School Board Notes • February 12, 2013 • Vol. XXXVI No. 27

School Officials See Arbitrators’ First Decisions Under New Tenure Law

Local school officials in New Jersey are getting a look at the first teacher-tenure cases being decided by arbitrators under the new Teacher Effectiveness and Accountability for the Children of New Jersey Act (TEACHNJ), the six-month-old law that changes the process for removing tenured teachers.

Dozens of tenure charges have been filed to remove teachers under the new TEACHNJ procedures, but currently only eight arbitration decisions have been published on the New Jersey Department of Education’s website. While it is far too early to identify any kind of trend or generalization from the first eight cases, the decisions have yielded some interesting insights. For instance, while the arbitrators’ first decisions don’t seem to stray from previous decisions made by the state Education Commissioner, different arbitrators are taking somewhat different approaches in their interpretation of the law.

Under the TEACHNJ Act, arbitrators decide whether to remove tenured school staff members from their positions. The previous system often lasted more than a year as an Administrative Law Judge held a hearing and made a recommendation to the state Education Commissioner, who could accept, reject or modify the recommendation. The new law calls for arbitrators to hear and decide tenure cases within 90 days. Also, the arbitrator’s decision is final; it is not sent to the Education Commissioner.

Of the eight cases, reported on the NJDOE website, arbitrators upheld terminations in three instances, dismissed the charges in one, and applied penalties less than termination, including withholding of salary increments and suspension without pay, in three others.  In one case posted on the NJDOE website, the parties reached an agreement prior to the arbitrator’s decision.

These and future decisions can be found on the New Jersey Department of Education’s Arbitrator TEACHNJ Decisions website.

Misconduct Cases  Five of the arbitrators’ decisions dealt with teacher misconduct. The alleged misconduct in these cases included a teacher who was streaking, excessive absenteeism, throwing a book at a student, and misuse of school computers.

The arbitrators upheld tenure charges in each of the five misconduct cases.  In three cases, the arbitrators upheld the termination of the employee. In the two other misconduct cases, the employee was not terminated but rather received both a suspension without pay and an increment withholding. 

Inefficiency Cases Two of the arbitrators' decisions involved inefficiency, the category of tenure charges addressing a teacher’s classroom performance and instructional quality. In inefficiency cases, there has been uncertainty concerning whether the arbitrator can review the evaluator’s determination as to the quality of an employee’s classroom performance when those evaluations did not take place using the rubrics approved under the TEACHNJ Act.

Under the new law, an arbitrator considering an inefficiency charge has a "limited scope of inquiry," meaning the arbitrator may not second-guess the evaluator's assessment of the teacher’s classroom performance. Instead, the arbitrator may consider whether:

  • The employee’s evaluation failed to substantially adhere to the evaluation process including, but not limited to, providing a corrective action plan;
  • There is a mistake of fact in the evaluation;
  • The charges were connected to the employee’s political affiliation or union activity; or associated with nepotism or discrimination as prohibited by state or federal law, or other conduct prohibited by state or federal law; or
  • The district’s actions were arbitrary and capricious.

One section of the law stipulates that the only evaluations that may be used are those conducted in accordance with a state-approved rubric. However, these rubrics were not approved until this year. The first wave of inefficiency charges have been based on evaluations that took place pre-TEACHNJ – and before any pre-approved rubric.

Two arbitrators reached different conclusions regarding how closely they can review the evaluation of the teacher in those instances when the evaluations took place before TEACHNJ was fully implemented. In one tenure case against a Newark teacher, published on Dec. 8, 2012, the arbitrator used the limited scope of inquiry, but, nonetheless, dismissed the charges.

A different arbitrator, in a case published a month later, specifically rejected the limited scope of inquiry and evaluated the charges using the procedures that had been used at the Office of Administrative Law. In that case, the arbitrator upheld the tenure charge, but modified the penalty from removal to a withholding of the teacher’s salary increment.

School Board Notes will continue to update board members on this topic in the coming months.