AUTOMATIC F: REFORMING TEACHER DISQUALIFICATION LAWS IN NEW JERSEY.

• Author: Milligan, Sean

INTRODUCTION

In 1971, when Peter Bond was about twenty years old, he was convicted of a drug offense. (1) He served his penalty: one year probation. (2) By fifty-nine years old, Bond had become a district manager of a food service company and was responsible for supervising the food operations of "nearly 100 schools." (3) After spending thirty-nine years committing no other crimes, he received a letter in the mail that turned his life upside down. (4) Due to the conviction nearly four decades earlier, he was forbidden by law from working in any educational institution in New Jersey. (5) On the brink of losing his job, Bond applied for emergent relief (6) challenging his disqualification. (7) The administrative law judge denied the application for emergent relief. (8) Why? In large part, his application was denied because there was no "reasonable probability of ultimate success on the merits" that he would be able to reverse his disqualification. (9)

This result is not an anomaly, nor was the judge using her discretion to be harsh--in fact, she was left with no choice. In New Jersey, any individual who has been convicted of a controlled dangerous substance offense is automatically and permanently disqualified from working in schools, with no room for judicial discretion and no chance for the applicant to prove rehabilitation. (10) This means that people like Peter Bond will never have the opportunity to work in any public school in New Jersey. (11) This outcome traces its roots to a legislative desire to protect children. (12) This Note argues that New Jersey's legislature has lost sight of this original aim, resulting in an unnecessarily strict teacher disqualification statute that ultimately harms students and the education system.

In Part I, this Note analyzes New Jersey's teacher disqualification legislation. In Part II, New York's teacher disqualification statute is analyzed and compared to its counterpart in New Jersey. Part III explains the unfavorable impact of New Jersey's statute on certain groups, and why this is not only inequitable but also hinders students from receiving the best possible education. Finally, Part IV proposes a preferable framework that New Jersey should adopt. Under this proposed framework, the primary intent behind teacher disqualification statutes returns to its original intent: promoting the safety of students. (13) The framework proposes that crimes of safety and crimes of morality should be categorized separately, (14) with crimes of safety remaining automatically and permanently disqualifying while crimes of morality are left to a court's discretion. (15) Rehabilitation will be considered for any morality crime disqualification. (16) Lastly, the framework will include an appeals process for any disqualification due to a morality crime. (17)

1. TEACHER DISQUALIFICATION IN NEW JERSEY

   New Jersey law mandates that no school can employ any person if that person has a criminal history "which would disqualify that individual from being employed or utilized in such capacity or position." (18) The list of disqualifying crimes is broad, with some listed offenses including endangerment or neglect of child welfare; (19) "[a]n offense involving the manufacture, transportation, sale, possession, distribution or habitual use of a 'controlled dangerous substance'"; (20) "[a] crime involving the use of force or the threat of force to or upon a person or property"; (21) usury; (22) and perjury. (23) An individual will be permanently disqualified from employment in schools if a criminal history record check reveals any of the enumerated offenses. (24)

   Although there used to be a provision allowing for an individual to demonstrate their rehabilitation, (25) this was removed in 1998 without explanation in the legislative record. (26)

   1. Purpose of New Jersey Teacher Disqualification Law

      When New Jersey's teacher disqualification statute was first passed in 1986, Governor Thomas Kean stated that the bill was "yet another step in our ongoing efforts to extend the greatest protection possible to our youngsters in school," and that it was "tragically unfortunate that children have been subjected to abuses by school district employees who, upon investigation after the fact, have been found to have records of such abuse in the past." (27) The only permanently disqualifying crimes enumerated in the original statute were those involving a sexual offense, child molestation, and "endangering the welfare of children or incompetents." (28)

