Teachers’ Rights and 3020 Proceedings in New York

Feb. 21, 2012

While we often think of Title VII of the 1964 Civil Rights Act in connection with discrimination in the corporate workplace, it also protects teachers. In a recent discussion with Jeffrey Brown of the New York employment law firm of Leeds, Morelli & Brown, PC, we learned why Title VII is important for teachers targeted for disciplinary hearings.

Get Legal: Why is Title VII of the 1964 Civil Rights Act so important for teachers teaching today?

Jeffery Brown: Recently, we’ve seen a spate of 3020 hearings involving teachers whose effectiveness in the classroom is being questioned. When school officials believe a teacher’s performance is substandard or not up to par, a 3020 proceeding is held to determine if the teacher should be terminated. In a number of these kinds of cases, we’ve noticed that the 3020 hearing is used as a cover to essentially get rid of someone due to their race, age, religion, or sexual orientation – all reasons protected under Title VII.

Get Legal: So, these teachers – the ones you say are targeted for 3020 hearings – are actually doing a good job but someone in the school system wants to get rid of them? That sounds like a lot of work just to fire a teacher.

Jeffrey Brown: Well, you have to keep in mind that teachers have unions and there are certain rules and procedures that govern how, why, and when a teacher can be fired. There’s also the issue of tenure – if a teacher has tenure it’s not as simple as calling them into the office one day and telling them that the school doesn’t need them anymore.

The schools have lawyers and the schools want to avoid lawsuits. Before a teacher is let go you can bet district lawyers will review the case to determine if there’s any grounds for a lawsuit. However, problems for the schools arise when important facts start to enter the picture that weren’t shared with district lawyers or were simply ignored in the drive to get rid of a particular teacher.

Get Legal: Important facts – what do you mean? Facts about the teacher’s performance?

Jeffrey Brown: Sometimes it’s facts about a teacher’s performance, sometimes it’s hiring and firing decisions on the part of a school or school district and the patterns they reveal. At the 3020 hearing, a union rep will represent the teacher, allegations will be brought forth, and evidence considered. So, let’s say Mr. Warren, a 10th grade science teacher, is let go because of so-called evidence of incompetence in the classroom. The school fires Mr. Warren but Mr. Warren thinks he was sandbagged because he’s gay, Black, 60 years old, or suffers from multiple sclerosis. But, that’s not what the school fired him for – at least that’s not the official reason. The official reason is, Mr. Warren is supposedly incompetent in the classroom.

So, Mr. Warren comes to me, I look at the case and, if I believe there’s a good chance the 3020 hearing was simply a cover for a violation of Title VII, I file a lawsuit. Once the lawsuit is filed, all sorts of information must be made available through the process of discovery. I’ll ask to look at Mr. Warren’s past job performance reviews; I’ll compare the numbers of his students with those of other teachers in his school and the entire district; I’ll talk with the union rep to see if there was any problem with Mr. Warren in the past and if proper procedures were followed; I’ll see if others have had similar experiences; I’ll look at the hiring and firing records; I’ll look at the makeup of those given tenure or promoted. I’ll look at everything in order to uncover discrimination.

In other words, I look for patterns – patterns that are indicative of different treatment for similarly situated teachers or patterns of discrimination involving persons of a certain class. Since school officials who try to hide behind the 3020 hearing don’t always think far enough ahead to a lawsuit, they often have difficulty explaining away inconsistencies and contradictions that’s right there in the evidence staring them in the face.

Get Legal: What should teachers do if they think they’re being targeted for a 3020 hearing to justify firing them?

Jeffrey Brown: Ideally, they should do a couple of things. First, they need to document everything and keep copies of anything – and I mean ANYTHING – related to their job performance. Secondly, they need to talk to their union rep to make sure their rights are being protected. And lastly, if they really think they’re being set up to fail, they need to talk to me. As an experienced employment law attorney who has represented a number of teachers in these kinds of cases, I know how to properly document cases and protect our client’s rights and interests should a school district engage in discriminatory behavior.

Get Legal: Are there any government agencies that should be contacted? For instance, the EEOC?

Jeffrey Brown: If there’s a violation of the 1964 Civil Rights Act, the EEOC will eventually want to be involved. However, contacting them on your own can create certain immediate problems. For example, once the EEOC is notified, they’ll have to send a letter to an employer letting them know there is a potential case involving them. Typically, the employer will be required to fill out some paperwork and send it back to the EEOC. This tips off your employer regarding your case and could result in the destruction of important kinds of information or a manipulation of the facts that might undermine your case. At the very least, your access to certain documentation or sensitive areas in the workplace could be restricted, making it just that much more difficult to mount a defense later.

Get Legal: Is there any other advice you have for teachers that believe they’re being targeted?

Jeffrey Brown: One other important piece of advice – and this goes for anyone – be very careful what you do and say on social media. Websites like Facebook or any tweets you send may be recovered through discovery. That means if you bad-mouth your principle, fellow teachers, superintendent, or anyone else you could find your comments coming back to bite you.

In fact, here’s a simple rule of thumb I try to impress on people: in today’s world, there really isn’t anything that’s private anymore, at least not in terms of what we do on the Internet. Of course, that cuts both ways, right? For the school, we can recover emails or information stored on computers and help build a teacher’s case. For teachers, however, it means comments, pictures, or blogs out there in cyberspace can be used to paint an unfavorable picture of you. So, be careful what you do and say.

Get Legal: Thank you Mr. Brown.

Jeffrey Brown: No problem, thank you.