Are teachers who park their cars in legal spots near their school as part of informational picketing and thereby cause students to be dropped off in the street engaged in protected 1st Amendment activity?

No. We have visited this case last year when the Appellate Division reversed the ruling of the Supreme Court in a case coming from the East Meadow school district. As you may recall members of the East Meadow Teachers Association decided to form an informational picket line by parking their cars in legal spots near Woodland Middle School in such a way that pedestrians could only pass to the school’s sidewalk through curb cuts. The parking area was not restricted but had been customarily used as a drop-off area for parents bringing their children to school. The protest caused traffic congestion and students were dropped off by their parents in the middle of the street.

Writing for the majority of the Court of Appeals Judge Abdus-Salaam found that while the teachers’ First Amendment rights were implicated, safety concerns for the students outweighed these rights and permitted the arbitrators to discipline the teachers pursuant to 3020-a.

A strong dissent, written by Judge Rivera, argued that the majority engaged in improper fact finding an improperly weighed the alleged disruption and safety concerns.

In the Matter of Richard Santer, Respondent, v Board of Education of East Meadow Union Free School District, Appellant. In the Matter of Barbara Lucia, Respondent, v Board of Education of East Meadow Union Free School District, Appellant, No. 51, No. 52, COURT OF APPEALS OF NEW YORK, 2014 N.Y. LEXIS 997; 2014 NY Slip Op 3189; 199, L.R.R.M. 3291, May 6, 2014

Is an arbitration award which dismisses only one charge ripe for review and does the 3 year limitations period apply to a charge under 3020-a which alleges a criminal charge?

Yes and Yes. Michael P Hogan submitted an employment application to the Hauppauge Union Free School District in 2006 which in 2010 the school district alleged he failed to disclose that he had previously held a probationary teaching position with another school district and resigned after allegations were made that he used corporal punishment and he would not receive tenure.

Educations Law 3020-a prohibits the bringing of charges against a teacher which are older than 3 years. In Hogan’s case the District argued that the exception contained in 3020-a which allowed the bringing of charges older than 3 years when they sounded in a criminal charge applied since the application allegedly violated Penal Law 175.30, offering a false instrument for filing in the second degree.

The arbitrator dismissed the charge and was ready to hear the remaining two charges when the district appealed.

The Appellate Division, Second Department found that the criminal allegation exception applied and reinstated the charge. Additionally they found that even though the arbitrator’s decision did not make a finding of all pending charges the matter was ripe for review since the arbitrator dismissed the most serious charge.

Hauppauge Union Free School District v. Hogan (September 11, 2013, Decided)

Can a teacher with an intern certificate earn Jarema credit while employed in a substitute position?

No. Under the Jarema law, so-called due to the law’s co-sponsor, a three year period of probationary service can be shortened to one year when “credit” is given for prior probationary service given as a regular substitute on an annual salary. The law was passed to prevent inequities in the length of probation for teachers who had been teaching in unappointed positions in the same license they sought tenure.

State certification requirements have radically changed since the passage of Jarema.

Jesus Berios first started working for the Yonkers School District under an intern certificate; a credential that entitled him to work under the supervision of a fully certified teacher. An intern certificate is “the certificate issued a student in a registered or approved graduate program of teacher education which includes an internship experience(s) and who has completed at least one-half of the semester hour requirement for the program” (8 NYCRR 80-1.1(b) [24])

After one full year teaching under the intern certificate he was appointed with an initial certificate to a regular teaching position in the same subject area for two full school years when he was dismissed, without a hearing.

Berios brought a proceeding in Westchester Supreme Court arguing that he obtained tenure by estoppel, a court determined grant of tenure after finding that he had completed three years of satisfactory service.

Both the Supreme Court and the Appellate Division disagreed. Berios’ service under the intern certificate did not qualify as regular substitute service required under Jarema since he did not have the qualifications to teach without supervision. The Court held, “Allowing a substitute teacher to accumulate tenure credit for time spent teaching pursuant to an intern certificate would mandate that a school board grant or deny tenure to that teacher before he or she obtained a valid teacher’s certificate.”

In the Matter of Jesus Berrios, appellant, v Board of Education of Yonkers City School District, et al., respondents. (Index No. 23910/09), 2010-02768, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT, 2011 NY Slip Op 5804; 2011 N.Y. App. Div. LEXIS 5663, July 5, 2011, Decided

Can a 3020-a decision be reversed as too lenient?