      More offenses were gradually added to the list of disqualifying offenses over time. In 1998, drug offenses were added to the statute. (29) Again, the purported purpose was to protect children, but the inclusion of drug offenses expanded the statute's reach from those offenses that directly endangered physical safety of children to "screen[ing] for the type of past behavior that could pose a threat to the safety of our children." (30) This shift away from crimes that directly impacted the safety of students continued, and more crimes unrelated to physical safety were added to the disqualifying statute. Today, usury, (31) perjury and false swearing, (32) resisting arrest, (33) and escape (34) are among those that will automatically disqualify an individual from becoming a teacher or school employee. (35) As compared to offenses such as child molestation, usury has little relation to the safety of children. Instead, barring individuals convicted of usury from becoming teachers suggests that New Jersey's legislature believes that these individuals are morally unfit to educate the state's youth, gradually moving away from the original purpose: protecting the physical safety of children.

   2. Rehabilitation in New Jersey

      Despite the fact that rehabilitation is generally looked upon favorably under New Jersey law, the courts have not allowed rehabilitation to overcome a disqualification under New Jersey's teacher disqualification statute. (36) Under New Jersey's Rehabilitated Convicted Offenders Act (RCOA), (37) persons generally "shall not be disqualified or discriminated against by any licensing authority because of any conviction for a crime." (38) This general rule gives way when "the conviction relates adversely to the occupation, trade, vocation, profession or business for which the license or certificate is sought." (39) In determining whether the conviction adversely relates to the vocation, the licensing authority is to consider factors such as the "nature and duties of the ... vocation," the nature of the crime, the age of the individual when they committed the crime, and circumstances surrounding the commission of the crime. (40) If the applicant receives a "certificate of the Federal or State Parole Board, or of the Chief Probation Officer ... who has supervised the applicant's probation" stating that the employment "would not be incompatible with the welfare of society," a licensing authority may not disqualify an individual based on that offense. (41) Though law enforcement agencies are specifically exempted within the Act, (42) no such exception is provided within the Act applying to schools or teachers.

      Despite the fact that the RCOA is meant to prevent bars to certification "[n]otwithstanding any law to the contrary," (43) the Act has been consistently treated as inapplicable to individuals disqualified under New Jersey's teacher disqualification statute. (44) Rationales for this nonapplicability have included the vulnerability of children, (45) explicit language in the teacher disqualification statute stating its permanent nature, (46) and lack of leniency provided in the statute. (47)

      Although New Jersey's teacher disqualification statute has been applied consistently to public school teachers and workers, the law is shifting to allow more discretion in hiring in nonpublic schools, allowing rehabilitation to be considered in such cases. In one recent case involving a private school bus driver convicted for misappropriation of an employer's money, the Commissioner of Education found the RCOA controlling and allowed for that individual to demonstrate rehabilitation. (48) That decision is distinguished from others under the teacher disqualification statute because private schools have "the discretion to employ a person who would be disqualified from public school employment," and the Commissioner of Education lacks power to determine whether an individual may work in a private school. (49) Although not mentioned in the final agency decision, the administrative law judge noted that the RCOA should apply to the case because "it is doubtful that [a school bus driver] could be considered 'a position that has access to sensitive information that could threaten the public health, welfare, or safety.'" (50) Strangely, there have yet to be any cases involving public schools that focused on the same language in the RCOA, though an argument on this ground could alter the relationship between the two acts. (51)

   3. Appeals in New Jersey

      New Jersey's teacher disqualification statute does not allow for appeals of disqualifications, other than an appeal "to challenge the accuracy of the disqualifying criminal history record." (52) This lack of opportunity to challenge such a finding is evidenced by the case of Peter Bond presented at the outset of this Note. (53) Even four decades after his conviction of a crime seemingly unrelated to his ability to work in schools, Bond was unable to seek recourse to save his career due to the disallowance of appeals in New Jersey. (54)

   4. Alternative Methods of Disqualification in New Jersey

      A review of alternative methods of teacher disqualification reveals that there are already alternative frameworks in place to disqualify teachers who are not automatically disqualified under the New Jersey's teacher disqualification statute. This demonstrates the feasibility of adopting a less strict method of disqualification for some crimes...