inappropriately attempting to grab candy away from the student, and ignoring a directive from the school principal not to discuss the allegations against him with the student, and directing the student to sign a prepared statement recanting the allegations. The charges proceeded to arbitration, resulting in a determination which suspended the teacher.

After the suspension was upheld by the Supreme Court, Nassau County, the teacher appealed to the Appellate Division, Second Department. The Appellate Division found adequate evidence in the record that the teacher inappropriately attempted to grab candy from the student and that he committed conduct unbecoming a teacher and was insubordinate when he directed the student to sign a prepared letter.

However, the Appellate Division found that there was no evidence to support the allegation that the teacher inappropriately put his hands on the student nor that he was insubordinate by discussing the incident with the student because the student was not immediately removed the class.

The matter was remitted to the arbitrator “for reconsideration of the penalty imposed.”

In the Matter of DOUGLAS S. WHITE, Appellant, v. ROOSEVELT UNION FREE SCHOOL DISTRICT BOARD OF EDUCATION, Respondent, NO. 8128/13, 2014-04134, Appellate Division of the Supreme Court of New York, Second Department. Decided February 22, 2017.

Can the argument that a tenured teacher was targeted by her administration for being absent for 43 days due to a documented medical condition be the basis to overturn an arbitrator’s decision to terminate her employment?

No. Petitioner, a first grade and kindergarten teacher at an elementary school in Brooklyn was charged with failing to properly and effectively plan her lessons, that she failed to pick up her students in a timely fashion on a particular day, that she was excessively absent and that she failed to implement help that her supervisors provided to her.

A hearing was conducted before an arbitrator who found “that petitioner was incompetent without reasonable expectation of rehabilitation, [and] determined that the appropriate penalty would be termination of the petitioner’s employment.

On appeal petitioner claimed that, among other points, she was targeted for termination by her administration because she had a documented medical condition and hospitalization that caused her to lose 43 days of work.

Judge Arthur F. Engoron of the Supreme Court, New York County found her argument and that her termination “shocked the conscience” to be unavailing.

Judge Engoron wrote, “This court finds that the penalty of termination was not disproportionate with the misconduct and cannot be said to shock the conscious or any senses of fairness. Thus, the court is constrained to find that the petitioners dismissal, while severe, cannot be vacated or remanded as a matter of law. [citation omitted].

JEAN-BAPTISTE, MARJORIE, Petitioner, v. THE DEPARTMENT OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Respondent. Docket No. 652683/2016, Sequence No. 001. Supreme Court, New York County. July 21, 2017. Filed: July 25, 2017

Is a teacher, whose probationary term expired while sitting in the rubber room, entitled to a 3020-a hearing before being terminated?

Yes. Petitioner, a special education teacher from 2011 through June 2016  was reassigned to a “rubber room” pending an investigation in March 2015. She claims that although some of the allegations against her were substantiated, she was placed back in a teaching position on March 7, 2016 and went on leave until the end of the school year in April 2016. She was terminated from employment, without a hearing, on June 15, 2016.

The DOE argued that although her extension of probation had lapsed she was still on probation since she was not preforming teaching duties in the rubber room.

The Court rejected the DOE’s argument holding that tenure by estoppel applied and the petitioner could not be dismissed without a 3020-a hearing. While the Court ordered that the petitioner be restored to her position with back pay it noted that there were serious allegations against the petitioner and her ruling should not be misinterpreted to be seen as protecting an allegedly incompetent teacher.

In the Matter of the Application of CHERYL WILSON, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Respondent. Docket No. 158592/2017, Motion Seq. No. 001.2017 NY Slip Op 31273(U), Supreme Court, New York County. June 12, 2017.

Can a school district constitutionally terminate teachers for ineffective performance based on a secret value-added algorithm?

No. The Houston Federation of Teachers brought an action against the Houston Independent School District based on the claim that a teacher evaluation system based, at least partly on student exam scores, violated disciplined teachers’ procedural due process rights under the 14th Amendment.

Student exam scores were subjected to a “secret” algorithm to determine whether students’ performance was increased. This algorithm was the proprietary property of a private computer firm. Affected teachers had no right to view or test the computer code making review of their scores nearly impossible.

