In a rare procedural move, a TEACHNJ arbitrator’s disciplinary decision was set aside by a Superior Court Judge of the Chancery Division, a new arbitrator ordered, and a dismissed disciplinary removal matter was remanded.
On Feb. 27, 2019, it was alleged that a tenured middle school science teacher, while in the presence of his seventh grade class, uttered, albeit in a low tone, and in what some witnesses considered “under his breath,” a racial epithet. On the date in question, the teacher is alleged to have become frustrated with the behavior of a few of the students over a Chromebook. As the teacher ended the incident, he turned around to face the front of the room and walk toward his desk. It was during this short walk that students testified the word in question was uttered by the teacher.
After an investigation – deemed to be somewhat flawed—the board of education certified tenure charges against the teacher on April 16, 2019 on the basis of 1) unbecoming conduct, 2) inefficiency, and 3) other sufficient causes.
Hearings were conducted before the first appointed arbitrator on May 30 and 31, 2019. During that time, seven students testified to hearing the teacher utter the epithet; the teacher in question denied ever using the word and the administration testified as to the manner in which the matter was reported and investigated. By decision dated August 23, 2019, the arbitrator dismissed all of the charges against the teacher and said that the board of education had “failed to establish any of the charges as sufficient grounds for termination against the Defendant.”
Counsel for the board filed a verified complaint with the Chancery Division and on Feb. 27, 2020, the judge vacated the previous award and referred the matter back to the commissioner for appointment of a new arbitrator. The judge’s order provided little in the way of discussion other than to order the aforementioned relief.
The second appointed arbitrator considered the full matter before her, absent certain statements made by the teacher outside the presence of his union representative. The Chancery Division judge’s order included a requirement precluding these statements from the record on remand.
In a decision dated July 17, 2020, the arbitrator on remand upheld the charges of 1) unbecoming conduct for using the word in question in violation of multiple school policies and 3) “other sufficient cause” finding that the use of the racial slur “violated the public trust, which requires the district ensure that students learn in a safe environment, where they are not subject to racial epithets.” The arbitrator did not substantiate the 2) inefficiency charge finding that teacher’s use of the slur did not render him per se incapable of teaching.
Most notably, the arbitrator ordered the removal of the teacher from his tenured teaching position with the district. The arbitrator held that the single act in question was sufficiently flagrant as to permit the bypassing of progressive discipline. The teacher had one verbal reprimand during the entirety of his 14-year teaching career as well as consistently good evaluations. Notwithstanding, the arbitrator held that, considering the specific egregious facts of the instant case, removal was the warranted disciplinary sanction.
Boards of education are encouraged to review this case with their administration and board attorneys to ensure that policies and procedures are up-to-date and followed by all staff. Questions may also be posed to the NJSBA Legal and Labor Relations Department at (609) 278-5254.