The state should articulate that ineffective classroom performance is grounds for dismissal and ensure that the process for terminating ineffective teachers is expedient and fair to all parties.
New Jersey makes ineffectiveness explicit grounds for dismissal. If a teacher receives two years of ineffective ratings—or year one is partially effective and year two is ineffective—then the superintendent must file a charge of inefficiency. If a teacher in year one is ineffective and in year two is partially effective—or if partially effective both years—then the superintendent may file a charge or may defer until the following year. If in that following year the rating is ineffective or partially effective, then a charge of inefficiency must be filed.
However, New Jersey does not distinguish the due process rights of teachers dismissed for ineffective performance from those facing other charges commonly associated with license revocation, such as a felony and/or morality violations. The process is the same regardless of the grounds for cancellation, which include "inefficiency, incapacity, conduct unbecoming a teacher or other just cause."
Tenured teachers who are dismissed have multiple opportunities to appeal. After receiving notice of dismissal, teachers have 10 days to respond, unless given an extension for good cause. The commissioner then has five days to determine whether the charges warrant dismissal. If so, the commissioner refers the case to an arbitrator for a hearing. The hearing shall take place within 45 days of an arbitrator being assigned the case, and the arbitrator shall render a decision within 45 days of the hearing. Further, the arbitrator's decision is final and binding and cannot be appealed to the commissioner.
New Jersey Administrative Code 6A:10 N.J.S.A. 18A: 6-10; 6-11; 6-16; 6-17.1 and 6-17.3; 6-25
Ensure that teachers terminated for poor performance have the opportunity to appeal within a reasonable time frame.
Nonprobationary teachers who are dismissed for any grounds, including ineffectiveness, are entitled to due process. Therefore, the state must ensure that the opportunity to appeal occurs only once and only at the district level. It is in the best interest of both the teacher and the district that a conclusion is reached within a reasonable time frame.
Distinguish between the process and accompanying due process rights for dismissal for classroom ineffectiveness and dismissal for morality violations, felonies or dereliction of duty.
While nonprobationary teachers should have due process for any termination, it is important to differentiate between loss of employment and issues with far-reaching consequences that could permanently affect a teacher's right to practice. New Jersey should ensure that appeals related to classroom effectiveness are decided only by those with educational expertise.
New Jersey asserted that tenure charges fall into four categories: inefficiency, conduct unbecoming, incapacity and other just cause and that inefficiency charges have always warranted different due process procedures. Regulations were amended in 2013 following the TEACHNJ Act, which amended the requirements for inefficiency. Prior to TEACHNJ, ineffective teachers were granted a 90-day period of improvement before a tenure charge could be brought. Following TEACHNJ, any educator who receives an ineffective or partially effective summative rating must be put on a Corrective Action Plan (CAP) the following year. The CAP includes extra supports such as additional required observations.
The streamlined process referred to by the state pertains to tenure revocation, not dismissal.
States need to be
explicit that teacher ineffectiveness is grounds for dismissal.
Most states have laws on their books that address teacher dismissal; however, until recently these laws were much more likely to consider criminal and moral violations than performance. While many states have amended their dismissal policy to be more explict about classroom ineffectiveness, some still retain euphemistic terms such as "incompetency," "inefficiency" or "incapacity." These terms are ambiguous at best and may be interpreted as concerning dereliction of duty rather than ineffectiveness. Without laws that clearly state that teacher ineffectiveness is grounds for dismissal, districts may feel they lack the legal basis for terminating consistently poor performers.
Due process must be efficient and expedited.
Nonprobationary teachers who are dismissed for any grounds, including ineffectiveness, are entitled to due process. However, due process rights that allow for multiple levels of appeal are not fair to teachers, districts and especially students. All parties have a right to have disputes settled quickly. Cases that drag on for years drain resources from school districts and create a disincentive for districts to attempt to terminate poor performances. Teachers are not well served by such processes either, as they are entitled to final resolution quickly.
Decisions about teachers should be made by those with educational expertise.
Multiple levels of appeal almost invariably involve courts or arbitrators who lack educational expertise. It is not in students' best interest to have the evidence of teachers' effectiveness evaluated by those who are not educators. A teacher's opportunity to appeal should occur at the district level and involve only those with educational expertise. This can be done in a manner that is fair to all parties by including retired teachers or other knowledgeable individuals who are not current district employees.
Dismissal for Poor Performance: Supporting Research
One of the greatest shortcomings of teacher performance appraisals has been school systems' unwillingness and inability to differentiate instructional competency. The New Teacher Project, 2009, "The Widget Effect: Our National Failure to Acknowledge and Act on Differences in Teacher Effectiveness" at http://widgeteffect.org.
See NCTQ, State of the States: Trends and Early Lessons on Teacher Evaluation and Effectiveness Policies (2011) as well as studies by The New Teacher Project of human resource and dismissal policies in various districts at: http://tntp.org/ideas-and-innovations.
For information on the high cost of teacher dismissals, see Steven Brill, "The Rubber Room," The New Yorker, August 31, 2009 at: http://www.newyorker.com/reporting/2009/08/31/090831fa_fact_brill.
Also, see S. Reeder, "The Hidden Costs of Tenure: Why are Failing Teachers Getting a Passing Grade?" Small Newspaper Group, 2005 at: http://thehiddencostsoftenure.com.