March 21, 2010
By Jeanette M. Rundquist
The East Orange school district spent a year in a legal fight before it could dismiss a teacher who, the district said, had struggled to manage her classroom and instruct her students.
The Trenton school district spent between $300,000 and $500,000 in legal fees trying to dismiss five teachers and five other staff members in the past five years, as well as nearly $600,000 in salaries for those suspended employees, according to the executive director in charge of legal affairs.
The school board in Lopatcong spent nearly four years and $350,000 to dismiss a teacher who had directed his elementary school students to give him back-rubs. That sum included legal fees, the cost of hiring substitutes to cover his classes, and more than $200,000 in salary paid during his suspension, according to the board attorney.
In all those cases, the teachers had tenure, a job protection meant to spare educators from being fired at the whim of a politically motivated school board — and one that can lead to protracted and expensive legal battles.
As states look for ways to improve schools and save money, a small but increasing number are taking aim at tenure. Maryland and Ohio are considering making it more difficult for teachers to earn the job protection. Last year the school chancellor in Washington, D.C., proposed offering teachers contracts without tenure in exchange for higher pay.
In New Jersey, Gov. Chris Christie’s education transition team has proposed increasing the time that teachers must work to earn tenure; requiring “rigorous” post-tenure reviews; and streamlining the process for removing tenured teachers. Changing tenure would require legislation.
“There’s just been such reluctance to whisper the words ‘tenure reform,’ ” Piscataway superintendent Robert Copeland said. “But the time has come.”
Tenure challenges are typically reserved for a small number of employees and the most severe cases. A review of 73 tenure cases from the past five years found they dealt with a range of issues, from excessive lateness or cursing at colleagues to criminal matters. Forty-one of the cases involved teachers, and 30 of those teachers were dismissed. The others were either reinstated, suspended or referred for additional teacher training.
Teacher tenure is a hot-button topic, especially in an economy in which many workers worry about job security. Critics often say that for New Jersey teachers, who earn an average of $63,000 a year, tenure amounts to a job for life. Supporters disagree, saying tenure provides a fair system to dismiss teachers while keeping politics and favoritism out of public schools.
“Because you’re dealing with children, it’s such an emotional area. If a parent has a lot of clout in a community, they could try to get a teacher to leave,” said Ellen Levitan, a retired biology teacher who was president of the Montville district’s teachers union.
Anne Wessel, who teaches English at Madison High School in Morris County, said that she has “no problem” with tenure reform but that tenure is necessary.
“There can be a parent that’s gunning for a particular teacher, and who gets other parents to go after that teacher. … I have seen some ugly situations like that,” she said.
A STABLE STAFF
Many educators say tenure also creates a long-term relationship between teachers and their district, adding stability to schools by keeping educators from hopping between districts in search of better salaries and benefits.
Wessel added that tenure also protects freedom of ideas: “In some districts, teachers might not express themselves fully because they are afraid of losing their jobs. Once they get tenure, they feel freer to.”
Roughly 80 percent of New Jersey’s 129,000 classroom teachers have tenure, said Steve Wollmer, communications director of the New Jersey Education Association, the state’s largest teachers union. School secretaries and administrators — except superintendents — also receive it, and in some districts custodians may be tenured.
New Jersey teachers earn tenure after three years and one day on the job, and in most cases cannot be fired without charges filed and hearings held.
A New Jersey district can bring tenure charges for inefficiency (poor performance), incapacity, unbecoming conduct, or “other just cause.” Teachers accused of inefficiency must be given 90 days to correct problems before charges can be filed.
A state administrative law judge hears the case and makes a recommendation to the state education commissioner, who can uphold, modify or overturn it. Since 2005, the commissioner has ruled on fewer than two dozen tenure cases a year, according to Department of Education records.
The New Jersey School Boards Association estimates tenure cases, on average, take a year to resolve and cost upwards of $100,000.
