Tenure: A Legal PerspectiveA Primer for New Jersey Educators

Basic Definition

“The tenure contract is designed primarily to provide a measure of security for teachers and to ensure that they are protected from arbitrary and capricious treatment by school authorities.”

(Essex, 2012, p. 249)

Basic Definition

“The tenure contract is designed primarily to provide a measure of security for teachers and to ensure that they are protected from arbitrary and capricious treatment by school authorities.”“Tenure also is viewed as a means of providing a degree of permanency in the teaching force from which students ultimately benefit.”

(Essex, 2012, p. 249)

Historical Origins of Tenure

National Education Association (NEA) was founded in 1857 as a policy making body

Tenure became a topic for discussion in the late 19th Century as conditions in schools continued to deteriorate

Low wagesNo pension benefitsNo job securityPoor air qualityOvercrowded classroomsNepotism and political favoritism for jobs

(Coleman et al., 2005)

Historical Origins of Tenure

1800s1886 – Massachusetts enacts a rudimentary tenure law allowing schools to enter into contracts of longer than one year with teachers.

Since then, NEA has considered tenure an integral part of teacher contract agreements

(Marshall, Baucom, & Webb, 1998)

Historical Origins of Tenure

1900sNew Jersey enacts the first statewide tenure law in the country in 1909.

(Schwartz, 2008)

Historical Origins of Tenure

1920s“The Committee of One Hundred on Problems of Tenure reported in 1924 that significant problems involving job instability for teachers were evident throughout the United States. Many had turnover rates higher than 50 percent, while others were as low as 4 percent.”

(Marshall, Baucom, & Webb, 1998, p. 302)

Historical Origins of Tenure

1930sNEA conducts research on the effects of tenure

Comparison of New Jersey teachers who had tenure law since 1910 and Connecticut teachers who had no tenure and could be dismissed at any timeStudies showed that NJ teachers remained as competent as Conn teachers

(Coleman et al., 2005)

Historical Origins of Tenure

1940s1946 – NEA’s Committee on Tenure and Academic Freedom introduced a purpose for tenure

To develop due process procedures to support the dismissal of inept teachersTo protect competent teachers from dismissal

(Marshall, Baucom, & Webb, 1998)

Historical Origins of Tenure

1950sProgress

21 states had adopted a form of statewide tenure20 others had districts with tenure components in teacher contracts7 states had no laws on tenure or annual contracts

(Marshall, Baucom, & Webb, 1998)

Historical Origins of Tenure

1960s“It was not until the American Federation of Teachers’ successful effort to organize the New York City teachers, and the resulting rise of teacher-union militancy in the 1960s, that collective bargaining and tenure became a prominent part of public school systems.”

(Hess & Maranto, 1999, p. 29)

Historical Origins of Tenure

TodayGeorgia, Mississippi, and Texas are the only states with no tenure lawsPublic debate continues regarding the value of and need for tenureThose opposed believe that tenure simply protects incompetent teachers

(Coleman et al., 2005)

Click here for a little tenure humor

Achieving Tenure in NJ

Teaching staff members must:

1. hold appropriate certificates “in full force and effect” issued by the State Board of Examiners

Achieving Tenure in NJ

Teaching staff members must:

1. hold appropriate certificates “in full force and effect” issued by the State Board of Examiners

2. hold such positions delineated in the tenure statue, or in an otherwise certificated position for the required period, which consists of:

Achieving Tenure in NJ

(a) Three consecutive calendar years or any shorter period which may be fixed by the employing board for such purpose; or

(Schwartz, 2008, p. 3)

Achieving Tenure in NJ

(a) Three consecutive calendar years or any shorter period which may be fixed by the employing board for such purpose; or

(b) three consecutive academic years, together with employment at the beginning of the next succeeding academic years; or

(Schwartz, 2008, p. 3)

Achieving Tenure in NJ

(a) Three consecutive calendar years or any shorter period which may be fixed by the employing board for such purpose; or

(b) three consecutive academic years, together with employment at the beginning of the next succeeding academic years; or

(c) The equivalent of more than three academic years within a period of any four consecutive academic years.

