A recent article in the Daily News, reporting on the dismissal of a Teaching Fellow from Global Enterprise Academy in the Bronx, highlighted the alleged basis for his dismissal but missed an important issue involving the future of unassigned Teaching Fellows. ESL teacher Steven Clarke, the News noted, was terminated for alleged verbal abuse. A closer look at the decision reveals a disturbing finding concerning the legal status of these teachers.
When Mr. Clarke was terminated he was an unassigned teacher who was hired for the 2007-2008 school year. The Court found "that Clarke was employed as a teaching fellow in the New York City Teaching Fellow 2007 program, an alternative means by which individuals who are not certified teaclicrs may become certified. The program pairs a teaching fellow with an experienced teacher during summer school. After the summer, fellows are expected to secure a regular teaching position on their own, failing which they are placed in a "teacher reserve pool" where they may be assigned to assist or substitute for regular teachers. Clarke had until November 10, 2007 to obtain a teaching appointment or be automatically dropped from the program."
Clarke's NYSUT lawyer argued that he was entitled to reinstatement since he was a probationary employee who was illegally terminated. The illegal termination, she argued, was based on the statutory requirement that Superintendant's and not the principal dismiss probationary teachers and that Clarke was entitled, by law, to 30 days notice.
The DOE argued that while it is true that probationary employees must be dismissed by a Superintendant and are entitled to 30 days notice it is not true that Clarke was a probationary employee. They argued that Clarke was, in fact, a provisional employee.
In Civil Service Law there is a marked difference between probationary and provisional employees. While probationers have few rights provisional employees have no rights to employment. They may be hired and dismissed "at-will," entitled to no civil service protection whatsoever.
Justice Shafer in Clarke v. Board of Education sided with the DOE finding that Clarke was a provisional employee entitled to no notice or dismissal from a superintendant. She found that Clarke had never been appointed. Only appointed teachers can become probationary. Since Clarke was terminated "automatically" at the end of the fellow's program he has no legal recourse and his petition was dismissed.