Tenure Track: Has New York Already Fixed Its Teacher Disciplinary Hearing Process?

When former CNN anchor Campbell Brown joined a legal challenge of New York’s teacher tenure laws last month, one key target was what some education groups called a drawn-out and ineffective hearing process for those tenured teachers facing disciplinary charges. 

The statewide teachers’ union countered that the 2012–13 state budget had already instituted changes reforming the hearings, capping at 155 days a disciplinary process that could typically take years and cost hundreds of thousands of dollars. 

“The law was amended in 2012, and that’s something you don’t hear Campbell Brown acknowledging,” Carl Korn, a spokesman for New York State United Teachers, said. 

But a number of observers contend the hearing process continues to be plagued with problems, despite the efforts to make it more efficient and cost-effective. While both sides agree that cases involving sexual misconduct are being resolved more quickly, other proceedings are still bogged down by lengthy delays. Moreover, the costs to school districts can discourage them from bringing charges against a teacher for pedagogical misconduct, critics say. 

“If you have to make an economic decision about whether you proceed against someone who’s certainly not in the best educational interest of the children, the question is, ‘Is that good public policy?’ ” said Jay Worona, general counsel for the New York State School Boards Association (NYSSBA), which has not taken a public stance on the lawsuits. 

The state Board of Regents began to seek changes in 2011 to address complaints about the hearing process. The 2012 legislative change allows the commissioner of the state Education Department to select a hearing officer if the parties fail to agree to one within 15 days, to cap the officer’s pay and to remove any officer that does not conclude hearings on time. The most significant change was the prohibition on introducing new evidence 125 days after the filing of the charges, except in the case of “extraordinary circumstances beyond the control of the parties,” according to the amended bill. 

Korn, the NYSUT spokesman, told City & State that the 2012 amendment had greatly improved the hearing process for tenured teachers. “Basically the changes require all the hearings to be completed within 120 days. From the time the charges are filed to the conclusion of the hearings is a 125-day limit,” he said. “And then the arbitrator has 30 days to issue a decision. So the statutory timeline for tenure cases is limited to 155 days.” 

Proponents of the state’s teacher tenure system also maintain that it protects students by ensuring job security for teachers who speak out about budget shortages, raise concerns about other issues affecting students and take other steps to hold school administrators accountable. For example, teachers were able to criticize the new Common Core standards and the issue of overtesting of students without being afraid of losing their jobs. 

Several experts also say that teacher tenure is not an issue that is spontaneously brought up, given more pressing concerns about school aid and achievement gaps. 

“If Campbell Brown really wanted to help students, she would be joining with teachers in fighting for the funding that schools need,” Korn said. 

STUCK WITH BAD TEACHERS? 

Nonetheless, some education groups argue that the 2012 changes did not do enough to ensure a cost-effective and timely hearing process, which in turn allows bad teachers to stay in the classroom. The two teacher tenure lawsuits—one filed by New York City Parents Union in early July, and the other filed a few weeks later by the Partnership for Educational Justice— claim that the state’s tenure and seniority laws violate students’ rights to a sound, basic education. Both take aim at the hearing process, at the three-year period for making tenure decisions and at the “last in, first out” law, which mandates that the most recently hired teachers must be the first to be laid off in the event of cutbacks. 

A frequently cited study conducted by NYSSBA in 2008 found that the process of removing a tenured teacher took an average of 520 days and cost a school district an average of $128,000. The 2008 data does not reflect the changes to the teacher tenure law made in 2012, however, and thus are considered outdated, calling into question the current validity of the figures. 

According to new figures released by the United Federation of Teachers, New York City sought to remove 637 tenured teachers over the last two years; 153 of the cases, fewer than a third, are still pending. The median length of the proceedings is 105 days; six extended for more than 500 days. 

The city’s figures do not necessarily reflect what is happening in the rest of the state. In the 2013–14 fiscal year, New York City had 358 total cases and closed around half of them (159). Having changed its disciplinary process for teachers several years ago, New York City touts its ability to reach decisions more quickly and less expensively now. 

During the disciplinary review period, New York City teachers are guaranteed continued pay, but some are not allowed to teach and instead are sent for the duration to what are commonly known as “rubber rooms.” Last year the New York Post reported that the city had paid nearly $1 million to a teacher who spent 13 years in a rubber room after being accused of sexual misconduct in 1999. 

On the state level, there were 525 total disciplinary cases filed in the 2013–14 fiscal year (excluding New York City), according to the state Department of Education, slightly fewer than half of which are still open. 

While those figures may seem comparable to the city’s, education experts agree that the city’s system is more effective. Asked to provide the number and status of all the disciplinary cases filed in the 2013–14 fiscal year, the state DoE gave City & State information about 26 cases, all of which had been resolved in 2013 by hearing officers. The disparity between the number of cases reported by the DoE and the relatively few provided to City & State is attributable to the others being closed by settlement, withdrawn or remaining open, according to a state DoE spokeswoman. Cases may also straddle fiscal years, with a decision being made in the following fiscal year. 

However the figures are tabulated, NYSSBA general counsel Worona noted they can be misleading. “If we just look at percentages and how many cases there are, we don’t know how many are not filed” due to economic reasons, Worona said, and with that number left out of the equation, “we might get a warped sense of what’s not broken about the system, or what is broken.” 

CONDUCT AND COMPETENCY 

Although the 2012 legislative changes did not address the differences in pedagogical misconduct and sexual misconduct, both sides agree the changes have expedited the process of removing a teacher accused of sexual misconduct. 

“It does seem there has been a difference in terms of the length of times,” said Reshma Singh, executive director for the Partnership for Educational Justice, which filed one of the two tenure lawsuits. “But from what I know—and, again, we don’t have [recent] hard numbers—there isn’t that much of a significant shift in terms of competency hearings.” 

State Board of Regents Chancellor Merryl Tisch said the teachers’ union’s stance might reinforce a negative perception of teachers. 

“I just always think that for the union to waste their capacity on defending people who should not be in the system, what it does is it demeans the unbelievably qualified educators in the system,” Tisch told City & State. “I just don’t think there is a place in the system for pedophiles, or defending pedophiles, or for keeping them in rubber rooms. … That being said, it’s very few people.” 

Of all the teachers outside of New York City who were evaluated in 2013, 49.7 percent were found to be highly effective, with another 41.8 percent deemed effective. Only 1 percent were found ineffective and 4.4 percent were found to be “developing.” The lowest-performing teachers are also given opportunities to improve their performance before disciplinary proceedings are initiated. 

Singh’s Partnership for Educational Justice argues that the single most important factor that determines a child’s success is the effectiveness of that child’s teacher. 

“This is not a silver bullet,” Singh said. “Reforming these laws is not going to address every challenge our system faces, but that does not mean we shouldn’t work on multiple solutions that will and try to tackle various challenges our students and families face.”