HEARING OFFICER'S REPORT

I.  Statement of the Case

This is an Appeal filed by Barbara Brock ("Ms. Brock"), a teacher at Coldstream Park Elementary School ("Coldstream") in the Baltimore City Public School System ("BCPSS"), from a recommendation of the Chief Executive Officer ("CEO") of the New Board of School Commissioners of Baltimore City ("the Board") made to the Board pursuant to Md. Code Education Article § 6- 202  for Ms. Brock's  "timely and immediate dismissal . . .  for two consecutive years of unsatisfactory evaluations  . . . "     

By letter dated January 24, 2006, the Board's Acting Executive, Dawana M. Sterrette,  served  Ms. Brock's counsel, Jeffery Ross, Esq. and BCPSS's Legal Counsel, Allyson Huey, Esq. with official notification that a hearing would be conducted on Ms. Brock's Appeal on February 8, 2006, by the undersigned Hearing Officer for the Board.   However, due to the unexpected unavailability of a witness for BCPSS, the hearing was postponed at Ms. Huey's request and rescheduled for March 3, 2006.  

The Undersigned convened a private hearing beginning at 11:00  a.m. on March 3,  2006, and continued and concluded the hearing on March 15, 2006 at 200 E. North Avenue, Baltimore, Md. 21202.  Ms. Huey appeared as counsel for the CEO, Mr. Ross appeared as counsel for Ms. Brock. The hearing was conducted pursuant to Section 407 of the Board's Personnel Policies.  During the course of the hearing all parties were given the right to be represented by counsel, to present opening statements, to present oral testimony of witnesses, to cross examine opposing witnesses, to present documents as evidence and to present closing statements. A motion for sequestration of witnesses, made by counsel for Ms. Brock, was granted.  All witnesses testified under oath, and pursuant to Section 407.03D of the Board's Personnel Policies, a stenographic record of the hearing was made.  Following the conclusion of the presentation of evidence, counsel for the parties made oral closing arguments. 

Having carefully considered the testimony of the witnesses,  the exhibits and closing arguments of the parties, and for the reasons explained below,  the Hearing Officer recommends that the Board deny the Appeal filed by Ms. Brock and sustain the CEO's recommendation for Ms. Brock's dismissal.

II. The Issue

Whether the evidence and information submitted to the Hearing Office by BCPSS was sufficient to establish that the CEO had grounds for recommending that Ms. Brock be dismissed pursuant to Md. Code Education Article § 6- 202.

  PERTINENT PROVISIONS OF MARYLAND LAW AND BCPSS POLICY

Maryland Law

Md. Code Education Article § 6- 202  "Suspension or dismissal of teachers, principals and other professional personnel" states that "on the recommendation of the county superintendent (the CEO in Baltimore City) a county board (in Baltimore City, the Board) may  . . . dismiss a teacher  . . .   for  Immorality, Misconduct in office, Insubordination, Incompetency or Willful neglect of duty."

The Board's Performance-Based Evaluation System

In October 2003, BCPSS adopted a "Performance Based Evaluation System" ("PBES")  as a "vital part of the commitment to improving education for all Baltimore City Public School students."   (Jt. Exhibit 2)^[1].   A fundamental premise of the PBES is that "effective performance of all teacher level staff members is the foundation for achieving the goal of increased student achievement," and that "Allowing incompetent teachers to remain in the school system continues to victimize the students." Accordingly, the PBES "hold(s) all teacher level staff members accountable for increased student achievement."^[2]

 The PBES requires assessing staff in four domains: Planning and Preparation, Learning Environment, Instruction/Instructional Support, and Professional Responsibilities.  Each domain is 25% of the evaluation and for each domain staff members are rated: "Proficient" (86-100 rating points), "Satisfactory"(70-85 rating points) or "Unsatisfactory" (0 -69 rating points).  Ratings are performed by the school principal or other qualified observers, as defined in the PBES. An overall rating of unsatisfactory may be appealed by the teacher in accordance with Md. Code Education Article § 4-205(c)(4).  If an observation report is a component of an unsatisfactory evaluation, the observation report may be appealed along with the unsatisfactory report.  COMAR 13A.07.04.04, "Appeal of an Evaluation."

The evaluation system provides step-by-step procedures to rate teachers.  These  procedures include the following:

1.                  An Initial Planning Conference is held with teachers at the beginning of each school year to discuss their students' strengths and weaknesses and the teachers' plans and strategies to address student achievement.

