In a recent Appellate Division decision, Dunkley v. Rockaway Twp. Bd. of Educ., the state’s second-highest court affirmed the dismissal of a tenured special education teacher who touched students inappropriately. In affirming the teacher’s dismissal, the court clarified the standards necessary to remove a tenured teacher. The court’s decision, arguably, lends additional objectivity to tenure arbitration matters.

In the decision, the teacher allegedly touched students in a non-sexual way, which nevertheless, made students feel uncomfortable. District administration took the allegations seriously enough to contact the Division of Child Protection and Permanency’s Institutional Abuse Investigation Unit (IAIU). After a thorough investigation and several student interviews, IAIU could not determine that students had been subjected to sexual abuse. Nonetheless, the court found the board of education successfully prosecuted the tenure removal matter against Dunkley based on unbecoming conduct.

Dunkley appealed to the Law Division, which upheld the original dismissal, because it found that the arbitrator’s determination to dismiss Dunkley was “reasonably debatable” and therefore must be upheld. The “reasonably debatable” standard holds that an arbitrator’s decision must be upheld so long as reasonable minds could disagree on the outcome. Dunkley then appealed to the Appellate Division, arguing that the Law Division improperly relied upon the lower “reasonably debatable” standard and should instead have relied upon the more rigorous “substantial credible evidence” standard.

Upon appeal, the Appellate Division agreed with Dunkley that the Law Division improperly relied upon the lower standard. Instead, according to the appellate court, the Law Division should have reviewed the arbitrator’s decision to determine whether it was supported by substantial credible evidence, which requires an appellate court to point to specific objective factors in determining whether to uphold or overturn an arbitration decision. The Appellate Division then went on to note that despite the Law Division’s erroneous application of the reasonably debatable standard, there was sufficient evidence in the record to support Dunkley’s dismissal. Accordingly, the Appellate Division affirmed the arbitrator’s decision and terminated Dunkley from his tenured employment.

Boards of education are encouraged to discuss this opinion further with the board attorney.

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