Teachers on Trial: Values, Standards, and Equity in Judging Conduct and Competence 9781501725265

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ILR Paperback Series Number 20

VALUES, STANDARDS, & EQUITY IN JUDGING CONDUCT AND COMPETENCE

James A. Gross

ILR PRESS New York State School of Industrial and Labor Relations Cornell University

Copyright© 1988 by Cornell University All rights reserved Cover design by Kat Dalton

Library of Congress Cataloging-in-Publication Data

Gross, James A., 1933Teachers on trial.

(ILR paperback ; no. 20) Includes index. 1. Teachers-Legal status, laws, etc.-New York (State) 2. Teachers-Malpractice-New York (State) 3. Actions and defenses-New York (State) I. Title. II. Series. KFN5658.G76 1988 344.747'078 ISBN 0-87546-142-5 (alk. paper) 347.470478

88-13673

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences-Permanence of Paper for Printed Library Materials, ANSI Z 39.48-1984. @

Copies may be ordered from ILR Press New York State School of Industrial and Labor Relations Cornell University Ithaca, NY 14851-0952

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Contents

Acknowledgments I v Introduction I 1 Evolution of Section 3020-a I 5 Conduct Unbecoming a Teacher I 10 The Meaning of Conduct Unbecoming a Teacher I 10 The Harmful Consequences of Vague Standards 113 The Concept of Role Model as a Standard of Discipline I 18 The Nexus Requirement I 26 Off-Duty Conduct I 33 The Nature of the Educational Process 144 Many of Today's Morals May Become Tomorrow's "Absurd Customs" I 50 Incompetence and Inefficiency I 52 The Meaning of Incompetence and Inefficiency I 53

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Contents

Standards for Determining Competent Teaching Performance I 54 Measuring Teaching Performance I 59 Fair Treatment and the Evaluation Process I 65 Remediation I 87 Need for a Positive, Cooperative Approach I I 04 Conclusion I I 06 Appendix I II3 Index I 119

Acknowledgments

The author is indebted to Ann Martin, Maria Ontiveros, and Barbara Stoyell Mulholland, all current or former graduate students in the New York State School of Industrial and Labor Relations at Cornell University, for their research assistance and perceptive suggestions. Special thanks go to Vito Longo and Lauren Barber, unit supervisors of the New York State Education Department's Office of School District Employer-Employee Relations, who granted access to section 3020-a panel decisions and were most generous with their time.

Introduction

The current national concern about the effectiveness of our schools has inspired many "national reports" on education, 1 all of which agree, despite their different views and recommendations, that American education is in a sad state. 2 Because learning ultimately depends on the nature of the teacher-student relationship, much 1. Recent reports include E. BoYER, HIGH ScHOOL: A REPORT ON SECONDARY EDUCATION IN AMERICA (Harper & Row, 1983);]. GooDLAD, A PLACE CALLED ScHOOL (McGraw-Hill, 1984); S.L. LIGHTFOOT, THE GooD HIGH ScHOOL: PoRTRAITS OF CHARACTER AND CuLTURE (Basic Books, 1984); T. SIZER, HoRAcE's CoMPROMISE: THE DILEMMA OF THE AMERICAN HIGH ScHOOL (Houghton Mifflin, 1984); NATIONAL CoMMISSION ON ExcELLENCE IN EDUCATION, A NATION AT RISK: THE IMPERATIVE FOR EDUCATIONAL REFORM (U.S. Department of Education, 1983); NATIONAL SciENCE BoARD CoMMISSION ON PRECOLLEGE EDUCATION IN MATHEMATICS, SCIENCE, AND TECHNOLOGY: EDUCATING AMERICANS FOR THE 21sT CENTURY (N a tiona! Science Foundation, 1983); TwENTIETH CENTURY FuND TAsK FoRcE oN FEDERAL ELEMENTARY AND SECONDARY EDUCATION POLICY, MAKING THE GRADE (Twentieth Century Fund, 1983); M. ADLER, THE PAIDEIA PROPOSAL: AN EDUCATIONAL MANIFESTO (Macmillan, 1982); COLLEGE BOARD, AcADEMIC PREPARATION FOR CoLLEGE: WHAT STUDENTS NEED TO KNow AND BE ABLE TO Do (College Board, 1983). 2. Evans, Harvard Colloquia Review Educational Reports, 29 HARV. GRAD. ScH. OF EDuc. A. BuLL. 7, 8 (1984).

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Introduction

of the blame for the problems with education has been put on teachers. The popular press, for example, repeats the themes of why teachers fail and describes in detail the deteriorating discipline, the declining scores on standardized tests, and tenure laws that make it increasingly difficult and costly to dismiss incompetent or otherwise unsatisfactory teachers. 3 It is precisely at such times that the greatest vigilance is needed to protect people's lives and careers against any rush to action based on unstated values and presumptions rather than fact. Fairness as well as effectiveness require that values be made explicit and that fact rather than assumption be the basis for assessing blame for deficiencies in education and formulating solutions. Requiring fact rather than assumption as a basis for disciplinary action may appear on the surface to make it more difficult to dismiss immoral or incompetent teachers. On the contrary, identifying and eliminating unfairness in the current disciplinary system for tenured teachers will require school districts to develop hiring, evaluation, promotion, and disciplinary policies and practices that can be validated with competent evidence. In the last two decades, virtually every state has provided either tenure or continued contracts for its public school teachers. All fifty states have "tenure laws," and forty-one of them specify dismissal or nonrenewal for such causes as incompetence, physical or mental disability, insubordination, neglect of duty, intoxication, or excessive use of a controlled substance. 4 Substantive de3. See, e.g., Why Teachers Fail, NEWSWEEK, Sept. 24, 1984, at 64; Stinson, Firing Bad Teachers Is Costly, Difficult, Ithaca J., May 16, 1985, at 13; Bleyer, The Struggle to Fire a Teacher, Newsday, July 27, 1981; Maeroff, N.Y. Times, Mar. 4, 1979, at 18. 4. WASHINGTON STATE SENATE, EDUCATION CoMM., STATUTORY REQUIREMENTS OF TEACHER CONTRACT LAWS: A COMPARISON OF THE 50 STATEs' CoNTINUING CoNTRACT AND TEACHER TENURE LAws 3 (1976).

Introduction

3

cisions interpreting and applying these causes of discharge are excellent sources of factual information about the quality of teaching and teachers, as well as the extent to which unsubstantiated personal values and presumptions rather than objective standards and facts control the assessment of teaching conduct and performance. Presumably, such information is most reliable when it is obtained from opinions issued by a neutral body. In every state tenure law, notice of cause is required before a protected teacher is dismissed, and in all but nine states, possible causes are specifically listed in the law. Provisions for due process vary, but in all but a few states, the decision to dismiss or not to dismiss is made by the board of education, the employer who instigated the teacher's dismissal in the first place. Six states provide that dismissal decisions be made by a neutral body, 5 and most put the power in the hands of a single hearing officer who is either employed by or chosen by the educational administration of the state. Only in the states of Washington and New York do private arbitrators hold the power of decision in dismissal cases involving public school teachers. In Washington, the single hearing officer who makes the final decision must be a member of the state bar association. The hearing officer is appointed by two members of the state bar association, one chosen by the teacher and the other by the board of education. New York is the only state where American Arbitration Association arbitrators act as neutral third-party chairpersons of panels with final decision-making authority. These arbitrators are chosen either by the two party-appointed panelists (professionals in teaching and school administration or school board members) or by the commissioner of education when the panelists are deadlocked. On its face, these panels would seem to be the most 5. !d. at 27.

4

Introduction

neutral of all such decision-making bodies established by state statutes. Section 3012 of the New York State Education Law6 sets forth the general categories of offenses for which tenured teachers may be disciplined-conduct unbecoming a teacher, insubordination, immoral character, incompetency and inefficiency, physical or mental disability, neglect of duty, and lack of proper certification. Section 3020-a establishes procedures for the implementation, challenge, review, and final determination of such discipline. Case decisions involving conduct unbecoming a teacher (191 cases) and incompetence (69 cases) constituted approximately 68 percent of the total number of cases decided (383) pursuant to section 3020-a from 1977, when panels were given binding decisionmaking authority, through 1987. 7 These cases are the primary focus of this study not only because they constitute the great majority of the case decisions but also because they provide the most direct source of information concerning teaching conduct and competence. (The appendix contains tables that give the number of cases in each category, the penalties, and other information.) These 260 case decisions involving conduct unbecoming a teacher and incompetence have been analyzed to ascertain what in the deciders' opinions constituted con6. N.Y. EDUCATION LAW, chap. 16, para. 3012 (McKinney 1985). 7. From 1977 through 1987, panels decided 383 cases: 191 involving conduct unbecoming a teacher, 55 insubordination, 85 neglect of duty, and 86 incompetency and inefficiency. Although lack of certification is classified as incompetency and inefficiency, this category will not be discussed here. For purposes of this study, the total number of incompetency and inefficiency cases is 69. Because the New York State Department of Education does not keep such statistics, these are the author's categorizations. Some cases involve multiple charges, so that the total number of cases in each category, when summed, is greater than 383. The total number of cases decided was compiled by a search of the files at the state education department offices.

Introduction

5

duct unbecoming and incompetence and to identify and critique the standards they used in making those determinations. Given that objective, it is more important to look across the 260 case decisions for a common framework of decision-making analysis or core reasoning and assumptions than to concentrate on the factual details of each case. Although the cases discussed in this study occurred mainly under the jurisdiction of the New York State Education Law, they raise interesting and important questions of nationwide applicability concerning the nature of teaching, the conception of teachers as role models, the standards of conduct and performance to which teachers are held, the objectives and purpose of education, what constitutes "good teaching," the measurement of good teaching, and the obligation to provide remedial assistance to teachers who need to correct teaching deficiencies and improve. This study, moreover, informs the discussion about the state of our schools and ways to improve it by analyzing and critiquing these supposed worst-case situations occurring at the core of learning: teacher-student and administrator-teacherstudent relationships. Attempting to determine what constitutes improper conduct and unsatisfactory teaching performance of necessity requires an explicit or at least an implicit statement about what constitutes proper conduct and satisfactory teaching performance. Wellmeaning generalizations about educational excellence do not do that. An analysis of the nature of the standards used (or not used) in making these determinations, of course, has implications not only for educational policy but also for all judicial or quasi-judicial decision making. Evolution of Section 3020-a Before l 970, boards of education in New York State had essentially unchallenged disciplinary authority-to

6

Introduction

prefer charges against tenured teachers, suspend the accused without pay, conduct disciplinary hearings, present their own case during the hearing, decide if the board's own charges were meritorious, and impose penalties on teachers it adjudged guilty. Teachers could appeal those decisions to the commissioner of education. 8 The intent of section 3020-a was to establish uniform procedures that would guarantee tenured teachers due process and a fair hearing yet protect the authority of school boards to discipline teachers for misconduct or inadequate performance. After section 3020-a became effective on July 1, 1970, boards of education lost much of their disciplinary power. Disciplinary hearings were no longer conducted by boards of education but by hearing officers appointed by the commissioner operating under rules and procedures established by the commissioner. 9 Section 3020-a also intruded on the boards' final decision-making authority by requiring the appointment of a three-person panel that issued "recommendations" based on the hearing record. The intrusion was slight, however, since panel recommendations were merely advisory and boards of education retained the power of final determination. The panelists were chosen, moreover, from a list maintained by the commissioner-with the employing board and the accused teacher each choosing one and the commissioner the third whenever the party-appointed panelists could not agree on a third member. The New York State Court of Appeals also influenced the balance of power when it ruled in 1974 that boards of education were not empowered to withhold pay from accused 8. Governor's Bi\1 Jacket, New York State Assembly, "Summary of the Hearing Procedures under Present Law," Assembly Bill No. A3499 (1970), 1-2. 9. Memorandum from Robert D. Stone, New York State Department of Education, to Counsel to the Governor (Mar. 30, 1977) (discussing New York State Bill S.l074).

Introduction

7

teachers pending final determination of section 3020-a proceedings. 10 A major redistribution of power occurred in 1977 when 3020-a was amended to take final decision-making and penalty assessment authority from boards of education and give it to the hearing panels. The amendment also replaced the commissioner-appointed hearing officers with arbitrators chosen from a list supplied by the American Arbitration Association. The New York State Court of Appeals upheld the constitutionality of this arrangement, stating: We perceive no constitutional bar to the legislative designation of the [American Arbitration] association as a nominating body, who can reasonably be expected to present to the commissioner, on an objective and nonpartisan basis, the names of individuals exceptionally qualified by prior service in the field of adversarial hearings for service as chairman of a hearing panel under section 3020-a. 11 The end result is the phenomenon of neutral private labor arbitrators who interpret and apply a public statute on a case-by-case basis and, in the process, inevitably make law by giving specific meaning to the general categories of disciplinary offenses listed in the statute. 12 Panels may impose only one of the statutorily specified 10. Jerry v. Board of Educ. of the School Dist. of Syracuse, 35 N.Y.2d 534, 364 N.Y.S.2d 440 (1974). 11. Board of Educ. of Belmont Cent. School Dist. v. Gootnick, 49 N.Y.2d 683, 427 N.Y.S.2d 777, 779-80 (1980). 12. Those who argued against this arrangement cited the long delays in getting American Arbitration Association (AAA) arbitrators to schedule hearings and the nonattorney status of many AAA arbitrators as increasing the likelihood of errors on questions of law. R.E. Blumner, 3020-A Analysis 6 (May 1982) (unpublished manuscript).

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Introduction

penalties-reprimand, fine, suspension without pay, or dismissal. 13 The boards of education lost their final decision-making power in this evolution toward decision making by neutrals but gained the right to appeal panel decisions to either the commissioner of education or the courts. The boards have relied heavily on appeals to the commissioner to challenge panel decisions, thereby greatly increasing the role of the commissioner in making policy concerning the discipline of tenured teachers. School boards appealed 89 of the 101 incompetency and conduct unbecoming a teacher panel decisions that were appealed to the commissioner between October 1976 and August 1987. Teachers appealed twelve panel decisions, nine of which were terminations. The commissioner sustained the panel's penalty in 57 of 101 appeals and increased the penalties imposed by panels in 41 cases. In only one case did the commissioner reduce a penalty on appeal. 14 The power of teachers to influence the final outcome 13. Adrian v. Board of Educ. of East Ramapo Cent. School Dist., 60 A.D.2d 840, 400 N.Y.S.2d 570, 570-71 (1978); Board of Educ. of Three Village Cent. Schools of Brookhaven and Smithtown v. Ambach, 84 A.D.2d 55, 58, 446 N.Y.S.2d 444, 447 (1981). 14. The commissioner remanded 2 of 101 appeals to panels. Seventy-six of the appeals involved conduct unbecoming a teacher and twenty-five were incompetency cases. The commissioner sustained the panels' penalties in forty-five of the conduct unbecoming and twelve of the incompetency appeals and increased the penalty in twenty-eight conduct unbecoming and thirteen incompetence cases. In only one case did the commissioner reduce the panel penalty, from a fine of one year's salary to a $5,000 fine. The commissioner stated that, under the circumstances of the case, a fine of one year's salary was "confiscatory" and "shocking to [his] conscience." Board of Educ. of New York v. Mitchell Gordon, 25 Ed. Dept. Rep. 105, 107 (1985). These figures were compiled from the author's classification of panel decisions and appropriate volumes of commissioner of education decisions.

Introduction

9

of panel decisions has been increased primarily in two ways. Changing the panels' authority from advisory to binding automatically increased the influence of the teacher-appointed panelist and, after 1976, gave accused teachers the option of appealing the commissioner's decision to the courtsY Unfortunately for the teachers, however, the courts "are reluctant to exercise the full sweep of their appellate powers in disciplinary matters."16

15. In reWard v. Nyquist, 43 N.Y.2d 57,400 N.Y.S.2d 757 (1977). 16. Tombier v. Board of Educ. of Brookhaven-Comsewoque Union Free School Dist., 440 N.Y.S.2d 1012, 1017 (1981).

Conduct Unbecoming a Teacher

The Meaning of Conduct Unbecoming a Teacher In 1974, a United States district court rejected a teacher's contention that the language of section 3012 setting forth reasons to discipline a teacher was both unconstitutionally vague and overbroad in that it failed to set forth guidelines for its application. The court sidestepped the main thrust of this constitutional challenge by simply asserting without substantiation that the charge (in this case, excessive corporal punishment), if proven, fell "squarely within the hard core of conduct the statute was designed to proscribe." The court admitted "uncertainty," however, about "the outer limits of the statutory language." 1 One year earlier, a district court had found an Oregon statute permitting the discharge of teachers for "immorality" unconstitutionally vague because "immorality l. Kinsella v. Board of Educ. of Cent. School Dist. 7 of Amherst and Tonawanda, 378 F. Supp. 54, 57 (1974).

Conduct Unbecoming

11

means different things to different people and its definition depends on the idiosyncracies of the individual school board members .... The potential for arbitrary and discriminatory enforcement is inherent in such a statute. " 2 Certainly the phrase conduct unbecoming a teacher does not define itself, although some forms of alleged misconduct can be classified in the category of "conduct unbecoming." From 1977 to 1987, for example, 191 section 3020-a panel decisions involved, in the main, the following alleged misconduct: physical abuse of students (fifty-eight cases, or 30 percent); sexual activities (thirtyfive cases, or 18 percent); dishonesty (thirty cases, or 16 percent); abusive classroom comments and related actions (seventeen cases, or 9 percent); disrespectful relations with the administration (seventeen cases, or 9 percent); criminal convictions for off-duty conduct (fifteen cases, or 8 percent); fighting with other teachers (six cases, or 3 percent); bizarre behavior (five cases, or 3 percent); and other miscellaneous behavior, such as causing upset in a community. Moreover, the total number of conduct unbecoming a teacher cases decided pursuant to section 3020-a was greater than the total of all other disciplinary reasons combined. 3 (These figures do not include coerced resignations or financial settlements or "buyouts" without formal dismissal. )4 Classifications of conduct are not standards of con2. Burton v. Cascade School Dist. Union High School 5, 353 F. Supp. 254,255 (D. Oregon 1973), aff'd, 512 F.2d 850 (9th Cir. 1975), cert. denied, 423 U.S. 839 (1975). 3. Panels decided 191 cases involving conduct unbecoming a teacher out of a total of 383 cases. See also Introduction, note 7. 4. For a discussion of financial settlements or coerced resignations in other states, see, e.g., Thurston, Tenured Teacher Dismissal in Illinois, 1975-1979,69 ILL. BAR]. 422, 423-24; Melnick & Twyman, Teacher as Exemplar: Freedom in Private Life, 59 CLEARING HousE 301, 304 (1986).

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Conduct Unbecoming

duct, and any person subject to disciplinary penalties for misconduct has a right to know the standards by which his or her conduct will be judged. Some of the actions engaged in by teachers in these cases certainly are by their nature wrongful and punishable-whether committed by teachers or anyone else: sexual abuse of a student, 5 unrestrained and unwarranted physical attacks on another person, 6 or, as occurred in one case, murder, mutilation, and cannibalism. 7 Other conduct would be deemed wrong not because it is inherently evil but because some authority in society or at a workplace prohibited it. Because this conduct is not inherently evil, elemental fairness and procedural due process require that those subject to these prohibitions be given fair warning of the conduct prohibited and be provided a standard against which the conduct can be uniformly judged by panels, commissioners of education, court justices, and administrative agencies. 8 This study demonstrates, however, that no precise and useful standard of conduct has been developed for teachers or for various bodies that pass judgment on their conduct. In fact, of the 191 cases that were studied, in only one did a panel address this issue directly. In dismissing charges that a teacher had conducted herself in a manner unbecoming a teacher by "wearing improper clothing, talking about her personal life, laughing hysterically, staring, and slamming doors," the panel pointed out that "nowhere in the record was any 5. Community School Dist. 18 v. Richard Errera, N.Y.S. Ed. Dept. (1984). 6. Community School Bd. 5 v. W. Rogers Gist, N.Y.S. Ed. Dept. (1980). 7. Poughkeepsie City School Dist. v. Albert Fentress, N.Y.S. Ed. Dept. (1981). 8. Morrison v. State Bd. of Educ., 461 P.2d 375, 387; 1 Cal. 3d 214; 82 Cal. Rptr. 175 (1969).

Conduct Unbecoming

13

evidence adduced as to what said conduct ought to be." 9

The Harmful Consequences of Vague Standards In many of the decisions the standards of conduct were fashioned so generally and were thus so useless that they were not standards at all. A teacher charged with using the words crap in class and fuck in the hallway with three students present was told by a panel that he had not "comport[ed] himself in a professional manner" and that the word "'fuck,' regardless of its widespread use in literature, is a word offensive to prevailing notions of decency and modesty." 10 In a similar case, a panel ruled that the teacher should have used "appropriate classroom language" rather than "student language." 11 Another teacher who helped students make copies of an "underground" newspaper that contained what a panel termed vulgarities and "unflattering references to the administration" was found guilty of conduct unbecoming a teacher because "he had ... a responsibility to himself, the student and to the school community to exercise better sense and taste. His actions were inconsistent with conduct which can reasonably be expected of one charged with the responsibility of guiding young people." 12 Other decisions cite only the "requisite stan9. Beacon City School Dist. v. Louisa Jackson, N.Y.S. Ed. Dept. at3(1982). 10. Community School Dist. 19 v. Alan Tolin, N.Y.S. Ed. Dept. at 7-8 (1980). 11. Poughkeepsie City School Dist. v. Henry Cutler, N.Y.S. Ed. Dept. at 11 (1980). 12. North Shore Cent. School Dist. v. Robert Blitz, N.Y.S. Ed. Dept. at 5, 11 ( 1981).

