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 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


Will failure to file a specific notice of claim defeat a school secretary’s workplace condition complaint?

Yes. Lynne Schnell, a school secretary at Aviation High School and her son, brought an action in Queens Supreme Court for working conditions against the City, school administrators and the Chapter Leader.

Schnell complained that her workspace had no windows, ventilation or adequate air and had reached a temperature of 120° F. She complained to the school’s administration, the UFT, the Department of Health and the DOE component of the Public Employee Safety and Health Board to no avail.

During the last two weeks of June 2006 she came to school seeking relocation and upon not being relocated she left. An S rating was changed to a U rating for excessive absences. Her claimed injuries included intentional infliction of emotional distress and the development of a  staph  infection.   Schnell  also  alleged  that  the  Chapter  Leader  “came  into her room [, room] 149F, blocked the door and proceeded to scream and curse at her and throw a chair at her for complaining.”

A 3020-a proceeding was brought against Schnell and was settled with a stipulation in which she agreed to withdraw all of her claims against the DOE except for a claim involving whistleblowing. This last claim was not included on her notice of claim.

Leaving the remaining claim off of her notice of claim proved fatal to her lawsuit and Justice Kevin J. Kerrigan summarily dismissed her claim.

Lynne Schnell and Luke Serkanic, Plaintiff, – against – The City of New York, New York City Department of Education, Ralph Santiago, Eileen Taylor, Joyce Seiden, Dino Charlalambous, Jerry Frohnhoefer, Soraya Cuervo-Digiorgio, and Mary Vigoa, Defendants, SUPREME COURT OF NEW YORK, QUEENS COUNTY, 2011 NY Slip Op 31220U; 2011 N.Y. Misc. LEXIS 2168, April 11, 2011

Is a claim for hostile work environment cognizable when it is based on student to teacher hostility?

Yes. Eva Berger-Rothberg, a special education teacher with over 18 years’ experience, was assigned to MS 226Q in the 2005-2006 school year. Her class assignment can only be described as a “class from hell.”

From her complaint Berger-Rothberg was subjected to an escalating pattern of abuse from her students based on her gender and religion. Some students would refer to her as a “fucking Jew,” “Jew bastard,” and “white Jewish bitch.” Her pleas for help were generally ignored and after an incident in which one of her students rubbed his penis against her and another put his tongue in her ear she used her cell phone and called police. The principal put a letter in her file threatening her with termination if she continued to use her cell phone in class which was against school policy.

Berger-Rothberrg received a “U”-rating for the school year despite the fact that she had been only observed once. She reluctantly retired and file a discrimination suit.

Federal District Court Judge Roslynn R. Mauskopf, in rejecting the DOE’s attempt to dismiss Berger-Rothberg’s claims found sufficient evidence of workplace hostility to go forward to trial. While the Judge could find no specific case dealing with student to teacher hostility, the alleged refusal of MS 226Q administration officials to deal with the situation and indirectly enabling it made Berger-Rothberg’s claims ripe for a jury trial.

Judge Mauskopf found that “In order to establish a retaliatory hostile work environment, a plaintiff must satisfy the same standard used to evaluate conventional hostile work environment claims by showing that the incidents of harassment following complaints were sufficiently continuous and severe to have altered the conditions of employment.” Berger-Rothberg, at least at this stage, has established such a case.

EVA BERGER-ROTHBERG, Plaintiff, – against – CITY OF NEW YORK, and NEW YORK CITY DEPARTMENT OF EDUCATION, Defendants, 07-CV-1878, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, 2011 U.S. Dist. LEXIS 29922, March 22, 2011.