Determining the availability of Jarema credit for the purposes of attaining tenure
2015 NY Slip Op 04847, Appellate Division, Second Department
Pursuant to Education Law §3012(1)(a), teachers were appointed for a probationary period of three years.*However, in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years and has been appointed to teach the same subject on an annual salary, the probationary period is limited to one year. Although service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher, a substitute teacher's three-year probationary period can be reduced to one year through so-called "Jarema" credit, so named for the sponsor of the bill that provided for this calculation of credit.**
A certified teacher [Petitioner] in elementary education and special education was employed by the School District as a permanent substitute teacher in a general education kindergarten class during the 2008-2009 school year. She subsequently taught as a probationary special education teacher during the 2009-2010, 2010-2011, and 2011-2012 school years in first and fourth grade integrated co-teaching classes.
On May 22, 2012, based on the recommendation of the Superintendent of Schools, the School District’s Board of Education terminated Petitioner's employment without a hearing effective June 22, 2012. Petitioner, contending that she had attained tenure by estoppel and thus could not be terminated without a hearing, commenced a CPLR Article 78 proceeding in the nature of mandamus seeking a judgment compelling her reinstatement as a tenured teacher by the School District with back pay.
The Supreme Court denied the petition and dismissed the proceeding, concluding that the Petitioner did not establish that she had acquired tenure by estoppel and thus was not entitled to a hearing before her employment could be terminated. As to attaining tenure by estoppel, in McManus v Board of Education, Hempstead UFSD, 87 NY2 183, the Court of Appeals held that "Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."
The Appellate Division said that Supreme Court properly concluded that Petitioner did not acquire tenure by estoppel,*** explaining:
1. Petitioner did not acquire tenure by estoppel in the special education tenure area, as the Petitioner did not teach in that area for a period of time exceeding the three-year probationary period required for gaining tenure.
2. Probationer was not entitled to Jarema credit for the additional year she taught general-education kindergarten, as such service was not in the same "subject" area as special education.
3. Petitioner failed to establish that she acquired tenure by estoppel in the elementary education tenure subject area as during the 2009-2010, 2010-2011, and 2011-2012 school years, Petitioner was employed as a probationer in the special education tenure subject area, not the elementary tenure subject area and she taught as a special education teacher in co-teaching classrooms along with general education teachers.
4. Petitioner failed to establish that she devoted at least 40% of her time to teaching elementary education in the co-teaching classes, as opposed to teaching special education in those classes.
Thus, said the Appellate Division, the record does not support Petitioner’s contention that she was entitled to tenure by estoppel as an elementary education teacher.
* See http://publicpersonnellaw.blogspot.com/2015/04/amendments-to-education-law-included-in.htmland http://publicpersonnellaw.blogspot.com/2015/07/education-department-posts-proposed.htmlfor recent amendments to tenure requirements.
** Jarema credit cannot exceed two years and the service as a substitute teacher must be continuous for at least one school term.
*** “Tenure by estoppel” is sometimes referred to as “tenure by acquisition,” “tenure by default,” or “tenure by inaction.”
The decision is posted on the Internet at: