The opinion
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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2196-16T1
FELICIA PUGLIESE,
Plaintiff-Appellant,
v.
STATE-OPERATED SCHOOL
DISTRICT OF THE CITY OF
NEWARK, ESSEX COUNTY,
Defendant-Respondent.
____________________________
Argued February 1, 2018 – Decided August 28, 2018
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
C-000215-16.
Richard A. Friedman argued the cause for
appellant (Zazzali, Fagella, Nowak, Kleinbaum
& Friedman, attorneys; Richard A. Friedman,
of counsel and on the briefs; Kaitlyn E.
Dunphy and Marissa A. McAleer, on the briefs).
Brenda C. Liss argued the cause for respondent
(Riker Danzig Scherer Hyland & Perretti, LLP,
attorneys; Brenda C. Liss, of counsel and on
the brief; Fiona E. Cousland, on the brief).
PER CURIAM
Plaintiff Felicia Pugliese appeals from the January 13, 2017
Chancery Division order, which confirmed a June 8, 2016 arbitration
award rendered pursuant to the Tenure Employees Hearing Law (TEHL),
N.J.S.A. 18A:6-10 to -18.1. The arbitrator found plaintiff
culpable of inefficiency and dismissed her from her position as a
tenured teacher with defendant State-Operated School District of
the City of Newark (District). We reverse.
I.
Pugliese was employed by the District from 2004 to 2013. She
has a Bachelor of Arts degree with a major in sociology and a
Master's Degree as a reading specialist. In 2006, the Department
of Education issued her a standard certificate stating she met the
requirements to serve as an elementary school teacher. She also
had an endorsement to teach "Language Arts Literacy (English,
Reading, Language Arts)," and satisfied the "highly qualified"
teacher definition under the No Child Left Behind Act of 2001
(NCLB), 20 U.S.C.A. §§ 6301 to 7941 to teach that subject. She
taught language arts and reading to small groups of elementary
school students for the 2004-2005 to 2009-2010 school years,
received "proficient" ratings for each school year, and acquired
tenure in this position.
2 A-2196-16T1
In the 2010-2011 and 2011-2012 school years, the District
reassigned Pugliese to teach large departmentalized "Social
Studies (Economics, History, Civics, Geography)" for fifth-
through eighth-grade middle school students. She had no social
studies or middle school social studies certificates,
endorsements, or authorizations,1 and did not satisfy the "highly
qualified" teacher definition under the NCLB or the New Jersey
High Objective Uniform Standard of Evaluation for General
Education and Special Education Teachers (HOUSE) to teach social
studies. As required by the NCLB, the District notified the
parents and guardians of Pugliese's students that she did not meet
the "highly qualified" requirement to teach social studies. 20
U.S.C.A. § 6312 (e)(1)(B).
For the school years 2010-2011 and 2011-2012, Pugliese
received ratings of "basic" and "unsatisfactory," respectively.
The negative issues identified in her evaluations included her
failure to design coherent instruction, engage students in
learning, and demonstrate knowledge of content and pedagogy.
On March 26, 2012, the District served Pugliese with a notice
of intent to file tenure charges against her for inefficiency.
The District also served her with a professional improvement plan
1
See N.J.A.C. 6A:9B-9.3(a)(6) (recodified at N.J.A.C. 6A:9-
9.2(a)(6)).
3 A-2196-16T1
(PIP), which allowed her ninety-days to correct and overcome the
inefficiency, as required by the terms of N.J.S.A. 18A:6-11 and
N.J.A.C. 6A:3-5.1(c)(4), then in effect. The ninety-day
correction period expired on June 25, 2012. Pugliese did not meet
with the principal on March 26, 2012 to discuss the charge and the
PIP because her union representative was not available. The
meeting occurred on March 29, 2012.
Pursuant to the PIP, a master social studies teacher was to
assist Pugliese throughout the ninety-day period. However, the
master teacher only assisted Pugliese on three occasions. The
District provided no master teacher or other remedial assistance
to Pugliese after May 9, 2012. Thus, Pugliese received no
assistance from the District for forty-seven of the ninety-day
correction period.
