June 11, 2021 Amendments to the Education Law Concerning APPR, Probation and Tenure
KEEPING YOU INFORMED…
We are writing to inform you of a recent law signed by the Governor earlier this week that: (1) suspends the requirement for school districts and BOCES to conduct Annual Professional Performance Reviews (“APPR”); (2) changes the length of certain teachers’ probationary periods; and (3) alters what APPR ratings are required for an employee to be eligible for tenure. These Amendments were enacted to “align” the law with other changes that were made during the COVID-19 pandemic.
APPR Suspension
The Amendments provide that, for the 2020-2021 school year (only), school districts and BOCES are prohibited from conducting an APPR evaluation for any teacher or principal.[1] The Amendments explicitly provide that State funding will not be withheld from any district or BOCES for not conducting the evaluations.
There is no obligation to bargain with your teachers’ and/or administrators’ unions prior to suspending the implementation of APPR for the year, regardless of whether your APPR procedures are contained in a collective bargaining agreement (“CBA”) or a memorandum of agreement. However, upon request, school districts and BOCES must still negotiate about the impact, if any, of this change (e.g., the suspension of APPR evaluations may affect employees’ eligibility for step movement, promotional positions and/or differentials). Conversely, school districts and BOCES may also demand impact bargaining (e.g., regarding an alternative method to assess performance).
Further, school districts and BOCES must still follow any evaluation procedures provided in a CBA that are unrelated to the APPR statute. Therefore, the evaluation procedures for employees who were not otherwise covered by APPR requirements remain unchanged, as do any evaluation procedures that school districts and BOCES have in place for classroom teachers and building principals that are in addition to those required by State law.
Shortened Probationary Periods Based on a Prior Award of Tenure
for Classroom Teachers Appointed During the 2020-2021 School Year
Ordinarily, teachers are appointed for a four-year probationary period. However, teachers’ probationary periods can, in some circumstances, be shorter if they: (1) receive “Jarema” credit for regular substitute service prior to being appointed; or (2) previously were awarded tenure.[2]
The Amendments change the requirements for teachers appointed during the 2020-2021 school year, who previously were granted tenure, to obtain a shortened, three-year probationary period:
| Requirements for a Shortened Probationary Period Based on a Prior Award of Tenure | All Teachers, Except Those Appointed During the 2020-2021 School Year (No Changes to Current Law) | Teachers Appointed During the 2020-2021 School Year |
| Teacher May Not Have Been Terminated from the Prior Position (No Changes to Current Law) | Teachers must not have been terminated pursuant to Education Law § 3020-a or § 3020-b. | Teacher must not have been terminated pursuant to Education Law § 3020-a or § 3020-b. |
Previous APPR Rating (Only applicable to “Classroom Teachers”[3]) | School Districts: Teachers must have received an APPR rating in their final year of service in their previous position. | School Districts: Teachers must have received an APPR rating in their previous position in 2017-2018 or 2018-2019. |
| BOCES: Teachers must have received an APPR rating of “effective” or “highly effective” in their final year of service in their previous position. | BOCES: Teachers must have received an APPR rating of “effective” or “highly effective” in their previous position in 2017-2018 or 2018-2019. |
APPR Requirements for Obtaining Tenure
for Classroom Teachers and Building Principals
The Amendments also change the rules for classroom teachers and building principals to be eligible to be granted tenure:
| Requirement to be Eligible to be Granted Tenure | All Classroom Teachers and Building Principals, Except Those Appointed During the 2017-2018 through 2020-2021 School Years (No Changes to Current Law) | All Classroom Teachers and Building Principals Appointed During the 2017-2018, 2018-2019 and 2019-2020 School Years | All Classroom Teachers and Building Principals Appointed During the 2020-2021 School Year |
| “Effective” or “Highly Effective” Ratings | Classroom teachers and building principals must have received an APPR rating of “effective” or “highly effective” in at least three of the four preceding years. | Classroom teachers and building principals must have received an APPR rating of “effective” or “highly effective” in at least one of the four preceding years. | Classroom teachers and building principals must have received an APPR rating of “effective” or “highly effective” in at least two of the four preceding years |
| “Ineffective” Ratings | Classroom teachers and building principals must not have received an “ineffective” rating in the final year of their probationary period. | Classroom teachers and building principals must not have received an “ineffective” rating in the final year of their probationary period or during the most recent school year where an APPR rating was received. | Classroom teachers and building principals must not have received an “ineffective” rating in the final year of their probationary period or during the most recent school year where an APPR rating was received. |
If you have any questions regarding the Amendments or the impact of the changes on your evaluation or tenure-granting procedures, please contact Adam S. Ross (asr@lambbarnosky.com) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
[1] Specifically, the Law amends Education Law § 3012-d: “Notwithstanding any other provision of this section,” for the 2020-2021 school year, “no school district or [BOCES] shall complete an annual teacher and principal evaluation required by this section for any classroom teacher or building principal….”
[2] Pursuant to amendments to the Education Law adopted in October 2019, administrators appointed on or after July 1, 2020 are entitled to a shortened probationary period if they were previously granted tenure in an administrative tenure area. Unlike classroom teachers, however, there is no requirement that the administrators received an APPR rating.
[3] The term “classroom teacher” is to be distinguished from teachers generally. With certain exceptions, the State Education Department defines a “classroom teacher” as a teacher in the “classroom teaching service” who is “a teacher of record.”
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