Tenure decisions are perhaps the most important decisions a school board makes affecting the future of its students. Although ostensibly made based on performance during the probationary period, they ought to be based on the outlook for the next 35 years.

The Legislature and the governor recently passed several notable changes to New York’s tenure law in the Education Transformation Act of 2015, which was part of the state’s 2015-16 budget. This article looks at four specif c changes in the law and examines what impact, if any, they should have on a board of education’s decision making process for granting tenure.

Change 1: The standard probationary term has been extended from three years to four years.

In your district: Bear in mind that there is no need or requirement to keep an underperforming probationer on staff for a certain number of years.

Adding a year to the probationary term will not in itself lead to better tenure decisions. Making good tenure decisions requires convincing evidence that a teacher can reliably deliver effective instruction and likely will be able to do so for the remainder of his or her career.

The value of a four-year term is that it gives principals and superintendents more time to evaluate teachers and ensure that those recommended for tenure fully meet the expectations of the district.

However, teachers with poor prospects of receiving tenure should be identified and dismissed sooner rather than later. After all, students are entitled to receive competent instruction every day they attend school, even from probationers. Whenever it becomes evident that a teacher’s capabilities are below the district’s expectations, adding a year or years of probation can be a disservice to students in that teacher’s classroom.

Change 2: The law now explicitly states that a board of education can terminate the appointment of a probationary teacher at any time for any statutorily or constitutionally permissible reason.

In your district: A probationary teacher may be dismissed for reasons including, but not limited to, misconduct.

Your school board is the membership committee of the tenure club. The board should admit to the club only those teachers who make it want to stand up and cheer.

If a probationary teacher engages in misconduct or otherwise fails to meet the expectations of the school district, the board can dismiss the teacher.

That is, probationers are “at-will” employees and school boards can terminate their service at any time. The only caveat is that the employment action cannot be a form of unlawful discrimination, such as discrimination based on race, gender, age or disability, or a violation of the teacher’s constitutionally protected rights, such as free speech or association.

The well-established discretion in this area that school boards have had under rulings by courts and the commissioner of education is now embedded in the Education Law.

Under section 3031 of the Education Law, the superintendent must provide, upon request, a written statement of the reason for denial of tenure or dismissal to a teacher, and the reason must be specific enough to provide a meaningful and rational response. If challenged, the standard of review before either the commissioner or courts is whether it is specific enough and not a pretext for unlawful discrimination, nor a violation of constitutional rights.

Neither the courts nor the commissioner will consider in an appeal whether the reason given is persuasive or even factually accurate; such judgments are solely the purview of the local school board.

Change 3: Teachers recommended for tenure must have strong evaluation ratings.

In your district: A rating of “effective” or “highly effective” does not mean all expectations have been met.

Under the new law, the superintendent shall recommend to the board for tenure a probationary teacher who has given competent, efficient and satisfactory service, provided that the teacher must have earned either highly effective or effective ratings in three out of four of the probationary years, and did not receive an ineffective rating in the most recent year. School boards should focus on the first part of that sentence (“competent, efficient and satisfactory service”), not the second.

The law permits the district to define what it will accept as competent, efficient and satisfactory service. It allows the superintendent and board to make the kind of qualitative judgment about the employee’s qualifications for tenure which cannot be fully and accurately reflected in a numerical score. While certain ratings in the annual professional performance review (APPR) process are necessary to earn tenure, it is not sufficient.

In addition to instructional effectiveness, the board should grant tenure only to teachers who:

• Have exemplary attendance and work ethic.
• Have demonstrated a trend of continuing improvement.
• Are highly regarded by students, parents, administrators and other teachers because they behave professionally under all circumstances.

Furthermore, boards should only grant tenure to those teachers who are likely to be contributors and a pleasure to work with for the duration of their careers. School boards and administrators are free to create unique criteria based on local concerns and policies.

As noted by my colleagues Joseph Shields and Michaela Perrotto in the May 11, 2015 issue of On Board, this year will begin a new way of calculating APPR scores. However, members of the state Board of Regents and state legislators have expressed dissatisfaction with APPR, raising the possibility of more changes. A board may come to regret granting tenure to a teacher who was rated effective or better but, nevertheless, fell short of expectations or lacked high growth potential.

Change 4: A fifth year is possible.

In your district: Don’t delay making the tough decisions.

Under the revised law, a teacher who receives an ineffective APPR rating in the final year of probation or was not effective or highly effective in three of the last four years is not eligible for tenure, but the board of education may grant that teacher an additional year of probation. The teacher then may become eligible for tenure either by successfully appealing the less-than effective rating of the previous year or by earning an effective or highly effective rating in the fifth year of probation if such rating was the third effective or highly effective in four years.

While probationary teachers deserve a fair opportunity to prove themselves, the board has an obligation to ensure that every student receives competent instruction every year. A fifth year of probation is at the board’s discretion. The burden of persuasion is on the probationary teacher seeking to earn the privilege of tenure – a burden that can and should be convincingly met in four years. How likely is it that a teacher who fails to meet the district’s high standards in the fourth year of probation subsequently will be able to perform at a consistently high level, even if the teacher’s APPR score rises back into the effective range in the fifth year?

It is immensely easier for a board to use its unfettered statutory right to release a probationary teacher about which it has doubts – any doubts – than to seek to remove the teacher after a grant of tenure. Tenured teachers receive ample due process protections under section 3020-a of the Education Law. As a practical matter, districts find it time-consuming and expensive to remove a tenured teacher on grounds of incompetence. The best way to reduce the probability that it will become necessary to incur these costs is to make better tenure decisions.

While the state Legislature’s enactment of the Education Transformation Act provides districts with some additional tools to avoid bad tenure decisions, those tools are no substitute for a commitment to high standards. Whether a decision about the fate of a probationary teacher is made in the first year of probation or the fifth, a grant of tenure should always be based on convincing evidence that a teacher can – and will – reliably deliver effective instruction and remain a highly respected and valued employee.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Wayne Vander Byl of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.