On July 23, 2012, the District served Pugliese with a post-
improvement period notice, charging her with inefficiency based
on her alleged failure to improve during the ninety-day correction
period. On September 12, 2012, the District certified the tenure
charge to the Commissioner of Education (Commissioner), and
suspended Pugliese without pay for 120 days, effective September
12, 2012.
Prior to the disposition of the tenure charge, in August
2012, the Legislature enacted the Teacher Effectiveness and
4 A-2196-16T1
Accountability for Children of New Jersey Act (TEACHNJ), N.J.S.A.
18A:6-117 to -129. Although tenure charges are still filed under
the TEHL, TEACHNJ amended the procedural process applicable to
those charges. Under the amended procedures, if the Commissioner
determined the tenure charge was sufficient to warrant dismissal
or reduction in salary, "he shall refer the case to an arbitrator
pursuant to [N.J.S.A. 18A:6-17.1] for further proceedings[.]"
N.J.S.A. 18A:6-16.
On September 28, 2012, Pugliese filed an answer and separate
defenses. She asserted her assignment as a departmentalized social
studies teacher was illegal because she was not "highly qualified"
to teach social studies, as required by the NCLB, and the District
could not find her inefficient in a position to which she was
illegally assigned. She asserted the District failed to afford
her the full ninety-day correction period. She also asserted the
District did not afford her the opportunity to participate in the
formulation of the PIP or provide reasonable assistance, and the
assistance provided was inadequate, as it was not individualized
or created or provided solely for her benefit.
On October 1, 2012, the Commissioner determined the tenure
charge was sufficient to warrant dismissal or a reduction in
salary, and transferred the matter to an arbitrator. The
arbitrator applied the procedural standard in TEACHNJ to determine
5 A-2196-16T1
whether the tenure charge demonstrated that Pugliese failed to
perform in a satisfactory manner for two consecutive years. See
Pugliese v. State-Operated Sch. Dist. of City of Newark, 440 N.J.
Super. 501, 511-12 (App. Div. 2015). This differed from the
procedural standard another arbitrator applied in a companion case
involving a teacher who, like Pugliese, had tenure charges filed
after TEACHNJ was enacted for conduct occurring before then. Id.
at 511. We reversed, determining that "[b]oth arbitrators cannot
be correct in applying different standards to similar procedural
matters." Id. at 512. We remanded for the Commissioner to
determine "[w]hich standard is appropriate for teachers whose
tenure charges [were] brought after the passage of TEACHNJ, but
before the TEACHNJ evaluation rubric [was] implemented[.]" Ibid.
We held "[t]he Commissioner must . . . inform the arbitrator what
legal standard to utilize, after which the arbitrators must review
the facts anew within this legal framework." Id. at 503.
We also found that the arbitrator, Commissioner, and trial
court did not resolve Pugliese's legal defenses. Id. at 512.
Thus, we directed the Commissioner, on remand, "to explicitly
decide those legal defenses that the Commissioner does not
expressly delegate to the statutorily-mandated arbitrator to
decide." Id. at 503. The Commissioner subsequently returned the
matter to the same arbitrator with instruction to review the facts
6 A-2196-16T1
anew under the preponderance of the evidence standard and determine
the validity of Pugliese's legal defenses.
In a June 8, 2016 arbitration award, the arbitrator determined
the District demonstrated by a preponderance of the evidence that
the tenure charge should be sustained. Addressing Pugliese's
legal defenses, the arbitrator found her assignment to teach
departmentalized social studies was not illegal because the
"highly qualified" requirement of the NCLB only applied to teachers
in a departmental high school setting.
The arbitrator also found that Pugliese "could properly have
been assigned under her licensure to teach all elementary core
subjects, including social studies, in a non-departmentalized
elementary school setting." The arbitrator reasoned that the
elementary school level social studies curriculum required a
teacher to "possess general knowledge of history, government,
sociology, and other related topics sufficient to understand and
implement the curriculum[,]" and as a former sociology major,
Pugliese could grasp and convey the social studies curriculum.
The arbitrator also noted that the NCLB and New Jersey statute
then in effect did not expressly limit "highly qualified"
designations for teaching social studies to history or government.