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Conduct Unbecoming

dard of professional conduct" to which teachers should conform, 13 or what an experienced teacher should have known. 14 Some of the vaguest standards have been applied in the delicate and complicated area of alleged sexual misbehavior. Panels have found teachers guilty, for example, because they did not conduct themselves "in a manner which would uphold the dignity" of the position of teacher and conform "to a generally accepted level of proper behavior" for teachers, for failing "to conform to that strict level of propriety required of teachers in the New York City system," and for failing to fulfill their obligation "not only to avoid impropriety but with equal vigor, to avoid the appearances of impropriety." 15 In other sexual misconduct cases, vagueness is compounded by the application not of an absolute standard of conduct applicable to all teachers but of a subjectiverelative standard whereby the appropriateness or inappropriateness of a teacher's conduct depends on how that conduct is perceived by students and/or the "community." Although finding no immoral purpose or plan, for example, a panel ruled that staying with a fifteenyear-old female student for a half-hour to an hour at his home with no one else present was conduct unbecoming a teacher because it was completely improper for the possible inferences which might be left on the mind of the female adolescent 13. Community School Dist. 20 v. Nicholas Lolli, N.Y.S. Ed. Dept. at 7 (1980); Smithtown Cent. School Dist. v. Robert Olkin, N.Y.S. Ed. Dept. at 11 ( 1982). 14. City School Dist. of Mt. Vernon v. Richard Morris, N.Y.S. Ed. Dept. at 9 ( 1977). 15. In re Frank Tucci, N.Y.S. Ed. Dept. at 1 (1978); Board of Educ. of New York v. Joseph Pargament, N.Y.S. Ed. Dept. at 21 (1983); Whitehall Cent. School Dist. v. Robert Mowatt, N.Y.S. Ed. Dept. at 8 (1984).

Conduct Unbecoming

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involved. Also it was susceptible to being known or heard about, it was readily susceptible to scandalous interpretation if known or heard about and, consequently, susceptible to causing a damaging image in the eyes of the school and the civil community concerning teacher/student relations and the standards of such relations demanded by the school administration. 16 In another case in which a panel found no evidence that the actions were "either overtly or by implication sexual in nature," conduct unbecoming charges were upheld against a teacher who claimed that touching students was a necessary part of his teaching style. In the panel's opinion, "a teacher who regularly touches elementary students in a manner which makes them uncomfortable impedes the educational development of the students and evidences conduct unbecoming a teacher." 17 One panel not only made the appropriateness of a teacher's conduct dependent on the perceptions of students but also made the teacher responsible for knowing when some unmarked boundary line had been passed: "While the Panel acknowledges that each teacher has an individual style, a teacher is also responsible for knowing when he or she has crossed the line between productive encouragement and acts that can be misconstrued as sexual advances by girls and boys who are becoming aware of their own sexuality." 18 In considering charges against a demonstrative teacher who put his arms around students' shoulders and often 16. Greenburgh Cent. School Dist. 7 v. William Woodie!, N.Y.S. Ed. Dept. at 16-17 ( 1979). Other teachers are criticized for allowing themselves to be placed in a position in which incorrect conclusions might be drawn about their motives. See, e.g., South Orangetown Cent. School Dist. v. Jack Hawley, N.Y.S. Ed. Dept. at 21 (1983). 17. Little Valley Cent. School Dist. v. Donald Poole, N.Y.S. Ed. Dept. at 26, 28 (1981). 18. Community School Dist. 18 of New York v. Mark Katz, N.Y.S. Ed. Dept. at 13 (1980).

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Conduct Unbecoming

hugged them, a panel admitted that there was only "a fine line between demonstrative behavior and behavior that is or can be construed as being improper or sexual."19 Because this line is so fine and its location so subjective that it is often undiscernible before the act, it is an inadequate standard for judgment. It is also not a standard fashioned out of the available evidence concerning effective teaching styles. Many educators contend, for example, that gently touching students in appropriate ways increases their sense of self-worth, gives them needed encouragement and support, helps them see their teachers as real people who personally care about and like them, soothes them, eases feelings of depression, and helps overcome loneliness-all of which make teachers more effective and learners more receptive and involved. 20 Those panels that focus on how touching could be perceived, or misperceived, are endorsing, in effect, a hands-off, keep-your-distance teaching style without any consideration of the effect of that style on children and their education. It certainly is Orwellian and contrary to traditional notions of excellent teaching for a panel to tell a teacher that, because of "the imagination and fantasy of the teenagers at the school," the teacher would best avoid danger "by non-involvement with students." 21 Yet, even in a case in which a teacher was "guilty of nothing more than giving a lonely, troubled child a measure of the love and affection she craved," a panel warned that "teachers must not 'touch the merchandise.' "22 19. Community School Dist. 14 v. Daniel Sattenspiel, N.Y.S. Ed. Dept. at 9 (1980). 20. J.M. SAwREY & C.W. TELFORD, EDUCATIONAL PsYCHOLOGY (Allyn & Bacon, 4th ed., 1973). 21. Iroquois Cent. School Dist. v. Robert Miller, N.Y.S. Ed. Dept. at 16 (1978). 22. East Meadow Union Free School Dist. v. George Bredehorn, N.Y.S. Ed. Dept. at 22-23 (1979).

Conduct Unbecoming

17

The use of vague and "subjective-relative" standards, therefore, has seriously unjust and harmful consequences. As only one panel pointed out, 3020-a is a statutory proceeding in which constitutional standards apply and "standards of proper conduct must be substantially clear for constitutionally valid discipline to be imposed." 23 Even absent statutory and constitutional requirements, however, a panelist's personal views and the perceptions of students and "community" cannot be appropriate standards for determining proper behavior for a teacher or for making judgments directly affecting teachers' careers. The use of personal views and the perceptions of others as "standards" is also unfair because it denies a teacher any useful guide to acceptable conduct before acting, deprives an accused teacher of any reasonable opportunity for self-defense-how can one defend against the personal views of judges and the perceptions of accusers?-and resolves doubts about guilt against the accused contrary to the traditional principle of innocent until proven guilty. The potential career-ending consequences of misinterpretations and misunderstandings, potential or real, moreover, have inhibited teachers from freely expressing affection for children, thereby diminishing both teaching and learning. One panel used an alternative approach more consistent with fairness for the accused and the maintenance of positively affectionate teacher-student relationships. Recognizing that "with a caring, affectionate teacher it is perhaps almost inevitable that some highly intelligent and imaginative child ... will let that imagination lead her to display a warmth towards the teacher," the panel dismissed unbecoming conduct charges because there was no evidence that the teacher had promoted such 23. Williamson Cent. School Dist. v. Ronald Morris, N.Y.S. Ed. Dept. at 26-27, 34 (1985).

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Conduct Unbecoming

affection (the student had written letters to the teacher), had taken advantage of it, or intended or caused the student harm. 24 Evidence rather than "assumption by innuendo" must be controlling in these cases. 25

The Concept of Role Model as a Standard of Discipline Another imprecise and even more powerful presumption about teachers' conduct that influences the outcome of the whole range of unbecoming conduct cases is that teachers must be held to a higher standard of personal behavior than persons engaged in most other pursuits. Justifications for imposing this higher standard of conduct range from general references to "the trust reposed in the teacher by society, "26 to assertions that teachers serve in loco parentis, 27 to conceptions of teachers as role models. 28 One panel put it succinctly in a series of assertions: A person who accepts a teaching position willingly places himself and his conduct in the arena of public attention. 24. Hempstead Public Schools v. Gary Ritterband, N.Y.S. Ed. Dept. at 6-7 (1984). 25. Whitehall Cent. School Dist. v. Mowatt, supra note 15, at 2, and dissent, at 6-7. 26. Pine Plains Cent. School Dist. v. Bernard Weaver, N.Y.S. Ed. Dept. at 15 (1985); In re Robert Stein, N.Y.S. Ed. Dept. at 5 (1977); see also Matter of Board of Educ. of the School Dist. of New York, 24 Ed. Dept. Rep. 163, 168 (1984). 27. "In legal contemplation, Respondent, a school teacher, stands in loco parentis and, in the eyes of the community, is expected to be an exemplar of good morals and behavior to the school children in her charge." Community School Dist. 2 of New York v. Bonnie Lane, N.Y.S. Ed. Dept. at 8 (1978); Canandaigua Cent. School Dist. v. Weldon Canough, N.Y.S. Ed. Dept. at6-7 (1980); ConnetquotCent. School Dist. v. Russell Schmidt, N.Y.S. Ed. Dept. at 60 (1984). 28. Pine Plains Cent. School Dist. v. Weaver, supra note 26, at 14.

Conduct Unbecoming

19

What may be acceptable in other walks of life takes on an entirely different aspect when engaged in by a teacher. A teacher accepts a special place within the community. A teacher's influence and effect on students extends beyond the classroom and the school. A teacher stands in loco parentis. A teacher is a role model for students to emulate. A teacher is a purveyor of community values. A teacher is responsible for the well being of all students. A teacher is all of these things, and more. 29 The process that psychologists call modeling certainly exists. All of us in some way or another "are dependent on one another for what we are, what we know, and what we prize," and values, attitudes, and even personality traits are influenced by contacts with others. The problem with using role modeling as a basis for determining the nature of conduct unbecoming a teacher and assessing appropriate penalties, however, is that no one is certain exactly how models are selected, particularly outside a child's home. 30 Modeling, moreover, does not guarantee that views that have been learned will be articulated or that behavior observed will be imitated. The determinants of whether a role model's behavior will be adopted are many and complex, including the observer's personal characteristics and past experiences, the nature of the model's activities, the situations in which the interactions between the role model and the observer take place, the anticipated satisfactions or observed benefits of the modeled action, and the perceived risks or observed social barriers and economic constraints of engaging in the model's behavior. People, including young people, "resist accepting innovations that violate their social and moral convictions." 31 29. Community School Bd., Dist. 25 v. Ronald Drew, N.Y.S. Ed. Dept. at 9-10 (I 980). 30. S.R. Cohen, Models inside and outside the Classroom: A Force for Desirable Learning, 5 I CoNTEMPORARY Enuc. 186, 186 (1980). 31. A. BANDURA, SoCIAL LEARNING THEORY 24-25, 47, 53-54 (Prentice Hall, 1977).

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Parents are the first and most important models of behavior: "their influence endures and is frequently ineradicable." 32 Teachers whose values differ from those of their adolescent students are likely to be rejected as role models. Moreover, it may be that institutional demands force teachers, as employees, to model behaviors they do not truly endorse, thereby undermining their credibility with students who perceive this and creating a situation counterproductive to learning and role modeling.33 Peers may become controlling models, but so may community figures (drug dealers as well as brain surgeons), heroes and heroines from films, television, books, and sports, or even teachers, counselors, or school administrators. The actual influence of any of these positive or negative models depends on a student's perceptions of what is desirable, and that may be far beyond the control of any teacher. 34 The actual influence, moreover, could be affected by a person's (teacher as well as student) sex, experience, ability, maturity level (early childhood research indicates that between the ages of eleven and fourteen a person becomes capable of "adult thinking"),35 ethnic heritage, family structure, religious training, and geographical area (rural or urban). 36 A teacher cannot help but exercise power in influ32. Cohen, supra note 30, at 186. 33. Green, Rural High School Students' Perceptions of the Basic Values and Educational Philosophies of Significant Secondary School Role Models, 57 PERSONNEL & GUIDANCE]. 392,396-97 (1979). 34. Id. at 396. 35. Kemerer & Abraham Hirsh, The Developing Law Involving the Teacher's Right to Teach, 84 W.VA. L. REv. 31, 40 n.33 (1981) (citing J. PIAGET, THE MORAL JUDGMENT OF THE CHILD [1979]). 36. Smalls, A Legal Framework for Academic Freedom in Public Secondary Schools, 12 J. L. & Enuc. 529, 541 (1983); Punger, Unwed Mothers as Teachers, 14 ScH. L. BuLL. 1, 4 (1983).

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encing students to participate in the learning process. Teachers exercise this power in different ways and for different reasons. Generalizations about teachers as role models presume a certain "Mr. Chips" teaching style, personality, and environment for teaching that simply does not apply to all or even most teachers and teaching situations. Different teaching styles, personalities, and situations can weaken or strengthen the possibility that a student might choose a teacher as a role model. Some teachers, for example, function on the basis of a power to punish-to inflict "fear, embarrassment and humiliation, boredom, pain, and physical discomfort" on their students. Properly applied, this is not an illegitimate or illegal approach (most parents probably use it), but rather than inspiring role modeling, it weakens the teacher-student relationship and causes students to engage in "coping mechanisms such as rebelling, retaliating (if not at the teacher, at a weaker classmate}, lying, cheating, conforming, submitting and withdrawing (either physically or mentally) from learning." 37 Other teachers rely on their position in the accepted hierarchy of power to influence students' behavior just as parents and employers do. Students who submit to such authority show respect for the teacher's position, not necessarily for the teacher as a person. Some teachers rely on special knowledge or expertise, which is a more personal power, although it also capitalizes on position in the hierarchy. Students' reactions to this approach depend greatly on the extent to which they come from home with a respect for knowledge and position. Teachers also influence students' behavior by distributing or 37. R. Tauber, French and Raven's Power Bases: An Appropriate Focus for Educational Researchers and Practitioners 2-3, Paper presented at the Education Research Association Craft Knowledge Seminar (Apr. 12, 1985).

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withholding rewards, which often involves the manipulation of people, deceit, and loss of independenceconsequences not likely to inspire role modeling. 38 Certain teachers, however, do exercise personal power over students based "on a student's identification with the teacher" and the student's desire to be like him or her. The person, and not necessarily the position, is respected, and students "actually look for opportunities to be of service to [these] persons whom they respect." (Many teachers believe that a person is either born with this power or does not have it.) 39 It is in these relationships that role modeling is likely to result. Thus, not all teaching results in a "teacher, once looked up to" but now "shown to have cheated, lied, or done something similarly damaging" being pulled "down off a pedestal." 40 Once again, however, it is mainly the students' perceptions that determine not only whether role modeling takes place but also what being pulled down from a pedestal will actually mean-simply rejecting the teacher as a role model, or possibly rejecting the teacher as a teacher, or possibly, as inferred in most role modelbased decisions, being dragged down themselves by compulsively emulating their role model's lying, stealing, drug dealing, alcoholism, sexual abuse, or other offenses. The assumptions are only subjective and speculative because there is no conclusive empirical evidence toestablish just how wide a sphere of influence the teacher as role model has over students. Despite the complexity of the role model concept, panels, the New York State Commissioner of Education, and courts all assert the teacher as role model theory as a rationale for holding teachers to a "higher standard." But because the panels present no evidence to substan38. Id. at 3-5. 39. /d. at 4, 7. 40. Id. at 6-7.

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tiate their assumption, their subjective moral attitudes and prejudices determine the standard to be applied to teachers' conduct. Without discussion or evidentiary support, for example, panels have declared that teachers are role models to students, that their conduct must conform to "the role model a professional educator should exemplify in the eyes of his students," and that school districts have an obligation to students and tax payers "to employ professionals whose conduct and deportment in the discharge of their duties is an example of conduct to which students should aspire" and to protect "children of tender years ... who require shielding against inimical influences particularly on the part of their exemplars."41 In one illustrative case, a teacher photographed an incorrect lesson placed on a blackboard by a colleague and told a student he (the teacher) might need the photograph in court someday to defend himself against his department chairperson's criticisms. The panel chairperson admitted, "We can only speculate on the impact of this event upon the children." On the basis of this speculation, however, the panel concluded that the "teacher/role model's" conduct was "damaging to the children." 42 Fairness requires that there be an evidentiary base for the use of the role model concept as a standard for discipline. Yet no substantiating evidence can be found in the commissioner of education's decisions in that the commissioner refers merely to "the widely recognized role of a teacher as a highly influential example to his 41. School Dist. 19 v. Tolin, supra note 10, at 7-8; Canisteo Cent. School Dist. v. James Yahnite, N.Y.S. Ed. Dept. at 10 (1981); Board of Educ. of New York v. Leon Edwards, N.Y.S. Ed. Dept. at 17 (1984); School Dist. 2 of New York v. Lane, supra note 27, at 10. 42. East Ramapo Cent. School Dist. v. Ronald Kaczala, N.Y.S. Ed. Dept. at 8 ( 1985 ).

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or her students."43 The commissioner relies on the Supreme Court's often-quoted assertion in Ambach v. Norwick about teachers as role models: No amount of standardization of teaching materials or lesson plans can eliminate the personal qualities a teacher brings to bear in achieving these goals. Further, a teacher serves as a role model for his students, exerting a subtle but important influence over their perceptions and values. Thus, through both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen's social responsibilities. 44

What is less often quoted is the Court's footnote to this assertion, which reveals that the assertion rests not on the objective findings of scholars but on subjective sources of much potential mischief-the common sense and personal experiences of the decidingjustices. 45 The absence of empirical evidence that students do or do not emulate their teachers' conduct or the who, what, where, when, how, and why's of emulation, if it does occur, combined with the imprecision and fluidity of the phrase conduct unbecoming a teacher, inevitably lead to decisions based on the idiosyncratic mores of communities, school administrators, and quasi-judicial and judicial decision makers, rather than professional job-related standards 43. Matter of Board of Educ. of the City School Dist. of New York, 20 Ed. Dept. Rep. 455, 456 (1981). 44. Ambach v. Norwick, 441 U.S. 68, 78-79 (1978). 45. "Although the findings of scholars who have written on the subject are not conclusive, they generally reinforce the commonsense judgment and the experience of most of us, that a teacher exerts considerable influence over the development of fundamental social attitudes in students, including those attitudes which in the broadest sense of the term may be viewed as political." !d. at 79 n.9.

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of conduct. 46 There is thus great potential in the unsophisticated use of the role model concept as a standard of discipline for arbitrary and discriminatory enforcement. As a parenthetical but important example, one researcher found that "the brunt of the undefined 'morality' standard's application appears to fall on the female gender" -noting that there were "no recorded cases in the last ten years of male teachers dismissed for unwed fatherhood or for living with a person of the opposite sex outside of marriage." 47 The role model notion, without sufficient empirical content, is an insufficient and unjust basis for determining and punishing conduct unbecoming a teacher. Even the most elaborate procedural safeguards in a statutory or contractual disciplinary system are useless if teachers' conduct is measured against subjective standards. It is unjust to prevent teachers from practicing their chosen professions or to deny them the right to live their personal lives free of employer interference merely on some deciding body's recitation of the immorality of certain actions or the mere invocation of the role model concept. 48 It is also unrealistic and impractical to expect teachers to exemplify those qualities they are expected to teach students: "Any requirement that teachers exemplify the subjects they teach and embody all of the qualities which they hope to instill in their students would be utterly impossible of fulfillment. "49 46. Willett, Unfitness to Teach: Credential Revocation and Dismissal for Sexual Conduct, 61 CALIF. L. REv. 1442, 1460 (1973); Winks, Legal Implications of Sexual Contact between Teacher and Student, 11 J. L. & Eouc. 437, 451 (1982). 47. Winks, supra note 46, at 454. 48. LaBorde Scholz, Comment. Out of the Closet, Out of a job: Due Process in Teacher Disqualification, 6 HASTINGS CoNST. L.Q. 663, 688, 712 (1979); Willett, supra note 46, at 1454. 49. Carlton, Pettit v. State Board of Education-Out-of-Classroom Sexual Misconduct as Grounds for Revocation of Teaching Credentials, UTAH

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The Nexus Requirement

Although subjective moral values can never be eliminated from the determination of conduct unbecoming a teacher, their negative influence can be substantially reduced by requiring school districts to demonstrate an objective evidentiary nexus-instead of a speculative subjective nexus-between an alleged misconduct and a teacher's job performance. This failure to require a nexus between conduct and teaching performance was a major reason why the Oregon state statute empowering school boards to dismiss teachers for immorality without defining the term was found unconstitutionally vague. In that case, a school board had dismissed a self-acknowledged "practicing homosexual" female teacher without even an allegation that she was derelict in her teaching duties or that she had made any homosexual advances toward any student. The court said: A statute so broad makes those charged with its enforcement the arbiters of morality for the entire community. In doing so, it subjects the livelihood of every teacher in the state to the irrationality of such judgments. The statute is vague because it fails to give fair warning of what conduct is prohibited and because it permits erratic and prejudiced exercises of authority. 5°

In Morrison v. State Board of Education, a case involving two teachers who engaged in a "physical relationship of a homosexual nature," the California Supreme Court also found the phrases "immoral conduct," "unprofessional conduct," and "moral turpitude" in that state's education code "too sweeping to be meaningful" and L. REv., Winter 1973, at 797, 803 n.40 (citing Blodgett v. Board of Trustees 97 Cal. Rptr. 406, 412 [1971]). 50. Burton v. Cascade School Dist. Union High School 5, supra note 2, at 255.

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ruled that this language could be constitutionally applied only if limited to conduct shown to affect a teacher's job performance. The court stated further: "Thus an individual can be removed from the teaching profession only upon a showing that his retention in the profession poses a significant danger of harm to either students, school employees, or others who might be affected by his actions as a teacher." The school board in Morrison, moreover, "failed to show that [the teacher's] conduct in any manner affected his performance as a teacher." 51 The Morrison court set forth several considerations relevant to the determination of a teacher's fitness or unfitness to teach: the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. 52

The highest court in New York State has ruled that disciplinary charges against teachers are not criminal proceedings and that their primary function is not punitive but to determine the fitness of accused teachers to continue to fulfill their professional responsibilities. 53 Only an objective analysis of the evidence, if any, of the 51. Morrison v. State Bd. ofEduc., supra note 8, at 379-87,391, 392. 52. /d. at 386. 53. Bott v. Board of Educ., Deposit Cent. School Dist., 41 N.Y.2d 264; 392 N.Y.S.2d 274, 277 (1977).

