School Law

The New Jersey Teach Act

Effective leadership under the NJ Teach Act minimizes litigation costs, improve teaching, and further the interests of the school community.

Legal Cost

Only the fee of the arbitrator, $1,250 a day, up to $7,500, is paid for by the State. The billable hours for appearance of district counsel will easily equal that amount and exceed it for legal research, review of the facts, memoranda, briefs, motions, and the preparation of witness.

Ineffective and Partially Effective Ratings

The new law explicitly requires only two consecutive years of poor evaluations. If, based on the district evaluation rubric, a teacher receives a rating of ineffective or partially ineffective at the end of year summative conference, the district must implement a corrective action plan for the next year. If the teacher is evaluated as ineffective during the remedial year, the district must bring tenure charges. However, if the teacher is evaluated as partially ineffective in the remedial year, the district may give the teacher a third year, after which the district must bring tenure charges if the teacher is still rated only partially effective. It should be noted the language of N.J.A.C. 6A:10-2.4 ostensibly provides for some discretion in the summative rating. "The annual performance report is. . . based on the evaluation rubric, including, when applicable, a total score for each component . . . [and]shall include, but not be limited to, a review of . . . progress of the teaching staff member toward meeting the goals of the individual professional development plan or, when applicable, the corrective action plan." The progress "[m]ay be used as evidence in the teaching staff member's next annual summative evaluation; however, such progress shall not guarantee an effective rating on the next summative evaluation." N.J.A.C. 6A:10-2.5

Limited Standard of Review

Districts do not have to prove inefficiency by a preponderance of the evidence anymore. The statute does not allow the arbitrator to question observations. Arbitrators only review whether the district 1) adhered to the evaluation process and created a meaningful corrective action plan, 2) made mistake of fact, 3) was motivated by politics, nepotism, union animus, or discrimination and 4) was arbitrary and capricious. They will look for compliance with Chapter 10 of the Administrative Code governing Educator Effectiveness.

The Cases and Their Lessons

The Board of Education of Newark lost control over its administration when the state took over its district for failing NJQSAC. The Board serve[s] in an advisory capacity only.” N.J.A.C. 6A:30-6.8 The state appointed superintendent spent numerous resources and ran up legal bills trying to dismiss six tenured teachers for inefficiency. She lost four of the cases giving us our first case law.

The cases turn upon the support the teacher was given and the conduct of the district and teacher, especially during the 90-day improvement period and the accompanying last ten observations.

1) In the Matter of the Tenure Hearing of Darrin Hawthorne, 2/6/13, (#61-13), the principal rated the tenured teacher ineffective. A summer school supervisor rated the teacher proficient and a math coach testified to his effectiveness. The judge determined that the district acted arbitrary and capricious. The arbitrator was concerned that the principal denied a request to transfer to another school (p. 39), the Professional Improvement Plan (PIP) was not discussed or developed with the teacher (p. 40), and observers were told that the teacher was in “the final process of being dismissed.” (p. 41). Although numerous unsatisfactory evaluations were entered into the record, “[b]uilding a paper trail does not offer assistance to a teacher.” (id.). The “job is to offer assistance to Mr. Hawthorne. If it were to simply use the various domains that appear on the observation/evaluation forms and not offer anything beyond verbiage and numbers, the evaluation process then becomes absurd.” (p. 43). The arbitrator noted that 23 students were accepted into district magnet schools and test scores rose.

Paperwork is worthless unless meaningful support has been offered to the teacher. Defense attorneys will almost certainly diminish the probative value of support offered by observers with little knowledge of course content. Moreover, N.J.A.C. 6A:10-4.1 requires fifteen to fifty percent of the annual evaluation for the Student Growth Objectives (SGOs). Tenured faculty will figure out how to use SGOs and benchmark tests to their advantage. The organization should be restructured with subject matter supervisors exclusively assigned to the high school that meet with each teacher every week to build a cohesive organization of strong internal support.

2) In the Matter of the Tenure Hearing of Lynderia Mansfield, 2/6/13, (#58-13) charges were dismissed against a teacher deemed ineffective with excessive absences for multiple years, 23 absences and 68 tardies one year. The teacher brought evidence of improvement during the 90-day improvement period. The arbitrator noted the sloppy miscalculation of points in the annual rubric and the disorganization of administrative notes.

Conduct during the 90-day improvement period will win or lose the case. A district that does not keep track of its paperwork will not prevail.

3) In the Matter of the Tenure Hearing of Felicia A. Pugliese, 2/15/13, (#70-13) the dismissal of tenured teacher was upheld. She could not engage her students in a whole class setting after teaching for years in a one-on-one setting. The teacher was overwhelmed despite the assignment of master teachers to assist her. Since the teacher was certified for the subject, improper assignment was not a defense.

A tough reassignment will successfully demonstrate the inefficiency of an unqualified teacher.

4) In the Matter of the Tenure Hearing of Edgard Chavez, 2/6/13, (#57-13), after 20 years as an adult teacher, the teacher was reassigned to the sixth grade. He was provided support for two years by the principal and math coach and never challenged any reprimands or observations. The arbitrator applied the preponderance of evidence standard since the facts took place before the NJ Teach Act took effect and rejected the argument that the district had to wait another two years in order to apply the NJ Teach standards and rubrics that were not yet developed by the district.

Teachers that do not make an effort to reply to poor observations or otherwise earnestly try to improve will be dismissed.

5) In the Matter of the Tenure Hearing of Owen Newson, 1/10/13, (#17-13), was similarly decided by the old standard but in this case, the arbitrator found that 23 year veteran had only one year of unsatisfactory evaluations by a new and aggressive administration. He made progress during the 90-day improvement period. Although the NJ Teach Act two-years of rubric based evaluations were not required as in Chavez, the teacher was entitled to more than one year of support for ineffective teaching after so many years of satisfactory service.

New management cannot pick and choose whom it will retain or use NJ Teach as an instrument to decimate its tenured faculty.

6) In the Matter of the Tenure Hearing of Thomas Williams, 06/19/13, (#467-12), the case against a teacher who scored unsatisfactorily in the criteria was dismissed by the arbitrator because the same administrator that evaluated him unsatisfactorily in the teaching domains wrote a “thoroughly laudatory in her supervisory narrative commentary regarding Respondent's actual classroom ‘Instruction.’” (p. 4).

Numeric scores on the evaluation rubric cannot be contradicted by subjective descriptions of teacher competence.

7) In the Matter of the Tenure Hearing of Robert Carter, 06/10/13, (#235-13), the only case not from Newark, was a clear-cut case of dismissal. A teacher in the state operated district of Paterson was confrontational, antagonistic, physical, and spoke harshly toward students and administrators, had conflicts with parents, and simply did not perform his duty to instruct students.

Some teachers just want to get fired.

Conclusion

The purpose of observations is to enhance the instructional capacity of a faculty. Arbitrators will look for evidence of meaningful support. Administrators can boost morale, make better use of resources, lower legal costs and make thier schools an attractive place to work by using observations to assist in the goal of retaining its faculty.