(Schwartz, 2008, p. 3)

Achieving Tenure in NJ

“No teaching staff member shall acquire tenure unless he is, or until he shall become , a citizen of the United States.”

(N.J.S.A. 18A:28-3)

Tenure and the NJ Courts

Tenure is intended to protect teaching staff members from dismissal for “unfounded, flimsy, or political reasons.”

Zimmerman v. Newark Board of Ed., (1962)

Tenure and the NJ Courts

Tenure is created by the legislature and cannot be changed by the courts. It can only be changed through legislation.Local 195, IFPTE, AFL-CIO v. State of New Jersey, 88 N.J. 393 (1982)

Tenure and the NJ Courts

Acquisition of tenure is limited only to positions in which the teaching staff member has served.

Nelson v. Old Bridge Board of Ed. (1997) rejected the assertion that tenure was transferable to any position covered by the same certificate.

Tenure and the NJ Courts

Tenure may only be achieved through the actual passage of time in a position and not the contractual term. Thus, if a contract is long enough for tenure to be achieved, but the employee is released prior to the end of the contract, tenure is NOT achieved.

Canfield v. Board of Ed. Of the Borough of Pine Hills 51 N.J. 400 (1968)

Tenure and the NJ Courts

Part time teachers CAN achieve tenure Spiewak v. Board of Ed. Of Rutherford (1982)

Tenure and the NJ Courts

Leave replacement teachers CANNOT accrue time toward tenure if the service is temporary because the return of the absent staff member is expected. If the teacher on leave notifies the district that they are not returning, the replacement begins to accrue time toward tenure.Sayreville Ed. Assoc. on behalf of Rucki v. BOE Of the Borough of Sayreville (1984)

Non-Tenured Staff Members

By May 15th of each year non-tenured staff:

must be notified in writing of continuing employment

ORmust be notified in writing that employment will not be offered

N.J.S.A. 18A:27-10

Non-Tenured Staff Members

Failure to provide such notice is deemed an offer of employment for the succeeding year!

N.J.S.A. 18A:27-11

TRANSLATIONIf you forget to send notice of termination to a 3rd year non-tenured staff member by May 15th, they can consider it an offer of employment and will gain tenure on the first day of the following school year!

Non-Tenured Staff Members

Non-tenured staff members must be observed and evaluated in the performance of her or his duties at least three times during each school year . These evaluations must take place prior to April 30th of each year.

N.J.S.A. 18A:27-3.1

Non-Tenured Staff Members

The probationary period for Non-tenured staff members in New Jersey is 3 years.

“School boards are provided broad latitude in determining whether tenure should be granted. During the probationary period, a teacher may be non-renewed at the end of the contract year without cause or dismissed during the year with cause.”

Essex, 2012, p. 250

Non-Tenured Staff Members

“Donaldson v. Board of Ed of North Wildwood 65 N.J. 236 (1974) established the right of a teaching staff member to have a hearing before an employing board as to the “reasons” given for the teachers non-renewal.”

Schwartz, 2008

Non-Tenured Staff Members

According to Essex, 2012,

“In Sum, non-tenured status involves the following:• No expectation for employment beyond the

contracted year• No right to be provided reasons for nonrenewal• No right to due process• No hearing***”

(p. 250)

***This is only modified for NJ by the Donaldson decision. However, even in a Donaldson hearing, there is no expectation of reinstatement unless it is deemed that a liberty or property right has been violated.***

Tenured v. Non-tenured RightsTenured

Earns property right to the teaching positionEarns continued service statusMay only be dismissed for statutory causeFull due process procedures must be metIs entitled to a formal and fair hearingMust receive prior notice of intent and grounds for proposed dismissal by registered or certified mail

Non-tenuredContract may be non renewed after it expires during the probationary period or without causeMay or may not be provided reasons for nonrenewal, depending on state statutesMay or may not be provided a hearing based on state statuteWritten notice of nonrenewal must be received on or before the statutory date required by lawFailure to meet the statutory date by the school board may result in continued employment by the teacherChart excerpted from Essex, 2012, p. 252