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job relatedness of a teacher's alleged misconduct does justice to that purpose; merely declaring conduct morally abhorrent and proclaiming disastrous effects do not. 54 "A pronouncement of 'immorality' tends to discourage careful analysis because it unavoidably connotes a violation of divine Olympian, or otherwise universal standard of rectitude." 55 The job-relatedness test should replace the role model notion in both on-the-job and off-duty conduct cases. As a generalization, when a teacher's misconduct is directed at children, particularly the students he or she teaches, and particularly when it endangers their mental health and physical safety, it is most directly job related and most likely to result in disqualification. Panels have justifiably discharged teachers, for example, for engaging in sexual activity with a sixteen-year-old female student in an automobile, 56 for admitting to having repeated acts of sexual intercourse with a seventeen-year-old female student in his apartment and elsewhere and denying only that he was the father of her baby, 57 for reaching inside the trousers of an eleven-year-old student and fondling the student's penis while class was in session, 5 H and for promoting and photographing for sale sexual performances involving masturbation, sexual in54. It should be acknowledged, however, that evaluating "objective evidence" and deciding what weight to give to what "objective factor" can become a subjective process. 55. Morrison v. State Bd. of Educ., supra note 8, at 379 n.9 (citing Norton v. Macy, 417 F.2d 1161, 1165 [1969]. 56. In re Robert Stein, supra note 26; Board of Educ. of New York v. Warren Moxley, N.Y.S. Ed. Dept. (1981). In the latter case, also involving a discharge for having sexual intercourse with a student, the panel said, "It seems perfectly likely that a 17 year-old in such a position would be stunned and at a loss as to what to do about this sudden turn in the normal student-teacher relationship." /d. at 4. 57. Canandaigua Cent. School Dist. v. Canough, supra note 27. 58. School Dist. 18 v. Errera, supra note 5.

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tercourse, and fellatio by a child under sixteen years of age.sg The teachers in these cases used their power to exploit young people under their control. Evidence of unfitness to teach inherent in such exploitation was most pointedly identified by a panel that sustained the discharge of a teacher who several times had sexual intercourse and oral sex with a female high school student with a record of truancy, drug use, and "prior sexual activity." The panel ruled him unfit to teach because "a teacher with the best interests of the students in mind would have initially counseled [the student] and ultimately referred her for professional service. Unfortunately, [the teacher] saw [her] not as a student in trouble, but as a vulnerable outlet for his sexual exploits." 60 Similarly, evidence of unfitness to teach is often inherent in the physical abuse of students. Panels sustained the discharges of one teacher who repeatedly slapped and kicked a student in a school for boys with emotional problems 61 and another who, over an extended period of time, punched mentally retarded students and disciplined them by taping their mouths shut in front of the rest of the class. 62 Another discharged a teacher of students with learning disabilities who dominated them with strong-arm tactics such as a disciplinary "circle," where each student was directed to strike the person next to him, and the "backbreaker," which the teacher demonstrated by lifting students above his head and showing how easy it would be to break their backs by 59. School Bd., Dist. 25 v. Drew, supra note 29. 60. Connetquot Cent. School Dist. v. Schmidt, supra note 27, at 38, 49, 58-60. 61. Board ofEduc. of the School Dist. of New York v. Allen Ricks, N.Y.S. Ed. Dept. (1978). See also Highland Cent. School Dist. v. Jules Travgot, N.Y.S. Ed. Dept. (1987). 62. Board of Coop. Educ. Serv., Rockland County v. George Blohm, N.Y.S. Ed. Dept. (1979).

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dropping them on his knee. He also warned his pupils not to talk about these things outside the classroom. 63 One panel imposed a three-semester suspension without pay on a teacher guilty of"premeditated acts of [physical] retaliation" against students. 64 These teachers were not acting in self-defense, or under extreme provocation, or to quell classroom disturbances that required physical contact with students. As one panel said, these teachers created "an environment of fear and intimidation hostile to the very foundation of the educational process." 65 The job relatedness, if any, of other on-duty conduct, however, is not nearly so direct or apparently obvious. Several dishonesty cases, for example, involved teachers who falsified reasons for their absenteeism. 5 6 One panel, using the role model assumption, imposed a six-month suspension without pay on a teacher who falsified a physician's note, because the teacher was "expected to be an exemplar of good morals and behavior to the school children in her charge." The panel stated further that, because the school district had an obligation to the community "to produce and shape young citizens into good citizens," it could not "allow bad pedagogical influences to take root and spread throughout the public schools." 67 There was no evidence, however, that the teacher's be63. Mount Vernon School Dist. v. Fred Pisculli, N.Y.S. Ed. Dept. (1983). 64. Hilton Cent. School Dist. v. Gordon Purdy, N.Y.S. Ed. Dept. at 34 (1987). 65. Community School Dist. 16 v. Benjamin Greene, N.Y.S. Ed. Dept. at 38 (1985). 66. Of a total of thirty dishonesty cases examined, ten involved charges of falsifying reasons for absence from work or requests for leaves of absence. 67. Community School Dist. 2 of New York v. Lane, supra note 27, at 8-9.

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havior in any way affected her classroom performance or the children she taught. Unlike the cases involving sexual and physical abuse of students, there was no evidence of unfitness to teach inherent in the falsification of a doctor's note. Any discipline should be based on the act of falsification, not on the role model theory. The role model presumption assumes, of course, that any misconduct by a teacher is harmful to students' educational and personal growth. That presumption makes the central factual or evidentiary question in these disciplinary hearings simply whether the alleged misconduct occurred. If it did, a detrimental effect on students is automatically assumed, and the magnitude of the asserted effect becomes a function of how abhorrent the misconduct is to the members of a panel. Clearly, such an approach, in the words of the Morrison court, does not "provide a standard or guide against which conduct can be uniformly judged by courts or administrative agencies" 68-or 3020-a panels; and it does not give fair warning to teachers of what constitutes prohibited conduct and its consequences. It also biases the outcome of these cases by focusing only on the obligations of teachers and not on their rights. One panel, for example, stressing the responsibility of teachers to "guid[e] young people," sustained discipline imposed on a teacher who helped a student duplicate copies of an "underground" student newspaper that contained "considerable vulgarity and unflattering references to the [school] administration" and who participated in meetings of an ad hoc committee of the English department that was also critical of the English department chairperson. The panel ruled that First Amendment and other constitutional questions "have no place in a tenure hearing under Section 3020-a of 68. Morrison v. State Bd. of Educ., supra note 8, at 387.

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the New York State Education Law" and found the teacher "willfully disrespectful." It also characterized the ad hoc committee as "mutinous" and a "protest group." 69 There is no doubt, however, that teachers as public employees and citizens have constitutional rights and that constitutional standards apply in the implementation of statutory disciplinary proceedings. 70 These rights are not absolute, but public employers, including school districts, cannot abridge or deny them without demonstrating that their exercise caused serious disruption to the operations of the district or the educational process. The teacher who assisted a student in duplicating an "underground" newspaper argued that it caused no disruption in the school, but the panel ignored that issue. 71 Notions of loyalty and respect for administrators standing alone without evidence of disruptive effect were inadequate bases for disciplining that teacher because, as another panel chairperson put it, "the goal of the First Amendment is hardly to protect only that speech which tends to create harmony.'' 72 No teacher should be found guilty of conduct unbecoming a teacher, for example, for using the words crap and bullshit in an exchange with a principal in the principal's office solely because in a 69. North Shore Cent. School Dist. v. Blitz, supra note 12, at 11, 5, 8-9. The dissent commented: "It is anathema to the professionals of this State to think for one second that a teacher can be found insubordinate for meeting, on his own time, in a group, with other teachers, and making recommendations as a result of that meeting, in writing. Historically professionals have met and will continue to meet and the result of these meetings will many times include negative feelings toward the status quo as well as suggestions and demands for change." !d. at 4-5. 70. Williamson Cent. School Dist. v. Morris, supra note 23, at 26-27. 71. North Shore Cent. School Dist. v. Blitz, supra note 12, at 7. 72. Williamson Cent. School Dist. v. Morris, supra note 23, at 32.

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panel's opinion such language is "clearly inappropriate . a pu bl'IC sc h oo I." 73 ... m Even when serious misconduct not directly involving students occurs on the job, there is no necessary connection between that misconduct and classroom performance. A panel, for example, found a teacher guilty of inflicting serious injury on another teacher "in a brutal and unwarranted manner" during a fistfight in the pool area of the school. The panel fined the teacher for his misconduct but did not suspend him, because there was "no need to keep the [teacher] from the classroom." 74

Off-Duty Conduct The role model concept is also used as a basis for restricting teachers' conduct that would otherwise be beyond the legitimate concern of a school district employer, such as conduct occurring off duty and off school premises. 75 The New York State Court of Appeals has ruled in Goldin v. Board of Education that private conduct can become the lawful concern of school officials only if the alleged conduct is explicitly linked to the performance of a teacher's job responsibilities, that is, "if the conduct directly affects the performance of the professional responsibilities of the teacher or if, without contribution on the part of school officials, the conduct has become the subject of such public notoriety as significantly and reasonably to impair the capability of the 73. Saugerties Cent. School Dist. v. Louis Parisi, N.Y.S. Ed. Dept. at 8 (1981). 74. Community School Bd. 5 v. Gist, supra note 6, at 6. 7 5. Goldstein, The Asserted Constitutional Right ofPublic School Teachers to Determine What They Teach, 124 U. PA. L. REv. 1293, 1305 n.36 (1976).

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particular teacher to discharge the responsibilities of his position. " 76 The requirement of such a nexus, rather than the role model concept, should be the controlling test for all alleged teacher misconduct, on duty as well as off. The commissioner of education in New York, however, has narrowed the application of the nexus test in off-duty conduct situations by distinguishing between the noncriminal, off-duty conduct involved in Goldin (a teacherguidance counselor who "slept" with an eighteen-yearold former student two months after her graduation) and off-duty criminal acts. Several years after Goldin was decided, for example, a school board brought conduct unbecoming charges against a teacher, Berardino DeSantis, who had pleaded guilty to criminal charges of conspiring with others to defraud the government by paying $1,000 to a public official to influence approval of a loan application. 77 The teacher received a suspended sentence of one year in jail, two years probation, and a $3,000 fine. At the 3020-a disciplinary hearing, the district introduced documents establishing only that the teacher had pleaded guilty to a federal crime and was sentenced but no evidence of the effect of the conviction on the teacher's performance of his job. The school district argued that a criminal conviction contained an inherent presumption of unfitness to teach that shifted the burden of proof to the accused teacher to prove fitness. The panel dismissed the charges because the district "offered no evidence at all that [the teacher's] conviction affected his relationship with his students nor any evi76. Goldin v. Board ofEduc. of Cent. School Dist. 1 of Brookhaven and Smithtown, 35 N.Y.2d 534, 543-44, 364 N.Y.S.2d 440, 446 (1974). 77. Board of Educ. of New York v. Berardino DeSantis, N.Y.S. Ed. Dept. (1980).

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dence establishing the fact of public notoriety" as required by Goldin. The panel also concluded that without the presentation of evidence by the employer concerning the effect of the conviction on job performance, the teacher would be denied a fair opportunity to defend himself since he would be required to defend against speculative matters. 78 On appeal, the commissioner of education reinstated the charges against DeSantis, stating, "In view of the widely recognized role of a teacher as a highly influential example to his or her students and the nature of the crime committed by [the teacher], I am not persuaded by [the teacher's] argument that [the district] was required to demonstrate a specific connection between the crime committed and [his] effectiveness as a teacher." In the opinion of the commissioner, DeSantis's crime "created a rebuttable presumption" of conduct unbecoming a teacher that the teacher would have to rebut. He also found the court's standards in Goldin inapplicable when the charges are based on a criminal act by a teacher. 79 It is reasonable to expect that the New York State Commissioner of Education or some member of his staff would have sufficient expertise in matters of education to provide empirical substantiation for the role model theory underlying the commissioner's decision. Instead, the commissioner relied only on the already-quoted beliefs about teachers as role models set forth by certain justices of the Supreme Court in Ambach v. Norwichbeliefs based only on their own personal experiences and their own common sense. 80 Whether a teachers' conduct is legal or illegal has no 78. !d. at 8, 9. 79. Board of Educ. of New York, supra note 43 at 456-57. 80. !d. at 456. For comments concerning Ambach, see text pp. 2324 and notes 44 and 45.

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necessary relationship to the individual's fitness to teach. 81 As the Morrison court put it, "A criminal conviction has no talismatic significance." 82 The key question "is not whether the teacher has committed a crime but whether the teacher's conduct demonstrates his or her unfitness to teach." 83 Fitness to teach, moreover, is a question of fact, the determination of which must be based on evidence.84 The commissioner's decision in DeSantis, however, was based on speculation concerning the effect of off-duty criminal conduct on fitness to teach. The commissioner, moreover, ignored the DeSantis panel's finding that requiring teachers to prove fitness to teach when confronted with no evidence of unfitness denied them their due process rights in that it compelled them to defend against unsubstantiated presumptions of unfitness. Yet, according to section 3012 of the New York State Education Law, tenure is granted only when a teacher is found to be competent, efficient, and of "good moral character." Even if a connection between good moral character and teaching effectiveness could be established, in any subsequent attempt to discharge a tenured teacher for disciplinary reasons, it would have to follow that the charging party would have to prove that the accused teacher was no longer fit to teach. In other words, there ought to be a presumption of fitness. Equating criminal conviction with unfitness to teach shifts the burden to the accused teacher to prove fitness and relieves the accuser of the responsibility to produce evidence of unfitness. Thus a teacher can be dismissed or severely disciplined on the basis of a record that contains no persuasive evidence of such fitness or unfitness. 81. Willett, supra note 46, at 1457. 82. Morrison v. State Bd. of Educ., supra note 8, at 378 n.4. 83. Carlton, supra note 49, at 803. 84. Board of Educ. of Long Beach Unified School Dist. of Los Angeles County v. Jack M., 566 P.2d 602, 606 n.3 (1977).

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The commissioner did not formulate a rule of per se unfitness for teachers convicted of a crime but rather a rebuttable presumption of unfitness. As implemented, however, the presumption approaches a per se rule. Actual teaching experience subsequent to the misconduct leading to the conviction, for example, would seem to provide the most direct and empirical evidence of the effect, if any, of the misconduct on fitness to teach. One panel did dismiss conduct unbecoming charges against a teacher convicted of negligent homicide for operating an automobile under the influence of alcohol, in great part because the teacher had taught for more than one year (subsequent to his arrest but prior to sentencing) without "a single complaint against [the teacher] or his ability to teach ... by anyone, student, parent, supervisor, or fellow teacher." 85 On appeal, the commission overruled the panel: I find that it was error for the panel to infer [the teacher's] fitness from the fact that the board of education permitted him to continue teaching after his arrest. This circumstance might support an inference that [the teacher] retained his classroom skills, but it does not establish his fitness to teach or rebut the presumption of misconduct arising from his criminal conviction. It is [the teacher's] conviction, and not his arrest, which represents a binding judicial determination of his guilt of the criminal conduct charged. 86 It may be that the role model notion is being used to 85. Frontier Cent. School Dist. v. Brent Ellis, N.Y.S. Ed. Dept. at 4-5, 12-13 (1983). 86. Matter of Board of Educ. of Frontier Cent. School Dist., 23 Ed. Dept. Rep. 339, 343; Community School Dist. 13 v. Norman Goodman, N.Y.S. Ed. Dept. at 13, 19-20 (1984). In another decision, the commissioner ignored evidence of successful teaching performance while criminal charges were pending. Board of Educ. of Allegany Cent. School Dist., Commissioner's Decision No. 11863, Aug. 25, 1987.

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cover unstated moral values or political or other concerns; otherwise it makes no sense to ignore relevant and admissible evidence showing, despite the commission of a criminal act, that the teacher was fit to teach. Ignoring postarrest but preconviction teaching experience seriously diminishes the ability to rebut a presumption of unfitness and denies teachers what the Morrison court called their entitlement "to a careful and reasoned inquiry" into their fitness to teach before they could be deprived of their right to pursue their profession.87 Even acknowledging that a role model influence exists under certain circumstances, the effect, if any, of a criminal conviction on that image is not necessarily negative. One expert in social learning theory concludes, "Behavioral restraints are most strongly developed by observing the consequences experienced by models. Seeing models punished tends to inhibit similar behavior in others. " 88 As the Supreme Court of California said, "The teacher who committed an indiscretion, paid the penalty, and now seeks to discourage his students from committing similar acts may well be a more effective supporter of legal and moral standards than the one who has never been found to violate those standards." 89 In another case, a superintendent of schools testified that "one who has been guilty of substance abuse may still serve as a positive role model for children," citing a convicted addict who was then New York State Commissioner on Drug and Alcohol Abuse. 90 The former director of the New York City Division of High Schools Drug Prevention Program testified in another case that 87. Morrison v. State Bd. of Educ., supra note 8, at 394. 88. Bandura, supra note 31, at 49. 89. Board of Educ. of Long Beach v. Jack M., supra note 84, at 606 n.4. 90. Community School Dist. 13 v. Goodman, supra note 86, at 9.

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39

he employed a large number of teachers and counselors who had histories of drug addiction and had committed drug-related felonies. He claimed students "gain much more" by working with these former addicts who made "terrible mistakes" and showed students not only the consequences of such mistakes but also that these mistakes could be overcome. 91 Other experts believe students could benefit from having a convicted teacher return to the classroom "as an example of society's willingness to permit a worthy individual to redeem himself after suffering appropriate punishment for wrongdoing." As one teacher said, it is important for children to know that after they are punished for their misconduct "they can go on then, life is not over."92 Finally, as a rabbi testified, not one of the great role models of the Hebrew Bible ("Abraham, Moses, David and a whole host of others") was free of at least one "horrendous misjudgment," and despite their greatness they were "incredibly human." 93 Clearly, speculation concerning the role model effect of a teacher's misconduct can produce equally plausible but absolutely contradictory conclusions. What is needed is expert evidence concerning the effect of such mis91. Community School Dist. 24 v. Roger Grushoff, N.Y.S. Ed. Dept. at 14-15 (1986). A therapist and coordinator of substance abuse employed by a health care plan testified: "If I had a choice, I would say I would like my son, Michael, who is nineteen, to hear someone like [a teacher convicted of cocaine possession and abuse], so that when Michael considers using drugs and hears what happened to [the teacher] he will say, 'Maybe I shouldn't' rather than hearing someone like me. I never used drugs, so what do I know? So if I was a parent I would say he has been there, he might teach him something." Depew Union Free School Dist. v. Thomas Roll, N.Y.S. Ed. Dept. at 10 (1987). 92. Newburgh School Dist. v. Theodore Marsden, N.Y.S. Ed. Dept. at 14, 15 (1985). 93. Community School Dist. 4 v. Carole Brooks, N.Y.S. Ed. Dept. at 5 (1983).

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conduct and/or criminal convictions on fitness to teach, the effect on students, the probability of recurrence, the effect of public awareness of the misconduct, mitigating or aggravating factors, and so on. Expert testimony requires much more than the personal moral views and unproven premises of school administrators. These administrators, moreover, are responsible to boards of education that are teachers' employers, making their testimony neither disinterested nor expert. 94 One "expert" school administrator testified in a California case that "any teacher who ever engaged in sexual relations with anyone other than his [or her] lawful spouse was lacking in 'clean morals,' and thus could not instruct [his or her] students in 'clean morals' "95 -a standard that would lead to the dismissal of many teachers in any state. Expert witnesses must have special knowledge, skills, expertise, or education to qualify as experts concerning the effect of misconduct on fitness to teach, and their testimony, to be valuable, must be based on factual or scientific grounds, and the reasoning on which their conclusions are based must be valid; 96 otherwise there is only another carefully chosen "expert" merely espousing a particular view of morality. 97 School administrators should be qualified to testify 94. !d. at 3. The superintendent of schools in this case testified, for example: "In my opinion, you must have the confidence and respect of both the students that you serve, and the community that you are in. I think that conviction undermines the ability to command that respect and confidence, without which I think it is impossible to perform satisfactorily." /d. (emphasis added). 95. Pettit v. State Bd. of Educ., 513 P.2d 889, 898 (1973). 96. /d.; Carlton, supra note 49, at 806. 97. LaBorde Scholz, supra note 48, at 705-6. See also Willett, supra note 46, at 1454; Carlton, supra note 49, at 802-3, 805-6; Lang, New York Education Law Section 3031 as Fair Dismissal Procedure for the Probationary Teacher or Fair Is Foul, 23 BuFFALO L. REv. 829, 844 (1974).

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about various aspects of school management, possibly even including the extent to which public knowledge of a teacher's behavior affected the operation of a school. Although public notoriety was not included in the Morrison court's list of relevant job-relatedness tests, that court did remark that there was no evidence that the teacher's conduct had become "so notorious as to impair [his] ability to command the respect and confidence of students and fellow teachers in [the school district]." 98 Because Morrison requires that the notoriety be related to job performance and loss of efficiency, mere declarations that conduct has become notorious are insufficient. Likewise, embarrassment to the school district would not suffice without a nexus between the allegedly embarrassing conduct and the efficiency of the service. 99 Yet, without demonstrating a job-related nexus, panels do sustain discharges of teachers because, as one panel put it, "the extensive exposure received by [the teacher's] arrest and conviction ... holds the potential for subjecting the District to ridicule and thereby damaging the students' stake in the reputation of their school system."100 Often, moreover, public notoriety is engendered by a school board, not by a teacher's conduct. The Goldin court, however, required not only a nexus between "public notoriety" and impairment of teaching performance but also that the public notoriety be "without contribution on the part of school officials." It is also necessary to determine whether the notoriety has long-range consequences or whether it amounts to only a brief flurry 98. Morrison v. State Bd. of Educ., supra note 8, at 392, and text pp. 26-27. 99. LaBorde Scholz, supra note 48, at 688. 100. Newburgh School Dist. v. Marsden, supra note 92, at 27.