2.                  A Performance Improvement Plan ("PIP") is developed for any teacher who has been rated "unsatisfactory" in any one of the four Domains or who had an overall unsatisfactory the previous academic year, in which the teacher agrees to take steps to improve with resources and support to help him/her improve. ^[3]

3.                  "Observations" are conducted by "qualified" observers in a cycle that includes a "pre-observation conference" prior to each "formal observation" and a "post-observation conference."  ^[4]

4.                  A "Performance Review Report and Conference" is conducted to assess and critically appraise teacher performance by January 15 of each year.

5.                  An Annual Evaluation is performed to assess teachers' overall performance.

6.                  An Annual Evaluation Report and Conference are conducted one week before the last work day in June.

The PBES "is based upon the proposition that consideration of student outcomes must be a meaningful part of the evaluation process," and places the burden on staff to identify incompetent teachers. The evaluation system also recognizes that "continued teacher development is important and all teachers must be provided effective means to improve their performance."  

III.  Arguments  of The Parties

CEO

In support of the CEO's recommendation for Ms. Brock's dismissal for incompetence, BCPSS cites:

1.                  Formal observations of Ms. Brock's classroom for each of the last two school years revealed areas for improvement in one or more domains.

2.                  Based on an unsatisfactory evaluation for the 2003-04 school year Ms. Brock was placed on second class certificate for the 2004-05 school year.

1 .            Support was provided by staff in both years designed to improve performance in each of the domains in which Ms. Brock was found to be in need of improvement including classroom management and effective instructional skills.

3.                  Despite efforts to assist Brock to improve her performance, Ms. Brock was evaluated "unsatisfactory" for the 2004-05 school year and was recommended for dismissal.

4.                  Despite two formal observations showing areas for improvement in school years 2003-2004 and 2004-2005; having her teaching certificate 2^nd class for the 2004-2005 school year and receiving unsatisfactory evaluations in the last two school years, Brock never exercised her right to appeal any of  these negative reports.

Ms. Brock

            1.             Her evaluations did not take into account that she did not begin teaching at Coldstream until several weeks into the 2003-04 school year which impacted on her ability to affect student behavior and their ability to learn.

2.             There were procedural flaws in the process leading to the recommendation for dismissal.

3.            She was not provided the necessary resources to improve her performance as contemplated by the PBES.

IV. Finding of Fact

Set forth in this Section is a summary of the testimony and documentary evidence submitted by witnesses called by the CEO and Ms. Brock. Other facts and evidence may be noted in the Conclusion of Law section below to the extent knowledge of either is necessary to understand the Hearing Officer's Decision.   

The CEO's Position in Support of her Recommendation

The CEO's support for meeting her burden of proof that Ms. Brock was "Incompetent" is verified by the following chronology and the testimony of witnesses describing and commenting on each event and document:

1.                  September 24, 2003,  Ms. Brock, who has been a BCPSS teacher for more than 30 years,  was assigned to Coldstream as a special education teacher. (CEO Exhibit No. 4). 

2.                  December 1, 2003 - A Formal Observation Report summarizing the observation of a lesson by Tracey N. Thomas, Coldstream's Assistant Principal, showed all four PBES Domains as "Areas  for Improvement."  (CEO Exhibit No. 1).   Ms. Thomas testified that during her observation, students yelled, ran around the room, Ms. Brock did not follow the "Open Court Curriculum," she was flustered and cried.  In a written comment on the Report, Ms. Brock stated that she had prepared for the lesson but that the students did not respect her directions.  She stated that she needed "more direction with Open Court Format and pacing with Sp. Ed. students."  However, she did not appeal the Observation Report. ^[5]

1 .            January 15, 2004 - A Performance Review Report by Ms. Brock's Principal, Elizabeth Williams,  graded Ms. Brock  "Unsatisfactory" in two domains - Teacher Planning and Preparation and Instruction/Instructional Support.  Ms. Williams testified that Ms. Brock was not addressing the students' needs listed on their individual education plans. ("IEP's") She explained that the delivery of instructional program by Ms. Brock was deficient; the learning goals were not addresses. (Tr. 116-117) The Report recommended that Ms. Brock be placed on a Performance Improvement Plan ("PIP") (CEO Exhibit No. 5). 

