Published in the Bergen Record, Wednesday, July 19, 2006
Fourth of six parts
Tenure helps good teachers and shelters the bad ones
By MAYA KREMEN
Daryl DeNitto is one of those teachers.
The kind who coaches the debate team and chaperones the prom. The kind who stays after school when he doesn't have to. The kind students in his history class buy ties for.
He was voted the best teacher at North Bergen High School this year.
Deborah Noone has taught in the same district three times as long as DeNitto. Four years ago, the state determined that she "failed to adequately monitor and supervise" her special-education classroom when two boys and a girl engaged in sexual acts. The district tried, and failed, to get her fired.
DeNitto makes $47,550. Noone makes $86,350.
New Jersey has the nation's most expensive public-education system, but the public doesn't always get the most for its buck. Teachers are paid based on how long they've been around, not on how well they perform. And tenure job-protection rights ensure that once they've taught for more than three years, it's likely they'll be around for good.
The state's largest teachers union says its members need tenure so they're protected from arbitrary firings.
"It should never be easy to fire a teacher," says Steve Wollmer, spokesman for the New Jersey Education Association. "You should have to prove your case."
But tenure rules -- instituted almost a century ago to prevent political interference in New Jersey school employment -- require districts to negotiate a complicated and expensive bureaucratic process to prove that a teacher does not belong in a classroom.
As a result, it doesn't happen very often.
For instance, not one of the more than 10,000 teachers in Bergen County has been fired via the state's tenure-hearing process for at least a decade.
Over the past decade, just three Bergen teachers have gone through a full, formal tenure proceeding; the state Education Commissioner -- the arbiter of tenure matters -- has allowed all of them to remain in the classroom.
Six other times, Bergen districts brought tenure charges against teachers, only to drop them in favor of settlements. Those deals removed the staffers from the district, but often used financial payouts or the promise of a neutral reference as inducements.
One Morris County teacher and five Passaic County teachers have been removed via tenure hearings since 1997.
Statewide, the experience is similar. Since 1997, only 71 teachers out of more than 100,000 went through formal hearings. Two out of three were removed from the classroom; another 127 teachers brought up on tenure charges reached settlements with their districts.
A poll conducted by The Record in early June shows that most people feel tenure has outlived its usefulness. Fifty-two percent of those polled in northeast New Jersey supported its elimination, while just 28 percent did not. Even respondents in homes with significant public-sector income agreed, with 49 favoring an end to tenure and 33 percent opposed.
Among those respondents who said they work in the private sector, 47 percent endorse merit -- or performance-based -- pay for public employees, while 39 do not.
The NJEA opposes merit pay, saying it's hard to determine what "good teaching" means. It also staunchly supports tenure rights because it says that all teachers deserve due process of the law.
"All it means is we have a day in court to defend ourselves," NJEA President Joyce Powell said of the right to tenure.
But "a day in court" is a funny way to describe what happens when a district tries to fire a tenured teacher. Despite a 1998 law that promised to streamline the procedure, tenure hearings can still drag on for more than a year. A single hearing can cost tens of thousands of dollars.
The cost of formal hearings often makes it unrealistic to bring tenure charges, said former state Commissioner of Education William Librera, whose term ended last year.
"Until you develop other things than tenure removal, which is long and expensive and difficult, you're not going to get the degree of involvement that you need," Librera said in a recent interview.
The case against Deborah Noone took more than a year to decide, and cost North Bergen Schools $22,000 in legal fees. The commissioner determined that her "dereliction of her duty to adequately supervise her students" was "indefensible." Despite these findings, she was retained, but forfeited 120 days of salary and her contractual raise for a year.
Noone refused to comment on specific allegations, but said tenure charges should never have been filed against her. She referred questions to the head of the local for her union, the N.J. State Federation of Teachers, who didn't return two phone calls.
Of his decision, Librera said that state Department of Education attorneys advised him Noone would likely win on appeal based on her otherwise clean teaching record.
Underperforming teachers are rare, administrators say, and even critics of the tenure system maintain the vast majority of teachers in the public schools are qualified and dedicated.
But advocates of reform say that just a few bad teachers are a liability when taxpayers are spending more than ever on education.
"People want the best for their money in terms of teaching," says Charles Reilly, a former Ridgewood Board of Education president and past president of the state School Boards Association. "Tenure doesn't assure that. You shouldn't have to spend a lot of time and $100,000 to say, 'You don't belong in a classroom.' "
The other way out
Faced with the costs and risks of tenure hearings, districts sometimes try the express route.