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of disturbance and gossip. It may be reasonable in the latter situation, for example, to allow teachers an opportunity to demonstrate that they can restore classroom control promptly so that the educational process is not impaired. 101 The key test, even when it can be shown that a teacher's conduct has become sufficiently notorious to affect the "operation of the enterprise," is whether the degree of risk to the institution warrants ending a teacher's career. That determination requires the production and evaluation of evidence concerning such variables as the level of school involved, the age of the students, the subjects taught, the likelihood that the act will be repeated, the recentness or remoteness of the incident, as well as the degree of notoriety. 102 Fairness also requires that panels reject any alleged nexus involving threats or other adverse reactions based on the biases, prejudices, ignorance, or uninformed emotions of co-workers, students, and communities. School districts, moreover, should be required to prove that the harm to the educational process is more than speculative. In a recent case involving a teacher convicted of cocaine possession and use, for example, a panel discharged the teacher despite "his recognition of his problem, his candid and forthright testimony regarding his history of drug use, his [favorable] prognosis for rehabilitation as expressed by the counselor, his good work record, his remorseful attitude and the demonstrated support of some parents and teachers" and the absence of any evidence "that his abilities have been diminished or otherwise impaired because of his association with drugs." The panel concluded, however, that "these factors are outweighed by the evidence that [the

101. Goldin v. Board of Educ., supra note 76, at 446; LaBorde Scholz, supra note 48, at 713. 102. Willett, supra note 46, at 1454-55.

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teacher's] effectiveness as a teacher/role model, will remain impaired for several years." 103 That conclusion was based only on speculation. Although admitting it had "no hard factual evidence" but only "opinion evidence" concerning the teacher's prospective effectiveness, the panel accepted the principal's "assessment" that the incident would "remain on the minds of parents of the community for many years to come" because the principal was "presumably ... familiar with the thinking of the residents of the community and with the residual effects on them of adverse publicity concerning school related matters." 104 "Presumably," of course, is not a substitute for evidentiary substantiation. With another unsubstantiated assertion, this same panel rejected the testimony of teacher-colleagues that, despite possible problems with some parents and peers, "the [teacher] should be returned to the classroom and ... time should be the judge of his teaching effectiveness." According to the panel, "While the teacher witnesses have individually conversed with some residents of the community, there is no evidence that their level of expertise regarding the community as a whole is equivalent to that of [the principal]." Ironically, the panel found the teacher's case deficient because none of his witnesses "testified as to how long the adjustment period would be to regain his effectiveness" 105 when the record contained no evidence that the teacher had lost his effectiveness in the first place. 103. Depew School Dist. v. Roll, supra note 91, at 16, 18-19. 104. !d. at 16 (emphasis added). 105. !d. at 17. The panel also speculated that "the community standards [undefined] and the level of notoriety in the Depew district differ from those in large city school districts"; "the newsworthiness of a teacher drug problem in New York City may be minute whereas in Depew it is significant"; and "community tolerance for drug problems may be greater in large cities such as New York than in communities of the size of Depew." Id. at 18.

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After denying that community sentiment alone was sufficient reason for discharge, the panel concluded with a contradictory but grand final speculation: Our recommendation is based on our belief that there is a clear likelihood that the negative sentiment generated by the incident will remain with a substantial number of District parents for a relatively long and indeterminate period, that the children will be influenced by their parents' feelings and that this will be carried into the classroom. The end result is a diminution of [the teacher's] effectiveness as a teacher. The panel is unwilling to jeopardize the education of the district's children for this period of time. 106

The Ninth Circuit Court of Appeals has ruled, moreover, that "it is clearly inappropriate to consider community resentment in deciding whether to reinstate a person to a position from which she was unconstitutionally removed." The court pointed out that few southern school districts would have been integrated if community resentment had been a legitimate consideration. 107 The Nature of the Educational Process In determining whether the educational process has been affected by a teacher's misconduct, a deciding body must do more than analyze the misconduct; it must also determine the nature and meaning of the educational process itself. John Dewey's principle was simply that good teaching is that which inspires students to want to learn more-rather than the spirit breaking that seems 106. !d. at 19. 107 . .Burton v. Cascade School Dist. Union High School 5, supra note 2, at 855.

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to be the function of so many schools. "Good" teaching is also described in education literature as educating students for emotional and intellectual independence rather than dependence and for creative rather than imitative thinking, in an honest and open "free flow of feelings and thoughts in a pleasant relaxed atmosphere."108 The style and quality of teaching that actually occurs, however, is directly influenced by many considerations, including the existence of multiple and often conflicting educational objectives. For example, should schools teach students to be society makers or how to adjust to and conserve the existing one; stress individualism or social cooperation; stress facts or concepts; prepare the young for employment, emphasizing adjustment to authority, or for self-determination of the meaning of their lives and life goals? 109 In general, there are two fundamentally different conceptions of teaching. Somewhat oversimplified, one, prescriptive education, involves value inculcation whereby "information and accepted truths are furnished to a theoretically passive, absorbent student." The teacher's job is to convey these truths and to instill "right" values, not to create "new wisdom." Society has historically accepted the deliberate inculcation of the right societal values as a major function of American public education. Traditionally, this approach has characterized elementary and even secondary school education in this country.U 0 Analytical education is more likely to be found in higher education, where teachers and students are active participants in a search for truth through research and in108. P. GooDMAN, CoMPULSORY MIS-EDUCATION 44, 55 (Random House, 1964); Muschel, Dependent Teachers, Ineffective Principals, Failing Children, 100 EDuc. 6, 11 ( 1979). 109. Taylor, Finding the School Board's Philosophy: A Role Following Model, 101 EDuc. 206, 208 (1980). llO. Goldstein, supra note 75, at 1297, 1342, 1350.

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quiry that challenges all dogma "by bombarding students with all conceivable ideas, from which they may discern truth, if it exists, by and for themselves." 111 Neither approach is constitutionally compelled since the Supreme Court has endorsed both. In Ambach, for example, the Court emphasized that public schools prepare students for participation as citizens and perpetuate "the values on which our society rests." The Court perceived public schools "as inculcating fundamental values necessary to the maintenance of a democratic political system." 112 In Keyishian v. Board of Regents, however, the Supreme Court invalidated a New York State loyalty oath for teachers, asserting that the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom." The Court characterized the classroom as a "marketplace of ideas" and maintained that "the Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues [rather] than through any kind of authoritative selection.' " 113 Later, in ruling that the First Amendment protected students who wore black armbands in high school to protest the Vietnam war, the Supreme Court repudiated the notion that a state could conduct its schools to "foster a homogeneous people" or as "enclaves of totalitarianism." The Court stated further: "In our system, students may not be regarded as dosed-circuit recipients of only that which the state chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved." 114 111. /d. at 1297,1342. 112. Ambach v. Norwick, supra note 44, at 76-77; see also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 631 (1943) in which the Supreme Court saw the public school as "inspiring patriotism and love of country." 113. 385 U.S. 589, 603 (1967) (quoting United States v. Associated Press, 52 F. Supp. 362, 372 [S.D. N.Y. 1943]). 114. Tinkerv. DesMoines, 393 U.S. 503,511 (1969); see also Sweezy

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While prescriptive education appears to predominate over analytical in elementary and secondary schools, the need for creativity and inventiveness requires some substantial degree of analytical education at all grade levels. 115 Many researchers contend that creativity should be encouraged and guided from birth. (Creativity here is defined as the capacity to break from traditional thought and behavioral habits and seek the new or novel.) 116 No evidence concerning the implementation of either or both of these approaches to education has been considered or even introduced in any of the conduct unbecoming cases decided pursuant to the New York State Education Law. As with so many other important questions raised by th!¢se cases, the answers of the deciding

v. New Hampshire, 354 U.S. 23 (1957); Shelton v. Tucker, 364 U.S. 479 (1960). 115. Smalls, supra note 36, at 539-40. 116. Chamberlin & Bergman, The Mystery of Creativity Revealed, HIGH ScHOOL J., Jan., 1982, at 113. The late Harry Chapin said it best in his song "Flowers Are Red." In that song, a little boy on his first day of school is reprimanded for using too many unusual colors in his painting of flowers: "Flowers are red. And green leaves are green. There's no need to see flowers any other way Than the way they always have been seen. " The little boy protested: "There are so many colors in a rainbow. So many colors in the morning sun. So many colors in a flower and I see every one!" His teacher put him in a corner until he conformed. Later, when he went to another school where a new teacher urged him to be creative-because "there are so many colors in a flower so let's use everyone!"-he responded matter-of-factly: "Flowers are red. And green leaves are green. There's no need to see flowers any other way Than the way they always have been seen."

©1978 Chapin Music

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bodies are based merely on opinion or unsubstantiated assumptions about the relative merits of the two approaches to education. These assumptions have an important bearing on the outcome of these misconduct cases because they expand or contract teachers' freedom of action both in and outside their classrooms. In the prescriptive model, for example, a teacher may be simply a mechanical instrument of a school board's rigidly predetermined design. Conduct at variance with that design-particularly when the design includes the inculcation of "right" values-becomes conduct contrary to the educational purposes of that district. The openness of the analytical or marketplace-of-ideas approach by its nature has a much wider tolerance for diversity of teacher conduct in and outside the classroom. A few years ago, in New York City, a panel imposed a one-semester-without-pay suspension on an inner-city high school teacher who distributed leaflets urging students to walk out to protest allegedly racist conditions at the high school. The teacher had taught for thirteen years and was characterized by the panel as "an excellent and dedicated" mathematics teacher. He was also commended as a "role model," for his "professionalism," for his "concern for students," and for spending "long hours" beyond his regular workday preparing and developing course materials and "giving special help to students." 117 The teacher was a member of the high school's Committee against Racism, which for at least one year had been leafleting, meeting, and petitioning the school administration to eliminate "racist conditions" in the school building, including poor physical conditions, lack of heat in the classrooms, overcrowding in classes, and too few English teachers for a school population 60 percent Hispanic and 40 percent black. The panel com117. Board of Educ. of City School Dist. of New York v. Leonard Dick, N.Y.S. Ed. Dept. at 3, 11 (1983).

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mented only on the physical conditions of the school, which it found "abominable and revolting." 118 Yet the panel ruled that the teacher had interfered with the work of the school, which the panel defined as "teaching and attending classes as scheduled and assigned," and with the rights of other students, including the right "to instruction by their own teacher," and had violated the rules and regulations that required students to attend classes. 119 The panel asserted further that "as a teacher, he should have been setting a good example, not prompting students to break those rules." It quoted another panel in a similar case: 120 The educational process of an urban area like the City of New York is far too important to its students, to have its programs disrupted and its students urged to leave the academic setting to participate in protest demonstrations that a particular teacher feels compelling. 121

The panel concluded that the teacher "chose to ignore his responsibilities as a New York City high school teacher. He violated his duty to his employer, to his students, and to their parents." 122 What did the educational process require under these circumstances? Apparently, no one in authority really cared that the school was a dump. The educational process was teaching these young Hispanics and blacks that no one really cared about them as people. This was spirit breaking. In his own defense, the teacher argued that the purpose of education required him to teach his stu118. Id. at 8-10. 119. Id. at 13. 120. Board of Educ. of New York v. Ira Perelson, N.Y.S. Ed. Dept. (1983). 121. Board ofEduc. of the City School Dist. of New York v. Dick, supra note 117, at 16. 122. /d.at16-17.

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dents to demand respect as human beings. As he put it, "The important lesson for all students and all workers is not just for students to go to school, but to teach them in school to realize that you have to stand up to injustice. " 123 Values are taught in our schools. The panel and the teacher in this case had different conceptions of what constituted responsible citizenship and responsible teaching. Those differences should not be resolved without evidence concerning the effects of the two approaches on students.

Many of Today's Morals May Become Tomorrow's "Absurd Customs" Not long ago female teachers who married were automatically dismissed, as were women teachers who attended minstrel shows, worked as waitresses serving beer, dated married men, divorced, or had "illegitimate" children. Often they were not hired unless they pledged to abstain from drinking, dancing, or falling in love. 124 In one sense these are merely "quaint reminders of a bygone era," evidence that many of today's morals "may become tomorrow's ancient and absurd customs." 125 Unfortunately that perception is always retrospective. In the meantime, certain notions of morality unjustifiably destroy lives and careers. The danger, as documented in this study, is that school boards, hearing panels, commissioners of education, and court justices will impose 123. Id. at 7. 124. Melnick & Twyman, supra note 4, at 301, 304; Goldstein, supra note 75, 1305 n.36; Punger, supra note 36, at 1, 3; Winks, supra note 46, at 451, 453. 125. Winks, supra note 46, at 453; Melnick & Twyman, supra note 4, at 301 (quoting Horosko v. School Dist. of Mt. Pleasant, 6 A.2d 866 [Pa. 1939]).

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their own values indiscriminately on teachers. Moreover, when these personal or local community notions of morality are coupled with unsubstantiated assumptions about teachers as role models, teachers are denied a fair and reasonable opportunity to defend themselves. Replacing the subjective role model presumption with a nexus test requiring evidence of a direct work-related connection between a teacher's conduct and performance and responsibility would go far toward creating an objective standard that would limit erratic and prejudiced exercises of authority and personal morality by school boards, panels, commissioners of education, and court justices.

Incompetence and Inefficiency

Objective standards are also lacking in the assessment of teaching competence. Before the enactment of tenure laws, teachers served at the pleasure of school boards, which had the generally unquestioned authority to dismiss them at will. As usual, unchecked authority led to frequent abuses, including the discharge of teachers for joining unions, engaging in "free speech," or "mak[ing] places for friends and relatives of board members, ... sav[ing] money by diminishing the number of teachers and increasing the workload of those retained, ... lower[ing] costs by creating vacancies to be filled by inexperienced teachers, and ... punish[ing] those who were 'disloyal' to the administration." 1 Tenure laws were intended to protect teachers from such arbitrary and unreasonable dismissals. Concepts of due process and fair treatment for teachers became controlling concerns, particularly after courts became more involved in applying various civil rights laws to racial discrimination in the schools. In cases of alleged incoml. E. BRIDGES & B. GROVES, MANAGING THE INCOMPETENT TEACHER 3 (Eric Clearinghouse on Educational Management, U. of Oregon, 1984).

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petence or inefficiency, fair treatment depends on how teachers' classroom performance is measured and evaluated.

The Meaning of Incompetence and Inefficiency Only two states have defined incompetence in their statutes. The Alaska Education Code defines the term as "the inability or the unintentional or intentional failure to perform the teacher's customary teaching duties in a satisfactory manner"; in Tennessee incompetency is "being incapable; lacking adequate power, capacity or ability to carry out the duties and responsibilities of the position." 2 The New York State Education Law in section 3012 simply lists incompetency and inefficiency as causes of discipline. A few panels, however, have formally defined these terms in their decisions, viewing incompetent teachers as "so lacking in ability, skill and training and their proper use and employment in [their profession] that [they] cannot perform [their] assigned duties" and inefficient teachers as those who fail "to use proper and effective means and tools to effectively produce [desired] results. " 3 As another panel put it, incompetence "connotes incorrigibility or permanent inability whereas [inefficiency] suggests the probability of remediation. " 4 Essentially, "the true incompetent is immune to any 2. !d. at 4. 3. Erie County BOCES v. Mary Ann Kaminsky, N.Y.S. Ed. Dept. at 9, 11 (1978). 4. Onondaga Cent. School Dist. v.Jean Harshaw, N.Y.S. Ed. Dept. at 10 (1979).

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scheme of progressive discipline" 5 and is "incapable of improvement." 6 The commissioner of education has confirmed this interpretation, ruling that to sustain a charge of incompetence a school district must prove that a teacher "is so incompetent that [he or she] is unable to further the educational development of students assigned to [his or her] classroom" and that "there is no likelihood that [the teacher's] competence will improve."7

Standards for Determining Competent Teaching Performance Of the cases decided in New York State from 1977 to 1987, sixty-nine involved charges of incompetence, inefficiency, or both: thirty-one poor classroom discipline, nineteen inadequate command of subject matter or teaching methods, eleven inadequate lesson plans or administrative record keeping, and eight physical or mental disability. 8 But neither definitions nor classifications of cases constitute criteria for determining incompetent teaching performance. Because any performance evaluation scheme contains an implicit definition of good teaching, fair treatment requires that those implicit standards concerning knowledge, competence, and skills be made explicit and known 5. Board of Educ. of New York v. Erin DiBello, N.Y.S. Ed. Dept. at 4 (1984). 6. Island Trees Union Free School Dist. v. Lawrence Butcher, N.Y.S. Ed. Dept. at 18 (1981). 7. Matter of Board of Educ. of Dundee Cent. School Dist., 21 Ed. Dept. Rep. 731, 738 (1982). 8. See Introduction, note 7. The total number of incompetency and inefficiency cases (sixty-nine) is exclusive of charges of alleged lack of certification, which is considered incompetence under the New York State Education Law.

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to all teachers, that the measurements of good teaching be valid and reliable and be made by qualified and competent evaluators, and that teachers rated unsatisfactory be given sufficient remedial assistance over time and a reasonable opportunity to correct deficiencies and improve.9 Without predetermined standards against which teaching performance is to be measured, performance standards are assembled on an ad hoc basis to suit the circumstances of particular cases or even on a post hoc basis to justify administrative action already taken. Standards formulated in this fashion are most likely to be based on personal preferences or conventional wisdom and on an "opportunistic seizing of the events of the moment." 10 The results are unreliable and invalid standards that deny teachers advance notice of the specific criteria of good teaching to be enforced by their particular school districts and timely notice of precisely how to improve their performance. As one court has ruled, without specific predetermined and promulgated standards of performance, the teacher is caught in a double bind; the teacher must improve ... or risk termination. On the other hand, there is no assurance that any particular course of action undertaken by a teacher ... will constitute sufficient improvement in the eyes of the board and school authorities. The teacher finds herself struggling blindly towards undefined and unknown standards of conduct. 11

One school board, for example, urged a panel to sus9. See, e.g., D. CLEAR & J. Box, justiciable Performance Standards for Discharging Incompetent Teachers, in ScHOOL LAw UPDATE 227, 230 (T. Jones & D. Semler eds., National Organ. on Legal Problems ofEduc., Topeka, Kans., 1985). 10. /d.at227. 11. Pollard v. Board of Educ. Reorganized School District, 533 S.W.2d 667, 670 (1976).

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tain its charge of incompetence "unless each of us, as parents, 'would acquiesce quietly to the placement of his own children in Miss Curtiss's classroom.' " 12 It would be difficult to construct a standard that would leave a teacher more vulnerable to subjective whims or provide less guidance as to what constitutes acceptable teaching performance. Although that proposed standard was rejected, other panels have created and applied their own subjective standards of performance based on panel members' personal preferences-subjective standards that deny teachers fair treatment. One panel reprimanded a teacher who maintained a "structured, traditional classroom" and was a stern task master because she "failed to maintain an anxiety free classroom environment." 13 Such an imprecise (and unrealistic) standard provides no stable standard against which teachers' performance can be uniformly assessed. In another case, a panel imposed a one-year suspension without pay on a teacher with twenty-seven years' experience who introduced allegedly irrelevant material during a ninth-grade social studies class discussion of China's commune system. The teacher testified that he discussed the "social-ethical foundation of pre-communist, pre-revolutionary China" by drawing comparisons with the Judea-Christian ethic "to show that the two societies had very similar ethical foundations.'' He explained his use of the film "'Space Odyssey 2001', dealing with the story of Genesis, in 'an attempt to show the Judeo-Christian ethic in a form which would be reasonably understandable to the kids.' " The teacher also asked the class how many Henry Fords they thought 12. Newark Cent. School Dist. v. Jane Curtiss, N.Y.S. Ed. Dept. at 7-8 (1978). 13. Wappingers Falls Cent. School Dist. v. Marilyn Kelly, N.Y.S. Ed. Dept. at 28-34 (1985).

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would emerge from a communal society and then discussed the possibility of becoming controlled by computers as a reference to the commune system, "in which the individual people are nothing more than marionettes being controlled by an outside or external force." 14 Was this material irrelevant to the subject being taught or evidence of creative teaching? The panel applied no empirically based standards of good teaching to make its judgment and relied only on its own subjective impressions and unstated presumptions about how that lesson should have been taught: The aim of the lesson was the commune system of postrevolutionary China. There were many stations on the way between the Judeo-Christian ethic of our own society and the Confucian ethic of pre-revolutionary China, on the one hand and the values of the commune system, on the other. If this direction was not enough for students to conceptually contend with by way of clarity of exposition to a 9th grade class of a phase of revolutionary China, the [teacher] went on to blur what should have been a concentrated, organized focus on the topic at hand. The Panel has examined the [teacher's] entire testimony and is unable to discern through the melange of the science fiction film "Space Odyssey 2001," the story of Genesis, the reading of a non-King James version of the Bible, portents of servant or master of the computer in our society, and advice for students to work hard to master technology, let alone the reported additional reference to galactic conflicts, any relevant connection with China's communes in the 1950's. Digressions such as these cannot but tend to confuse the student as the teacher rambles from one extraneous utterance to another. 15

Another panel fined a teacher $4,000 for incompet14. White Plains School Dist. v. Glenn Pierce, N.Y.S. Ed. Dept. at 38-39 (1980). The panel imposed the one-year suspension for insubordination as well as for incompetence. 15. Id. at 40-41.

