Warren H. Richmond
Warren H. Richmond (Handout)

In what is purported to be an effort to provide guidance to New York school districts regarding the termination of probationary teachers in light of the state’s recently enacted Annual Professional Performance Review (APPR) statute, Education Law Section 3012-c, on June 24, 2014, the Board of Regents adopted an amendment to Section 30-2.1(d) of its rules. Unfortunately, however, both the amendment and the circumstances leading to its adoption have succeeded only in creating further confusion in an area that had already been extremely murky. Much of this confusion was occasioned by the abrupt and unexplained deletion of critical language from a state Education Department memorandum which accompanied the proposed amendment.

By way of background, prior to the enactment of Education Law Section 3012-c, school boards possessed broad discretion to terminate a probationary teacher. Indeed, it was settled law that a probationary teacher could be terminated for any reason unless it was established that the termination was for a “constitutionally impermissible purpose or in violation of a statutory proscription.” James v. Board of Education of Central School District No. 1 of the Town of Orangetown and Clarkstown, 37 NY2d 891, 892 (1975).

The enactment of Section 3012-c in 2012 created considerable confusion as to the extent to which school districts retained this broad discretion with regard to the termination of probationary teachers. This confusion was created by the uncertainty regarding the interpretation to be accorded the following language in Section 3012-c(1).

[A]nnual professional performance reviews shall be a significant factor for employment decisions including but not limited to promotion, retention, tenure determination, termination, and supplemental compensation…Provided, however, that nothing in this section shall be construed to affect the statutory right of a school district or a board of cooperative educational services to terminate a probationary teacher or principal for statutorily and constitutionally permissible reasons other than the performance of the teacher or principal in the classroom or school, including but not limited to misconduct. (Emphasis added.)

Of particular concern to school districts was whether Section 3012-c(1) limited their ability to terminate a probationary teacher prior to the issuance of his or her APPR composite score, which in most instances would not be available until the following fall. In other words was a district precluded from terminating a probationary teacher, during the school year, irrespective of how miserably he or she had failed in the classroom?

It was in response to what the state Education Department termed “the need to clarify the extent of a board of education’s discretion to terminate a probationary classroom teacher or building principal for reasons other than their composite effectiveness rating under their APPR Plan” that it proposed a “clarifying amendment” to Section 30-2.1 of the Rules of the Board of Regents (State Education Dept. supporting memoranda dated June 20 and 24, 2014 at p.2). The proposed amendment sought to add the following language to Section 30-2.1(d):

For purposes of the subdivision section 30-2.11(cc) of this Subpart and Education Law Section 3012-c(1) and 5(b), performance shall mean a teacher’s or principal’s overall composite rating pursuant to an annual professional performance review conducted under this Subpart.

While the extent to which this amendment provides “clarification” is not immediately apparent from the above wording, the accompanying memorandum provided to the Regents by the state Education Department on June 20, 2014, was instructive as to the amendment’s intent, and left no doubt as to the scope of a board of education’s discretion to terminate a probationary teacher prior to the issuance of his or her APPR composite score. Specifically, the June 20 memorandum contained the following language:

Accordingly, where a board of education has not yet completed an APPR for a probationary teacher or principal, it may terminate the probationary teacher for any statutorily and constitutionally permissible reasons. Those reasons may include the quality of the instruction or services provided by the probationary teacher or principal based on evidence other than the composite APPR rating. Once it has completed an annual professional performance review, the board of education retains the right to terminate probationary teachers for statutorily and constitutionally permissible reasons other than the teacher’s or principal’s composite APPR rating, such as misconduct, insubordination, time and attendance issues and other performance issues.

State Education Department supporting memorandum dated June 20, 2014, at p. 2

While this language would have provided comfort for any school district official who may have had the opportunity to read it, it was short-lived. On the following Tuesday, June 24, 2014, the June 20 memorandum was removed from the Board of Regents website and replaced with a revised accompanying memorandum dated June 24, 2014. This revised memorandum was identical in every respect to the June 20 memorandum except that the above-quoted language was deleted. As such, the revised memorandum contained no language related to the discretion of a Board of Education to terminate a probationary teacher prior to the issuance of an APPR composite score. This was so, despite the fact that the June 24 memorandum retained the language indicating that it purported to clarify this very issue.

Significantly, there was no mention of the reason for the change of language on the Regents website, and indeed no indication that the June 20 memorandum ever existed.

On June 24, 2014, the amendment to Section 30-2.1(d) was approved by the Regents as an emergency regulation as part of its consent agenda, without any discussion.

The state teachers’ union has consistently taken the position that a probationary teacher cannot be terminated prior to the issuance of his/her composite score. However, in yet another turn of events the same language reappeared in a revision to the APPR guidance issued by the Education Department on July 1, 2014. Guidance on New York State’s Annual Professional Performance Review for Teachers and Principals to Implement Education Law Section 3012-c and the Commissioner’s Regulations updated July 1, 2014, (c-13 at p. 27).

Whether the position taken in the state Education Department guidance will ultimately be adopted by the Board of Regents when it acts upon this emergency regulation for its consideration by the full Board of Regents for permanent adoption at its Sept. 16, 2014, meeting remains to be seen. Comments and public input on the emergency measures as filed in the state register could raise the attention of the department and the board for needed adjustments.

What is apparent is that there exists an ongoing dispute between the state teachers’ union and the state Education Department regarding the application of Section 3012-c to the termination of probationary teachers. Absent clarification by the Regents or the Legislature, this will be left for the courts to determine. Until such time as that occurs, school districts throughout the state will be left with little guidance as to how to proceed with respect to the removal of poorly performing new teachers.