3.                  January 22, 2004 - Ms. Brock was placed on a PIP by  Principal Williams targeting "Area(s) of Improvement" in Domains I and III and setting forth an "Action Plan" with target dates and dates on which to review progress on the targets and enumerating the assistance Ms. Brock would need from her Principal to help correct her problems.  (CEO Exhibit No. 7)

4.                  January 23, 2004  - A memorandum was given to Ms. Brock by Principal Williams  enclosing material designed to provide techniques for meeting the diverse needs and styles of learners and asking Ms. Brock to review the material in preparation to meeting with her to discuss suggestions for improvement.  (CEO Exhibit No. 6)

6 .            March 10, 2004  - A formal observation was conducted by Annie McIntosh, an educational specialist and qualified observer. The Formal Observation Report listed  five "Area(s) of Improvement" and stated that "Classroom management and instruction are of grave concern. In a matter of fifteen minutes  . . .  the teacher had to interrupt instruction on eleven different occasions to address inappropriate student behavior." Ms. Brock signed the FOR without comment and did not file an appeal. (CEO Exhibit No. 9) 

7.                  March 18, 2004  - A Formal Observation Report by Principal Williams was presented to Ms. Brock.  "Area(s) of Improvement"  included Domains I, II and III. Specifically, the Report noted that the classroom activities failed to reflect the objective of the lesson, that the classroom environment conveyed "inconsistent expectations," that several students were not engaged in learning, and that instruction did not address the IEP goals for the students.  Ms. Williams testified that "the lesson just seemed to have been so very disjointed." (Tr. 129)  Ms. Brock signed this Report and explained that she is bipolar but would confer with her psychologist to determine whether adjustment of her mediation was "warranted."  (CEO Exhibit No. 8)  She did not file an appeal.

8.                  March 26, 2004 - In her PIP Appraisal, based upon formal and informal observations, Ms. Williams determined that Ms. Brock must continue to work on employing instructional strategies that have positive impact on student learning and continued Ms. Brock on her PIP. (CEO Exhibit No. 7)

9.                  April 1, 2004 - Ms. Williams gave Ms. Brock an overall rating of "Unsatisfactory" - 48 total points out of a possible 100 on her Annual Evaluation Report.  The Report noted that her students were not engaged mentally, that no standards of conduct appeared to have been established, that many time she was unaware of what students were doing, and that she had "allowed an atmosphere to exist that is a detriment to the learning process."  Ms. Williams testified that "too often there were assignments and activities that were just inappropriate for the students" that "did not address their IEP's . . . " The Principal recommended that Ms. Brock's teaching certificate be reclassified as 2^nd Class for school year 2004-2005.    (CEO Exhibit No. 10)  Ms. Brock signed this Report but did not file an appeal.

10.              April 13, 2004 -  Ms. Brock was placed on a PIP targeting Domains II and III as "Area(s) of Improvement" and setting forth an "Action Plan" with target dates and dates on which to review progress on the targets  (CEO Exhibit No. 13)

11.              By letter dated April 13, 2004, Ms. Williams advised Ms. Brock that arrangements had been made for her to observe the classroom of two of her colleagues at Coldstream who had "good classroom management skills as well as instructional techniques" - Ms. Marian Johnson and Ms. Althea Turner, and stated that she was "ready to assist (her) in making this year a successful teaching experience."  (CEO Exhibit No. 12) 

12.              By memo dated April 13, 2004, from Ms. Brock to Ms. Williams, Ms. Brock listed the techniques that she used within her self-contained classroom during the 2003-2004 school year.  (CEO Exhibit 14) 

13.              By letter May 3, 2004, the CEO informed Ms. Brock that "based upon her observed and teaching efficiency" her teacher's certificate had been classified as "second class" pursuant to Md. Code Education Article § 6- 102 (c) and cautioned that failure to demonstrate sufficient improvement might result in her termination from BCPSS.  The letter advised Ms. Brock that she might have "certain grievance and/or appeal rights" under State law, School Board policies, the Code of Maryland Regulations ("COMAR") and the negotiated labor agreement between the Board and BTU. (CEO Exhibit No. 11)  Ms. Brock did not file an appeal.

