Each year, school district policies are shaped by legal decisions issued by state and federal courts, the commissioner of education and other administrative agencies. Here are recent cases with which board members should be familiar.
There were several meaningful decisions in 2014 which addressed various issues related to tenure acquisition.
The Appellate Division determined that an academic year, served by a special education teacher under a contract which characterized her as a “long-term substitute,” and which stated that the position was “non-tenurial,” counted toward her tenure acquisition and allowed her to obtain tenure as a matter of right. In Platia v. Board of Educ. of the Twp. of Hamilton, the Appellate Division reversed a 2012 commissioner decision, which upheld the board of education’s decision denying tenure to Ms. Platia, stating that she had served for an academic year under the temporary employee exception to the Tenure Act, N.J.S.A. 18A:16-1.1. While her contract stated that the position was a substitute position ineligible for tenure acquisition, she actually served in a position which was vacant. To be considered a “substitute” be it long-term or short-term, the employee must be serving in the place of another who is absent from the position and intends to return. The prior holder of the position in question was not absent, but had been transferred to another assignment, making the position vacant. The temporary employee exception did not apply.
The Appellate Division determined that a high school health and physical education teacher acquired tenure while on a one-year maternity leave. In Kolodziej v. Board of Education of the Southern Regional High School District, the Appellate Division ruled that Ms. Kolodziej’s one-year maternity leave, which followed three years of service in the district, constituted continued employment at the beginning of the succeeding academic year and established tenure. The court remanded the matter to the education commissioner to determine whether she had attained the seniority to be rehired and to determine the measure of her damages.
The Appellate Division’s holding reversed the 2013 commissioner’s decision, which held that the yearlong maternity leave constituted a break in employment service, which prevented her from achieving tenure. In reaching its decision, the Appellate Division determined that Ms. Kolodziej, who had been employed for the complete 2002-2003, 2003-2004 and 2004-2005 academic years, remained an employee for the 2005-2006 academic year, albeit an inactive employee, on a board-approved maternity leave, some of which was under the Family and Medical Leave Act (FMLA). The employment relationship did not cease during her leave period. She was not “rehired” for the 2006-2007 academic year, she simply returned to work.
Crucial to the Appellate Division’s analysis was its review of the public policy purposes underlying the FMLA. By adopting the board and the commissioner’s interpretation, the Appellate Division would be penalizing pregnant employees by returning them not to the same position as of the day they went on leave, but rather to a new, worsened position, for which the tenure clock must reset. Such an interpretation would, in the eyes of the court, defeat the purpose of the FMLA, which is to preserve the rights of employees granted leave, not to penalize them for taking such leave.
The commissioner dismissed a petition filed by a former employee who was terminated in 2001 after a criminal indictment, was subsequently incarcerated, and claimed that when the Supreme Court reversed his criminal conviction in 2013, he was entitled to reinstatement and back pay to the date of his wrongful termination. In Nash v. Newark, the commissioner determined that the employee had never earned tenure as he served under renewals of his emergency certification as an educational media specialist (an endorsement on the educational services certificate) throughout his entire employment with the school district, 1993-2001. Time served under an emergency certificate counts toward tenure acquisition only if the employee ultimately acquires standard certification in the area covered by the emergency certification. Additionally, the petition was time-barred as it should have been filed within 90 days of his termination in 2001.
The commissioner determined that a vice principal did not acquire tenure prior to a school district reduction in force (RIF) and his subsequent reassignment to a teaching position. In Jackson v. State-Operated School District of the City of Camden, the vice principal served for only 13 months under his provisional administrative certificate and did not complete other requirements for his standard certificate, including his two-year residency requirement. He did not earn tenure as a vice principal. His earlier service as an “acting” vice principal and vice principal prior to his obtaining his provisional administrative certificate did not count toward tenure acquisition. Tenure can be achieved under a provisional certificate only if the candidate satisfies all requirements for the position prior to termination from the position for which tenure is sought.