Tenured v. Non-tenured RightsTenured

Must be provided information regarding time, place of hearing, with option of public or closed hearingHas right to legal counselHas right to be provided names of witnessesMust be provided transcript of the hearing if requestedMay appeal decision to higher authority or the courts if decision is not favorable

Non-tenuredReceives hearing if contract is cancelled before contract date expires or if required by state lawHearing not provided unless stipulated by state lawDoes not have right to appeal unless stipulated by state statuteMay be provided hearing if there is evidence of a liberty right violation – injury to good name or information communicated that affects future employment opportunities

Chart excerpted from Essex, 2012, p. 252

Tenure Charges

“Basis of tenure charges is incapacity, unbecoming conduct or other just cause.Hearing required before Commissioner or person appointed to act on his behalf.Charges must be signed by the person making them.Nothing in the tenure laws may prevent reduction in force (RIF).”

Schwartz, 2008, p. 17

The Great Tenure Debate

Pro Tenure Con TenureTenure fosters complacency. Without the incentive of keeping the job, teachers are likely to put in the minimum

Tenure protects teachers from unfair firing. Teachers cannot be removed for personal, political, or non-work related reasons.

The Great Tenure Debate

Click either picture above to hear the views of Randi Weingarten, president of the American Federation of Teachers.

The Great Tenure Debate

Pro Tenure Con TenureTenure makes is extremely difficult to get rid of underperforming or incompetent teachers.

Tenure keeps districts from firing experienced teachers to hire inexperienced and less expensive ones.

The Great Tenure Debate

Click the pictures above to hear Andrea Mitchell’s report on New York City’s efforts to reform tenure.

The Great Tenure Debate

Pro Tenure Con TenureTenure makes seniority the main factor in teacher dismissal rather than teacher quality.

Tenure protects teachers from being fired for teaching controversial or unpopular topics.

The Great Tenure Debate

Click the text or picture above to hear New Jersey Governor Chris Christie’s views on teacher tenure.

N.J. Gov. Chris Christie

Conclusions

Tenure has a long history in the United States.

Tenure laws are intricate and there is a great deal of case law that helps us to interpret.

Conclusions

It is important to understand the rules of tenure whether you are a teacher or an administrator.

Tenure is a hotly debated issue across the country; nowhere more so than in New Jersey.

ReferencesCanfield v. Board of Ed. Of the Borough of Pine Hills, 51 N.J. 400 (1968)

Coleman, J., Schroth, S. T., Molinaro, L., & Green, M. (2005). Tenure: An Important Due Process Right or a Hindrance to Change in the Schools? Journal of Personnel Evaluation in Education,

18(3), 219-231. doi: 10.1007/s11092-006-9020-5

Donaldson v. Board of Ed of North Wildwood, 65 N.J. 236 (1974)

Essex, N. L. (2012). School Law and the Public Schools: A Practical Guide for Educational Leaders (5th ed.). Upper Saddle River, NJ: Pearson Education, Inc.

Hess, F. & Maranto, R. A. (1999). Reinventing Tenure. The American School Board Journal 186(5), 28–31.

Local 195, IFPTE, AFL-CIO v. State of New Jersey, 88 N.J. 393 (1982)

Marshall, P., Baucom, D., & Webb, A. (1998). Do you have tenure, and do you really want it? The Clearing House, 71(5), 302-304.

ReferencesNelson v. Old Bridge Board of Ed., 148 N.J. 358 (1997)

N.J.S.A. 18A

Sayreville Ed. Assoc. on behalf of Rucki v. BOE Of the Borough of Sayreville 193 N.J. Super 424 (App. Div. 1984)

Schwartz, R. M., (2008). NJPSA Education Law Primer: Tenure & Seniority. New Jersey Principals and Supervisors Association.

Spiewak v. Board of Ed. Of Rutherford 90 N.J. 63 (1982)

Zimmerman v. Newark Board of Ed. 38 N.J. 65 (1962)