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ence in grading New York State Regents essays in social studies "substantially higher than warranted by the content of the students' answers." The panel chairperson asserted that certain grades shocked his conscience and that, overall, many answers were offensive to a majority of the panel. As a standard for judgment, shocking or offending the consciences of panels meets none of the requirements of fair treatment; on the contrary, it promotes erratic, uninformed, and prejudiced decisions. In that case, for example, five different experts with backgrounds in social studies (including two from the New York State Department of Education) read all the essays and gave each essay five different grades. On twentyfive of the eighty essays graded, for example, the scoring of the two state education department experts differed from nine to sixteen points out of a maximum score of forty-five. 16 Although there has been no consensus within the teaching profession as to what constitutes competent teaching performance, there is empirical research on teaching effectiveness that can be used as a source in establishing criteria for evaluating teaching performance. This research offers valuable clues to the teaching behaviors that promote student achievement in all teaching situations and those behaviors effective only with certain groups of students or subjects or grade levelsY There 16. Northport-E. Northport Union Free School Dist. v. Rolf Herwerth, N.Y.S. Ed: Dept. at 1, 16, 18-19 (1981). Data derived from scoring chart found at 25-27. 17. Bridges & Groves, supra note 1, at 1, 16, 17; J. Rapp, Legal Aspects of Evaluation 5, Paper presented at the Annual Meeting of the American Association of &hool Administrators (Mar. 8-11, 1985). Bridges and Groves, at 16, identify five teaching behaviors that are effective in increasing student achievement across all grade levels: clarity, enthusiasm, flexibility and variety, achievement orientation, and praise. They also summarize criteria that various courts have accepted: knowledge of subject matter, ability to impart knowledge effectively, ability to obtain the respect of parents and students, proper use of corporal punishment, willingness to accept teaching advice

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cannot be a fair assessment of teaching performance without identifying and defining what is to be measured in the assessment process. 18 There are empirically based criteria of teaching performance. Fair treatment requires that they be used as the essential basis for any evaluation scheme. Measuring Teaching Performance Whether an evaluation system focuses on teaching methods and techniques (the process) or on student from superiors, adequate academic progress of students, ability to maintain discipline, physical ability to perform the duties of a teacher, and emotional stability. See also K. FRELS, T. CooPER, & B. REAGAN, PRACTICAL AsPECTS OF TEACHER EvALUATION (National Organ. on Legal Problems of Educ., Topeka, Kans., 1984) for a more detailed evaluation scheme including (partial list): ( 1) instructional proficiencies (focuses student attention, communicates objective, uses modeling, monitors students' comprehension, provides guided practice): motivates students (relates learning to students' interests, offers varied learning activities, provides feedback, supplies assistance): increases productive student behavior (praises students for appropriate behavior and reinforces negatively inappropriate behaviors); demonstrates proficiency in subject area (in lessons and in responses to questions); demonstrates proficiencies in oral/written language (uses grammatically correct English and rules of spelling and punctuation in written materials); (2) management system and professional characteristics (maintains attendance, grade books, completes reports and grades on time, completes appropriate lesson plans, follows district policies and procedures): conducts appropriate student assessments (designs tests to measure thought, administers tests often enough, requires optimum performance from each student, follows district curriculum); encourages parental involvement (maintains confidentiality about students and their families, meets with parents in conference); demonstrates positive interpersonal relationships with staff and students (demonstrates self-control, promotes positive self-image in students, assumes responsibility of overall discipline, cooperates with faculty); (3) student academic growth (promotes student academic achievement set by district); and (4) additional assignments (yearbook, etc.). /d. App. 4 at 19-28. 18. Frels, Cooper, & Reagan, supra note 17, at 8.

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learning (the product), there must be a demonstrable connection between the criteria chosen to define good teaching and effective teaching performance. Although some criteria are more important than others, some trivial and irrelevant criteria have been used to assess teaching competence. Housekeeping

Unsatisfactory housekeeping conditions, such as vacant bulletin boards, "dirty chalkboards," a "messy room," "disarray," a "dirty, unattractive and cluttered" classroom, and "no pets in the pet corner," have contributed to findings of incompetency and inefficiency without any apparent relationship between neatness and good teaching.19 One school district charged a teacher who taught kindergarten and fifth grade with incompetence for failing to "develop and maintain an appropriate environment for the conduct of the educational program": "lockers had items of student clothing on the floor," "toys and blocks [were] scattered on the floor, the teacher's desk was piled with papers in a 'random fashion,' " and "some shelves were still in need of straightening up." 20 The panel sustained the charge despite acknowledging that the "district failed to show what 'an appropriate environment' was" and "that it is certainly possible for an unkempt, disorderly classroom to be a place where exciting learning is going on." 21 The panel merely asserted that it was convinced no such learning was taking place in that messy classroom-apparently ignoring its earlier finding that "the only empirical data are analyses 19. Community School Bd., Dist. 28 v.John Wheeler, N.Y.S. Ed. Dept. at 14-15 (1978); Board ofEduc. of New York v.Janet Kleiner, N.Y.S. Ed. Dept. at 3, 7, 9, 20 (1986). 20. Royalton-Hartland Cent. School Dist. v. Theresa Bentley, N.Y.S. Ed. Dept. at 23, 39 ( 1984). 21. Id. at 39-40.

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of [the teacher's] kindergarten students on the CTBS/ McGraw-Hill Readiness Test [for three years]. These data show no significant difference in reading readiness or mathematical readiness between [the teacher's] students and those of other kindergarten students." 22 As the dissenting panel member put it, instruction came in second to the orderliness of the room. She deplored the emphasis "on scraps, glue bottles, and straight lines," pointing out that "orderliness may or may not make learning occur." In her opinion, "the [teacher's] friendliness and concern for children ... far offset the effects of 'messiness' " because "she created an environment where youngsters wanted to be, enabling learning to occur easily." 23 As one panel said, failing to clear blackboards and having gum and candy wrappers in potted plants are minor matters with no self-evident connection to good teaching. Or, as another panel put it, a teacher "is not ajanitor." 24 Lesson Plans Many panels also assume that lesson plans are a basis for determining a teacher's competence without requiring the charging party to demonstrate a connection between the alleged deficiency and classroom performance. In cases in which a teacher failed to submit required lesson plans, for example, panels, while using an insubordination case mode of analysis, have drawn conclusions about incompetence and inefficiency without saying anything about the connection, if any, be22. Id. at 27, 40. 23. Id.; dissenting opinion at 3, 10. 24. Community School Dist. 4 v. Ronald Weiss, N.Y.S. Ed. Dept. at 18 (1985); Board of Educ. of New York v. DiBello, supra note 5, at 18. '

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tween lesson plans and good teaching-other than that lesson plans are a "significant area." 25 A panel may treat a failure to submit lesson plans as a matter of insubordination on the management rights theory that a principal's regulations control and teachers are required to comply. Yet refusal to comply can establish only insubordination, not insubordination and incompetency, as one panel ruled 26-unless it is also demonstrated that the failure to submit lesson plans detrimentally affected the teacher's classroom performance and student learning. Certain lesson plan requirements may even impede good teaching. In one school district, for example, teachers were required to submit in advance of each lesson a written lesson plan containing the following: techniques for development of the material, particularly by the use of pivotal questions, debate, discussion, socialization; identification of the material with the students' life situations; correlation of the material with instructional objectives; use of summation in tying together the lesson; assignment of homework to introduce the students to the next lesson while reinforcing this one. 27

In a jargon-ridden opinion, the panel upheld a dis25. Community School Bd., Dist. 28 v. Wheeler, supra note 19, at 22. The commissioner has ruled: "An adequate lesson plan is essential to effective teaching. Lesson plans enable a teacher to present subject matter in an orderly fashion and to achieve specific curriculum goals within identifiable time periods." The commissioner added: "I emphatically reject the panel's reluctance and refusal to conclude that [the teacher's] failure to submit teaching plans ... did not amount to incompetence." Matter of Board of Educ. of Greenburgh Cent. School Dist., 25 Ed. Dept. Rep. 33, 36 (1985). 26. Vestal Cent. School Dist. v. John Clarke, N.Y.S. Ed. Dept. at 5 (1982). 27. School Dist. of New York v. Willard Gellis, N.Y.S. Ed. Dept. at 16-17 (1985).

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trict's charge that an eleventh-grade English teacher had "failed to render competent and adequate instruction to his class," finding the teacher's lesson plans "too passive and non-socialized" and "far too ambitious and 'philosophical-historical-sociological.'" Without considering the larger significance of its finding, however, the panel found that excellent teaching was taking place (at least in regard to certain lessons) even though "the lesson did not utilize the specific requisites of the lesson model set down by the administration." 28 The panel attributed this excellent teaching to the teacher's great strengths as a teacher ... his enthusiasm for his subject, his dramatic presentation of his own personality as a vivid prober of the literature studied, his identification of himself with his students, [and] his encouragement to the students to find in the subject matter societal and personal analogies to themselves-[that] all made for so positive an educational product. 29

The panel expressed concern that the teacher's failure to comply with the district's lesson plan requirements could "mean a loss of a good teacher who knows his subject well, is deeply attached to and moved by it, and is eloquent in expressing that knowledge and feeling to others." Yet the panel warned the teacher that even if he believed there was a better way than that imposed on him, he "must yield to the methods and means established and mandated by the system that employs him." The teacher was advised to condense his assigned literature reading "into a one-page xeroxographed sheet" so that discussions could be completed within one class period. The teacher complained that this would deny 28. Id. at 5, 19-20, 42, 48-49. 29. Id. at 49.

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his students "the beauties of literature." 30 This panel was looking in the wrong place for incompetence. As stated by a panel member in a similar case in which a principal required that every lesson "be backed up by a written plan showing the aim, objective, pivotal questions, desired outcomes, method of evaluation, materials, etc.": While such a rigid structure may be a value and/or guidance to a novice, it is hopelessly old-fashioned. Good teaching, even inspired teaching, cannot be measured by such techniques. It is entirely possible that a teacher could meet these "standards" and still fail to teach well, and it is equally possible that a creative and effective teacher could well be put off by such methodsY

Lesson plans are tools that can be useful in helping teachers achieve desired results in their classrooms. They indicate nothing, however, about the quality of teaching or learning actually taking place there. As one panel ruled, deficient lesson plans "standing alone" might be evidence of inefficiency but not of incompetence. 32 30. Id. at 72, 72-73, 52-53. In another case in which a teacher was criticized for finishing lessons a few minutes early or for using part of the next day's period to complete a lesson, a panel member wrote: "This is normal, and if teachers who sometimes finished a lesson a little early or a little late were all charged with incompetent planning because of this practice, virtually all of them would be in trouble. [The] Assistant Principal, ... testified that it was 'necessary' to deliver lessons in neatly tied-up packages, with no untidy left over time or unfinished lessons. In the real world of the public schools, it happens frequently that lessons do not always go exactly as planned. That is no reflection on the ability of teachers to teach, or to plan their teaching." Board of Educ. of New York v. Dennis Dubin, N.Y.S. Ed. Dept., concurring op. at 3-4 ( 1986). 31. Board of Educ. of New York v. Dubin, supra note 30, at 3. 32. Erie County BOCES v. Mary Ann Kaminsky, N.Y.S. Ed. Dept. at 9, 11 (1978); see also the dissenting opinion in Vestal Cent. School Dist. v. Clarke, supra note 26, at 1-2.

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Fair Treatment and the Evaluation Process

Fair treatment also requires that the evaluation procedure and measuring instruments used to determine if a particular teacher meets established criteria be empirically reliable and valid. 33 A rating system must also have definition and meaning for everyone involved in the evaluation process. Equally important is the nature of the information used in assessing performance. Typical sources of information are supervisory ratings, students' performance on tests, students' ratings, peer evaluations, self-evaluations, and students' and parents' complaints. 34 33. Validity refers to the appropriateness of a measure, in that it rationally relates to the purpose for which it was intended. Reliability refers to the extent to which a test or measure yields the same results on repeated trials. 34. Bridges & Groves, supra note 1, at 18, 20; Frels, Cooper, & Reagan, supra note 17, at 5. Bridges and Groves found that student evaluations were commonly used at the college level and were "strongly related to student achievement" and were "highly effective in promoting improvement within a class over the course of a semester." Although they acknowledged that research concerning the use of student evaluations at the elementary and secondary levels of education was "sparse," Bridges and Groves concluded that "student ratings appear to be reliable [and] effective in fostering changes in teacher behavior and instructional improvement." They conclude, in fact, that "on balance, the empirical case that can be made for student ratings is much stronger than the one which can be made for supervisory ratings." Supra note 1, at 22-23. No 3020-a case involved the use of student evaluations. Bridges and Groves also found "virtually no empirical studies of the effectiveness of peer evaluations in stimulating instructional improvement" and that "educational researchers have exhibited little interest in studying selfevaluations." !d. at 25-26. No 3020-a case involved either peer evaluations or self-evaluations. No 3020-a panel used parents' complaints as a basis for evaluating teaching performance. As one panel put it, "It is not the business of parents to evaluate teacher competency or incompetency .... Evaluation is the business of the professionals."

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Supervisory Ratings Supervisory ratings are the most frequently used source of information for evaluating teachers. Although research on these ratings is limited and somewhat dated, it indicates that supervisory ratings are poor indicators of how much students are learning from teachers and have not been useful in improving teaching performance.35 Ironically, while researchers are concluding that it is "unreasonable to expect a supervisor to tell how much a class is learning by just looking at it," that such evaluations have become "ritualistic," that classroom observations are "useless" because they constitute a sample too small to be reliable, and that there is no reliable connection between observed teaching style and learning outcomes, 36 3020-a panels routinely give great weight to supervisory evaluations. Panels consider the contemporaneous judgment of supervisors as recorded on evaluation forms "the most persuasive indication of the teacher's performance" and normally do not "second guess the supervisor who observed ... classroom activities." As one dissenter put it, "Few panel members are willing to substitute [their] judgment for that of those professional supervisors whose responsibility it is to make that judgment."37 In addition to this deference to management rights, Garrison Union Free School Dist. v. Elaine Schiffer, N.Y.S. Ed. Dept. at 5 (1983). 35. Bridges & Groves, supra note 1, at 20-21. 36. Id. at 21-22; Rapp, supra note 17, at 2; M. Scriven, Teacher Personnel Policies: Equity, Validity and Productivity 4, Paper presented at the Midwest Policy Seminar, Urban Education Program, CEMREL, St. Louis (Oct. 15-17, 1980). 37. Lake Placid School Dist. v. John Cogan, N.Y.S. Ed. Dept. at 6 (1978); Board of Educ. of New York v. Robert Callaghan, N.Y.S. Ed. Dept. at 8 (1980); Board of Educ. of New York v. Dubin, supra note 30, dissenting opinion at 2 (1986).

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the presumed expertise of administrator-evaluators also causes panels to defer to their assessments. Panels consider principals and other supervisors "knowledgeable" in conducting evaluations and "experts in their field," who have been "trained to determine questions of competency. "38 This training is presumed to qualify school administrators to evaluate all teaching situations. One panel, for example, gave no weight to the fact that the evaluator was not a subject supervisor in the English class he observed because "as an Assistant Principal he is qualified to review and evaluate classroom performance by teachers."39 A court compared an evaluator-principal's expertise in the teaching profession with that of a doctor in the medical profession. 40 This presumption of expertise is unjustified. Those who educate teachers and school administrators confirm that the special knowledge and skill required to evaluate teaching competence "are seldom emphasized in university programs for preparing school administrators." They warn that school districts cannot assume that their administrative personnel are competent at evaluating such performance and urge that evaluators be trained in assessment techniques. 41 Because a teacher's livelihood can depend on where an evaluator places a check mark, fair treatment requires 38. Board of Educ. of New York v. Kleiner, supra note 19, at 20; Board of Educ. of Community School Dist. 11 v. Helen Pomerantz, N.Y.S. Ed. Dept. at 13 (1982); Lake Placid School Dist. v. Cogan, supra note 37, at 15. 39. Community School Dist. 21 v. Diana Gantwerk, N.Y.S. Ed. Dept. at 21 (1984). 40. Fowler v. Young, Board ofEduc., 65 N.E.2d 399 (1945) (quoted in Bridges & Groves, supra note 1, at 22). 41. Bridges & Groves, supra note 1 at 37, 47; Frels, Cooper, & Reagan, supra note 17, at 8. For details of a suggested "Competency Assurance Program," see Bridges & Groves, supra note 1, at 47-48.

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that those who evaluate teachers' performance establish that they are competent to describe and analyze what is happening in the classroom, provide an unbiased rating of a teacher's performance, diagnose the causes of poor performance, prescribe remediation for deficiencies, conduct teacher conferences designed to improve instructional performance, and maintain thorough documentation concerning performance. 42 In none of the 3020-a cases studied, however, did panels make the acceptance and weighing of teaching evaluations dependent on the demonstrated knowledge, skill, and experience of the evaluator. Although "few, if any, supervisors possess the breadth and depth of knowledge required to evaluate the subject matter competence of teachers in such diverse fields as language, foreign language, mathematics, science, art, and music," 43 in only one 3020-a competency case did a panel reject an administrator's evaluation. In this case it was because "the Principal's observations in many respects showed a lack of proper understanding of mathematical instructional methodology." 44 (Some school districts use a team of evaluators to permit the addition of expertise in specific subject areas, 45 but no such arrangement was used in any 3020-a cases.) Team evaluation is also intended "to temper the subjectivity of professional evaluation and ferret out un42. Bridges & Groves, supra note 1, at 37. For details concerning these competencies, see Bridges & Groves, at 37-47; L.M. PoPE, State Regulation of Educator Evaluation, in LEGAL IssuEs IN PuBLIC EMPLOYMENT 150 (J. Beckham & P. Zirkel eds., Phi Delta Kappa, Bloomington, Ind., 1983). 43. Bridges & Groves, supra note 1, at 18. 44. Putnam Valley Cent. School Dist. v. Thomas Piazza, N.Y.S. Ed. Dept. at 10 ( 1978). In one other case a panel rejected one evaluation because the evaluator "had little or no background in physical education"-the subject evaluated. Board of Educ. of New York v. David Weiss, N.Y.S. Ed. Dept. at 70 (1987). 45. Frels, Cooper, & Reagan, supra note 17, at 8.

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acceptable bias. "46 Fair treatment requires the elimination of value-laden "soft opinion data," which is difficult to substantiate and based more on subjective personal preferences and prejudices or "philosophical matters" than on empirical evidence of competence or incompetence. 47 Research has established, for example, that subjectivity leads to higher ratings for teachers of the evaluator's background, gender, or race and a predisposition to blame the teacher for poor classroom performance rather than managerial, administrative, organizational, or nonjob-related influences. 48 Another pernicious subjective influence appearing in 3020-a incompetency cases has been termed the "I'mout-to-get-you" evaluation. 49 Panels were not consistent in dealing with such biased evaluations. One panel adopted a prejudicial balancing test that permitted the use of biased evaluations to support charges of incompetence and then used that bias as a reason for mitigating the penalty imposed. Despite its finding that a new principal, the sole evaluator, was, with hostility, attempting to build a case against a teacher with nine years' experience because the teacher employed teaching methods not favored by the principal, the panel relied on the evaluations submitted in support of the district's charges of incompetence, concluding (for unexplained reasons) "[it had] no authority nor would it be appropriate for [it] to evaluate [the principal]" because "she is a trained administrator." In determining a penalty (a one-year suspension without pay), however, the panel said it 46. Pope, supra note 42, at 144. 47. J. Anderson &J. Anderson, Natural justice: Its Definition and Application to the Termination of School System Employees 34-35, Paper presented at the International Congress on Education, Vancouver, British Columbia (June 17-20, 1979); Clear & Box, supra note 9, at 228. 48. Bridges & Groves, supra note 1, at 36, 40-42. 49. Rapp, supra note 17, at 17-18.

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"would be inappropriate" to ignore the fact "that an atmosphere was created between [the teacher and the principal]." 50 Biased evaluations should never be used to assess competence. They must be rejected, and not with delicately vague language. The identical approach was used by another panel in an even more flagrant example of evaluator bias. In this case, a new principal instructed an English department chairperson who had evaluated a teacher "in highly approving terms" to change her evaluation to unsatisfactory. According to the department chairperson, the teacher "had excellent rapport with the children. They trusted him. They felt at ease with him. Excellent."'"' The chairperson testified that she was summoned to the office of [the principal]. He asked her whether she had found the [teacher's] lesson satisfactory or not. She replied that she had found it satisfactory for the most part. There followed what the witness characterizes as a "rather explosive" conversation with the principal. [The principal] instructed her to write up the observation as unsatisfactory. When she objected, [the principal] reacted as follows: " ... He said to me do you want this job ... he repeated it over and over again ... when I didn't answer him, he said to me, 'I could get you out of this job next week if I have to.' "52

Subsequently, the principal and the superintendent met with the chairperson and told her that the teacher was unsatisfactory. The chairperson then resigned from her administrative position. 53 50. Poland Cent. School Dist. v. Dain Faville, N.Y.S. Ed. Dept. at 11-12, 27-28 (1983). 51. School Dist. of New York v. Gellis, supra note 27, at 21-22, 25. 52. Id. at 22-23. 53. ld. at 24-25.

