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Tenure Commission Issues Decision Explaining and Applying "Not Arbitrary or Capricious" Standard for Teacher Discipline

By Mark W. McInerney / Jun 08, 2012

Public Act 100 of 2011, enacted and effective July 19, 2011, changed the standard to be applied in the discipline of tenured teachers. The Act repealed the old "reasonable and just cause" standard, substituting a requirement that discipline not be "arbitrary or capricious." 

On May 31, 2012, the Tenure Commission issued its first decision applying this new standard, in a case in which Clark Hill was privileged to represent the prevailing school district. In a unanimous 38-page decision, the Commission upheld the discharge of a teacher, overruling an administrative law judge's conclusion that discharge was not appropriate. In the course of its opinion, the Commission provided both a definition of "arbitrary or capricious," and made it clear that that standard is to be used not only in evaluating the teacher's alleged misconduct but also in determining whether the consequences proposed by the local board are to be permitted.

The teacher was charged with and convicted of a drunk driving offense in 2010, and placed on probation requiring him to, among other things, refrain from consumption of alcohol or illegal drugs. He quickly violated his probation by consuming both alcohol and marijuana. A second probation violation, again for consuming alcohol and marijuana, was then charged in the spring of 2011. The teacher was offered the choice of jail time or an extension of his probation for one year. Even though school was in session, he chose the jail time and was sentenced to 30 days in jail, taking him out of the classroom for some 17 school days. Only after he went to jail did the District learn of his conviction and probation violations. The teacher initially misrepresented the reasons for his absence from school but eventually the truth was revealed.

After the teacher's release from jail, his suspension pending investigation for the last three weeks of school, and various discussions that did not yield a resolution, the  Board of Education in September 2011 - after the enactment of Public Act 100 - passed a discharge resolution.  

The ALJ initially concluded that Public Act 100 and the "not arbitrary or capricious" standard applied, despite the conduct all having occurred before the Act took effect, finding the statute to be remedial in nature and thus effective retrospectively. The ALJ then found in the District's favor upon nearly all the underlying facts. After doing so, however, the ALJ found that the "not arbitrary or capricious" standard applied only in determining whether conduct subject to discipline had occurred, but that the Commission retained discretion to alter the proposed level of discipline. The ALJ found the proposed discharge to be excessive and reduced the penalty to what amounted to a 20-day suspension.

The Commission granted the District's exceptions on the remedy issue, and denied the teacher's exceptions to the ALJ's factual conclusions. On the issue of the applicable standard, the Commission found that "not arbitrary or capricious" indeed governed but for a different reason than that relied on by the ALJ. The ALJ had adopted the standard based on his conclusion that the change in standard was remedial and that statutory changes that are remedial apply retrospectively. The Commission held that there was no issue of retrospective application present in the case because the standard in effect, when the tenure charges were filed and the Board decided to proceed on those charges, was the "not arbitrary or capricious" standard adopted by Public Act 100. Only when the charges were filed and approved did the teacher have any sort of "vested right" in a particular standard, and when that occurred, the standard in effect was the new one. 

The Commission determined that the burden of proof under the new standard remained with the District, despite the statutory adoption of a new standard that essentially requires a district to prove a negative, i.e., that its actions were "not arbitrary or capricious." The Commission concluded that placement of the burden on districts was well established, the new statute had not changed the allocation of the burden, and therefore the Legislature had not intended to remove the burden from districts.

The Commission also provided a definition of the new standard. A decision is arbitrary and capricious "if it is based on whim or caprice and not on considered, principled reasoning." While observing that this new standard is "highly deferential" to determinations of districts, the Commission's cautioned that its review is not a mere formality or a rubber stamp of a controlling board's decision. The Commission's responsibility, "is to review the quality and quantity of the evidence and to determine if the decision to discharge appellant is the result of a deliberate, principled reasoning process supported by evidence." Thus, "if there is a reasoned explanation for the decision, based on the evidence, the decision is not arbitrary or capricious."

While the ALJ had applied the "not arbitrary or capricious" standard to determine that the teacher had committed misconduct subject to discipline, but not to the evaluation of the consequences, the Commission held that the same standard applied to the determination of the appropriateness of the consequences of the teacher's misconduct. Thus, unlike in cases arising under the old standard, in which the Commission largely conducted an independent review of the consequences, the Commission will now be "highly deferential" to determinations of the local board. In the Commission's words, "our duty is not to fashion the penalty that we ourselves would prefer but to review the controlling board's decision for arbitrariness and capriciousness." In this case, the Commission found that the facts as found by the ALJ (and affirmed by the Commission) fully supported the Board's discharge determination.          

The Commission recognized the importance of this first decision under the new statute, and thus its 38-page opinion was carefully reasoned and written. It provides needed substance and context to the statutory changes adopted last summer, and will serve as the standard for Tenure Commission review of teacher discipline going forward.

If you have questions about these issues and how to respond to them, please contact your Clark Hill Education Law attorney.