14.              September 7, 2004 - Ms. Brock was placed on a written Individual Development Plan ("IDP")  by Principal Williams setting forth a set of goals including becoming computer literate, integrating technology across the curriculum, and gaining professional knowledge regarding effective strategies and techniques for mathematics instruction.  (CEO Exhibit No. 15)

15.              September 29, 2004 -   Ms. Brock was given a Memorandum from Assistant Principal Tracey Thomas noting Ms. Brock's inappropriate behavior in her classroom and offering support from her colleagues and the administration if "at any time" she was "experiencing problems with a student or students in (her) classroom and feel that (she needed) assistance."  Ms. Brock signed the Memorandum and explained that she has a bipolar disorder and that she was "very sorry for (her) behavior." (CEO Exhibit No. 2)

16.              October 7, 2004 - Ms. Brock signed an Initial Planning Conference Form confirming that an initial planning conference had been conducted with Ms. Williams during which students' strengths and weaknesses, plans and strategies to increase student achievement were discussed, data sources to measure achievement were identified and her PIP and IDP were reviewed. (CEO Exhibit No. 16)

17.              October 7, 2004 - Ms. Brock received a  Pre-Observation Form from Annie McIntosh, an Inclusion Specialist in the BCPSS, enumerating the focus areas for Ms. Brock's formal observation.  (CEO Exhibit No. 20)

18.              October  7, 2004 - Ms. Brock was placed on a PIP by Principal Williams targeting Domains II and III as "Area(s) of Improvement" and setting forth an "Action Plan" with target dates and dates on which to review progress on the targets.  (CEO Exhibit No. 17)

19.              October 21, 2004 - A Formal Observation Report by Ms. McIntosh was presented to Ms. Brock.  It listed Ms. Brock's need to  review charts that she makes before posting them in the classroom for "accuracy of information, grammar and spelling" to "reflect knowledge of the Open Court series, logical organization of tasks and appropriate pacing of planned activities" in her planning, to  use "effective and consistent implementation of behavior management procedures," to utilize a variety of techniques and strategies to meet the needs of students, to insure that instructional goals and activities are appropriate for students, and to minimize student misbehavers to increase student learning time" as Area(s) of Improvement.  Ms. Brock signed this Report. Her written comments acknowledged that she had made mistakes on the charts she had posted.  With respect to classroom management she stated that "no matter how much (she) planned, (she) could not get it right," and that she would "continue to work at learning Open Court the way you showed (me) to implement the plan."  Despite the negative Report, she did not file an appeal. (CEO Exhibit No.19)

20.              November 4, 2004 - A School/Area Consultation/Technical Assistance Form described a formal observation conducted by Linda C. Brown, Office of Curriculum and Instruction, as a follow-up to Ms. McIntosh's formal observation on September 30, 2004. Ms. Brown described Ms. Brock's class as "very chaotic and students were clearly  not engaged in the learning process." The Report cautioned that "unless the teacher can gain classroom control students will not fully benefit from special education services listed on their IEP's," that she must "be able to provide them with an orderly environment."  Reporting on a follow-up visit conducted on November 23, 2005, Ms. Brown reported that Ms. Brock "was not able to provide adequate documentation of students' functioning level."  (CEO Exhibit No. 21) 

21.              A School/Area Consultation/Technical Assistance Form described deficiencies in Ms, Brock's "classroom set-up." As of November 11, 2004. (CEO Exhibit No. 22)

22.              November 24, 2004 - Principal Williams provided Ms. Brock with a Formal Observation Report of her observation of Ms. Brock's class that day.  The Report described the areas of strength in Domain I (Planning and Preparation) and IV (Professional Responsibility). In the latter, Ms. Williams noted that Ms. Brock "participates in professional development (Mt. Royal Math Workshops) to enhance knowledge and skill."  However, all four Domains were noted as "Areas(s) of Improvement, including "addressing IEP skills or helping students understand the lesson," and that "she contributes to some students being ill served by the school."  (CEO Exhibit No. 23)  Ms. Brock did not file an appeal.

23.              November 24, 2004 - Ms. Brock was placed on a PIP by Principal Williams targeting Domains II and III as "Area(s) of Improvement" and setting forth an "Action Plan" with target dates and dates on which to review progress on the targets.  A PIP Appraisal as of November 24, 2004 stated that "Although assistance has been provided, lessons don't always address IEP's of each student nor has Ms. Brock been able to establish an environment that is orderly and productive.  Administrators and support staff will continue to provide assistance."   Further PIP Appraisals were scheduled for January 14, 2005 and March 24, 2005.  (CEO Exhibit No. 24)

