State-imposed school superintendent Cami Anderson was handed a stunning legal blow yesterday with the release of an arbitrator’s decision demanding the reinstatement of a widely respected teacher whose only apparent flaw was opposition to Anderson’s policies. Neil Thomas, the father of former student school board member Jordan Thomas, must now get his job and pay and benefits back. He had been suspended since September.
“I have to admit, I cried when my lawyer told me the news,” said Thomas, 51, a former Newark police officer who is widely known throughout the district as a leading science teacher. He also was known as someone willing to testify on behalf of other teachers caught up in Anderson’s apparent relentless campaign against experienced, professional and independent teachers.
The decision by arbitrator Robert Simmelkjaer represents a major victory for Newark teachers and the Newark Teachers Union (NTU) which has been under siege for months in the face of at least a score of cases involving tenure charges against senior teachers. John Abeigon, the NTU’s director of organization, called on state education officials to stop Anderson from filing tenure charges based on faulty interpretations of the new tenure law.
“They are spending huge chunks of money on outside legal firms pursuing a flawed legal strategy that is losing,” said Abeigon. He said the money spent on the law firms to pursue tenure charges against teachers on flimsy grounds “would much better be used providing drug counselors and attendance counselors so the children of Newark aren’t dying in the streets.”
The Thomas case was the third major arbitration case won against Anderson in the last few weeks but what makes it sweeter for her critics is a back story that includes the courageous decision by Neil’s son–Jordan Thomas–to criticize state control of Newark schools while he was a member of the Newark school board. It also includes a man–Thomas–with an unblemished record of 12 years before he became a target of Anderson’s ire. Finally, that back story also includes evidence of connivance on the part of state officials in trying to rewrite state policy on teacher tenure evaluations to help Anderson.
As in the recent unsuccessful case against Sandra Cheatham, a 40-year veteran of the Newark schools, Anderson tried to fire Thomas based on a bizarre interpretation of the law that attempted to mash together two different statutes and two different provisions of the same law.
The 52-page decision is technical and densely written but at its core is the question of whether Anderson could use the new teacher tenure law–the so-called TEACHNJ Act–to fire a teacher using evaluations conducted before the law and its implementing regulations took full, legal effect.
The law requires that teachers be brought up on tenure charges if they receive two annual evaluations of either partially effective or ineffective. Anderson contended that, for Newark, the first year of the law’s effectiveness was 2012-2013. Thomas was given two less-than-effective annual ratings for 2012-2013 and 2013-2014–but he contended the law had not yet gone into full effect. The arbitrator sided with Thomas and wrote:
The arbitrator wrote:
“A plain reading of the statute indicates that the Legislature intended the 2012-13 school year to serve as a pilot year wherein school districts ‘test[ed] and refin[ed] their evaluation rubrics’ in preparation for full implementation in 2013-14. Although the District got a head start in developing its rubric in 2011-12, obtained the Commissioner’s approval of its rubric in October 2012, and apparently deemed the testing it conducted during this ‘pilot’ year sufficient to obviate a ‘second pilot,’ the Arbitrator finds that the NPS pilot, while educationally useful, was insufficient for the purpose of commencing teacher evaluations comparable to those subsequently conducted under TEACHNJ or for filing inefficiency charges in 2012-13. Although the District’s reliance on its 2011-12 pilot for various educational purposes is not subject to challenge, despite the fact that the NPS pilot only involved seven schools (approximately 10% of the Newark School enrollment), this preliminary pilot activity on the District’s part cannot supplant the statutory scheme that designated 2012-13 as the pilot year for New Jersey school districts and 2013-14 as the implementation year, particularly for the filing of inefficiency charges based on two consecutive years of ‘ineffective’ or ‘partially effective’ ratings.
In short, Anderson could not use the new law’s streamlined provisions to fire Thomas–who, until last year, had never had an unsatisfactory evaluation.
The decision contained a lot more–an insistence, for example, that all the detailed provisions for supporting teachers be utilized before they can be brought up on tenure charges. And a ruling that arbitrators do, in fact, have the power to decide the sufficiency of cases against teachers even before hearings.
Simmelkjaer also shot down a contention by Anderson that the so-called “merit-pay” provisions of the NTU contract with the district was evidence that the new system was really in effect two years ago.
“It constitutes a quantum leap on the District’s part to equate the movement of teachers on the salary scale based on its new evaluation system as tantamount to the Respondent’s waiver of his statutory rights under TEACHNJ,” he wrote. And he also ruled any effort to fire teachers without providing them with the support demanded in the law deprives them of “due process.”
The arbitrator also raised serious questions about the apparent effort by top officials of the state education department–possibly including David Hespe, the commissioner–to tilt the decision in favor of Anderson. The department had posted materials indicating school districts could not use evaluations in 2012-2013 to make tenure decisions. Mysteriously, after Anderson started bringing tenure charges against experienced teachers, that guidance was removed. Then Peter Shulman, Hespe’s chief of staff, wrote a letter saying that, well, no, the department’s earlier advice didn’t really mean what it said–it only had to do with the granting, not the revocation, of tenure.
Simmelkjaer called Shulman’s sleazy letter “problematic and inconsistent with previous communications from NJDOE.”
Problematic–as in: How can the state act as a neutral tribunal in tenure cases when it acts so blatantly as if it were trying to help Anderson win her cases? That’s like being tried by the prosecution without a judge. Still, the arbitrator’s decision makes it nice to know Chris Christie’s Republic of Fear doesn’t own everyone in the state.
Thomas said he looks forward to going back to school–and getting the back pay he lost while on suspension. But, he said, he will never go back to the Lafayette Street School where he worked as a science teacher.
“The principal there has wanted me out and retaliated against me for my support of other teachers,” said Thomas, who said he brought a federal discrimination complaint against the principal, Maria Merlo.
Thomas, a lifelong Newark resident, and his wife Mari have three sons. Jordan, their youngest, is a Princeton freshman.