The commissioner reversed a board’s non-renewal of a teacher of mathematics, finding that the teacher had acquired tenure. In Bleah v. State-Operated School District of the City of Newark, the teacher acquired tenure when he became a citizen, as his service under his Non-Citizen Certificate counted toward tenure acquisition once he became a citizen. Standard Certificate for Non-Citizens is an appropriate certificate for tenure acquisition when held by someone who becomes a citizen. The teacher had been employed for the requisite period of time under an appropriate certificate and acquired tenure.
The commissioner dismissed the petition of a high school business teacher, who claimed to have tenure when she was non-renewed. In Lopac v. Board of Education of the Borough of Manville, the teacher, who possessed a general business endorsement, had been assigned to teach courses during seven of her eight years of her service in the district, which required a technology education endorsement, which she did not possess. Her general business endorsement would have authorized her to teach any “educational technology” course, but not any “technology education” course. The teacher was aware that her credentials were not adequate in 2002 and was advised by the state Department of Education in 2007 that she could not qualify for the technology education endorsement without taking additional coursework, which she chose not to complete. It was her responsibility to ensure that she earned the appropriate endorsements for her teaching assignments. Since she was not properly certified to teach the technology education subject matter areas, no time was earned toward tenure in the school district.
The commissioner determined that a teacher, who held a standard instructional certificate with endorsements for teacher of students with disabilities (TOSD) and elementary school teacher in grades K-5, did not acquire tenure. In Andrews v. Board of Education of the Ramapo Indian Hills Regional School District, the teacher was employed as a special education teacher at Indian Hills High School from 2005 until 2012; worked as an in-class support teacher, supporting special education students in the regular classroom setting, and as a teacher in the resource center, teaching a variety of subject areas. The TOSD endorsement authorizes a teacher to teach students with disabilities, when the teacher also has an instructional certificate with the corresponding endorsement for the grade level or subject area in which they are assigned to teach. Mr. Andrews did not possess the appropriate grade level or subject area endorsements. Since he was not properly certified to teach the high school subject matter areas, no time was earned toward tenure in the school district. No tenure or seniority rights were violated when the board terminated him in 2012. The commissioner noted that the teacher was primarily responsible for ensuring possession of the required certification.
The Appellate Division affirmed a commissioner decision upholding the non-renewals of three teachers. In Bridgewater-Raritan Education Association v. Board of Education of the Bridgewater-Raritan School District, the Appellate Division held that time served as a replacement teacher, substituting for a teacher on maternity leave, did not count toward tenure acquisition, despite administrator assertions to the contrary. Teachers were employed by the board of education, not the principal. Under N.J.S.A. 18A:16-1.1, substitute teachers do not earn credits toward tenure.
The Appellate Division upheld a board of education’s non-renewal of a non-tenured custodian following excessive absenteeism. In Glassboro Bd. of Educ. v. Glassboro Educ. Support Professionals Ass’n, the express terms of the collective bargaining agreement discerned no ambiguity or doubt that the board of education did not agree to arbitrate non-renewals. The board retained the right to decide whom to employ. No provision in the collective bargaining agreement allowed non-renewals to be reviewed in arbitration. The amendment to N.J.S.A. 34:13A-5.3 did not alter prior precedent that held: absent specific mention in the collective bargaining agreement, non-renewal of an expired fixed-term contract of a non-tenured employee is not subject to arbitration.
The commissioner upheld a school district’s non-renewal of a principal where the principal received poor evaluations. In Nazziola v. Board of Education of the Township of Belleville, the principal’s response to a student bringing a weapon to school was improper and enough to warrant non-renewal. The principal violated board policy when he gave the weapon back to the student’s parent and failed to notify the superintendent and law enforcement in a timely manner. The principal endangered the school community and did not appreciate gravity of his actions. The commissioner found that the principal’s claim that his non-renewal was politically motivated was not supported by record.
The commissioner rejected an assistant principal’s claim that the board of education’s determination not to renew his contract after he had been employed in that position for three years, was arbitrary, capricious, and unreasonable and that the board had violated procedures during his performance evaluations. In Schempp v. Board of Education of the Borough of Clayton, the commissioner held that, absent constitutional constraints, boards of education have an almost unfettered right to terminate the services of a non-tenured employee. The board based its decision in this case on input from administrators with personal knowledge of the assistant principal’s work performance, including the superintendent, as well as parental complaints regarding petitioner’s administrative style and abilities. The board’s decision to non-renew was upheld.