While the plaintiff challenged the evaluation system on both procedural and substantive due process claims the Federal District Court in the Southern District of Texas held that the refusal to permit teachers to fully review their scores might deprive them of a property right in violation of their procedural due process rights and denied the District’s motion for summary judgment.

The Court held, “On this summary judgment record, HISD teachers have no meaningful way to ensure correct calculation of their EV AAS scores, and as a result are unfairly subject to mistaken deprivation of constitutionally protected property interests in their jobs. HISD is not entitled to summary judgment on this procedural due process claim.”

Houston Federation of Teachers, Local 2415, et al., Plaintiffs v. Houston Independent School District, Defendant, United States District Court, Southern District of Texas, Civil Action H-14-1189 (May 4, 2017)

Can teacher discrimination cases reveal issues other than discrimination in our education system?

Yes. Editor’s note:  While federal cases are generally reported here many teacher discrimination cases brought in Federal Court are not since most are very fact dependent and provide little precedential value. This is not to diminish the importance of these cases. The following case is reported due the statement by the Judge, a respected Judge on senior status, Jack Weinstein in the Eastern District, in his introduction in dismissing the teacher’s discrimination case. The full case is linked at the bottom of this post.

Judge Weinstein

…Essentially this case — as do many of our teacher discrimination cases — reveals fundamental stresses in our public education system: a good faith attempt by an incoming principal to improve the quality of teaching in a poorly performing school, clashing with experienced, devoted teachers resenting criticism of their teaching methods and the increased discipline and changes sought to be imposed on them. Here, if there was any discrimination — and there appears to be none — it was not age-based, as alleged. The matter is resolved in favor of defendant on the basis of the relevant statute of limitations and the failure to take advantage of appropriate administrative remedies.

Plaintiff sues her former employer, the Board of Education of the City School District of the City of New York (“DOE”) for discrimination against her on the basis of her age, in violation of federal, state, and city law. She also asserts claims of negligent hiring and improper supervision by her principal.

Defendant moves for summary judgment on all claims. The motion is granted….

MARY HARRIS, Plaintiff, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, a/k/a “The New York City Department of Education”, Defendant. No. 16-CV-3809. United States District Court, E.D. New York. February 2, 2017.

Will a U-rating be sustained where the failure to follow the UFT contract for observation practices was never raised at the U-rating appeal?

Yes. Petitioner, a middle school tenured teacher in the Bronx, received a U-rating after an interim principal was appointed in his school. While he was able to transfer to another school he sought to reverse the U-rating and appealed the matter. At the U-rating appeal neither petitioner nor his UFT representative raised the issue that he was observed only once during the rating period.

On appeal to the Supreme Court Justice Doris Ling-Cohan annulled the U-rating and ordered that it be replace with an “S” rating. The City appealed and the Appellate Division, First Department reversed.

The Appellate Division wrote, “Petitioner failed to preserve the issue of whether the U-rating should have been annulled based on an alleged procedural deficiency or deviation from the collective bargaining agreement negotiated by his union regarding observation practices, since he never raised the issue at the administrative level.”

IN RE JEROME RAZOR, Petitioner-Respondent, v. CITY OF NEW YORK, ET AL., Respondents-Appellants. 3013, 101079/13.2017 NY Slip Op 00932 Appellate Division of the Supreme Court of New York, First Department. Decided February 7, 2017.

Will a probationary dismissal be sustained if the probationer fails to sustain her burden that bad faith exists or that the termination was for an improper reason?

Yes. Petitioner, a probationary teacher, was dismissed based upon an investigation finding that she had neglected her duties and falsified records. She brought an Article 78 proceeding and Justice Alice Schlesinger of the Supreme Court, New York County reinstated her.

The City appealed and argued that petitioner had failed to exhaust the grievance procedure and that there was a sufficient basis to dismiss the petitioner since probationers can be dismissed for “almost any reason, or for no reason at all,” as long as it is not “in bad faith or for an improper or impermissible reason.”

The Appellate Division, First Department agreed finding that “[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden.”

While there was a delay in the issuance of the investigator’s report, the Court held that petitioner had been given timely notice of the allegations.

IN RE ANNA FINKELSTEIN, Petitioner-Respondent, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL., Respondents-Appellants. 3959, 101540/14. 2017 NY Slip Op 03850 Appellate Division of the Supreme Court of New York, First Department. Decided May 11, 2017.

