Terminating a public school teacher who has tenure is too severe a measure for behavior that is improper but does not violate any law or regulation, an appeals court in New York City has ruled in a case that shows the significance of due process in the context of public education.
Though evidence presented at a hearing established that the teacher, who teaches eighth-grade phys ed in the Park Slope section of Brooklyn, asked at least two of his female students if they had older sisters and accepted a phone number of one of them, his behavior did not warrant his firing, the Appellate Division’s first department determined in a decision published Sept. 27.
In 13 years of service, the teacher had not been accused previously of any misconduct, nor had he been warned or reprimanded regarding the conduct at issue, the court noted. Nor was there any evidence that the teacher made sexual comments to his students. An arbitrator who sided with the city concluded that termination might be “too severe” but was the only penalty that could “jolt” the teacher into knowing the seriousness of his misconduct, But that, by itself, could not justify termination, according to the majority.
Writing in dissent, Justice Peter Tom said the teacher “irreversibly abused his position… by transforming the high school where he teaches into a dating forum using his young female students to search out candidates for his illicit romantic escapades. This behavior harmed his students, even if they did not fully realize it.”
Reaction to the ruling in the neighborhood was mixed. “He shouldn’t be allowed back,” one mother told the Post. “You shouldn’t ask students if they have attractive moms.”
But a colleague of the teacher’s told the paper he welcomed the decision, saying the incidents were “blown out of proportion.”
The ruling shines a light on the procedures that school districts must follow when dismissing a teacher who has attained tenure, which in New York safeguards educators who have earned the protection (after three or four years, depending on when the teacher was hired) from being fired arbitrarily.
Teachers in New York City have had tenure protections for nearly a century. As Dana Goldstein, a journalist who has chronicled the history of the teacher profession, has written, tenure protects educators from political interference and assaults on their civil liberties.
“This ‘due process’ was the bedrock principle of teacher unionism,” notes Goldstein, “the protection that could help prevent teachers from being fired because of their political leanings, gender, race, religious beliefs, pregnancy or opposition to administrative policies – all once-common practices.”
Among other stipulations, a tenured teacher charged with misconduct is entitled to have the charges detailed in writing, to review the evidence, to confront witnesses and to a hearing before an impartial arbitrator.
That’s not to suggest that school officials can’t discipline or remove a tenured teacher for incompetence or misconduct. Tenure simply means that the officials must have a legitimate basis for doing so and adhere to procedures provided by law.
As the justices noted, teachers can and have been removed for, among other reasons, sexually harassing and forcibly kissing a colleague, verbally abusing students, engaging in a relationship with a minor female student, and for discussing bestiality, necrophilia and his own ejaculations with students. But even in the latter case, school officials warned the teacher at least three times to stop such conduct before firing him.
The court cautioned the teacher from Park Slope that while the ruling orders a less serious punishment it does not excuse his behavior. “Should [the conduct] continue,” the justices wrote, “termination may well be in order in the future.”