In 2005, I was hired as an interim school superintendent for a 5,000-student school district living in the aftermath of a financial apocalypse prompted by two things: the school board’s refusal to raise property taxes for five years in a row and a misguided effort to improve student performance.
I say misguided because they didn’t try anything new; they just spent more money on what they were doing. That was their improvement plan.
Unfortunately, they were spending money they did not have (a fact that was reported annually by independent auditors), and they eventually had to raise taxes 30 percent and lay off 75 employees to balance the budget. The school board and administration assumed their state legislative representatives would bail them out with extra state aid as they had in the past. That extra aid never came, and when the district’s financial train hit the wall, the district became persona non grata in the world of Standard and Poor’s. They were bankrupt.
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Eventually, legislators passed special legislation that allowed the school district to borrow $10 million to pay off immediate operating expenses. (Normally, New York State school finance law would prohibit a school district from borrowing money for day-to-day operations.)
While the financial apocalypse was taking place, abysmal academic performance had landed the district’s high school and middle school on the Schools in Need of Improvement (SINI) list. It was a perfect storm. And it occupied a lot of my time early on in my first year as an interim superintendent with the district.
Then, in May, my security team, led by a retired police officer who I trusted, informed me that an eighth-grade teacher had been sending inappropriate, sexually explicit messages to middle school students.
The salacious social media messages were discovered by a parent. A search of the school’s computer files revealed several messages sent. As reported in the newspaper, they included comments like:
Student: “I thought you were gay.”
Teacher: “No, I told you I love pussy, especially young pussy.”
On the advice of our school district attorney, the details of the teacher’s missives were turned over the local police to determine if he had committed any crimes.
Unfortunately, by the time the police and prosecutor obtained a warrant (apparently, it takes time) to search the teacher’s home computer, any incriminating evidence they may have found was gone. To make matters worse: the police or the parents (not sure which) called the press, and the story ended up in multiple local newspapers and on several local TV news reports.
In the meantime, I checked the teacher’s personnel file and found an employee counseling memo written to him three years earlier by the former superintendent detailing that the teacher had, on multiple occasions, gone on the school Internet and visited pornographic websites. The memo warned him his behavior was unprofessional and if repeated would result in more serious disciplinary action including loss of pay or termination from his job.
I contacted the school district attorney who had written the original memo on behalf of the previous superintendent and who still worked for the district. “Why didn’t you fire this guy when you caught him using the school’s computers to view porn sites?
The answer: the New York State education commissioner and a small army of lawyers and independent hearing officers hear all appeals on tenured teacher and principal disciplinary issues in the state, and the commissioner would not support termination on a first offence of this nature for a tenured teacher.
My analysis of previous cases decided by the commissioner at the time, which are publicly available, revealed that the attorney’s analysis was accurate.
Next question: “He’s been warned about misuse of school computers and his actions in this new instance are clearly inappropriate and unprofessional; can we fire him now?”
Unfortunately, that was not my decision to make. According to Section 3020-a of New York’s Educaton Law (3020-a Disciplinary procedures and penalties) this was a case for the commissioner to decide after a process that would take 12 months.
Typically, the process of what New York’s teacher tenure law calls “progressive discipline” takes a year and involves a hearing with an independent hearing officer or a team of three independent hearing officers (based on education law.) The commissioner (really the commissioner’s attorneys) and the unions that represent teachers facing disciplinary action mutually agree on the independent hearing officer(s) from a preselected list who then hear the case.
The commissioner’s hearing officer is like a judge who reviews documents and may hear oral arguments and testimony from a child or videotaped statements. There also may be a cross examination with lawyers representing both sides. Truthfully, teacher discipline cases like this one frequently fall apart because the witness (usually a child) backs out or buckles under stiff cross examination.
Meanwhile, our lawyer advised us to remove the teacher from the classroom while awaiting a decision, a tactic we hoped would illustrate and strengthen the case for termination with the commissioner.
So, while lawyers for the school district and NYSUT (New York State United Teaches, the union defending the teacher) worked on briefs, I recommended the teacher work on curriculum tasks in a small room adjacent to my office where my secretary and I could keep an eye on him. The laws also require that the teacher receive full pay and benefits during his time out of the classroom. Suspension without pay is not an available option for the school district regardless of the severity of the offense or the strength of the incriminating evidence.
Statistically absolute tenure
In cases like this teacher, the New York State Education commissioner is administering tenure laws based on “progressive discipline.” Progressive discipline means, except in the most egregious cases the offending teacher receives time off without pay or a fine. Only with the third offense can a teacher be dismissed and lose tenure and their teaching/principal license.
And my experience has been, each case of progressive discipline takes a year during which time the teacher receives pay.
In the most severe cases like child sex abuse, testimony from one or more children is required and many parents, for understandable reasons, will not allow their children to testify. Sometimes when a criminal charge is filed and successfully prosecuted the school district gets a break and can ask the commissioner to summarily take away the teacher’s or coach’s license or tenure and have a good chance of being supported. But such breaks are rare. In this case, the delayed search warrant guaranteed no criminal charges would be filed and the school district was tackling the legal fight alone.
Legal costs are probably one of the top three places school districts spend money that does nothing to positively impact student achievement.
In the end, the commissioner placed this teacher on unpaid leave for one month After that, he returned to the classroom. The one-month dock in pay saved the district about $3,500 in smaller pay and benefits for the substitute teacher covering his classes for the month. This did not put a dent in the $127,000 cost of removing him from the classroom, paying an extra teacher’s wages and benefits for a year and paying attorneys to fight the case, not to mention the cost to vulnerable eighth graders who might be victimized by putting him back in the room.
This has been an excerpt from a chapter in the book “The Politics of Education,” available on Amazon. For more stories — with solutions — click here.
THE END