In August of this year, an arbitrator restored a teacher to the classroom despite allegations the teacher used a racial slur in front of students. In the ruling, the arbitrator determined that the teacher’s due process rights were not fully protected, nor was the teacher’s full teaching record properly considered; therefore, the charges were dismissed and the teacher was restored to the classroom with back pay and full benefits.

In I.M.O. Tenure Charges Against Basetti, Penns Grove-Carney’s Point Reg’l Sch. Dist., the school district filed tenure charges of unbecoming conduct, incapacity, and other just cause against a tenured science teacher of 14 years for using the “n-word” in the presence of students and again during an investigatory meeting with the assistant vice-principal.

The tenure charges alleged that the teacher engaged in a minor confrontation with a student who refused to comply with the teacher’s directives regarding a “Chromebook” computer. According to the teacher’s testimony during the hearing, because the incident occurred as the end-of-period bell was ringing, he determined not to pursue the student’s conduct any further. Students in the class however, reported to administration that the teacher quietly mumbled words to the effect of “I’m done with these (n-words.)” These reports prompted an investigatory interview by the assistant vice-principal where the teacher advised that he would not have used the slur because the student to whom he was referring was white. The assistant vice-principal, offended by the teacher’s full use of the slur during the interview abruptly terminated the interview and reported his findings to the district. Tenure charges followed.

In the course of the tenure proceedings, the arbitrator noted two important deficiencies during the investigation that affected the outcome of the hearing. First, the teacher’s investigatory interview was conducted without union representation in attendance. The arbitrator noted long-standing N.J. Supreme Court precedent holding, that “[r]equiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates … inequality [of bargaining power between employees and employers]….”

In addition, according to the arbitrator, when the assistant vice-principal conducting the interview became so emotionally involved that the interview could not continue, the assistant vice-principal should have recused himself instead of allowing his investigation and judgment to become impaired.

The arbitrator then determined that the teacher mumbled the slur under his breath, in essence, speaking only to himself. In response to the district’s complaint that this utterance made the teacher incapable of returning to the district because of the disruption that would ensue, the arbitrator determined that to uphold these charges would establish a new standard for teacher termination, one where if a teacher was overheard muttering the slur with no intention that it be heard by others, that teacher’s 14-year unblemished teaching record was irrelevant and the teacher must be terminated for a first offense.

In finding no merit in the charges, the arbitrator noted that the charges related to a single incident and not a pattern of misconduct, the conduct would have no harm or serious effect on the maintenance of discipline or the school system, and it left open the ability of the district to discipline other teachers for direct and open and intentional verbal belittling of students.

For more information about this decision, board members may speak to their board attorney or members of the NJSBA Legal and Labor Relations Department by calling (609) 278-5254.

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