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The panel recited without comment the claims of the English teacher that he was "subjected to hostile and prejudiced statements and treatment as part of what he regards as a campaign to harass him and build a case against him." As manifestation of this hostility, the teacher cited the principal's comment that "my twelve year-old daughter could teach better than you can" and his having asked the teacher's class, "Is this guy boring? Are you bored? ... Are you learning anything?" The teacher also charged that the assistant principal had challenged him to a fistfight at a faculty meeting and, in the presence of others, had told the teacher to "blow it out your ass! If you don't like it, get a lawyer!" 54 Nonetheless, the panel relied on the evaluation reports submitted by the principal and the superintendent and said only that it was taking "significant notice" of a managerial style "which included unusually frequent class observations and statements to and about [the teacher] which indicated sustained irritation and disapproval of him." The panel criticized the teacher for reacting with hostility to what he felt was harassment and persecution and complained that its 'judgments were unavoidably complicated by these emotional side-effects." 55 After relying on these biased evaluations and ignoring their defects in finding the teacher incompetent, the panel then considered those defects in ruling that the penalty imposed "must ... take into account those elements of provocation by [the] administration which have been identified." 56 While the use of biased evaluations is prejudicial to teachers in the assessment of their competence, the simultaneous reduction of penalties because the evaluators were biased is deceptive because it ob54. Id. at 70-72. 55. Id. at 73. 56. Id. at 74.

72 Incompetence and Inefficiency scures and deflects attention from the denial of fair treatment to teachers who are entitled to an objective and competent evaluation of their job performance. Another panel relied in part on the evaluation reports of a principal who witnesses testified made "anti-African statements" about a teacher educated in Sierra Leone. Before the evaluation, the teacher had accused the principal of making improper remarks to her in her classroom, such as "Let's see you do your tribal dance," "Talk English, you are in America," and "I'm going to get you." The principal, who was also black, had accused the teacher of screaming at her in front of the class: "You're a second rate citizen. My people sold you to the slave master. How much cotton have you picked?" 57 The panel, in imposing a penalty of six months without pay, commented only that "major errors" had been committed by the teacher and the administration. Certainly, this principal could not be considered a neutral evaluator, and her evaluations should not have been given any weight. An assessment also should have been made to determine if the principal's lack of objectivity had prejudiced the rest of the district's case. In another case, a panel accepted the evaluations of a principal who called a teacher he was evaluating "a bum" because the principal's evaluations were "quite similar" and, in certain respects, "more favorable" than those of an administrative assistant to the principal and a department chairperson. 58 Given that the other evaluators were the principal's subordinates and that it was widely known that the principal was hostile to the teacher, it would have been just as reasonable, considering the similarity of the evaluations, to raise questions concerning the independence and neutrality of the evaluators. 57. Board of Educ. of Community School Dist. 16 v. Mary Ann Salassie, N.Y.S. Ed. Dept. at 29 (1983). 58. Island Trees School Dist. v. Butcher, supra note 6, at 15.

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It was the district's burden to establish their independence and neutrality. In another case in which a principal was "a negative influence, constantly monitoring and hectoring" a special education teacher, evaluations were obtained from two districtwide administrators-one a district director of pupil services and the other an assistant superintendent for curriculum and instruction-who were superior to and operated independently of the hostile principal. Evidence corroborated that they were independent, for, unlike the principal whose only input was negative criticism, the two districtwide administrators tried to assist the teacher and arranged for him to observe other special education classes in the district. 59 Only two panels clearly rejected negative evaluations because they appeared to be solely for the purpose of building a case against the teachers involved rather than "helping [them] overcome [their] difficulties and problems" or improving instruction or curriculum. 60 The commissioner of education has not ruled directly on the question of evaluator bias but has taken the position that even if a "conflict of personalities" between a teacher and a principal was the cause of the teacher's poor performance, "it does not excuse that performance."61 Fair treatment requires, particularly given the prejudicial effects of evaluator bias and subjectivity, that alleged deficiencies in classroom performance be substantiated with specific facts, not merely sketchy and conclusionary generalizations. Empirical data must be the basis of any evaluation system for that system to be 59. Board of Educ. of Westbury Union Free School Dist. v. Lawrence Young, N.Y.S. Ed. Dept. at 28, 14-15 (1984). 60. Beacon City School Dist. v. Louisa jackson, N.Y.S. Ed. Dept. at 7 (1982); Syracuse School Dist. v. Blanche Conley, N.Y.S. Ed. Dept. at 22 (1980). 61. Matter of Board of Educ. of the City School Dist. of New York, 21 Ed. Dept. Rep. 308, 312 (1981).

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valid and reliable. Too often, teacher performance evaluations amount to little more than "some one page list of buzz words like 'neatness of dress' followed by a rating of 'satisfactory,' 'needs improvement,' and 'unsatisfactory.' "52 Judgmental statements such as "poor classroom control," "poor questioning,'' or "poorly organized lesson" are simply unsubstantiated opinions until factual bases for those conclusions are produced, referring to specific dates and times, people, classroom situations, and events. Only then can the accuracy and importance of the judgment be determined. 5 3 Because, at most, only brief summaries of actual teaching evaluations appear in panel decisions, it cannot be determined from those opinions how often findings of incompetence have been based on the unsubstantiated opinions of evaluators. Some panels, however, have justifiably refused to sustain incompetency charges in whole or in part for lack of evidence. One panel, acknowledging that the evaluation of teaching competence "necessarily required subjective determination," still held that the evidence of incompetence introduced was "not present in sufficient quantity to justify a finding against the teacher." In another case, a charge of incompetency was dismissed because the principal "failed to give precise examples of the charges ... [did] not give names, describe the incidents or support his charges by a descriptive explanation of what occurred." The panel ruled: "In a proceeding such 62. Rapp, supra note 17, at 14. 63. See, e.g., Board of Educ. of New York v. Kleiner, supra note 19, at 2-4, in which the following observations are recorded: "The questioning was not carefully planned or structured; instruction was not individualized and was not geared to the ability level of the children .... Comprehension skills were ignored and the vocabulary development was unnecessarily lengthy in time .... The lesson was aimless."

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as this, more than just allegations must be produced in order to support the charges." 64 Other panels have found evidence of incompetence vague, incomplete, and often contradictory and have refused to "elevate ... brief cursory commentaries to a prima facie case of classroom incompetency." 65 (Another panel also refused to elevate the "beliefs" of fellow teachers to the status of evidence of incompetency: "Such testimony reflects their feelings, concern, discomfort, and conversations with parents, among other personal expressions, but is not found to constitute proof of poor teaching. "66 ) Obtaining sufficient evidence about teaching performance is dependent, in part, on the number and duration of classroom evaluations. Experts provide no ideal number, suggesting only that two evaluations each year (one in the fall and one in the spring) "are more likely to achieve the best results." More frequent observations are recommended when a teacher's performance is "below par." Generally, each observation should be for a "substantial period of time, and the longer the better"certainly long enough to evaluate teaching performance thoroughly. 67 Several panels rejected charges in which there were too few evaluations and/or they were too brief. In the case of a teacher with twenty-seven years' experience with no prior complaints of incompetence, "there was only a limited seven week period of the [teacher's] service 64. Rochester School Dist. v. George Barry, N.Y.S. Ed. Dept. at 14 (1978); Community School Dist. 13 v. Susan Schnall, N.Y.S. Ed. Dept. at 248 (1981). 65. Center Moriches Union Free School Dist. v. William McCartin, N.Y.S. Ed. Dept. at 17 (1982). 66. Mamaroneck Union Free School Dist. v. Charles Fitzpatrick, N.Y.S. Ed. Dept. at 40-41 (1981). 67. Frels, Cooper, & Reagan, supra note 17, at 10.

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reflecting five brief visits presented to the panel," and that was "far too restrictive a sample" to support a charge of incompetency, "particularly when compared with twenty years of ... service to the District. "68 Similarly, classroom observations "made during the course of only one school year ... by only one individual" were insufficient to sustain incompetency charges against a teacher with twelve years' experience. Another panel, finding it "difficult to understand how a person could retrogress from a qualified, presumably competent level of performance, to the [unsatisfactory] rating cited in this report," refused to conclude "from this sole evaluation" that the teacher was incompetent. In another case, the pattern of observations indicated the district was simply building a case against the teacher: "one in November 1977, then no more until February 9, 1978, followed by ten evaluations during a three week period."69 One panel relied in part on five observations in a onemonth period-three totaling less than one-half hour and two full fifty-minute classes-in deciding to terminate a teacher with twenty years' experience for incompetence and other charges. 70 Another panel commented on "the unusually frequent class observations" (the observed teacher claimed there were eighty in two years) but relied on them in sustaining incompetence charges. 71 Disciplinary Referrals

Charging parties often seek to avoid the pitfalls of subjectivity in classroom evaluations by relying on pur68. Mamaroneck School Dist. v. Fitzpatrick, supra note 66, at 40. 69. Poland Cent. School Dist. v. Faville, supra note 50, at 27 (emphasis in original); Board of Educ. of New York v. Cogan, supra note 37, at 8-10; Onondaga Cent. School Dist. v. Harshaw, supra note 4, at 10. 70. Community School Dist. 26 v. Bella Rosenfeld, N.Y.S. Ed. Dept., dissenting op. at 4 (1978). 71. School Dist. of New York v. Gellis, supra note 27, at 67, 73.

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portedly objective evidence of poor teaching performance. Because teaching cannot take place under disruptive conditions, the number of disciplinary referrals from a teacher's classroom have been presented to panels as conclusive evidence of an inability to control students. 72 Student discipline is too complex a matter and the responsibility for maintaining discipline in school too widespread, however, to justify a simplistic inverse correlation between the incidence of disciplinary referrals and competence to teach. Panel decisions, moreover, reflect the difficulties and dilemmas teachers face in dealing with disciplinary problems in their classrooms. Some panels view the frequent use of disciplinary referrals as evidence of a teacher's abdication of responsibility for disciplining students and of an inability to maintain classroom discipline. 73 Other panels have commended teachers for referring such problems to their administrations. There are many teachers who would applaud the actions of [the accused teacher] because he was diligent in referring such students for their misconduct. Through his efforts, students who are experiencing such behavioral difficulties are more easily identified. Such documentation is often necessary for the proper educational placement of such students. According to many public and professional opinion polls on educational attitudes, one of the primary concerns is discipline. It is ironic that when a teacher writes the referrals on disruptive students, those referrals are subsequently used as evidence against him. 74 72. School Dist. 26 v. Rosenfeld, supra note 70, at 29. 73. Board of Educ. Monroe-Woodbury School Dist. v. Lita Stein, N.Y.S. Ed. Dept. at 25-26 (1985); Island Trees School Dist. v. Butcher, supra note 6, at 10. 74. Center Moriches School Dist. v. McCartin, supra note 65, at 13.

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Although some panels rely on the absolute number or relatively high number of disciplinary referrals, 75 other panels find such data insufficient to demonstrate incompetence without additional evidence concerning specific incidents in which a teacher "allegedly referred students to the Principal's office when it was not necessary to do so." 76 One panel ruled against a teacher not only for issuing an unusually high number of disciplinary referrals but also for issuing them at the end of class periods instead of "at a time immediately proximate to the unacceptable behavior." As a consequence, the panel said, the teacher "endured disruptive and disrespectful behavior during each of these classroom periods [and] chose to do constant batde during entire periods." In the panel's opinion, no learning could take place in that environment.77 Yet, in another case, a panel praised teachers who had allowed students assigned detention to remain in class and penalized a teacher who ejected such students at the time of their infractions because "it is inconceivable to the panel how [the teacher] ever expected a student to make up work and to improve if he is continually absent from class missing the daily work." 78 Some panels used the comparative number of students with disciplinary problems in a particular teacher's class in determining the weight given disciplinary referrals. 79 75. Community School Dist. v. Rosenfeld, supra note 70, at 31; see also Matter of Board of Educ. of Center Moriches Union Free School Dist., 22 Ed. Dept. Rep. 113, 116 (1982). 76. Lake Placid School Dist. v. Cogan, supra note 37, at 7. 77. Island Trees School Dist. v. Butcher, supra note 6, at 7-8. 78. Seneca Falls Cent. School Dist. v. Richard LePak, N.Y.S. Ed. Dept. at 45 (1980). 79. In Community School Dist. 21 v. Gantwerk, supra note 39, at 26, for example, "The record [did] not demonstrate that there was an inordinate number of such 'problem' students in her class, or that the class composition varied substantially from those in other 7th and 8th grade classrooms." In Board of Educ. of Dist. 16 v. Salassie, supra note 57, at 44, a panel found "no convincing evidence that [the

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Other panels recognized that "often times students are removed from a class for reasons unrelated to the teacher's performance." 80 Disciplinary referrals, standing alone, simply signal possible problems of classroom control that may or may not be caused by incompetence. The connection, if any, between a lack of classroom control and a teacher's incompetence must be established with evidence produced through careful and thorough investigation (including classroom observations) not only of the teacher's classroom performance but of the school district's disciplinary policy and application and the school administrators' efforts to support and assist teachers with classroom disciplinary problems. 81 teacher's] class mix was substantially different from that of other fifth grade classes in P.S. 243. Yet, the number of incidents of fights, accidents or children wandering about which were brought to the attention or actually observed by administrators allegedly was much in excess of those which took place in other classes." In Board of Educ. ofSewanhaka Cent. High School Dist. v.John Mannone, N .Y.S. Ed. Dept. at 10, 17 (1983), however, that teaching was "less effective than normal" because the class was composed of "a group of students who had little or no experience or ability in the class work [music)" as well as students "who had a long history of disruptive behavior at the school" and who had been referred for disciplinary action by other teachers "for various incidents including physical assault on another student and homicidal threats on a teacher." 80. Board of Educ. of Monroe-Woodbury School Dist. v. Stein, supra note 73, at 25. 81. Board of Educ. of Center Moriches School Dist., supra note 75, at 116: "There was little proof ... that the administration adequately supported [the teacher] in an effort to avoid further problems"; Center Moriches School Dist. v. McCartin, supra note 65, at 11: "A review of documented statistics respecting referrals reveal, not the [teacher's] failures, but instead, the failures of the School's District Discipline Policy and its applications"; Royalton-Hartland Cent. School Dist. v. Bentley, supra note 20, dissenting op. at 6: "Parent contact to address discipline problems ... where repeated trips to the office were necessary, should have been initiated by the

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The need for stable and objective standards of competence has led many school districts to focus less on teaching behaviors and more on students' performance on teacher-constructed and standardized tests. Because there are comparative norms for standardized tests against which student performance can be measured, the logic can be persuasive "that the teacher must have had something to do" with why the students' scores departed from the test's norms. 82 Because of their apparent objectivity, students' test scores have been used as the sole measure of teachers' competence. An Iowa court, for example, in the widely discussed case of Sheelhaase v. Woodbury Community School District, 83 found students' failure to score within acceptable ranges on a national aptitude and achievement test sufficient evidence on which to conclude that their teacher was incompetent. One panel acknowledged that "there are numerous reasons students fail to pass final examinations" but then ignored other possible reasons, asserting that because all the students in a Regents-level class failed the teacher's final examination, the teacher could not have provided "proper instruction." 84 Learning is far too complicated and multidimensional a matter, however, to make teachers solely responsible for its occurrence or nonoccurrence. The premise-"a teacher must be satisfactory if students learn and must be unsatisfactory if students don't learn" 85 -does not account for other influences such as the characteristics of the students, cultural context, nature of the subject Principal and followed through by him. It was his responsibility to bring such behavior to a halt." 82. Clear & Box, supra note 9, at 231. 83. 488 F.2d 237 (8th Cir. 1973). 84. Board of Educ. of New York v. Jay Cohen, N.Y.S. Ed. Dept. at 20 (1985). 85. Rapp, supra note 17, at 9.

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matter, and other aspects of the environment in which teaching and learning take place. Experts point out, moreover, that administrators "have been inclined to overemphasize" standardized test results in evaluating teachers: The achievement of the students alone is not a valid indicator of teaching effectiveness. Sometimes high achievement in one area may be partly the cause of low achievement in another. It may be that the better instruction is being done in the area oflowest achievement rather than the highest. These are complex administrative problems, and great caution should be exercised when using achievement-test results in teacher evaluation.86

In addition to concerns about the validity and reliability of student tests, experts caution those who use students' performance on achievement tests in evaluating teachers to bear the following in mind: First, the effects of teachers on different groups of students are relatively unstable (i.e. inconsistent) from one year to the next; these effects are even unstable from one topic to another for the same students .... In light of this instability no teacher should be considered for dismissal solely on these grounds unless the poor performance is repeated over a period of at least two or three years. Second, a district which intends to establish the incompetency of a teacher by comparisons with other teachers should rule out the possibility that the relatively poor performance of a teacher's students is due to initial differences in the performance potential of the students. Third, a school district needs to be sure that the tests measure knowledge and skills which match the instructional objectives for which the teacher is responsible. Finally, little if anything is known about the consequences of using student results to evaluate teachers for either 86. j. SAWREY & C. TELFORD, (4th ed., Allyn & Bacon, 1973).

EDUCATIONAL PSYCHOLOGY

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formative or summative purposes. Teachers who are held accountable for student achievement may teach to the test or may direct their attention only to those students who are likely to show the greatest gains in achievement.87 One panel pointed out one such defect by rejecting a school district's use of student test scores to assess teachers' competence because "there was no documentation to compare the students when they entered the [teacher's] class and when they left, and therefore no basis to indicate whether the scores had increased or decreased."88 Another school district argued against the use of standardized Metropolitan Achievement Test results to draw conclusions about a teacher's competence from the test performance of individual students because "achievement tests do not take into consideration in any way the ability levels of the various students who are tested." 89 In another case in which a school district made a teacher's competence dependent on "the near unanimous success of one class passing a [New York State] Regents examination," the panel denied any association between competence and students' test performance: "If the class had succeeded, this would no more make an incompetent teacher competent than, if it had failed, make a competent teacher incompetent." 90 87. Bridges & Groves, supra note I, at 24. 88. Community School Bd., Dist. 28 v. Wheeler, supra note 19, at 24. 89. Rochester School Dist. v. Barry, supra note 64, at 7-8. The panel without further discussion simply "noted" that "results of the Achievement Tests did indicate ... an increase in achievement and learning" in the teacher's class during the school years 1975-76 and 1976-77. Id. at 15. 90. Putnam Valley Cent. School Dist. v. Piazza, supra note 44, at 16. In this case, after entering the teacher's class unannounced and requiring the students and their teacher to take a practice Regents examination, the principal offered the teacher a "deal"-"he would

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Clearly, there is no necessary causal connection between students' performance on tests and teachers' competence. The assumption of such a simple connection is contradicted by the facts. Fairness requires, therefore, that school districts provide substantial evidence that poor student performance on tests was due to poor teaching performance in the classroom. Because no one method of assessing a teacher's competence is completely satisfactory, as much information as possible concerning a teacher's effectiveness in the classroom should be obtained. Some panel decisions are based on the multiple-measure approach. One panel, for example, relied in part on an "overwhelming pattern" of statistical evidence establishing that over a three-year period the students of a teacher charged with incompetence consistently scored lower on a uniform districtwide examination and had consistently higher failure rates than students in other instructors' classes: "This pattern persisted in each of the five classes taught by [this teacher] and in each of the three years ... under review." 91 In addition, students were assigned randomly by computer to sections of the same course, the department's instructors prepared the districtwide examination, and the same examination was given to all students in the course. Despite expert testimony that "the comparisons were statistically significant," the panel acknowledged that the statistics alone did not indicate the cause of the differences in the students' failure rates. The panel concluded, however, that when the district's statistical evidence was allow the [teacher] to continue to teach ... provided he agreed that if more than one of his math students failed the June, 1977 Regents, he would resign from his position as teacher in the District." The teacher refused the "deal" and was removed from his mathematics class. /d. at 15. 91. Smithtown Cent. School Dist. v. Robert Olkin, N .Y.S. Ed. Dept. at 18 (1982).

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coupled with "the numerous personal observations of [the teacher's] lack of control in the classroom," there was substantial evidence "that a significant number of [the teacher's] students were not learning as a direct result of [the teacher's] ineffective and inefficient teaching."92 Another panel considered results on the Stanford Achievement Test as evidence supporting a district's incompetency charge but asserted that "failure of individual students to achieve on standard tests does not, in and of itself, establish incompetence .... The statistics alone do not establish incompetence." 93 The commissioner of education has not decided "whether a showing of poor pupil performance may, by itself, establish that a teacher is incompetent." 94 One panel decided that question in the affirmative in a subsequent case in which the basis of a district's charge against a teacher was limited to the high failure rate of his students on the New York State Regents social studies examination. In three consecutive years, 60 percent, 60 percent, and 53 percent of the teacher's students failed the Regents comprehensive examination in social studies, when the average failure rate was 23 percent statewide. The panel also found that "the failure rates in social studies classes taught by other instructors [at the high school] during this period were appreciably lower than in [the teacher's] courses." All students, moreover, were assigned to classes at random by computer. 95 This panel considered student achievement a "central" criterion for evaluating the teacher's competence because "this standard does not rest upon subjective per92. Id. at 19, 20. 93. Poland Cent. School Dist. v. Fa ville, supra note 50, at 10. 94. Matter of Board of Ed uc. of Highland Falls-Fort Montgomery Cent. School Dist., 22 Ed. Dept. Rep. 96, 99 (1982). 95. Board of Educ. of Elmira School Dist. v. Rodger Henderson, N.Y.S. Ed. Dept. at 3 (1984).

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ceptions but rather on objective results." In the panel's opinion, "student success-or failure-on theN ew York Regents examinations directly relates to the competency and effectiveness of the teachers who have responsibility for preparing their students for these examinations." Finding that the students were "entitled to a quality of instruction that will assure reasonable success" in Regents examinations, the panel concluded that "the higher rate of failure in [the teacher's] classes in the June 1981, 1982 and 1983 Regents examinations in Social Studies demonstrates incompetency on his part in meeting this fundamental obligation of a teacher." 96 It was only in the context of determining an appropriate penalty, however, that the panel considered seventeen "supervisory rating forms" spanning an elevenyear period ( 1973-84) that presented "a generally affirmative evaluation" of the teacher's performance. 97 Because those supervisory evaluations were also measures of the teacher's competence over the years, they should have been treated as additional evidence bearing directly on the issue of the teacher's ability to teach. The supervisory performance evaluations, moreover, were directly related to the key issue of whether students' poor achievement was caused by their teacher's poor performance. Both these measures of teaching performance, even though conflicting in this case, were central to the determination of competence. Consideration of both in determining competence would have heightened the panel's scrutiny of the causal connection, if any, between teaching performance and lack of student achievement.