That means brokering deals that entice teachers to walk away with payouts and, occasionally, clean records. These deals can be hammered out quietly among the union, the teacher and the board before any tenure charges are filed.
If a district brings tenure charges against a teacher, it can still drop the charges and settle, but the commissioner must sign off on the deal, and the document is public.
The six teachers in Bergen County whose districts dropped charges in favor of commissioner-approved settlements are:
- A Bergenfield physics teacher accused of viewing Internet pornography on school time.
- A Ridgefield teacher accused of sexually harassing female teachers.
- A Demarest technology coordinator accused of misusing, destroying and removing school computer software.
- A Wood-Ridge math teacher accused of inefficiency.
- A Teaneck science teacher accused of disorganization, inefficiency and insubordination.
- A culinary arts teacher at a Bergen County vocational school accused of throwing a classroom tantrum during which he damaged school property and "put the health and well-being of students and school staff in immediate harm."
And settlements come with their own costs.
When Demarest settled with technology coordinator Gerald M. Mabli in 2001, he left with a neutral recommendation, with no mention that tenure charges were ever filed. He was put on leave but remained for two more years on the district's rolls at half pay, which qualified him for a 25-year early retirement pension.
Mabli declined to comment on his case. "I put in my 25 years, I retired," he said. "It's old history."
Three of the six Bergen teachers with settlements are now employed as teachers in other counties.
"The settlement becomes a convenient way to get someone out of the district that doesn't want them," said Reilly. "But they're out there, circulating."
It took Teaneck four years, two sets of tenure charges and a payout of six months' salary to get Ronald Shaw to permanently leave the district.
Administrators first filed charges against the tenured science teacher in 1995. They alleged he failed to organize effective teaching techniques, couldn't manage his middle school classroom and was insubordinate. Shaw denied the charges.
"He wasn't doing the things he was supposed to," said A. Spencer Denham, Teaneck's assistant superintendent, during a recent interview. "There was concern raised by a number of parents, colleagues, administrators."
The district dropped the charges when Shaw took an unpaid two-year leave of absence for a stress-related condition.
The board refiled charges against Shaw in July of 1998, after he returned from leave. Six months later the district decided to settle, partly because officials said they didn't want to spend the money on a hearing. "Costs for legal fees and transcript charges associated with a tenure hearing would be substantial," the district determined.
Shaw submitted his letter of resignation in December 1998. He didn't come back, but remained on the payroll until May 1999, according to the settlement agreement. "Personal" reasons were cited for his departure at a Board of Education meeting.
After a brief stint in Plainfield, he landed in Newark, where he makes $77,827 as a high school science teacher.
Shaw declined to discuss the tenure charges or the settlement.
"It's my opinion that it's really none of The Record's business," he said. "Any agreement that was made between us was made in private without it being privy to scrutiny with everyone. I choose not to comment about it because it was a private matter."
Obstacles to firing
If there are poor teachers languishing in the system, the blame lies with administrators, the union claims.
"If administrators follow the proper procedures, generally we're able to ensure children have the highest quality individuals they can in front of them in the classroom," said NJEA president Powell.
It's true that a change in leadership can change the way a district disciplines teachers. Before Paterson was taken over by the state in 1991, a tenure charge hadn't been filed in two decades. In the past nine years, the state commissioner has ruled against four Paterson teachers and removed them involuntarily from their jobs. That's all but one of the total for all of Passaic County.
To fire a tenured teacher, a district must have documented evidence of just cause.
Nevertheless, administrators often fail to give bad evaluations, said Joseph Morano, an attorney who represents school boards, and a Florham Park councilman. "If someone doesn't do a good job, it's more couched in positive terms," he said.
Districts face procedures that make it hard to write up a teacher in the first place, says Patrick J. Capotorto, principal of Robert Fulton School in North Bergen. He hasn't given a tenured teacher a bad evaluation in 20 years, opting instead for unofficial "memos."
"You have some obstacles that you have to hurdle over," Capotorto said. "You can't just walk into a classroom, have an evaluation, make a teacher sign it."
Contracts regularly allow teachers to challenge parts of their evaluations, require them to be notified before a review and give them access to negative information in their files. Teachers accused of "inefficiency" -- the most performance-based of the four tenure charge categories -- must be given 90 days to improve.
Union negotiators routinely push for more of these requirements at the bargaining table, said Nathanya Simon, a Florham Park attorney who represents school boards.
"[The union] wants to make sure that every single protection is available," she said. "A lot of times we don't object."
Failure to follow the very letter of the established procedure can derail a tenure hearing.
It was in large part a procedural gap that protected special-education teacher Barbara Emri from being fired in 2002.