Yes. Douglas Coleman, a 25 year tenured Social Studies teacher employed by the Dundee Central School District was charged with various specifications characterized as conduct unbecoming a teacher and insubordination. Dundee alleged that Coleman had given an exam in one of his classes which, among other things, “contain[ed] inappropriate and suggestive vocabulary words including “yu dick”, “grandma dick” and “Mrs. Dick” …. The second group of charges is that one of the students in the aforementioned class was a student with a disability of high-functioning Asperger’s Syndrome, and on her test, Coleman had captioned two cartoon figures of aliens, with the student’s name by one figure and her personal tutor’s name by the other . The third group of charges is that in September of 2007, Coleman attempted to bypass the established District procedure with respect to the utilization of movies within his class” when he showed the movie, “Attica.”

Coleman had been given counseling memos when these incidents occurred and the hearing officer, having found that these incidents were not repeated, dismissed the charges since the school district had already decided how to deal with these infractions. The hearing officer, based on other charges then decided to suspend Coleman for 6 months but required that the District continue to pay for his medical insurance. The District appealed to State Supreme Court.

Justice W. Patrick Falvey of Yates County Supreme Court ruled that the suspension with medical insurance was not valid under 3020-a since the statute contemplated suspensions with no payments. Additionally it was wrong for the hearing officer to dismiss the charges as the District did not waive its right to serve charges where counseling memos were previously utilized.

Justice Falvey remitted the matter back to the District to reconsider the dismissed charges and penalty.

Upon remand the hearing officer dismissed many of the charges again but this time found Coleman guilty of a few of the formally dismissed charges. He imposed the same penalty.

Justice Falvey found that ” the Hearing Officer’s decision regarding penalty lacks a rational basis, due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda, before he would consider Dundee’s request for a penalty.”

Coleman 1, In the Matter of the Application of the Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman Respondent, 2010-0248,  SUPREME COURT OF NEW YORK, YATES COUNTY, 2010 NY Slip Op 51684U; 29 Misc. 3d 1204A; 2010 N.Y. Misc. LEXIS 4689

 

Coleman II, Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman, Respondent, 2011-0011, SUPREME COURT OF NEW YORK, YATES COUNTY, 2011 NY Slip Op 21157; 2011 N.Y. Misc. LEXIS 1999,  April 29, 2011, Decided

Can the DOE prohibit, after school hours, the use of school facilities for religious ceremonies?

Yes.
The area of the role of the separation of church and state has been no more litigated than in the area of public education. While the Supreme Court has not dealt with the establishment or free exercise clause until the 1930’s, since then, the amount of litigation has geometrically progressed.

Schools, as public buildings, permit the use of their facilities for a variety of purposes for the benefit of the community. When the use of the facilities involve religious organizations the rules become complicated.

In 1994 when Bronx Household applied for a permit to use a local school on Saturday the application was denied by the DOE because it ran afoul of the DOE’s Standard Operating Manual which prohibited school facilities for religious ceremony or instruction. The action to set this aside failed and the Second Circuit, in Bronx Household I dismissed the application.

After Bronx Household I was decided the US Supreme Court decided Good News Club v. Milford Central School, which held that it was unconstitutional for a public school district to exclude from its facilities “a private Christian organization for children,” which had requested permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture, and pray. Bronx Household applied, again, for use of DOE facilities. The DOE denied the application but the court overruled it based on Good News.

The DOE then amended their SOP to state,

No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship. Permits may be granted to religious clubs for students that are sponsored by outside organizations and otherwise satisfy the requirements of this chapter on the same basis that they are granted to other clubs for students that are sponsored by outside organizations.

With this change the DOE, once again, denied Bronx Household’s application and this time the Court agreed. Being a “limited public forum” the DOE had the right of content discrimination but not viewpoint discrimination. While these are legal terms of art they essentially boil down to the idea that the DOE can restrict certain practices but not viewpoint. Religious worship is a type of practice that the DOE can prohibit and thus its denial of the second Bronx Household’s application was proper.

THE BRONX HOUSEHOLD OF FAITH, ROBERT HALL, and JACK ROBERTS, Plaintiff-Appellees, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK and COMMUNITY SCHOOL DISTRICT NO. 10, Defendant-Appellants.,UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 2011 U.S. App. LEXIS 11107, October 6, 2009, Argued, June 2, 2011, Decided


Can a probationary teaching assistant utilize the state whistleblower law to defeat a school district’s motion to dismiss her petition for reinstatement?

Yes. Civil Service Law Section 75-b, the public sector component of the state’s whistleblower law, protects public employees from termination if they report a violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety or which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. The provision applies to tenured employees only in so far as it may be raised as a defense in a disciplinary arbitration (where a contract calls for that) and applies to probationers if they seek reinstatement from court.

Maureen Sheil began her probation as a teaching assistant in the Merrick Union Free School District in 2009. One of her colleagues was removed from her school after he was charged with possession of child pornography. Sheil became concerned that another of her colleagues, who still kept ties with the removed teaching assistant, supported the removed teaching assistant in such a way that she believed he presented a danger to students at her school. Sheil reported her concerns to the school’s administration only to be later targeted for what Sheil charged was retaliation for her complaint. Sheil was eventually dismissed by the school district.

