May an action alleging that the State’s teacher disciplinary rules and layoff provisions deprive students of a quality education survive motions to dismiss and be permitted to go to trial?

Yes. The Appellate Division, Second Department, on an appeal from a ruling from the Staten Island Supreme Court, has determined that an action can go forward that may test the constitutionality of the State’s disciplinary system and layoff provisions for teachers.

Mymoena Davids aka Mona Davids supported by groups opposed to teacher tenure laws brought an action against the State alleging that ineffective teachers could not be properly dismissed and layoff provisions protected ineffective teachers causing irreversible harm to her children. (A similar action was brought in Albany County and joined with Ms. Davids case in Richmond County.)

Justice Philip Minardo of the Richmond County Supreme Court ruled that, on a motion to dismiss, the plaintiffs case could go forward despite a motion to dismiss based upon the changed statutory scheme and other arguments.

The Appellate Division affirmed. The appellate justices ruled, without much argument, that it was too early to dismiss the case as the plaintiffs’ concerns could, if proven, make out a case that their constitutionally protected right of a sound basic education was jeopardized by the current statutory scheme. While not determining the ultimate issue that Appellate Court found that a trial court could determine that the tenure and layoff provisions for teachers interfered with this constitutional right.

Davids v. State, __AD3d__, (2d Dept., March 28, 2018)

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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.

Will the failure to file a notice of claim in an Article 78 challenge to a probationary termination doom the proceeding?

Yes. While not required for most Article 78 proceedings a notice of claim is required when a petitioner seeks to annul the determination of a school district terminating her services as a teacher. The Court of Appeals found that it did not matter that the teacher’s claim for back pay was incidental to her petition to reverse the school district’s determination. Education Law Section 3813 (1) does not distinguish between equitable and positive law claims for the notice of claim requirement for Article 78 proceedings to reverse a probationary termination.
In the Matter of ELIZABETH MCGOVERN, Appellant, v. MOUNT PLEASANT CENTRAL SCHOOL DISTRICT, Respondent. No. 74., 25 N.Y.3d 1051 (2015) 33 N.E.3d 1280 12 N.Y.S.3d 11, 2015 NY Slip Op 04675,  Court of Appeals of New York. Argued April 28, 2015.
Decided June 4, 2015.

Is a tenured teacher who resigns from teaching and then subsequently applies and is hired to teach at another school automatically entitled to tenure in the new position?

No. Chancellor’s Regulation C­205 provides that a tenured teacher who resigns “remain[s ] tenured,” but requires the teacher to first submit a written request to withdraw his or her resignation, subject to a medical examination and the approval of the Chancellor.

The petitioner, a culinary arts teacher attained tenure in his license area and then resigned from the DOE to pursue a professional culinary career. Within 5 years he applied for and obtained a position in the same license area at a different school.

His principal advised him that he did not have tenure and upon further inquiry and consultation with a UFT representative filed a formal written request to withdraw his resignation. After the DOE insisted that he still did not have tenure because he never filed a timely request to withdraw his resignation, he brought a proceeding in Court.

The matter was appealed to the Court of Appeals, our highest state court and his appeal was dismissed.

The Court of Appeals held that a tenured teacher who resigns , and later seeks to return as a tenured teacher, must strictly comply with the regulation and submit a written request to withdraw his or her prior resignation.

2016 NY Slip Op 02553. IN THE MATTER OF GRANT SPRINGER, Appellant, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL.,               Respondents.  No. 41. Court of Appeals of New York. Decided April 5, 2016.

Will a probationary termination be upheld where a Chapter Leader, on probation, first started getting unsatisfactory reviews after she wrote a letter to the principal?

No. While it is a bit unusual that a probationer would accept the position of Chapter Leader such a decision was made by a Staten Island teacher. The teacher had performed and was rated satisfactorily up until she wrote a letter to the principal asking how she could make up prep periods. At that point the principal began rating her unsatisfactorily.

Both the Supreme Court and Appellate Division, Second Department found that the teacher’s probationary dismissal was in bad faith and reinstated her with back pay.

The Supreme Court had granted the teacher tenure which the Second Department found was something the Courts could not legally do and sent the matter back to the DOE for further proceedings.

 In the Matter of Lisa Capece, etc., respondent, v Margaret Schultz, etc., et al., appellants. (Index No. 80361/08), 2012-03257, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2014 N.Y. App. Div. LEXIS 3775; 2014 NY Slip Op 3834, May 28, 2014

 

Can a teacher acquire tenure by estoppel when she performs only administrative duties after her probation expires?

No. Tenure by estoppel provides that when a probationer is employed after the expiration of her probation she acquires tenure by operation of law. At the conclusion of her probationary term Barbara Files was advised that she would not obtain tenure but, at most, could expect an extension of her probation. She refused to accept the extension and when her probationary period expired she performed no “traditional teaching duties.” The Appellate Division, First Department, found that despite her being on payroll past her probationary period she not acquire tenure by estoppel since she did not perform these traditional teaching duties.

In re Barbara Denise Files, Petitioner-Appellant, v The Department of Education of the City of New York, et al., Respondents-Respondents, 12883, 100397/11, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2014 N.Y. App. Div. LEXIS 4644; 2014 NY Slip Op 4713, June 24, 2014

Will a teacher who maintains that her probationary period begins upon her appointment and not the date she receives her professional license prevail?

Yes. Carolina Castro began her appointment to teach science at DeWitt Clinton High School on September 3, 2003. From 2003 until 2009 she received satisfactory reviews and obtained her professional certification on September 1, 2009.

The DOE maintained that her probation began in 2009 and she received tenure effective September 1, 2013. Castro maintained that her seniority rights would be affected if the later date was used for her tenure date and she filed an Article 78 in Supreme Court.

The DOE moved to dismiss as the issue was moot since she had obtained tenure.

Justice Eileen A. Rakower granted the petition finding that the DOE action had no rational basis. Rakower did not deal with the mootness issue even though it does not appear that tenure is in any way affected by seniority.

Castro v. DOE (Decided 9/11/13)