To:       Prof. Donsky

From:   Michael Alicea

RE:      Culmination Project 1^st Draft

Date:   May 14, 2012

Increased Tenure Regulations for Teachers Kindergarten through Twelfth grade

            The education system in New York has been facing much criticism lately by the media, parents and fellow educators. One of the main things being criticized is tenure issues that are arising in school districts throughout New York City. Many debatable questions come to mind when discussing such topic. Including whether teachers should be given tenure at all? How should standards be set for teachers to receive tenure? Are teachers with tenure subject to disciplinary action? Would stricter standards deter would be teachers from entering the profession of education? All of which are valid questions that concerned parents as well as teachers would want to see answered. Throughout this paper I will convey that the stricter regulations being set forth will not be justifiable or beneficial for anyone. In the following cases mentioned we will see the requirements set forth in the New York statute for a teacher to receive tenure and the difference between cases which would explain why some teachers do deserve tenure and others do not. Before such questions can be answered let us take a moment to observe the word tenure.

According to the New York Education law § 6212, “Tenure shall mean the right of a person to hold his position during good behavior and efficient and competent service, and not to be removed.” N.Y. Education Law § 6212 (McKinney’s 2006). The ultimate goal of educators especially teachers from kindergarten through high school are to prepare students to enter the world of higher education (college). The basis of a student’s success in college lies upon the foundation of early education, middle school, and a high school education (K-12). Without either of those important foundations the students will lack the fundamental knowledge and skills to be able to face the many challenges of college life. Many can argue tenure should not exist and teachers don’t deserve it, others can argue the opposite. The few Teachers from K-12 that actually care for their students and their futures are not being given the respect that they deserve and the rights that they have earned.

In order for teachers K-12 to receive tenure there are certain requirements that need to be met under New York Education Law.  As set forth in the New York Education law § 3012 (a), “Teachers and all other members of the teaching staff of school districts, including common school districts….shall be appointed by the board of education, or trustees if common school districts, upon the recommendation of the superintendent of schools, for a probationary period of three years.” Also stated in the statute is those “who have served the probationary period as provided in this section, shall hold their respective positions during good behavior and efficient and competent service” N.Y. Education Law § 3012 (a) (McKinney’s 2007). Simply put, teachers must work for three years also called a “probationary period”, in which the teacher must maintain good behavior and satisfactory results from their teaching. After the probationary years they can be eligible to receive tenure but it is not granted they will actually receive it at the completion of the three years.

As in the case Andrew v. Board of Educ. Of City School Dist. Of City of New York, 92 A.D.3d 465, 938 N.Y.S.2d 67 (1^st Dept. 2012). In this case, the appellant appealed the lower court’s decision to the New York Appellate Division 1^st Department. Appellant believed that she was wrongfully terminated from her position as a teacher at the high school she worked for during her three year probationary period. The mistake that the appellant made was that she assumed that she acquired tenure immediately after the end of the three year probationary period. Unfortunately she did not acquire tenure upon completion of her probationary period. It was found that there was a failure to provide the appellant with the proper procedure of termination that is stated in the Education law § 3012 (2) which states “At the expiration of the probationary term… superintendent of the school shall written a report to the board of education… recommending for appointment tenure to those persons who have been found competent, efficient and satisfactory.” Since Andrews did not fit the criteria for tenure the Court found that it wasn’t enough to allow the appellant her tenure and the court affirmed the lower court’s decision of denying her tenure.

Similarly in the case, Kahn v. New York City Dept. of Educ., 18 N.Y. 3d 457, -N.E. 3d-, 2012 WL 443955 (2012), the appellant brought an appeal to the N.Y. Court of Appeals to review the lower court’s decision that denied her tenure after the completion of the probationary period. The appellant worked in a high school in Brooklyn for three years working with students from 2007 through 2009. Upon the completion of her probationary period she was terminated from her position and denied tenure. The reason for her dismissal was stated to be her unsatisfactory ratings after review of her work. The issue presented in this case is whether the appellant failed to satisfy the statute’s requirements pursuant to the N.Y. Education law § 3012 (a) quoted earlier. To have “efficient and competent service” stated in the statute the educator must maintain satisfactory ratings which include student’s grades. The court held that the appellant did fail to reach the requirements set forth in the statute and was not entitled to receive tenure.