The arbitrator found that Pugliese "was invited to
participate in the formulation of her [PIP] or to add input
7 A-2196-16T1
concerning the parameters of the PIP, but elected not to avail
herself of this opportunity." The arbitrator also found the
truncation of the ninety-day correction period by three days was
attributable to Pugliese's refusal to meet with school
administrators because her union representative was unavailable.
The arbitrator reasoned that while Pugliese was entitled to union
representation, "an employee cannot unilaterally precipitate an
entitlement to an additional year's employment simply by delaying
the meeting at which tenure charges are to be delivered or a PIP
is to commence until fewer than ninety days remain in the school
year." The arbitrator concluded, "if the PIP was properly created,
and if the school administration provided the requisite support
materials, evaluations, feedback, and opportunity for [Pugliese]
to demonstrate improvement, the loss of three days would not
invalidate an otherwise proper PIP interval." The arbitrator also
determined that the extra three days would not have altered the
outcome because Pugliese did not demonstrate significant
improvement during the eighty-seven day period she was afforded.
Notably, the arbitrator found that:
the District failed to provide tailored
support for [Pugliese] throughout the PIP
interval, as . . . no [m]aster [t]eacher or
other supporting expert assisted [Pugliese] in
improving her classroom performance after mid-
May of the 2011-12 school year. The
evidentiary record established that no
8 A-2196-16T1
remedial help was provided to [Pugliese] after
May 9, 2012, creating a potentially material
defect in administering the PIP as required
under pre-[TEACH]NJ standards.
The arbitrator determined "the District's failure to provide
substantial assistance for almost half the PIP interval
constituted a significant defect in the PIP process" and "[t]he
District's failure to provide supervision and supplemental support
after May 9, 2012 potentially eroded the essential purpose of the
PIP."
Despite these findings, the arbitrator determined "the
District's failure to provide more adequate assistance after May
9, 2012 was not a material defect in the [PIP] invalidating the
tenure charges solely on the basis of diminished [m]aster [t]eacher
interaction or insufficient provision of other support
resources[.]" He concluded that Pugliese could have demanded more
assistance from the master teacher or other support services after
May 9, 2012, but did not do so. He also concluded that "absent
any clearly articulated demand for more help from [Pugliese] or
any noticeable improvement in her teaching, the perfunctory
support afforded to [Pugliese] during the second half of the [PIP]
interval did not invalidate the District's compliance with the PIP
requirements then in effect." The arbitrator held that termination
was the appropriate penalty.
9 A-2196-16T1
Pugliese filed a motion to vacate the arbitration award. The
motion judge agreed with the arbitrator's findings on Pugliese's
legal defenses, concluded the arbitrator's decision was based on
substantial credible evidence in the record, and confirmed the
arbitration award. This appeal followed.
II.
On appeal, Pugliese contends the motion judge erred in
confirming the arbitration award because it was contrary to the
law, and thus, procured by undue means, and against public policy.
She argues the award violated N.J.S.A. 18A:6-11 and N.J.A.C. 6A:3-
5.1(c)(4) because she was deprived of the entire ninety-day
correction period to improve her performance and positive
assistance during that period. She also argues the District could
not evaluate or terminate her for inefficiency in an assignment
to which she was illegally assigned and for which she was not
"highly qualified" to teach.
The arbitrator has the sole authority to "hear and make a
final determination on a controversy and dispute arising under
[N.J.S.A. 18A:6-10]." N.J.S.A. 18A:6-9. The arbitrator's
decision is "final and binding and may not be appealable to the
[C]omissioner" but rather, "shall be subject to judicial review
and enforcement as provided pursuant to N.J.S.A. 2A:24-7 [to -10.]
N.J.S.A. 18A:6-17.1(e).
10 A-2196-16T1
"Judicial review of an arbitration award is very limited."
Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017)
(quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel.