Reduction in Force
When a school district effectuates a reduction in force (RIF) and eliminates employee positions, the question is always who stays, who goes and to which positions do the RIF’d employees have an entitlement to “bump” into, be it by tenure or seniority. In 2014, there were several decisions which addressed these issues.
The Appellate Division reversed a commissioner’s decision which held that a tenured secretary retained her secretarial tenure rights and could “bump” a non-tenured secretarial employee when her voluntarily accepted position of assistant school business administrator was eliminated. In Dinapoli v. Board of Educ. of the Twp. of Verona the Appellate Division found that the commissioner’s ruling was unauthorized by the applicable statutory scheme. The language of N.J.S.A. 18A:17-2 limited the retention of tenure to the time during which the employee held her secretarial office, position or employment. Nothing existed in statute for secretaries similar to N.J.S.A. 18A:28-6 and 18A:17-20.4, which afford tenure retention rights to teaching staff members and superintendents, notwithstanding promotion or transfer. The secretary did not retain her secretarial tenure rights when her position of assistant school business administrator was eliminated. Her acceptance of the position of assistant school business administrator was tantamount to a resignation from her secretarial position as her tenure rights were eliminated.
The commissioner found that a tenured supervisor of mathematics for grades 7-12, whose position was abolished in an administrative reorganization, was not qualified for the position of director of mathematics and science, to which she claimed a tenure entitlement. In Kohn v. Board of Education of the City of Orange, the commissioner determined that, because the director position was a districtwide position that – pursuant to N.J.A.C. 6A:9-12.3(a) – required a school administrator endorsement, which petitioner did not hold, the former supervisor was not qualified for the director position. The job responsibilities of the director position were of a qualitatively higher level than those of petitioner’s former position as supervisor of mathematics. It was not enough that she held both a principal and a supervisor endorsement. High-level districtwide positions that incorporate supervisory authority require a school administrator endorsement.
The commissioner upheld the reduction in force of a non-tenured supervisor of special education for reasons of economy. In Jimenez v. Board of Education of the City of Jersey City, the supervisor, who was employed for three consecutive years, asserted that she was not properly terminated, claiming that no vote of the school board occurred, in violation of N.J.S.A. 18A:27-4.1 and she was never given a formal statement of reasons for her termination. The ALJ (administrative law judge) found that petitioner’s arguments were overly simplistic and that, given the unique circumstances within the Jersey City school district, which was under partial state intervention, the process used was proper. The mid-year termination, for reasons of economy, was properly effected as control over personnel matters had not been returned to the board; the state-operated superintendent had control over personnel matters; no board vote was required to appoint, transfer or remove personnel.
The commissioner determined that a guidance counselor did not earn tenure as a teacher and was not entitled to teaching assignments or back pay, after a reduction in force. In Rutledge v. Board of Education of the Township of Bethlehem, the commissioner determined that the employee was hired as a guidance counselor, not as a teacher. Any lessons presented by the employee were solely guidance-related and she never taught core curriculum subjects. She was employed under her educational services certificate as a guidance counselor, not under her instructional certificate. As such, she was tenured exclusively in “educational services” as a guidance counselor.
The commissioner determined that a tenured Supervisor of Visual and Performing Arts whose position was eliminated in a reduction in force (RIF) was improperly reassigned to a teaching position at a reduced salary. In Annecchino v. Board of Education of the Township of Irvington, the commissioner determined that the board of education improperly applied seniority regulations, rather than tenure principles, as non-tenured supervisors with greater knowledge and expertise were permitted to remain in supervisory positions in the district. The commissioner noted that, irrespective of content expertise, a certified supervisor with tenure should be preferred over one who is non-tenured (as per Duva v. State Operated School District of Jersey City). Although there is no statutory right to the salary held prior to a RIF, the commissioner held that an award of differences in salary was an appropriate remedy when a petitioner’s tenure rights were violated as a result of a RIF. The petitioner was entitled to a salary difference of $23,628 for the 2012-2013 school year.