Can hearsay be the basis for a 3020-a finding that terminates a 28 year tenured teacher?

Yes. Petitioner, a 28 year special education teacher, was terminated after charges were brought against him for gross insubordination by yelling at, menacing and threatening his superiors, leaving students without supervision by a licensed teacher and other charges. Petitioner argued that the principal brought the charges solely in retaliation for petitioner’s reporting special education violations to the State and that there was no official policy against leaving students with a paraprofessional. He also claimed that the Hearing Officer’s decision was based entirely on hearsay and cannot support a determination that the charges against were sustained.

In dismissing the petition the Court found that, indeed, a 3020-a hearing founded upon hearsay can be the basis of its determination. Petitioner’s claim that there was no policy against leaving students with a paraprofessional was unavailing since he was “well aware of the rule that it is against Department and school policy to leave children without supervision of a licensed teacher as he had been disciplined before for the same infraction.”

Finally the Court sustained the Hearing Officer’s determination of termination since, as the Hearing Officer concluded, petitioner “does not think he did anything wrong. Additional training or remediation is a waste of time.”

JEFFREY LOSAK, Petitioner, v. THE CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; CARMEN FARINA, CHANCELLOR of NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents. To Vacate a Decision of a Hearing Officer Pursuant to Education law Section 3020-a and CPLR 7511. Docket No. 654452/2016, Motion Seq. No. 001. 2017 NY Slip Op 30964(U) Supreme Court, New York County. April 28, 2017. Filed May 1, 2017.

Can the DOE prevent a vendor from access to its schools without a full evidentiary hearing?

Yes. Petitioners, school photography vendors, sought reinstatement as a DOE vendor in FAMIS after they claimed that the DOE arbitrarily declared them to be a “non-responsible vendor.”

The president of the photography vendor admitted that, “he had continued to send a certain photographer to work in DOE schools after becoming aware that the photographer had been accused of touching a student’s breast five years earlier and had pleaded guilty to the charge of endangering the welfare of a child.”

The petitioners argued that the DOE did not provide them with a hearing or notice of its designation as a non-responsible vendor in violation of their due process rights.

The Court held that the DOE was not required to provide a full evidentiary hearing since the vendor had no property interest in any public contract. It also recognized the DOE’s obligations to provide a safe place for students when evaluating the responsibility of its vendors.

EDWARD M. THORNTON and THORNTON’S CLASSIC STUDIO, Petitioners/Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, DAVID N. ROSS, and JAMILLA SIMMS, Respondents/Defendants.Docket No. 156571/2016, Motion Seq. No. 001. 2017 NY Slip Op 30971(U)Supreme Court, New York County.Motion May 9, 2017.Filed May 10, 2017.

Can a school district withhold FOIL email disclosure without an in camera review?

No. The Connetquot (Suffolk County) Teachers’ Association filed to Freedom of Information Law (FOIL) requests for two categories of emails between the District Superintendent and the STEM chairperson and an assistant superintendent concerning elementary science courses and under enrollment of the AP Chemistry course.

The district either refused to turn over certain records or supplied redacted records claiming the intra-agency exemption and federal student privacy concerns in the production of the records. Under the inter-agency exemption public entities are exempt from disclosure of records which reflect the deliberative process in policy making.

The Court, after finding that the District’s support of its position was not specific enough ordered the production of records, in camera (by the Court in its chambers), to determine if the records should be disclosed. The Court wrote, “this Court has been deprived [of] the relevant and material information to make a reasoned judgment on whether the material sought to be protected is truly inter-agency or intra-agency or otherwise pure personal information properly withheld under the FOIL statute. Without this information, this Court would only be speculating whether respondent has properly discharged its duty under FOIL.”

In the Matter of the Application of ANTHONY F. FELICIO, JR., as President of the Connetquot Teacher’s Association, Inc., Petitioner, For Relief Pursuant to Article 78 of the New York Civil Practice Law and Rules v. CONNETQUOT CENTRAL SCHOOL DISTRICT OF ISLIP, Respondent. Docket No. 08339-2016, Motion Seq. No. 001 Mot D. Supreme Court, Suffolk County. 2017 NY Slip Op 31052(U) Motion Submit June 1, 2016. May 3, 2017.