Mizichko, 202 N.J. 268, 276 (2010)). "An arbitrator's award is
not to be cast aside lightly. It is subject to being vacated only
when it has been shown that a statutory basis justifies that
action." Ibid. (quoting Kearny PBA Local # 21 v. Town of Kearny,
81 N.J. 208, 221 (1979)). "As the decision to vacate an
arbitration award is a decision of law, [we] review[] the denial
of a motion to vacate an arbitration award de novo." Minkowitz
v. Israeli, 433 N.J. Super. 111, 136 (App. Div. 2013) (quoting
Manger v. Manger, 417 N.J. Super. 370, 376 (App. Div. 2010)).
The court may vacate an arbitration award "[w]here the award
was procured by corruption, fraud or undue means[.]" N.J.S.A.
2A:24-8(a). "'[U]ndue means' ordinarily encompasses a situation
in which the arbitrator has made an acknowledged mistake of fact
or law or a mistake that is apparent on the face of the record[.]"
Borough of E. Rutherford v. E. Rutherford PBA Local 275, 213 N.J.
190, 203 (2013) (first alteration in original) (quoting Office of
Emp. Relations v. Commc'n Workers of Am., 154 N.J. 98, 111-12
(1998)). "[A]n arbitrator's failure to follow the substantive law
may . . . constitute 'undue means' which would require the award
to be vacated." In re City of Camden, 429 N.J. Super. 309, 332
11 A-2196-16T1
(App. Div. 2013) (quoting Jersey City Educ. Ass'n, Inc. v. Bd. of
Educ., 218 N.J. Super. 177, 188 (App. Div. 1987)). However, to
constitute undue means, "[t]he judicial inquiry must consider more
than whether a mere mistake occurred." Minkowitz, 433 N.J. Super.
at 150). Rather, the
formulation requires that the arbitrator[]
must have clearly intended to decide according
to law, must have clearly mistaken the legal
rule, and that mistake must appear on the face
of the award. In addition, the error, to be
fatal, must result in a failure of intent or
be so gross as to suggest fraud or misconduct.
[Id. at 150-51) (alteration in original)
(quoting Trentina v. Fitzpatrick & Assocs.,
135 N.J. 349, 357 (1994)).]
"'[U]ndue means' . . . does not include situations . . . where the
arbitrator bases his decision on one party's version of the facts,
finding that version to be credible." Local No. 153, Office &
Prof'l Emps. Int'l Union, AFL-CIO v. Tr. Co. of N.J., 105 N.J.
442, 450 n.1 (1987)).
In addition, a court may vacate an arbitration award for
public policy reasons. Borough of E. Rutherford, 213 N.J. at 202.
"However, '[r]eflecting the narrowness of the public policy
exception, that standard for vacation will be met only in rare
circumstances.'" Ibid. (alteration in original) (quoting N.J.
Tpk. Auth. v. Local 196, I.F.T.E., 190 N.J. 283, 294 (2007)).
"Public policy is ascertained by 'reference to the laws and legal
12 A-2196-16T1
precedents and not from general considerations of supposed public
interests.'" Id. at 202-03 (quoting Weiss v. Carpenter, Bennett
& Morrissey, 143 N.J. 420, 434-35 (1996)). "And, even when the
award implicates a clear mandate of public policy, the deferential
'reasonably debatable' standard still governs. Thus, '[i]f
correctness of the award, including its resolution of the public-
policy question, is reasonably debatable, judicial intervention
is unwarranted.'" Id. at 203 (alteration in original) (quoting
Weiss, 143 N.J. at 443). As our Supreme Court explained,
"[a]ssuming that the arbitrator's award accurately has identified,
defined, and attempted to vindicate the pertinent public policy,
courts should not disturb the award merely because of disagreements
with arbitral fact findings or because the arbitrator's
application of the public-policy principles to the underlying
facts is imperfect." Ibid. (alteration in original) (quoting
Weiss, 143 N.J. at 443).
A.
We first address Pugliese's argument that the arbitration
award violated N.J.S.A. 18A:6-11 and N.J.A.C. 6A:3-5.1(c)(4)
because she was deprived of the entire ninety-day correction period
to improve her performance and positive assistance during that
period.
13 A-2196-16T1
Prior to its amendment, N.J.S.A. 18A:6-11 provided, in
pertinent part, "that if the [tenure] charge is inefficiency,
prior to making its determination as to certification, the board
shall provide the employee with written notice of the alleged
inefficiency, specifying the nature thereto, and allow at least
[ninety] days in which to correct and overcome to inefficiency."