Regional School Districts
The issue of cost apportionment in regional school districts is a controversial issue. Some believe that property values (equalized valuation) should control; others, pupil counts; others, a combination of the two. Whatever the way, the voters must decide the change. In this 2014 decision, the commissioner addressed the issue of regional cost apportionment.
The commissioner ruled in a decision where a constituent district of a regional sought to have the commissioner reallocate the apportionment among the two constituents of the regional school district. In In Re Cost Apportionments for the River Dell Regional School District, the commissioner rejected an ALJ determination of an 80 percent per pupil and a 20 percent property value allocation. The proposed new formula was not substantiated in the record. More importantly, the commissioner does not have the authority to order reallocation under the circumstances in River Dell. The River Dell Regional school district case is neither constitutionally nor equitably similar to the circumstances set forth in In the Matter of the Petition for Authorization to Conduct a Referendum on the Withdrawal of North Haledon School District from the Passaic County Manchester Regional High School District, North Haledon Board of Education and Borough of North Haledon v. Passaic County Manchester Regional High School District et al., where the commissioner developed a similar cost allocation remedy. The fundamental issue in North Haledon was the disparity in per-pupil costs among the municipalities, which could not be remedied through statutory withdrawal from the district because of constitutional implications regarding the racial demographics of the district. Guidance from the attorney general’s office advised the commissioner that he may revise cost apportionments where the relative tax burden is inequitable and dissolution or withdrawal of constituent districts would implicate the constitutional rights of students to a thorough and efficient education. North Haledon was precluded from withdrawing from the district due to the constitutional obligation of maintaining thorough and efficient public schools. North Haledon cannot be interpreted as a blanket rule that the commissioner has the authority to petition the function of N.J.S.A. 18A:13-23. It does not apply to River Dell. The commissioner noted that the administrative law judge appeared not to have taken into account that property values, not per pupil counts, have been regarded by the Supreme Court as the most equitable basis for school funding and suggested that the Legislature may be appropriate place to find a remedy.
Sending – Receiving
The issue of withdrawal from a sending-receiving relationship is as complicated and emotional as any matrimonial divorce. In 2014 the commissioner approved the severance of two sending-receiving relationships.
In Interlaken v. Asbury Park, West Long Branch and Shore Regional, the commissioner approved the severance of Interlaken’s send-receive relationship with Asbury Park and the establishment of a sending relationship with the West Long Branch and Shore Regional school districts. The feasibility study and accompanying certifications and exhibits demonstrated that petitioners satisfied all of the statutory elements required for severance. The demographic enrollment in Asbury Park schools will not change if severance is granted. Dissolution of the sending/receiving relationship and creation of the new relationships will have no negative impact upon the education of students in any of the implicated school districts. The proposed changes to Interlaken’s sending/receiving relationship will have little financial impact on any of the districts involved, with the exception of a possible tax increase for Interlaken residents. It is of note that on at least two other circumstances, Interlaken, with several other sending districts, tried to sever their sending-receiving relationship with Asbury Park. On both occasions, one of which went to the Appellate Division of New Jersey Superior Court, the severance was denied due to the adverse racial impact.
In Longport Board of Education v. Atlantic City and Ocean City Boards of Education, the commissioner granted Longport’s application for severance of its send-receive relationship with Atlantic City subject to its entering into a new agreement with Ocean City for a minimum of five years. The commissioner agreed with the ALJ that there would be no substantial negative impact upon the educational and financial condition of the districts, but disagreed with the ALJ’s notion that the current racial balance of the receiving district is the deciding factor of whether a substantial negative racial impact will result from severance. The commissioner found insufficient evidence of aggravating circumstances in the record to support a finding that the otherwise minimal .4 percent proportional change in racial composition represented a “substantial negative impact” on the racial composition of Atlantic City High School. Longport sent twenty-four students to various local high schools, including nine who attended Atlantic City High School and three who attended Ocean City High School through a Choice Program; the balance of Longport students attended private and parochial schools. Atlantic City opposed severance of the existing send-receive agreement. Under all of the instant circumstances, severance will not have a substantial negative impact on the highly diverse racial composition of Atlantic City High School.