The Commissioner of Education found that the Burlington County teacher, who was also an NJEA committee member, "created such a negative learning environment" that one student couldn't sleep at night, and was removed from her class. She prevented students from complaining about her. She used the phrase "your typical nigger" to describe a difficult student, her vice principal testified. Emri fought the charges.
All in all, the commissioner found the district had shown she acted inappropriately toward students on at least four occasions. But he also found that the district didn't follow the proper procedure in evaluating her, such as ordering her to go through anger management classes to correct her behavior.
Though Emri had exhibited "a pattern of inappropriate anger and insensitivity directed toward students which cannot be tolerated in a school setting," the commissioner also cited her "long, successful and heretofore unblemished teaching career," and her "personal and professional attributes." She was docked 120 days of pay, and denied her contractual raise.
Emri now makes $65,100 teaching elementary school children in the same district. She refused to comment on the state's findings.
Union officials claim their job is to protect members who could otherwise be subject to pressure from parents and administrators, not to worry if a teacher has done something wrong.
"From our point of view, there's no deficient teachers," said George Lambert, who has been a Bergen County NJEA representative for the past 15 years. "Our job is basically to represent and not make a judgment."
Like a lot of good teachers, Daryl DeNitto doesn't think much about how tenure protects him.
"I don't know what tenure does," he said. "I never really looked into it."
If he were unfairly fired, he might need it, he says, but he doesn't worry too much about getting to that point. On the question of whether tenure is necessary, he calls himself "wishy-washy."
Other teachers are more adamant. Sarah Laldee, a tenured middle school teacher in Paterson, believes that the union's unconditional vow to shelter teachers protects the weak along with the strong.
"It protects teachers that shouldn't be protected," she said. "There's a set of behaviors that we don't want our kids to exhibit, yet teachers exhibit those behaviors and get away with it."
There should be an easier way to get rid of "complacent" teachers, says Kim Dreher, who teaches sixth-grade math in Clifton.
"I've seen teachers that breeze by and say, 'I'm going to sit down and take it easy, and not do this,' " she said. "Those teachers should not be there."
Still, the union's influence in the state means that tenure probably won't be eliminated anytime soon.
"Tenure is one issue that the teachers' unions will fight against tooth and nail," said New Jersey School Boards Association spokesman Michael Yaple. "Legislators that think of themselves as the most staunch education reformers will stop short when it comes to tenure. It's a huge obstacle."
Assemblyman Guy Gregg, a conservative Morris County Republican, says the system is "not working as well as some would like." But he is not in favor of abolishing tenure.
"Certainly we don't want our employees subject to the politics of the whim of the day," he said.
The one significant tenure reform introduced in recent years was a 1998 law that promised to shorten the length of hearings to seven months. The law, which was backed by the NJEA, didn't make it any easier to prove a teacher is failing, but set time limits for state officials to hear cases. Though some say that the process is faster now than it was before, hearings still regularly stretch over a year.
In 2005, three out of five tenure cases took more than a year to decide. The shortest of the five took two months; the longest, more than two years.
As more boards contend with state-mandated budget caps, there has been a push toward settlements over tenure charges, said Joseph Morano, the school boards attorney and Florham Park councilman.
"Boards are forced to pick and choose their battles," he said. "If you know you're going to spend $15,000 on a case, you want to know that you'll win. With all the spending cuts and the lack of money available, everything a board does is scrutinized."
Morano predicted that reform will probably not come until there's a very public failure.
"It's going to take one horrible situation -- that long drawn-out tenure case or that ridiculous settlement agreement -- for someone to say, 'This has to change,' " he said.
Staff Writers Benjamin Lesser and Bob Ivry contributed to this article.
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Tenure in a nutshell
- Tenure job protections are granted to teachers who work for a school district for more than three years.
- A district can let a teacher go at any time before the beginning of the fourth year by choosing not to renew their contract.
- For a tenured teacher to be forced out, the district must lodge formal tenure charges, alleging "inefficiency," incapacity, unbecoming conduct or "other just cause." The teacher has the right to fight the charges. The burden of proof is on the district and cases are ultimately decided by the commissioner of education. The district must pay a suspended teacher after 120 days.
- If a teacher has committed a crime or the offending conduct is egregious, the state can bypass the tenure hearing process to strip the teacher's credentials.
- Districts can enter into separation agreements with teachers. They can do so without filing tenure charges, or after formal charges have been lodged. In the latter case, the commissioner of education must sign off on the settlement. Some settlements require teachers to give up their credentials upon resignation; others grant financial payouts and, in some cases, a "good standing" reference for future employers.
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