N.J.A.C. 6A:3-5.1(c)(4) provided:
Concurrent with notifying the employee of such
charges of inefficiency, the district board
of education or the State district
superintendent shall direct that there be a
modification of the individual professional
improvement plan mandated by [N.J.A.C.] 6A:32-
4.3 or 4.4, to assure that such plan addresses
the specific charges of inefficiency and
comports with the timelines established for
correction.
As we have held, "compliance by the local board with its
obligation to afford the teacher the 90-day correction period
constitutes an absolute prerequisite to its right to certify
charges against the teacher and, consequently, that a failure of
compliance compels dismissal of the charges." Rowley v. Bd. of
Educ., 205 N.J. Super. 65, 72 (App. Div. 1985). Moreover, Section
IIB4 of the Guidelines for Implementation of the TEHL, Department
of Education, Division of Controversies and Disputes (May 3, 1977),
"provides that '[d]uring the aforementioned [ninety] day period,
members of the administrative/supervisory staff should make
14 A-2196-16T1
reasonable efforts to provide assistance to the teaching staff
member to overcome the specific inefficiencies.'" Ibid. The
Commissioner "has consistently construed the statutory mandate in
the light of this guideline, concluding that 'if a board chooses
to file tenure charges of inefficiency against any teacher, the
administration bears the heavy responsibility to render positive
assistance to the teacher in an effort to overcome his
inefficiencies.'" Ibid. (emphasis added) (citations omitted).
The State Board of Education has stated that:
under [N.J.S.A.] 18A:6-11, a local board of
education is duty bound to assist a tenured
teaching staff member, against whom it has
filed charges of inefficiency, in improving
his teaching performance before removing him
from his teaching position. . . . The
rationale underlying this rule is that a
teacher whose teaching effectiveness is called
into question after years of meritorious
service in a school district should, in
recognition of that contribution, be afforded
an opportunity to demonstrate that he is still
capable of effective teaching. He can only
avail himself of that opportunity if he
understands clearly the basis for the
criticism supporting the allegations of
inefficiency and is offered constructive
advice as to how he might restore his teaching
skills.
[Id. at 73.]
Accordingly, the failure to accord a teacher a ninety-day
correction period and positive assistance during that period
compels dismissal of the charges. Id. at 74; see also In the
15 A-2196-16T1
Matter of the Tenure Hearing of Parisi, EDU 5793-03, final
decision, at 9 (Aug. 7, 2008), http://njlaw.rutgers.edu/
collections/oal/final/edu09654-08_1.pdf.
Here, Pugliese received notice of the tenure charge and the
PIP on March 26, 2012. The ninety-day correction period began on
that date, not on March 29, 2012, as she argues. See id. at 8-9.
Pugliese's delay in meeting to discuss the tenure charge and PIP
did not extend the ninety-day period, and she cites no authority
to the contrary. Accordingly, the arbitrator correctly determined
that the truncated ninety-day correction period was no reason to
dismiss the tenure charge.
Nevertheless, the arbitrator erred in determining the
District's failure to provide Pugliese with positive assistance
throughout the ninety-day correction period was no reason to
dismiss the tenure charge. As the arbitrator found, the PIP was
not specifically tailored for Pugliese throughout the PIP period,
as required by N.J.A.C. 6A:3-5.1(c)(4), and the only real
assistance she received was from the master teacher. However, the
PIP provided that a master teacher would assist Pugliese throughout
the entire ninety-day PIP period, but a master teacher only
assisted her on three occasions, and assistance ceased on May 9,
2012. The District provided no remedial assistance to Pugliese
thereafter to help her correct or improve her performance. As the
16 A-2196-16T1
arbitrator acknowledged, the District's failures "constituted a
significant defect in the PIP process" and "potentially eroded the
essential purpose of the PIP."
Contrary to the arbitrator's reasoning, it was not Pugliese's
burden to demand continuation of the master teacher or additional
assistance during the correction period. Nor could the District
unilaterally decide to prematurely terminate assistance for
Pugliese's alleged failure to improve. The law clearly required
the District to render positive assistance to Pugliese throughout
the entire ninety-day correction period, which it failed to do.