Harassment Intimidation and Bullying
The United States Court of Appeals affirmed the District Court’s dismissal of plaintiffs’ claims. In Monn v. Gettysburg Area School District., the parents of several allegedly bullied middle school students claimed that school district officials, after being notified of the bullying, did not act to prevent the bullying of the students. The parents asserted claims under 42 U.S.C. § 1983 for violations of the First, Fourth and 14th Amendments. The District Court had dismissed all of these claims. No affirmative retaliatory action by the school district against the students was alleged or proven. No special relationship existed between the parents, students and the state, nor did any state-created danger exist in this case. The bullying of the children by other students did not give rise to the level of a procedural due process claim; no federal constitutional duty to protect children from bullying by other children existed.
The United States District Court for New Jersey heard plaintiffs’ claims of various state and federal statutory, constitutional and common-law claims against the board of education and superintendent based on defendant’s alleged failure to prevent students from bullying student K.T. and dismissed them all. In Thomas G/A/L K.T. v. East Orange Board of Education, numerous HIB complaints had been filed with school district officials regarding teasing of K.T. about K.T.’s mother’s weight and aunt’s disability, profanity directed against K.T., threats of physical violence against K.T., etc. None of the HIB complaints were substantiated after investigation by the school’s anti-bullying specialist. The District Court dismissed the New Jersey Law Against Discrimination claim as there was no evidence that K.T. was bullied based on gender; K.T.’s status as having come from the southern part of the United States did not rise to the level of a protected class status. No federal constitutional rights were shown to have been violated. The District Court held that there is no fundamental right to a public education under the United States Constitution. No “discriminatory enforcement” of the Anti- Bullying Bill of Rights Act was proven. No state created danger, and no negligent infliction of emotional distress was established. The Anti-Bullying Bill of Rights Act does not create or alter tort liability and cannot be a basis for a claim of negligent infliction of emotional distress. All claims were dismissed.
The commissioner granted the board of education’s motion for summary dismissal where a parent sought to reverse the school district’s determination that his daughter violated the school district anti-bullying, harassment and intimidation policy and to expunge her student disciplinary record in connection with the HIB investigation of an incident. In G.T.S. o/b/o S.A.S v. Union County Vocational School Board of Education, the Commissioner found that there was no disciplinary record in the student’s educational file to expunge. The student was currently attending college and there was no evidence to suggest that the board of education conveyed any findings related to the HIB incident to any higher educational institution. The student admitted to making an insulting comment about “agreeing to bring the watermelon” in front of an African-American student and used a racially insensitive phrase in her Twitter postings. The board’s actions in investigating the incident and subsequently requiring the student to participate in sensitivity and awareness training were in compliance with the district HIB policy. A determination of whether the student engaged in the alleged HIB incident is moot, as resolution would not further a remedy.
The commissioner upheld the board of education’s determination that an eighth-grade student participated in an act of harassment intimidation and bullying (HIB) when he was among a group of boys who chanted “Kool-Aid” to tease and taunt an African-American classmate in the hallways and locker room. The use of the word “Kool-Aid” was directed at a fellow student because of his race, thereby insulting and demeaning him. In G.H. and E.H. o/b/o K.H, the commissioner concurred with the administrative law judge that neither the board’s decision to impose a one-day suspension for violating N.J.S.A. 18A:37-14 nor the board’s HIB policy was arbitrary, capricious or unreasonable. The parent’s argument that K.H.’s action did not constitute HIB because it was a single incident was dismissed as it ignored the plain language of the statute that a single incident could constitute an act of HIB.
In J.M. on behalf of minor child T.M., a petitioning parent sought a finding that the cheerleading coach engaged in acts of harassment, intimidation, bullying and retaliation, and that the coach be relieved of her coaching duties. The board of education relieved the coach of her duties. Given the fact that the relief sought had occurred, the ALJ found the matter moot. The commissioner disagreed determining that the matter was not mooted by the departure of the coach from her position; the issue of HIB and the surrounding facts were still in controversy. The commissioner remanded the matter back to the Office of Administrative Law for proceedings to determine whether the coach’s conduct constituted harassment, bullying or intimidation.