If John King, the New York State Education Commissioner called the New York City teacher discipline procedures a “model for the state,” why is the Mayor and the Chancellor trashing the procedures and calling for legislative changes?
Let’s take a close look at the current procedures.
The United Federation of Teachers and the City negotiated substantial changes in the teacher discipline process in the 2007-2009 contract – and jointly supported a change in the law that only applied to teachers in New York City.
Under the law teachers are suspended with pay pending the completion of the disciplinary hearings. The amended rules allow for the suspension of a teacher without pay for “serious misconduct.”
The parties agree that certain types of alleged misconduct are so serious that the employee should be suspended without pay pending the outcome of the disciplinary process. Serious misconduct shall be defined as actions that would constitute:
* the felony sale, possession, or use of marijuana, a controlled substance, or a precursor of a controlled substance or drug paraphernalia as defined in Article 220 or 221 of the Penal Law, or
* any crime involving physical abuse of a minor or student (crimes involving sexual abuse of a minor or student are addressed in paragraph 6 below.), or
* any felony committed either on school property or while in the performance of teaching duties, or
* any felony involving firearms as defined in Article 265 of the Penal Law.
In the past it took many months, not infrequently over a year for the process to be completed. In the case of “serious misconduct” the parties agreed to an expedited procedure.
The parties agree that these types of cases shall receive the highest priority, and, upon the Board’s request, hearings may be held on such matters during any days previously committed by a rotational panel to other employees, as set forth above. In other words, hearings for serious misconduct take precedence over other disciplinary matters, and the Board may require adjourning other cases previously scheduled before the assigned arbitrator during that time frame in order for that arbitrator to hear serious misconduct cases within the two-month time frame.
In cases alleging sexual misconduct with students or minors, once again, teachers are suspended without pay.
A tenured pedagogue who has been charged under the criminal law or under §3020-a of the New York State Education Law with an act or acts constituting sexual misconduct (defined below) shall be suspended without pay upon a finding by a hearing officer of probable cause that sexual misconduct was committed.
A rebuttable presumption of probable cause shall exist where the Special Commissioner of Investigations (“SCI”) substantiates allegations of sexual misconduct, or a tenured pedagogue has been charged with criminal conduct based on act(s) of sexual misconduct.
If the teacher pleads guilty or is convicted in Court, or, found guilty by an Arbitrator the penalty is dismissal.
In §3020-a proceedings, a mandatory penalty of discharge shall apply to any tenured pedagogue a) found by a hearing officer to have engaged in sexual misconduct, or b) who has pleaded guilty to or been found guilty of criminal charges for such conduct.
The contract clearly sets forth a mutually agreed upon definition of sexual misconduct.
For purposes of this section, sexual misconduct shall include the following conduct involving a student or a minor who is not a student: sexual touching, serious or repeated verbal abuse (as defined in Chancellor’s Regulations) of a sexual nature, action that could reasonably be interpreted as soliciting a sexual relationship, possession or use of illegal child pornography, and/or actions that would constitute criminal conduct under Article 130 of the Penal Law against a student or minor who is not a student.
If the parties agreed upon a set of rules that cover a wide range of misconduct with mandatory discharge as a penalty why are the Mayor and the Chancellor trashing the contract?
Simply to demean teachers and their union.
In cases that do not involve any arrest, namely no allegations of a violation of law, cases based upon an allegation which the teacher denies, the charging party, the Department, has to produce evidence to convince an arbitrator of the guilt of the teacher. The standard is “preponderance of evidence.” (In a criminal case the standard would be “beyond a reasonable doubt”).
Decisions of an arbitrator must be based on evidence. Evidence means documents or direct testimony. Both the documents and the testimony are subject to examination, either “voir dire” or cross-examination.
Accusations may not be proven. An arbitrator may not find that the accusation was proven, however, decide that a teacher showed “poor judgment,” which can be defined as “conduct unbecoming a teacher,” and subject to a penalty, perhaps a fine or a suspension.
There are years of precedence, forty years of case law, and hundreds upon hundreds of cases. The concept of “stare decisis” applies, Latin for “let the decision stand,” a doctrine requiring that judges apply the same reasoning to lawsuits as has been used in prior similar cases.
If either party disagrees with the decision of the arbitrator or the penalty assessed by the arbitrator they have the option of moving to Court. Judges will rarely disturb decisions of arbitrators.
Last week a Supreme Court judge did overturn the decision of an arbitrator – the appeal was not brought by the Department of Education – it was brought by a teacher who was allegedly observed in a compromising position with another teacher in school after school hours. (See Court papers here).
A city judge who overturned the firing of a Brooklyn teacher caught in an alleged lesbian sex romp at school “went off the deep end” with her ruling, an incredulous Mayor Bloomberg charged yesterday, according to the NY Post.
Maybe his Chancellor rushed to judgment rather that carefully investigating the circumstances. The lure of the “juicy” deadline.
The judge slammed the decision of the arbitrator.
In a blistering decision, Supreme Court Justice Alice Schlesinger slammed the city and eviscerated an arbitrator for dishing out an “excessive and shockingly severe” punishment to the teacher.
‘We have children deprived of a caring teacher [over] one incident where she exhibited poor judgment.’ — Judge Alice Schlesinger, ruling that Alini Brito, fired for a romp in school with Cindy Mauro, should get a new hearing.
“So what are we left with here?” Schlesinger wrote. “We have children who are deprived of a first-class, caring teacher, and a teacher who, due to one sensational, publicly exploited incident where she exhibited extremely poor judgment, is deprived of continuing a career she loves and excels at.
“That is not a good balance, in the opinion of this court. In fact, the imbalance is shockingly bad.”
Of course the dailies, the NY Daily News and the NY Post convicted the teachers long before their cases were heard by the arbitrator. The Mayor is appalled that a judge may find the Department at fault.
“If it bleeds it leads” is the motto that drives today’s print journalism and the “Scarlett Letter” must be the Mayor’s favorite book.
By the way, how many teachers have been brought up on charges of incompetence? The Department waffles; the answer is probably one or two dozen, out of 70,000 teachers.
Principals complain it’s “too time consuming” to prove incompetence.
Who hired the teacher? Two/thirds of all teachers currently working were hired under the “Klein Rules.”
The union fulfilled its part of the equation: the union negotiated perfectly reasonable rules, rules that are “A Model for the State.”
The Department is trying to distract the public. Distract the public from a management system that accepts placing 1600 schools adrift.
Nasty accusatory press releases do not a better school system make.