See Rowley, 205 N.J. Super. at 73.
The District's non-compliance with the law in this case
compelled dismissal of the tenure charge. Id. at 74. The
arbitrator's failure to dismiss the tenure charge was contrary to
the law, and thus, the arbitration award was procured by undue
means and must vacated.
B.
We next address Pugliese's argument that the District could
not evaluate or terminate her for inefficiency in an assignment
to which she was illegally assigned and for which she was not
"highly qualified" to teach. As a threshold issue, we address the
District's contention that collateral estoppel and the law-of-the-
case doctrine bar Pugliese from re-litigating the "highly
17 A-2196-16T1
qualified" issue. Collateral estoppel prevents future litigation
on the issue when:
(1) the issue to be precluded is identical to
the issue decided in the prior proceeding; (2)
the issue was actually litigated in the prior
proceeding; (3) the court in the prior
proceeding issued a final judgment on the
merits; (4) the determination of the issue was
essential to the prior judgment; and (5) the
party against whom the doctrine is asserted
was a party to or in privity with a party to
the earlier proceeding.
[Winters v. N. Hudson Reg'l Fire & Rescue, 212
N.J. 67, 85 (2012) (quoting Olivieri v. Y.M.F.
Carpet, Inc., 186 N.J. 511, 521 (2006)).]
"Fundamental to the application of estoppel is an assessment of
considerations such as 'finality and repose; prevention of
needless litigation; avoidance of duplication; reduction of
unnecessary burdens of time and expenses; elimination of
conflicts, confusion and uncertainty; and basic fairness.'" Ibid.
(quoting Olivieri, 186 N.J. at 522). "In short, collateral
estoppel will not apply if a party did not have a 'full and fair
opportunity to litigate the issue.'" State v. K.P.S., 221 N.J.
266, 278 (2015) (quoting Zirger v. Gen. Accident Ins. Co., 144
N.J. 327, 338 (1996)).
"The law-of-the-case doctrine 'is a non-binding rule intended
to prevent relitigation of a previously resolved issue' in the
same case." Id. at 276 (quoting Lombardi v. Masso, 207 N.J. 517,
18 A-2196-16T1
538 (2011)). "The law of the case doctrine teaches us that a
legal decision made in a particular matter 'should be respected
by all other lower or equal courts during the pendency of that
case.'" Lombardi, 207 N.J. at 538 (quoting Lanzet v. Greenberg,
126 N.J. 168, 192 (1991)). "A hallmark of the law of the case
doctrine is its discretionary nature, calling upon the deciding
judge to balance the value of judicial deference for the rulings
of a coordinate judge against those 'factors that bear on the
pursuit of justice and, particularly, the search for truth.'" Id.
at 538-39 (quoting Hart v. City of Jersey City, 308 N.J. Super.
487, 498 (App. Div. 1998)). "Importantly, the law of the case
doctrine is only triggered when one court is faced with a ruling
on the merits by a different and co-equal court on an identical
issue." Id. at 539.
In Pugliese, 440 N.J. Super. at 503, we found the arbitrator,
Commissioner, and trial court did not resolve Pugliese's legal
defenses, and reversed the first arbitration award and remanded
for a review of the facts anew and a determination of the validity
of Pugliese's legal defenses. Accordingly, because the issue of
Pugliese's legal defenses was not resolved in the prior
proceedings, the doctrine of collateral estoppel and the law-of-
the-case doctrine do not apply in this case. That having being
said, we address Pugliese's argument.
19 A-2196-16T1
The NCLB
reflects Congress' judgment that the best way
to raise the level of education nationwide is
by granting state and local officials
flexibility to develop and implement
educational programs that address local needs,
while holding them accountable for the
results. NCLB implements this approach by
requiring States receiving federal funds to
define performance standards and to make
regular assessments of progress toward the
attainment of those standards.
[Horne v. Flores, 557 U.S. 433, 461 (2009)
(citing 20 U.S.C.A. § 6311(b)(2)).]