These two cases are clear examples of the misunderstandings that teachers have when it comes to receiving tenure and the Kahn case in particular, applies to the current issues that tenure is facing in New York. In an article called Fewer teachers get Tenure in New York City Schools by Myles Miller from the Huffington Post, New York Mayor Michael Bloomberg is quoted when he said “The difference is before, tenure was automatic, now you have to deserve it,” one statement that I can actually agree on from Mayor Bloomberg. As for those who do deserve it, they face challenges as well. As hard as it is to get tenure it seems to be becoming just as hard to maintain it. The Board of Education and those who play major roles as we will see are not always right when it comes to denying tenure to teachers. We see the struggles that teachers have to overcome in the following case.

In Kolmel v. City of New York, 88 A.D.3d 527, 930 N.Y.S.2d 573 (1^st  Dept. 2011.) the appellant brought an appeal to the New York Appellate Division 1^st Department to appeal the lower court’s decision which denied him tenure on the basis of unsatisfactory ratings after his probationary period. Unlike the two previous cases, the appellant was able to prove to the court that the Principal of the school, who is responsible for providing the board with reports, did not actually evaluate the appellant and was given the unsatisfactory rating, leading to his tenure denial. The court held that in order for tenure denial under Education Law § 3012 there must be misbehavior and unsatisfactory rating. Both of which were not met in this case so the Appellate Division reversed the lower court’s decision in favor of the appellant. After teachers make it through the probationary period and receive tenure there not out of the woods yet. Teachers with tenure face a different section of the statute which constitutes the different ways a teacher with tenure may face termination or disciplinary actions as in the next case.

An older case from the 60s which is still holding today shows a prime example of that section of the statute, Education Law § 3012 (2) and a violation of it. As mentioned earlier in the Andrew case this part of the statute also states “Persons having tenure under the provisions of this section may be removed or suspended from the permanent instructional staff for one or more of the following reasons,… a. incompetent or inefficient service; b. neglect of duty; c. physical or mental incapacity; d. conduct unbecoming a member of the staff.” N.Y. Education law § 3012 (2) (McKinney’s 2007).  The case Kobylski v. Agone, 19 A.D.2d 761, 242 N.Y.S.2d 630
( 3^rd Dept. 1963), is a case where Kobylski brought an appeal against Agone the superintendent of schools, when Kobylski as a teacher with tenure was dismissed from his work place without pay. As a teacher with tenure, the only ways that he could be subject to dismissal is when such action falls into one of the categories that are stated above. The issue presented was whether Kobylski had received notice of his appointment to tenure after serving his probationary period. It was argued that even though Koblyski was given tenure he did not receive “permanent tenure”, according to the superintendent of schools, who gave Kobylski his notice of termination. The court held that throughout the three year probationary period the superintendent had an opportunity to terminate Koblyski, but in fact was granted tenure by not terminating him. Giving him the protection of Education law § 3012 (2), the court’s decision was that the superintendents’ actions was a violation of § 3012 (2). The court ordered that appellant be reinstated with his position at the high school and be put back onto the payroll.

Lastly another older case, Conetta v. Board of Educ. Of Patchogue-Medford Union Free School District, 165 Misc.2d 329,629 N.Y.S.2d 640 (N.Y. Supp 1995). Shows a similar situation as the Koblyski case, the only difference between the two cases is that Conetta was denied her tenure even after meeting the set requirements to receive tenure under the N.Y. Education law. Whereas Koblyski, was terminated and actually did have tenure.  Conetta fulfilled her probationary period along with the rest of the requirements needed to be considered for tenure. The court held that the superintendent of schools for that district reconsidered the decision of denying Conetta her tenure rights. Also that he could not give a decision as to whether Conetta should be given tenure. Conetta and Koblyski not only show that even though you have tenure or have the requirements to receive tenure there are still disciplinary actions taken towards those with tenure. Also all of the cases I have mentioned would intimidate or discourage would be teachers from entering the field. For those who are heart set on being educators will overcome that discouragement and become great teachers.

To conclude I believe the regulations that govern tenure are the way they should be and by increasing the regulations would only be hurting the education system more than it is already suffering. Teachers have it hard enough with the current regulations to obtain tenure. Stricter or increased regulations on tenure would have an adverse effect on the teachers which will ultimately affect our children. There are pros and cons to the tenure regulations in place now but I believe that the pros heavily outweigh the cons. There is no easy road for teachers to get tenure, it is a long difficult path that has its ups and downs, but in the end the bad teachers are weeded out and the good ones will be rewarded by receiving tenure.