Teacher Competency Tests No 3020-a incompetency case involved the use of teacher competency tests such as the National Teacher 96. /d. at 4-5. 97. /d. at 7.

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Examinations (NTE) to evaluate teaching performance.98 The Educational Testing Service, which constructed the NTE, asserted in its guidelines for using the test: The NTE measures academic preparation for teaching, not the act of teaching itself; and the critical criterion in evaluating an inservice teacher is not potential but actual teaching performance. If an adequate and reliable record of a teacher's inservice performance is available, that record should be used. 99 These guidelines also state that the NTE does "not provide a direct evaluation of teaching performance" and "should not be used by school districts, directly or indirectly, to determine the compensation, retention, termination, advancement, pay supplements, or change in provisional employment status of teachers once they are employed." Such decisions about teachers already in service, according to the Educational Testing Service, "should be based on teaching competencies as determined directly by the supervisory and evaluation procedures of the employing school district." 100 There are other problems with using scores on standardized tests as the basis for adverse employment decisions affecting in-service teachers: It is possible federal courts would ... compel a school

district to present evidence of a correlation between test

98. For an interesting discussion of this subject, see R. Flippo, An Update on the Ever Growing Momentum of Teacher Competency Testing, in ScHOOL LAw UPDATE 228-37 (T.Jones & D. Semler eds., National Organ. on Legal Problems of Education, Topeka, Kans., 1986). 99. J. Beckham, Objective Testing to Assess Teacher Competency: Emerging Legal Issues, in ScHOOL LAw UPDATE 152 (T. Jones & D. Semler eds., National Organ. on Legal Problems of Education, Topeka, Kans., 1986). 100. Id. at 153-54.

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results and job performance in order to justify use of the test in situations involving dismissal, nonrenewal, demotion or similar adverse employment decisions. Since testing services encourage reliance upon multiple measures in evaluating employees and other measures of employee performance are available, often mandated by state or local policy, extensive reliance upon test results would seem suspect. 101

Fairness in assessing a teacher's competence, therefore, requires multiple measures and substantial evidence of a causal connection between each measure and job performance.

Remediation Experts who develop model teacher-evaluation programs recommend that whenever incompetent or inefficient teaching is identified, school districts should provide unsatisfactory teachers with assistance (remediation) and a reasonable time to improve and that a teacher should be dismissed only if remediation fails. 102 Some authors base a school district's remediation obligation on the requirements of procedural due process: the right to know ("knowledge of the standards of performance expected"), the right to notice ("the opportunity to receive constructive criticism and provide feedback"), and the "opportunity to improve performance, to have help in such improvement, and sufficient time to pursue the improvement plan." 103 Others maintain that "fairness to both students and educators" requires that school administrators help in 101. Id. at 156. 102. Bridges & Groves, supra note 1, at 8-9. 103. M. Barton, What You Ought to Know about Termination and Due Process 8, Paper presented at the Annual Meeting of the National School Boards Association (Mar. 31-Apr. 3, 1984).

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the improvement process. 104 Some find remediation simply good business: "there was reason and costs in the hiring of the individual. That reason and those costs are justification for even extensive assistance to the employee."105 In that all teachers charged with incompetence pursuant to section 3020-a are tenured, they must have been judged by school administrators and school boards at one time as sufficiently competent to be awarded tenure. 106 Further, these teachers have an average of 17.1 years of teaching experience 107 and thus have provided competent teaching for many years since receiving tenure. It is also obvious from their teaching experience that a substantial long-term investment has been made in their careers not only by the teachers but by students, parents, school districts, and the state. Cost considerations alone, therefore, compel that a reasonable effort be made to identify and remedy the causes of a teacher's poor classroom performance. Rather than a confrontational, penalty-oriented approach, experts recommend an improvement-oriented approach in which "evaluation and staff development go hand in hand" and supervisors and teachers cooperate to identify "specific deficiencies and plan appropriate ways to improve or correct them." 108 A supervisor 104. Pope, supra note 42, at 147. 105. Anderson & Anderson, supra note 47, at 31. I 06. One panel, for example, refused to disregard a teacher's past record because "he was granted tenure after meeting the Board of Education's rigorous licensing standards and taught satisfactorily until this evaluation." Lake Placid School Dist. v. Cogan, supra note 37, at 9. A panel member in another case remarked that a teacher's "original appointment to tenure ... indicates that at least a few years ago, New York City school administrators made a judgment of competence." Board of Educ. of New York v. Dubin, supra note 30, concurring op. at 2. 107. Panels provided data concerning teachers' years of service in forty-eight of the sixty-nine incompetence cases. 108. Greene, Improve the Quality of Teaching in Your Schools, 16

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must be able to diagnose why a teacher is a poor performer, pinpoint the specific causes, and prescribe remedial assistance to correct the problem. (One writer considers the latter "perhaps the weakest skill that an administrator brings to the evaluation process." 109) Remediation includes the following: goal setting (clarifying exactly what is expected of the teacher); instruction input (information received through books, films, courses, and workshops); modeling (such as opportunities to visit and observe the classrooms of exceptional teachers, staged demonstrations in the problem teacher's own classroom by outstanding teachers, and team-teaching assignments with gifted teachers); practice (role playing and opportunities to try out a new behavior or skill in a restricted environment before applying it in the classroom); feedback (listening to audiotapes or viewing videotapes of the teacher's classroom performance); reinforcement (anything that strengthens or maintains good performance such as praise and expressions of appreciation, pay, and promotions); therapy (treatment programs designed to deal with personal disorders such as alcoholism, drug abuse, and mental illness); counseling (professional services to assist teachers to UPDATING ScHOOL BoARD PoLICIES 1, 1-2 (1985). The author describes the Toledo (Ohio) peer evaluation program conceived by the local American Federation of Teachers as "a good example of collaboration and cooperation." 109. Bridges & Groves, supra note l, at 41-42. The authors identify three major causes for poor performance: managerial and/or organizational shortcomings; a shortcoming of the employee; and outside or nonjob-related influences. Jd. at 41.

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deal with crisis situations and personal problems that may interfere with job performance); and environmental change (reassignment to a different grade level or subject area or transfer to another supervisor or building). One writer recommends that if funds are limited for staff evaluation and development, "local districts should pool their limited resources and establish joint programs such as in-service training for evaluators and remediation of unsatisfactory teachers." 110 One panel, for example, dismissed incompetency charges against a music teacher "with acknowledged ability in the subject matter of his course" who had problems controlling students in a new school in classes with little musical ability or experience because the school district instead of developing a suitable training program to better prepare him to meet the disciplinary problems in such classes, ... relied on a course of numerous observations and negative criticism. It would have been better served if it had identified the [teacher's] problems with classroom control and then developed procedures to train or re-train him in the resolution of the problems.lll

In the words of a dissenter in another case, in "enlightened" schools where administrations give "real assistance" to teachers developing their skills in teaching, "the evaluation/supervision process can and should be non-threatening, relaxed, useful, and productive"rather than "trying to 'catch' teachers unprepared." 112 The remediation approach regards teachers as profes110. /d. at 31-32, 13. Ill. Board of Educ. of Sewanhaka Cent. High School Dist. v. Mannone, supra note 79, at 24-25. 112. Board of Educ. of New York v. Dubin, supra note 30, dissenting op. at 6.

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sionals, and "more than mere subordinate employees, they are partners in the educational process." 113 The commissioner of education in New York State, however, has ruled consistently that because teachers are professionals it is each teacher's responsibility to be competent and to remain competent.u 4 In the commissioner's opinion, school districts have no obligation to help teachers improve their classroom performance: "It is not the school district's responsibility to compensate for a teacher's deficiencies or to rehabilitate a teacher who demonstrates deficiencies." 115 In the case cited above of the newly transferred music teacher, for example, the commissioner rejected the panel's "suggestion ... that the school district had an obligation to retrain [the teacher] when he was transferred to a new school building" and made the teacher solely responsible for the breakdown in classroom discipline: "the ability to motivate and maintain control of students with little previous exposure to the subject matter goes to the essence of a teacher's function." 116 The commissioner has held, moreover, that neither long service-"no matter how lengthy her service with the district ... she would not have acquired 'certain equities in her job'"- nor prior successful service-"a teacher's inability to function in a particular school setting, despite prior satisfactory service, is a sufficient basis 113. Poughkeepsie City School Dist. v. David Caccamo, N.Y.S. Ed. Dept. at 18 ( 1986). Other panels have recognized school districts' obligation to make teachers aware of deficiencies on a systematic basis and to guide improvement in performance. See, e.g., Clinton Cent. School Dist. v. Donald Henry, N.Y.S. Ed. Dept. at 32 (1981). 114. Matter of Levyn v. Ambach, Fleming and Community School Bd. 20, 19 Ed. Dept. Rep. 29, 32 (1979); Matter of Board of Educ. of Onondaga Cent. School Dist., 20 Ed. Dept. Rep. 176, 178 (1980). 115. Matter of Board of Educ. of Monroe-Woodbury Cent. School Dist., 26 Ed. Dept. Rep. 93, 95 (1986). 116. Matter of Board of Educ. of Sewanhaka Cent. High School Dist., 23 Ed. Dept. Rep. 463, 467, 472 (1984).

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for a finding of incompetency" -creates any obligation on school districts to try to remedy such teachers' deficiencies. 117 In another case, a teacher had a long and successful performance record at "a predominantly middle class suburban school" but was unable to manage students at the predominantly black and Hispanic inner-city school where she had been transferred. The commissioner rejected the panel's finding that, because the teacher had "met the District's standards for twelve years under different circumstances," incompetence in one school setting did not mean incompetence in every school setting. The panel had also ruled that before deciding on her termination the district was obliged to try to remedy the problem by transferring the teacher to another school. 118 The commissioner disagreed, ruling that "school districts cannot be required to assign an incompetent teacher to other groups of children of different socioeconomic backgrounds in the hope that there is some group of children that such a teacher might be competent to teach." 119 The commissioner believes that because teachers are licensed they should be capable of prov_iding competent 117. Board of Educ. of Onondaga Cent. School Dist., supra note 114, at 178; Matter of Board of Educ. of Beacon City School Dist., 22 Ed. Dept. Rep. 210, 214 (1982). 118. Rochester School Dist. v. Gretchen Kleopfer, N.Y.S. Ed. Dept. at 2, 7 (1979). The panel noted that "there were openings in the school district ... and that twenty-five positions were filled by teachers on a 'layoff' list. Since [the accused teacher] had more seniority than any teacher on this list, she could have been reassigned to another position and her position at School No. 27 filled by a teacher returning from 'layoff."' /d. at 7. Another panel found a teacher not to be "incompetent as a teacher per se" but only in regard to the "teaching of the Special Adjustment II type of class." Board of Educ. of Westbury School Dist. v. Young, supra note 59, at 29. 119. Matter of Board of Educ. of Rochester, 19 Ed. Dept. Rep. 262, 265 (1979).

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service and that poor performance is the sole responsibility of the teacher and is not excused even when caused by a "conflict of personalities" between a principal and a teacher. 120 Many panels agree that even harassment of a teacher by a school district or lack of support or help from school administrators would not excuse the inability of a tenured teacher to maintain classroom control.121 As another panel put it, "All teachers, especially veteran teachers, are expected to cope," despite pressures (all occurring in the same case) caused by changes in buildings and principals, hostility and "hectoring" from supervisors, the lack of assistance from administrators, assignment to a class the teacher had not taught for many years, disruptive pupils, and an "everchanging" class composition. 122 Even a conspiracy against a teacher would not excuse poor performance: Whether or not there was a conspiracy against [the teacher] involving his allegations that no supportive discipline existed, that there was a lack of reinforcement of [the teacher's] authority and that during conferences with parents, administrators and students he was undercut, demeaned and insulted by the administration, it does not mitigate his primary and fundamental responsibility to reasonably conduct his classes maintaining control, respect and rapport. 123

This concentration on only the teachers' responsibilities ignores the reasons the classroom performance of some very good teachers with many years of experience may 120. Matter of Board of Educ. of Community School Dist. 5, 20 Ed. Dept. Rep. 462, 463 (1981); Board of Educ. of the City School Dist. of New York, supra note 61, at 312. 121. Community School Dist. 5 v. Henrietta White, N.Y.S. Ed. Dept. at 2 (1980). 122. Board of Educ. of Westbury School Dist. v. Young, supra note 59, at 27-28. 123. Island Trees School Dist. v. Butcher, supra note 6, at 11.

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have deteriorated and, consequently, any consideration of whether that deterioration could have been reversed. These panels, moreover, did not view the "secondary supportive responsibility" of school districts to assist teachers as going beyond criticism, because "criticism directs attention to areas that need improvement and the suggestion for improvement is inherent in the criticism."124 Some panels have criticized school districts for failing to observe and counsel teachers or for providing only negative criticism without positive assistance, 125 for not following up to see if improvement has been made ("there is no justification for the failure ... to obtain further observations [on the ground] that experienced teachers should know how to conduct themselves"), 126 for letting matters reach a crisis stage and then concentrating only on building a case against a teacher, 127 for providing "little meaningful supervision of [the teacher] in order to improve areas of work performance thought to be deficient or lacking," 128 and for depriving teachers of an opportunity to correct problems by remaining silent about alleged deficiencies and then "resurrect[ing] them as disciplinary charges at a later date." 129 Even these panels, however, did not consider the school districts' inadequate remedial efforts an integral part of their determination of competence or incompetence but regarded the deficiencies merely as mitigating factors in setting an appropriate penalty. 130 Yet, except in the most 124. 125. 12-13, 126. at 29. 127. 128. 129. 130.

Id. at 6-7, 15. Seneca Falls Cent. School Dist. v. LePak, supra note 78, at 57. Wappingers Falls Cent. School Dist. v. Kelly, supra note 13, Onondaga Cent. School Dist. v. Harshaw, supra note 4, at 10. Board of Educ. of New York v. DiBello, supra note 5, at 22. Id. at 12. See, e.g., Rochester School Dist. v. Barry, supra note 64, at

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extreme cases, the success or failure of appropriate remediation efforts can be the most reliable evidence of teaching competence or incompetence. Because incompetence is defined as being incapable of performing the duties of a teacher and being incapable of improvement, incompetence cannot be determined (except in extraordinary situations) without systematic attempts at remediation and without assessing the results of those efforts. No panel has hesitated, however, to draw conclusions about a teacher's competence in the absence of such efforts. Some panels, in adjudicating charges of incompetence, have acknowledged the importance of evidence that the school district provided sufficient efforts at remediation but to no avail. Panels are not specific about what remedial steps need to be taken, however, but simply refer vaguely to "numerous and varied steps to assist [the teacher] in improving his performance," or "numerous attempts and offers of assistance," or"[ the teacher's being] given assistance and support for improvement." 131 In one case a district described in detail an allegedly unsuccessful remediation program intended to improve a teacher's performance. The "program" had lasted for one week. Presumably, the panel credited that effort when, without discussion, it referred to "endless efforts by Supervision to help [the teacher)." 132 Panels do fault teachers who make no effort or refuse to comply with administrators' suggestions for improve16; Board of Educ. of New York v. DiBello, supra note 5, at 22; Onondaga Cent. School Dist. v. Harshaw, supra note 4, at 10; Syracuse School Dist. v. Blanche Conley, N.Y.S. Ed. Dept. at 13,21-24 (1980). 131. Smithtown Cent. School Dist. v. Olkin, supra note 91, at 17; Board of Educ. of School Dist. 11 v. Pomerantz, supra note 38, at 19; New York City Bd. of Educ. v. Nellie Mongitore, N.Y.S. Ed. Dept. at 28 (1985). 132. Frontier Cent. School Dist. v. Ann Burkhardt, N.Y.S. Ed. Dept. at 12, 38 (1984).

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ment. 133 One panel put it strongly: "It was the [teacher's] obligation to obey [a principal's] instructions whether or not [the teacher] considered them to be warranted or appropriate, or violative of the collective bargaining agreement [but the teacher] would be his own evaluator; arrange his own time to turn over his lesson plans which, in effect was never; his own time to meet in conferences, which, in effect was never; judge his own need for selfimprovement which was that he had no need." 134 Another panel, affirming the responsibility of a teacher "to correct those areas of improvement suggested by administrators," rejected the teacher's "argument that the classroom teacher is 'better qualified' to make judgments than administrators" because that "would negate the very nature and purpose of observations and recommendations contained therein." 135 Frequently, poor teaching is not caused by inadequate subject knowledge, lack of teaching skills, or an inability or unwillingness to improve but by behavioral and emotional problems resulting from stress or "burnout," fatigue from working a second job, financial problems, divorce and other marital crises, alcoholism, drug use, physical diseases, or psychological disorders. 136 Although early research dealing with factors affecting employee performance dealt primarily with such on-thejob influences as morale, working conditions, and economic incentives and benefits, advancements made in behavioral sciences and human services in the past twentyfive years have demonstrated the importance of off-thejob life situations on job performance. 137 133. See, e.g., Clinton Cent. School Dist. v. Henry, supra note 113, at 12; Community School Dist. 21 v. Gantwerk, supra note 39, at 31. 134. White Plains School Dist. v. Pierce, supra note 14, at 16, 48. 135. Board of Educ. of New York v. Cohen, supra note 84, at 21. 136. Greene, supra note 108, at 3; Frels, Cooper, & Reagan, supra note 17, at 14-15. 137. Freed, EAP DIGEST, jan.-Feb. 1985, at 49.

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Employers in the private and public sectors have realized that programs designed to recognize, treat, and rehabilitate employees with behavioral and emotional problems are far less expensive than replacing a discharged middle manager or professional such as a teacher. 138 When poor performance is caused by physical or emotional disabilities, the usual blame and punishment approach is inappropriate, unproductive, and inhumane. A panel ruled in one case, 139 for example, that because a teacher's "active alcoholism" affected all aspects of her job performance, it could not treat the "external manifestations" of incompetency as "irremedial." As the panel pointed out, "The overt indicia of the [teacher's] incompetence ... camouflaged the underlying reality of alcoholism rather than the other way around." Yet, because the employer made no effort to rehabilitate this teacher of twenty-three years and the teacher "made no effort to obtain employer assistance" or "seek help on her own," both the District and the [teacher] went their separate ways oblivious to reality, the one quixotically seeking change by a series of dutiful observation reports, the other caught up in the increasingly debilitating effects of alcohol consumption and beyond the curative powers of classroom observations however detailed and diagrammatic. And now the District would have the Panel terminate the [teacher] as if it were the routine case of a teacher found to be seriously incompetent as a matter of s~mple and ordinary failure to meet performance standards .... It would be as if the Panel like the District could detect nothing in the [teacher's] performance in the classroom but loss of skills and techniques in the 138. One expert estimates the cost of treating alcoholism to be approximately $5,000 for each person and the cost of replacing a middle manager to be more than $20,000. /d. at 49. 139. Ramapo Cent. School Dist. v. Beverly Dunnigan, N.Y.S. Ed. Dept. (1983).

98

Incompetence and Inefficiency conventional sense and remain otherwise unaware and uncompassionate. There is, of course, a limit to the tolerance that may be imposed upon a district for an alcoholic teacher when that tolerance has been reasonably exercised and the teacher [is] nevertheless found to be beyond help. An effort in that direction was not made here.t4o

In another case involving a teacher with a mental disorder, the panel found a disciplinary proceeding "particularly unsuited and inadequate for dealing with disability problems" since discipline is for culpable misconduct and is unwarranted in situations in which, through no fault of the teacher, an illness detrimentally affects job performance. 141 Another panel agreed that Section 3020-A is indeed a poor statutory vehicle for use in cases where a teacher is thought to be mentally incompetent and unfit to continue teaching. It is a complete misperception of public policy to design a statute which inflicts a "penalty" or punishment upon a teacher who has no control whatever over the involuntary functions of the human mind. Certainly, no teacher wills to be mentally unfit. How, for example, the purpose of Section 3020-A is fulfilled by imposing a "fine" or a "reprimand" upon a teacher found to be incompetent by reason of a mental condition suggests in itself a legislative aberration which requires review. Certainly, Section 3020A does authorize a Panel to recommend such penalties and their effect in cases of mental incompetence may be comparable to King Canute's shouting commands at the sea in an attempt to stop the tides. 142 Although the commissioner of education regards fines for "temporary illness" to be "completely inappropriate 140. /d. at 17, 28-29, 30. 141. Board of Educ. of Vestal Cent. School Dist. v. Shirley Bingaman, N.Y.S. Ed. Dept. at 4, 6 (1979). 142. Amityville Union Free School Dist. v. Norman Wilken, N.Y.S. Ed. Dept. at 37-38 (1984).