See also Pugliese, 440 N.J. Super. at 507. The NCLB requires that
"each State educational agency receiving assistance . . . shall
develop a plan to ensure that all teachers teaching in core
academic subjects . . . are highly qualified not later than the
end of the 2005-2006 school year." 20 U.S.C.A. § 6319(a)(2). To
satisfy the NCLB's definition of "highly qualified" a teacher must
have a Bachelor's degree, a valid state certification, and
demonstrate content expertise in the core academic subjects
taught. 20 U.S.C.A. § 7801(23)(c).
The NCLB defines "core academic subjects" as "[e]nglish,
reading or language arts, mathematics, science, foreign languages,
civics and government, economics, arts, history, and geography."
20 U.S.C.A. § 7801(11) (emphasis added). While social studies is
not specifically defined as a core academic subject, social studies
20 A-2196-16T1
includes civics, government, economics, history, and geography,
see N.J.A.C. 6A:9B-9.3(a)(6)(ii), which are core academic subjects
required to be taught by "highly qualified" teachers under the
NCLB.
Contrary to the arbitrator's finding, Pugliese did not
satisfy the "highly qualified" definition under the NCLB to teach
social studies. The record is de void of evidence that she had a
valid state certification, endorsement, or authorization to teach
social studies, or content expertise in civics, government,
economics, history, and geography. Although she majored in
sociology, sociology does not include these "core academic
subjects." See Merriam-Webster's Collegiate Dictionary, 1115
(10th ed. 1993) (defining sociology as "the science of society,
social institutions, and social relationships; specifically: the
systematic study of the development, structure, interaction, and
collective behavior of organized groups of human beings").
Accordingly, the arbitrator's finding that Pugliese was highly
qualified to teach social studies based on her major in sociology
was a blatant misapplication of the "highly qualified" standard
not supported by Pugliese's certification or endorsement. Thus,
she was not "highly qualified" under the NCLB to teach social
studies and the District should not have placed her in that
assignment.
21 A-2196-16T1
Pugliese was also not qualified to teach departmentalized
middle school social studies under New Jersey law. Prior to the
enactment of TEACHNJ, N.J.A.C. 6A:9B-9.1(a)(3) provided that:
Teachers with elementary school endorsements
that are valid in grades nursery through eight
issued no later than March 1, 2008, may teach
in grades nursery through eight in any
employing school district. These teachers
must demonstrate to the school district that
they have content knowledge appropriate to the
subject(s) taught.
[(Emphasis added).]
Pugliese had an elementary school teacher certificate, which
did not authorize her to teach social studies to middle school
students. She had no endorsement or authorization to teach middle
school social studies.2 See N.J.A.C. 6A:9B-9.3(a)(6) (recodified
at N.J.A.C. 6A:9-9.2).
Further, in order to teach in this position, she had to
demonstrate she had "content knowledge" in social studies. To
demonstrate "content knowledge," she had to meet the criteria
under HOUSE, by passing the appropriate Praxis II Middle Content
Test, have an undergraduate major in the content, thirty credits
in the content, a graduate degree in the content, or a national
board certification in the content. See Carol Albrition, Rani
2
Pugliese did not even qualify for a social studies or middle
school social studies endorsement. See N.J.A.C. 6A:9B-9.1(a).
22 A-2196-16T1
Singh & Kerri Long, Teacher Quality And School Improvement: A
Primer for Certification and Highly Qualified, N.J. Dep't of Educ.,
http://www.state.nj.us/education/title1/archive/hqs/nclb/pp.pdf.
She met none of these requirements. She, thus, was not qualified
to teach middle school social studies under New Jersey law.
Because Pugliese was not certified, authorized, qualified,
or "highly qualified" to teach middle school social studies, and
had no content knowledge in social studies, her assignment to that
position was contrary to the law. As a matter of law, the District
could not evaluate and terminate her for inefficiency in this
position.
Having reached this conclusion, we need not address
Pugliese's remaining contentions that the judge applied the wrong
test in reviewing the arbitration award, and the penalty of
termination violated the doctrine of progressive discipline.
The January 13, 2017 Chancery Division order is reversed, and
the June 8, 2016 arbitration award is vacated.
23 A-2196-16T1