Appellate court reinstates termination of teacher found incompetent |
On Board Online • May 29, 2017
By Kimberly A. Fanniff
Senior Staff Counsel
Lisa Broad, a tenured elementary school teacher in New York City public schools, received her unsatisfactory ratings in the 2009-10, 2011-12 and 2012-13 school years. Observations found issues with inattentive students and a dirty classroom as well as multiple concerns involving the quality of her teaching and classroom management skills.
In Broad v. New York City School Board/Department of Education, the Appellate Division of state Supreme Court, First Department, upheld her termination.
A tenured teacher may only be disciplined for just cause after a due process hearing conducted under Education Law section 3020-a. In this case, just cause consisted of pedagogical incompetence despite attempts at remediation during two successive school years.
Observations at the beginning of the 2011-12 school year revealed issues with differentiation of instruction and classroom management, among other problems. In November 2011, the district implemented a professional development plan to aid Broad. The plan called for in-class assistance from a retired teacher once a week, biweekly meetings with a teaching coach, weekly monitoring of lesson plans, continued informal observations and attendance at professional development conferences. Despite this assistance, Broad was marked unsatisfactory in 20 of 23 categories for the 2011-12 school year.
In 2012-13, Broad was moved from second grade to kindergarten, and the district continued providing her with one-on-one coaching as in the prior year. In addition, she visited classrooms of other teachers to observe and work on skills. She was offered the opportunity to participate in a remediation program known as PIP Plus, but she declined.
Observations in 2012-13 found Broad spent too long on preliminary activities, asked questions that were not meaningful, and performed little to no assessment of student work. Also, the classroom was sloppy and children were playing and being noisy. She again received an unsatisfactory rating, and 23 charges were filed May 22, 2013.
The hearing officer found Broad guilty of a majority of the charges. According to the hearing officer, Broad was unwilling or unable to consistently provide her students with appropriately written and executed lesson plans, differentiated, rigorous or engaging instruction, or appropriate assessments and feedback.
The hearing officer did not explicitly address Broad's argument that the observations were subjective and not proof of her incompetence. However, the hearing officer stated that "the charges proven were substantial and directly related to respondent's competency to teach and her ability to provide her students with a valid educational experience."
In order to deem termination an appropriate remedy, a hearing officer must determine if a teacher can be rehabilitated. The hearing officer determined that the district had provided Broad with substantial, high-quality remediation and there was no reason to believe that she would improve with additional remediation. Despite Broad's long tenure with the district and lack of any prior discipline, the hearing officer found that the appropriate penalty was termination.
Broad filed a lawsuit to challenge her termination. A state Supreme Court noted that there was no evidence that any students required remedial tutoring or were held back a grade. It vacated the hearing officer's determination finding it arbitrary and capricious and without rational basis. The court further stated even if the hearing officer's findings were supported by the evidence, the penalty of termination was grossly disproportionate.
The court remarked that there is no consensus as to what is the "right way to teach," and this leaves the concept of incompetence in teaching up for debate. The court said Broad's poor ratings were based on subjective opinions regarding the way Broad was able to implement the administration's preferred style of teaching.
The district appealed the decision, and the First Department unanimously reversed the lower court's decision.
According to the appellate court, the hearing officer's decision had a rational basis and was supported by adequate evidence. Based upon the record, the hearing officer reasonably determined that Broad's performance was deficient for two years. The court agreed that she had been provided with substantial assistance over the two-year period but was unable to improve her performance. Based upon the foregoing, the court found that termination did not shock the court's sense of fairness and reinstated the hearing officer's penalty.