Incompetence and Inefficiency

99

and illogical," the commissioner has held that "illness may, in a proper case, justify termination of a teacher's employment." 143 Certainly a school district may justifiably terminate a teacher unable to teach because of some irremediable physical or mental disability. Some experts hold alcoholics personally accountable for their condition "in a way that they would not hold diabetics or cardiac patients accountable." Nonetheless, they advise that "to be truly 'corrective' disciplinary penalties should be coupled with opportunities to recover." Experts also recommend that discharge not occur until a systematic and sufficient effort has been made to resolve the problems underlying the unacceptable behavior and that the alcoholic not be reinstated to his or her job unless constructive remedial efforts have been made to deal with the employee's alcoholism. 144 The commissioner of education, of course, imposes no remedial obligation on school districts and considers alcoholism narrowly as at most a mitigating factor in assessing the penalty to be imposed and, even then, only "where it is shown that the manifestations of the disease are the primary cause of the behavior supporting the charges." 145 Rather than requiring school districts to make reasonable efforts to assist teachers whose various physical and emotional disabilities have detrimentally affected their classroom performance, the commissioner and many panels have put the burden on teachers to prove that their problems will not recur. Many panels require, in effect, a guarantee of nonrecurrence and resolve doubts about recovery against the teacher. In one case, for example, the panel rejected the positive 143. Matter of Board of Educ. of Bellmore-Merrick Cent. High School Dist., 22 Ed. Dept. Rep. 658, 661 (1983). 144. T. SCHNEIDER DENENBERG & R.V. DENENBERG, ALCOHOL AND DRUGS 2, 143-44 (BNA, 1983). 145. Matter of Board of Educ. of Ramapo Cent. School Dist., 23 Ed. Dept. Rep. 77, 79 (1983).

100 Incompetence and Inefficiency prognosis of the teacher's psychiatrist because "not even the [teacher's] own psychiatrist can assure that a future reoccurrence of a serious mental disorder is not possible." The panel added: "If the stress of teaching were to surface in the [teacher] again," both the teacher and his students would "suffer a genuine tragedy." 146 Demanding conclusive evidence that a teacher is "cured" as a condition for reinstatement to the classroom is, in most cases, unrealistic and therefore unfair. That requirement discriminates against teachers with certain diseases and disabilities. There is no cure for alcoholism, for example, yet, with proper treatment, alcoholics can be productive employees. Concern for the well-being of students is the overriding concern in decisions in which, as the commissioner puts it, "termination . . . would not be to punish the teacher but rather to ensure that pupils are not adversely affected by educational disruption." 147 Rather than being a rationale for discharge without efforts at rehabilitation, however, concern for the welfare and education of children should be a major reason for attempting to rehabilitate experienced and capable teachers-particularly those whose performance has declined because of their illness. A legitimate concern for students' welfare is satisfied by persuasive expert evidence that a teacher's physical or mental illness or disability has been or is being treated and has been brought under control. Response to treatment and control rather than "dubious assurances of total recovery" 148 should be the controlling considerations in determining a teacher's ability to perform satisfactorily in a classroom. 146. Mamaroneck School Dist. v. Fitzpatrick, supra note 66, at 26. 14 7. Board of Educ. of Bellmore-Merrick Cent. High School Dist., supra note 143, at 661. 148. Schneider Denenberg & Denenberg, supra note 144, at 52.

Incompetence and Inefficiency 101

Despite the opinions of medical experts, the ultimate outcome of rehabilitation and treatment "cannot be known without reinstatement and resumption of teaching responsibilities under monitoring." 149 The chance of a mistake is lessened substantially not only by the presentation of pertinent expert testimony and documentation but also by the exercise of the statutory authority of school districts to require teachers to take medical examinations. In a case in which the majority of a panel discharged a "manic depressive" teacher on the unexplained and unsubstantiated conclusion that the prospect for recovery was "bleak," a dissenter proposed a practical and fair approach that protected the rights of the teacher, school district, and students: when it is established that a teacher is suffering from a treatable "medical problem" and can become an effective and capable teacher once again by following a prescribed treatment program, "rather than terminate his services," the board of education "should simply suspend the [teacher] for a period of time to allow him to take his medication, work with his physician and monitor the effectiveness of the treatment." After the period of suspension and rehabilitation, the district would return the teacher to "active service" on the basis of competent medical evidence concerning the teacher's progress and readiness to teach. 150 All panels have been denied the authority to order remediation by a judicial interpretation intended, ironically, to favor teachers against whom a penalty is to be imposed. New York courts have "strictly construed" subdivision 4 of section 3020-a, which provides that a penalty "shall consist of a reprimand, a fine, suspension for 149. Ramapo Cent. School Dist. v. Dunnigan, supra note 139, at 28. 150. East Ramapo Cent. School Dist. v. Ronald Kaczala, N.Y.S. Ed. Dept. at 24, dissenting op. at 3 (1985).

102 Incompetence and Inefficiency a fixed period of time without pay or dismissal," to mean that a panel is empowered to choose only one of the statutorily specified penalties and may not impose multiple or "cumulative" penalties. 151 That interpretation drastically restricts a panel's authority to fashion a remedy most suitable to the facts and circumstances of a particular case. Because remediation is not mentioned in the penalty section of the statute, for example, panels have no authority to order it. Several panels have complained that they had no alternative but to discharge teachers or to impose lesser but still inappropriate penalties because the statute did not permit them to order a leave of absence and a subsequent fitness examination, or "to require appropriate professional help which might assist the teacher in regaining a level of [prior] performance," or to order a reassignment. 152 As one panel expressed it, "Were it within the Panel's authority to recommend penalties other than those contained in the statute, it would do so; but under the limited number of penalties the Panel may impose, the evidence requires a finding in support of the ... penalty of termination." 153 Rather than order school districts and teachers to cooperate in remediation efforts, some panels have "recommended" that suspended teachers take certain steps on their own to improve their teaching performance. One panel, for example, "strongly suggested" that a 151. Adrian v. Board of Education of E. Ramapo Cent. School Dist., 60 A.D.2d 840, 400 N.Y.S.2d 570, 570-71 (1978). Board of Educ. of Three Village Cent. Schools of Brookhaven and Smithtown v. Ambach, 84 A.D.2d 55, 58 (1981). 152. Community School Dist. 26 v. Rosenfeld, supra note 70, at 35; Hauppauge Union Free School Dist. v. Harrison Swike, N.Y.S. Ed. Dept., dissenting op. at 430 (1978); Rochester School Dist. v. Kleopfer, supra note 118, at 8. 153. New York City Board ofEduc. v. Mongitore, supra note 131, at 28.

Incompetence and Inefficiency 103

teacher improve his competence by "us[ing] the period of his suspension to take additional education courses, do appropriate reading and observe effective classroom management and techniques." 154 Using a different approach, a panel that imposed a $4,000 fine on a teacher it found incompetent in grading Regents examination essays gave the teacher an inducement to "work off the fine" by reducing the amount "by a sum of money which [the teacher] expends on educational programs/courses approved in advance by the Superintendent of Schools." 155 Another panel used a more coercive approach by warning that, if a teacher failed to heed the panel's recommendation "to engage in a course of therapy which should enable her to return to her ... former level of competence," it would "likely result in the preference of additional charges shortly after her return to work." 156 One panel did detail a school district's responsibilities in the form of "additional recommendations" in a case in which it had found evidence of incompetence in the high failure rates of a teacher's students on Regents examinations. The panel stated in its opinion: The suggestions are not to be viewed as all inclusive but rather as an indication of some of the strategies that should be employed in a program of intensive assistance. [The teacher] should work with the District in developing and implementing a plan for self assessment. The District in turn should provide [the teacher] with opportunities to observe teachers using a variety of instructional strategies. At periodic intervals, there ought to be administrative review of a series of his lessons. [The teacher] should then be engaged with appropriate administrators 154. Poland Cent. School Dist. v. Faville, supra note 50, at 28. 155. Northport-E. Northport School Dist. v. Herwerth,supra note 16, at 34. 156. Board ofEduc. of Monroe-Woodbury School Dist.,supra note 73, at 37.

104 Incompetence and Inefficiency to cooperatively plan for meeting instructional goals. Particular attention needs to be given to development of techniques for imparting skills necessary to writing successful essay questions. [The teacher] should be afforded the opportunity to attend an appropriate staff development course in essay writing as determined by the District. The implementation of these recommendations will require a significant degree of cooperation by the District but the panel assumes that such support will be forthcoming. 157

These recommendations make good sense because they are intended to improve the teacher's performance and thereby improve the quality of education available to students. It makes no sense to deny panels the authority to order such remedies when appropriate.

Need for a Positive, Cooperative Approach

Achieving and maintaining excellence in teaching should be the primary objective of school administrators and teachers. To reach this goal requires a positive, cooperative approach that emphasizes staff development and improvement, not a negative, confrontational, faultfinding approach that places sole responsibility for remediation on poorly performing teachers and is preoccupied with building a case for discipline or discharge. Unfortunately, the negative approach predominates in 3020-a incompetency cases. Denying panels the authority to order remediation further impedes the pursuit of excellence in teaching. Moreover, insufficient consideration has been given to identifying those teaching behaviors that raise stu157. Board of Educ. of Elmira School Dist. v. Henderson, supra note 95, at 8-9 (emphasis in original).

Incompetence and Inefficiency 105

dents' achievement and the situations in which such improvement takes place. Valid and reliable measures for determining whether teachers are meeting whatever criteria are chosen to define effective teaching have also been seriously lacking. Without reasonable criteria, adequate measures, and competent evaluators, teaching performance simply cannot be fairly assessed, because unsubstantiated judgmental statements and opinions will be controlling. Insofar as no one currently available evaluation technique is completely satisfactory, multiple measures and multiple evaluators should be used in rating teachers' performance. Despite the central place of teaching performance in the learning process and the long-held popular view that incompetence in the teaching profession is a serious problem, an analysis of 3020-a incompetency cases reveals an appalling lack of empirical evidence and expertise on the part of panels, the commissioner of education, administrators, and teachers concerning what constitutes good teaching, how to measure it, and how to identify and remedy poor teaching performance. These problems must be resolved before effective teacher-development programs can be designed and implemented, truly incompetent teachers who fail to improve can be dismissed, and competent teachers can be protected from arbitrary and unfair dismissal.

Conclusion

A recent report by the Congressional Budget Office, prepared at the request of the Senate Subcommittee on Education, Arts, and Humanities, concluded that the reasons for changes in student achievement were many, noneducational as well as educational, complex, and largely unknown. 1 There is no proof, moreover, that students are learning more or better as a consequence of four years of educational reforms across the country. 2 All the national reports on education call for "excellence" but avoid explicit identification and discussion of the underlying values and assumptions on which their particular definitions and practical applications are based. Nonetheless, these values and assumptions orient people's approaches to problems and influence their analysis and choices of solutions. Each of the national reports on education contains these unstated value judgments about the purpose of education-which goals ought to be set for teachers, administrators, and learners; the basic ed1. Fiske, Report Warns School Reforms May Fall Short, N.Y. Times, Aug. 24, 1987, at A.l. 2. Reinhold, School Reform: Four Years of Tumult, Mixed Results, N.Y. Times, Aug. 10, 1987, at A.l.

Conclusion 107

ucation and skills people need; and the structure of schools-as well as statements on the relationship and responsibility of the federal government to the schools and on the growing collaboration between business and education. There must be no rush to action until those unstated value judgments, beliefs, and assumptions are made explicit and are thoroughly discussed and evaluated and alternative values and related solutions are explored.3 Critics charged that some of the new programs were poorly conceived because they were designed to appeal to politicians and businesspeople and lacked practical relevance to the classroom. Many ideas at the center of reform, such as merit pay for superior teachers, were conceived in the business world and their applicability to the schoolhouse remains unproved. The current commissioner of education in Tennessee characterized the recent changes as "a top-down movement that was part of a political process." In the opinion of many experts, the school reform movement "has been handicapped by too much emphasis on politics and not enough on learning":4 From the beginning many educational analysts say the state measures were handicapped because they were imposed from above by politicians in league with the business community. Those expected to carry out the 3. One author, for example, discusses alternative values in the context of the report ANation at Risk, which "continually recommends the attitudes of challenge and of having high expectations. But these are not the only valuable attitudes teachers or schools can take toward students. Like the rest of us, students also need compassion and sympathy. Sometimes they need to be left alone, and allowed to make their own choices. And students very often need to be heard and understood. They need to be known." Hawes, Probing the Education Reports, 29

HARV. GRAD.

ScH.

OF

Eouc. A. BuLL. 6 (1984).

4. Reinhold, supra note 2, at A.l4.

108 Conclusion changes-the teachers and the principals-had little say or stake and often resented them as punitive. 5 Consequently, there is talk of a second wave of reform "focusing more directly on how children learn and teachers teach." 6 Although it is deplorable that national education reform was undertaken without the systematic involvement of teachers and school administrators, simply including them in the policy-making aspect of educational reform is not enough. Ideally, teachers and administrators will bring vital empirical evidence from schools and classrooms to this process of policy making. Although value judgments will always influence choices from among policy alternatives, fairness as well as efficiency require that there be a substantial empirical basis for whatever policy is chosen. As this study demonstrates, however, empirical evidence is clearly lacking concerning the most fundamental aspects of teaching and learning. There is no agreement within the teaching profession as to what constitutes good teaching. Yet nothing is more fundamental, because any educational policy must incorporate at least an implicit definition of good teaching and the objectives of education; "all the rest is built on sand unless we get [this] first step right." 7 This analysis of 3020-a decisions shows, for example, that without empirical evidence concerning the effect of different teaching styles on students' learning, decisions have been made on the basis of personal opinion, personal moral views, unsubstantiated assumptions, and parental and community pressure. Although standards of teaching against which to judge 5. Id. 6. Id. 7. M. Scriven, Teacher Personnel Policies: Equity, Validity and Productivity 4, Paper presented at the Midwest Policy Seminar, Urban Education Program, CEMREL, St. Louis (Oct. 15-17, 1980).

Conclusion 109 an individual teacher's behavior have not been available, recent studies offer some hope that research in effective teaching is beginning to offer "valuable clues to the teacher behaviors that promote student achievement": 8 performance standards concentrating on teacher-input factors are beginning to emerge from the research on teacher effectiveness. Unlike the situation of just a few years ago, when virtually everyone despaired of ever finding causal relationships between teacher behaviors and student learning, certain teaching behaviors can now be described and empirically validated as being effective, while their reverse can be similarly described and validated as being ineffective. Thus, abstract performance standards for teachers are beginning to emerge. Further, their behavioral qualities make them easily presentable as skills that can be taught quite independent of personality, philosophical, and other qualitative predispositions of both teachers and supervisors. . .. teaching behaviors cannot now and never will be identified that are 100% predictive of teacher success. Instead, the thrust is toward constructing comprehensive lists of effective teaching behaviors which constitute the repertoire from which successful teachers select teaching strategies at any given moment. 9

This research certainly did not show up in the cases analyzed in this study. Outcomes in these cases were determined by unsophisticated and unsubstantiated assumptions about teachers as role models and the presumed effects of role models on learning-usually without any empirical evidence to establish a nexus be8. E. BRIDGES & B. GROVES, MANAGING THE INCOMPETENT TEACHER 17 (Eric Clearinghouse on Educational Management, U. of Oregon, 1984). 9. D. CLEAR & J. Box, justiciable Performance Standard for Discharging Incompetent Teachers, in ScHOOL LAw UPDATE 227, 231 (T. Jones & D. Semler eds., National Organ. on Legal Problems of Educ., Topeka, Kans., 1985).

110 Conclusion tween teachers' behavior (or misbehavior) and students' learning. Valid and reliable objective measures of teacher competence were also lacking, as were demonstrable connections between what was chosen to be measured and evaluated and teacher competence and student achievement. (Nor was any effort made to compensate for the weaknesses in each measure of teacher competence by using multiple measures such as many different supervisory evaluations, peer evaluations, self-evaluations, student test results, and even student evaluations.) Further, no evidence was introduced in any of these local-level cases concerning the purpose or objectives of education. In sum, the classrooms and schools studied here did not provide the vital empirical evidence needed to inform educational policy making. It appears that values, unsubstantiated assumptions, and personal preferences control reform planning not only on the national level but also on the grass-roots level in the daily operation of the schools, the assessment of teachers' performance, and the disciplining of teachers. This study has demonstrated that decision makers' conceptions of the way things ought to be and beliefs about the way things presumably are-unchecked and unverified by empirical evidence about the way things actually are-often lead to unjust decisions about teachers' conduct and performance and to outcomes that are detrimental to teaching and learning. Injustice and inefficiency will persist as long as policy makers and decision makers operate without sufficient evidence. Just and productive educational reform can occur only after a national commitment to research produces substantial and reliable evidence concerning the nexus between teacher and teaching behavior and student learning and provides the basis for valid, reliable, and empirically derived measures for assessing teaching performance. Then the work and results of education can be more

Conclusion Ill

objectively assessed, corrective approaches more likely to succeed can be designed and corrective actions taken, and improvement can be more definitely determined. This study has revealed the serious inequities that result when decision makers operate without objective standards or reliable evidence concerning the educational consequences of various teacher behaviors both in and out of the classroom. Of course, educational reform involves matters of productivity and performance as well as equity, and the objective should be to maximize learning and teacher effectiveness in ways consistent with justice and equity for teachers, students, and administrators. (Dismissing allegedly incompetent teachers, for example, without attempts at remediation is not only inequitable given, among other things, their years of satisfactory service but also inefficient in that they can be let go without knowing if they could have been rehabilitated. If role modeling is occurring, moreover, it teaches students the harsh fact that even physically or mentally disabled teachers can be fired without any effort to help them.) This study could be read as recommending changes that will further retard educational achievement by making it more difficult to dismiss incompetent and immoral teachers. On the contrary, by demonstrating that the unfairness of the present disciplinary system is caused by the same lack of evidence about teaching and learning that prevents equitable and productive educational reform from taking place, it should spark an all-out effort to acquire the evidence needed to determine what constitutes good teaching and how to achieve and measure it. Recognizing that teachers are professionals and supervising them on the basis of empirical evidence rather than unsubstantiated personal values, preferences, and assumptions-in other words, treating them fairly, with respect and compassion-is much more likely to evoke their loyalty and best efforts in return.

Appendix

3020-a Cases by Charge, 1977-87

%

Number of Cases

of Total

Conduct unbecoming a teacher Incompetency and inefficiency Lack of certification Insubordination Neglect of duty

191 69 7 55 85

50 18 2 14 22

Total*

383

* Because 3020-a cases may involve multiple charges, the total number of cases in each category, when summed, will be greater than the total number of cases, 383.

Appendix 11 7

Appeals of Commissioner of Education Decisions, 1977-87 Conduct Unbecoming a Teacher No. Sustained penalty Increased penalty Decreased penalty Remanded decision

45 28 1 2

Total

76

Incompetency and Inefficiency

%

No.

%

59

3

12 13 0 0

48 52 0 0

100

25

100

37

1

Who Appealed 3020-a Decisions, 1977-87

School district Teacher

Number

Percentage

89 12

88 12

101

100

Index

Commissioner of education (New York) appeals of panel decisions to, 8-9, 117, 118 authority under 3020-a, 6-9 definition of incompetence, 54 lesson plans, importance of, 62n.25 nexus test narrowed by, 34-38 on evaluator bias, 73 on remediation, 91-93, 99 student test scores, importance of, 84 Conduct unbecoming a teacher case statistics, lln.3, 113, 116 court decisions concerning, 10-11, 24n.45, 26-28, 33-44 criminal convictions, effect of, 34-44 job relatedness, importance of, 28-30 meaning of, 10-13, 26-44 off-duty misconduct, 28, 33-44

Educational process analytical education, 44-50 court decisions concerning, 46 national reports on, 1-2, 106-8 prescriptive education, 44-50 purpose of, 44-50, 106-11 Evaluation process biases in, 69-7 4 classroom evaluations, number and duration of, 75-76 disciplinary referrals, 76-79 multiple measures, 83-84, 87, 105, IIO need for objective standards, 73-74, 80, 104-5, 108 parents' complaints, 65n.34 peer evaluations, 65n.34 reliability of, 65 remediation, combined with, 88-90 self-evaluations, 65n.34 student performance on tests, 65, 80-85

120 Index student ratings of teachers, 65n.34 supervisory ratings, 65n.34, 66-76 teacher competency tests, 85-87 team evaluations, 68-69 validity of, 65 Expert testimony concerning off-duty misconduct, 38-41 concerning physical or emotional illness, 100-101 school administrators as, 39-41 Incompetence case statistics, 54, 113, 116 court decisions concerning, 55, 58n.l7 meaning of, 53-55, 95, 101-4, 108 measuring, 53, 59-65 need for objective standards, 52-53, 55-59, 73-74, 80, 104-5 need for remediation attempts to determine, 95 Inefficiency definition of, 53-54 Measuring teacher performance. See also Evaluation process evaluation systems and criteria, 59-60, 65-87 housekeeping, 60-61 lesson plans, 61-64 multiple measures, 83-84 teaching effectiveness, research on, 58-59 Morals, 50-51

New York State Education Law Section 3012, categories of offenses, 4, 53 Section 3020-a, 3-4, 6-9, 17, 101-4 Remedial assistance, 87-105 advantages of, 87-88 elements of, 89-90 for emotional or physical problems, 96-101 evaluation and staff development, combination of, 88-91 as evidence of competence, 95 obligation to provide, 5, 55, 91-93 panels denied authority to order, 101-4 penalty-oriented approach, 88-90, 104-5 refusal to comply with, 96 Role modeling absence of empirical evidence regarding, 22, 23-25, 3940 commissioner of education regarding, 23-24, 34-38 as standard of discipline, 5, 18-25, 28-31, 33-44, 50-51 Supreme Court assertions on, 24n.45 Role models parents as, 20 peers and others as, 20 selection and effect of, 1922 students' perceptions of, 22 teachers as, 20-22, 25

Index 121 Standards, educational deficiencies in, 55-58 need for objective standards, 52-53,55-60,73-74,80, 108-ll research on teaching effectiveness, 58-59 vagueness of, 13-18, 23-25 Tenure laws, dismissal and nonrenewal, 2-4

Values influence on discipline decisions, 2-3, 23, 26, 31, 37-38, 50-51,69, 110 and prescriptive education, 45-50

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