Once tenure charges are brought, a teacher is suspended without pay for 120 days. Pay resumes on day 121 whether the charges have been resolved or not, unless the case involves criminal indictment.
School attorneys and officials say many more cases are settled than go to court.
The Morristown law firm Schwartz Simon Edelstein Celso & Zitomer, which represents about 100 school districts statewide, handles more than 125 cases per year involving tenured school employees, said Larry Schwartz, the firm’s managing director and a member of the Christie transition team. Of those, only about 12 to 20 a year go to administrative law courts.
“Many times a teacher will resign because the facts are overwhelming,” Schwartz said.
Rarely, if ever, are tenure charges used to unfairly “go after” a teacher, he said. “I don’t believe so, at least not my clients,” Schwartz said. “I’m not suggesting it’s never happened, but I don’t think it’s used for that purpose alone. It’s too involved and costly a procedure to use that way.”
The stakes are high: Losing tenure can be a career-ender. After the commissioner revokes tenure, the case is referred to the state Board of Examiners for a decision on the teacher’s license.
Robert Higgins, director of the state Department of Education’s Office of Licensure and Credentials, said each case is decided on its merits, but he did not recall a case where the board did not revoke the license of someone who lost tenure.
The Lopatcong Board of Education became embroiled in a tenure case after a veteran special education teacher was suspended in June 2005, accused of inappropriate physical contact with students. The board filed tenure charges five months later. The case was not resolved until March 2009, when the commissioner ordered the teacher dismissed, according to court records.
The teacher was found to have committed unbecoming conduct for a series of incidents that stretched back years, including directing his third-grade students to give him back-rubs.
The board attempted to resolve the case, according to board attorney John Comegno, whose firm, Comegno Law Group of Moorestown, represents about three dozen districts in New Jersey and Pennsylvania. But it ultimately involved 11 days of court hearings, including the testimony of children.
With the exception of the 120 unpaid days, the teacher received his salary while on suspension from June 2005 until March 2009, Comegno said. State records show his annual salary was $68,600.
“What was particularly painful to the public, or the taxpayers, is that this misconduct alleged was proven,” Comegno said. “This is a smaller K-8 district. Those hundreds of thousands of dollars could have been much better spent toward instruction, extracurricular programming, in-service (training) or other programs or activities which would have benefitted students academically.”
Neither the former Lopatcong teacher nor his attorney responded to requests for comment.
OPEN TO TALKS
Many educators say the time and expense it takes to resolve a tenure case are among the system’s biggest problems. The Christie transition team called for “strict adherence to the six-month time frame for resolution of charges,” and said a teacher’s suspension without pay should coincide with the time spent resolving the charges.
The team also saw a need for “rigorous” reviews of teachers after they receive tenure. Teachers generally are observed in the classroom at least once a year after they become tenured — compared with several observations and follow-up conferences each year before, said Frank Palatucci, principal at Highland Regional High School in Camden County.
But the evaluation process is not uniform statewide, he said.
Wollmer of the NJEA said, “Teachers welcome rigorous evaluations.” He added that the NJEA has supported past efforts to streamline the tenure-removal process and would be open to talking about it again.
“The one thing that cannot be sacrificed is fairness,” Wollmer said.
Christie’s transition team also recommended requiring that teachers work for five years instead of three before earning tenure. That would better train and prepare teachers, said Mike Ritacco, Toms River superintendent and member of the Christie education transition team.
The NJEA has not taken a position on that suggestion, but Wollmer said there is no evidence that adding two years would better guarantee a good teacher.
Others argue tenure reforms are overdue.
“The system needs to be flexible enough to say, ‘You’re not living up to the expectations of this district at this time,’ and once you’ve been given appropriate support, if you aren’t still making the mark, ‘You need to go elsewhere,’” said Piscataway’s Copeland. “That happens in all jobs. It shouldn’t not happen in something as important as education.”
Jeanette Rundquist may be reached at firstname.lastname@example.org. Kristen Alloway may be reached at email@example.com.