Sheil raised Civil Service Law Section 75-b to claim that the dismissal was taken in retaliation for her reporting the association of her colleague with the removed teaching assistant.

Justice Denise Sher of Nassau Supreme Court found that Sheil had made a a viable claim and ordered the school district to answer her petition.

In the Matter of the Application of MAUREEN SHEIL, Petitioner, for a Judgment pursuant to Article 78 of the Civil Practice Laws and Rules, – against – DR. RANIER W. MELUCCI, Superintendent of Schools, Merrick Union Free School District, BOARD OF EDUCATION OF MERRICK UNION FREE SCHOOL DISTRICT, and MERRICK UNION FREE SCHOOL DISTRICT, Respondents, SUPREME COURT OF NEW YORK, NASSAU COUNTY, 2011 NY Slip Op 31242U; 2011 N.Y. Misc. LEXIS 2208, April 28, 2011

 

Can a written communication from a school administrator to a tenured teacher which criticizes the teacher be made a part of the teacher’s personnel file without affording the teacher an opportunity for a due process hearing?

Yes, according to a June 2, 2011 decision of the Court of Appeals, our state’s highest court. And you can thank our crack negotiating team for supplying the legal justification.

Back in June 2005 a fact-finding panel concluded that a teacher’s right to grieve letters in the file should be given up in exchange for the right of the teacher to append a response to the letter and have the letter removed from their file if no disciplinary charges were preferred after 3 years.

The UFT contract negotiators extolled the value of giving up this important right and it was incorporated into the contract for 2003 to 2007. There was (and still is) no right to deal with inaccurate letters, including those concluding teacher misconduct, unless and until there was a disciplinary hearing.

A small crack seemed to open in several cases brought about in response to letters that concluded there was teacher misconduct and the teacher given no ability to confront the allegations except with a written, attached response. On its face this seemed to fly in the face of the due process requirements of 3020-a and several lower court judges agreed.

The case of Rachel Cohn is illustrative. Cohn, a tenured Kindergarten teacher at P.S. 7Q, got into a discussion about paraprofessionals with her principal, Sara Tucci. During the discussion Cohn allegedly said that Tucci should watch “her Latin temper.”

Tucci took offense at the remark and commenced an OEO investigation. At the conclusion of the OEO investigation, the OEO found a probable violation of Chancellor’s Regulation A-830 and referred the matter back to Tucci for possible corrective action. Tucci placed a letter in Cohn’s file substantiating her own complaint and warning that the matter could lead to charges and ultimate termination.

Helen Hickey is a tenured physical education teacher at P.S. 41R with almost 30 years’ experience. When a field day was scheduled for the end of the school year the principal gave her certain instructions. When the day arrived there was inclement weather and a change in plans was required to move the field day indoors. The field day started 20 minutes late and the principal took no time to place a letter in Hickey’s file. The letter stated that Hickey was incompetent and may be subject to disciplinary charges.

Both Hickey and Cohn brought proceedings in Supreme Court and following other lower court precedent the Court’s ordered both letters expunged from their files. The lower court found that characterizing the alleged improper action made the letter subject to the due process requirements of 3020-a and were no longer instructive or cautionary in nature but rather disciplinary to which each teacher had a right to a hearing to contest.

The DOE appealed and the Appellate Division, First Department found that when the contract was changed to prevent letters in file grievances the parties waived any right to expunge the letters whether they were characterized as disciplinary or not.

Hickey and Cohn appealed to the Court of Appeals which decided, unanimously, that the UFT had bargained away their right to a hearing.

The Court of Appeals wrote:

“Article 21A is a broad provision that clearly encompasses written reprimands and the disciplinary letters at issue here fell within the purview of Article 21A. Comparison of the statute and the CBA provision reveals that the procedure in Article 21A is significantly different than, and incompatible with, the procedure in Education Law § 3020-a, meaning that the parties to the contract could not have intended both procedures to simultaneously apply. Their history of collective bargaining indicates, with respect to the placement of written materials in tenured teacher’s files, petitioners’ union was well aware that, by adopting Article 21A, it was agreeing to substitute that procedure for other due process procedures that had previously been in place. Therefore, there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law § 3020-a in this limited arena. Because the letters at issue are not subject to 3020-a procedures, petitioners are not entitled to have them expunged.”

In the Matter of Helen Hickey, Appellant, v. New York City Department of Education, Respondent. In the Matter of Rachel Cohn, Appellant, v. Board of Education of the City School District of the City of New York, et al., Respondents., No. 101, No.102, COURT OF APPEALS OF NEW YORK, 2011 NY Slip Op 4541; 2011 N.Y. LEXIS 1339, June 2, 2011