24.              Following parent and student reports,  Ms. Brock confirmed that she had "dozed off" during class.  Based on this information, Ms. Williams referred Ms. Brock for a "fitness for duty evaluation."  An evaluation found that she was "able to perform the essential functions of (her) assigned position," and by letter dated November 24, 2004,  she was notified that she was to return to work on December 1, 2004. (CEO Exhibit No. 18)

25.              January 14. 2005 - Ms. Brock was given a Performance Review Report that she was unsatisfactory in the Domain of Instruction/Instructional Support that "Representation of content is inconsistent in quality. Improvement is needed with instructional techniques and modifications to meet IEP need of your two students."  (CEO Exhibit No. 25)

26.              March 24, 2005 - A PIP Appraisal noted that Ms. Brock was progressing in the goals that were set. (See CEO Exhibit No. 24)  However, her Formal Observation Report graded all four Domains as Areas for Improvement. The qualified observer commented that her delivery of instruction did not achieve the lesson plan's objective. The Report   reiterated that her teaching deficits contribute to "some students being ill served by the school." (CEO Exhibit No. 26)

27.              March 24, 2005 - Ms. Brock's Annual Evaluation Report assessed her unsatisfactory for the Domains of the Learning Environment and Instruction/Instructional Support with a total point score of 55. The Principal commented that although Ms. Brock had only two and /or three students assigned to her that year, she had difficulty implementing her instructional program and maintaining an effective classroom environment. (CEO Exhibit No. 27)  Ms. Brock signed the Report but did not file an Appeal.

28.              June 16, 2005 - Statement of Charges was filed by the CEO recommending to the Board that Ms. Brock should be dismissed  for having two consecutive years of unsatisfactory evaluations. Specifically the recommendation noted during the 2003-2004 school year she received an unsatisfactory evaluation and was placed on 2^nd class certificate; and  that during the 2004-2005 she was placed on a PIP and received her second unsatisfactory evacuation despite support and assistance from colleagues, an Instructional Support Teacher and administrators, and that despite having only two to three students assigned to her, she had shown little improvement in her instructional program and in the maintenance of an effective classroom environment.   (CEO Exhibit No. 28)

Ms. Brock's Defenses

1.   Her evaluations did not take into account that she did not start at Coldstream until September 24, 2004. 

While taking over a new class several weeks into a school year might place additional challenges on a teacher particularly after the class had been taught by two teachers previous to her, it would be a stretch to attribute two full academic years of continuing unsatisfactory performances to a late start at the beginning of the first year.  Perhaps more weight could be given to these circumstances to excuse poor performance of a first year teacher, but Ms. Brock has been a BCPSS teacher for more than 30 years.  Therefore, even though there may have been a break down by the school system in the teaching assignment at Coldstream, Ms. Brock, an experienced teacher, should have been able to compensate for the late start with a new class.  Indeed, her inability to make adjustments to deal with her late start over the next two years, would indicate an even more serious deficit that would support  the CEO's claim of incompetence.

2.   There were procedural flaws in the process leading to the recommendation for dismissal. 

The flaws in the evaluation system according to Ms. Brock, are shown by the absence of the following documentation from her personnel file: (1) the initial planning conference form for March 2004, (2) the individual development form for 2003-2004. (3) the pre-observation conference form for the formal observation of December 1, 2003; (4) the pre-observation conference form for the March 2004 formal observation, (5) the pre-observation conference form for the March 2005 formal observation, all of which are part of the PBES.  She contends that an annual evaluation "lacking these forms is a deficient evaluation process." (Tr. 520)

The testimony of the school administrators revealed, however, that the conferences did occur and the forms were prepared but could not be located at the time of the hearing.  While the absence of these forms from Ms. Brock's personnel file, may display questionable record keeping in a matter of importance to the teacher and the school system and might in some circumstances be a serious shortcoming, it is not the form confirming that a conference has been conducted that is the substantive requirement,  but rather that the conference was conducted.  Here the testimony revealed that the conferences were held.

In addition, if there had been deficiencies in the evaluation process, Ms. Brock had the right to file appeals but did not. 

3.  Ms. Brock was not provided the necessary resources to improve her performance contemplated by the PBES. 

Ms. Brock argues that the "key" support for her defense that she was not provided the necessary resources to improve her performance, is that she did not receive the support particularized in her January 15, 2004,  PIP.^[6]  The terms of the PIP provided that she was to be given release time to observe classroom management. However, the release did not occur until April, which was after her second formal observation and annual evaluation report for 2003-2004. She contends that because of this delay in needed support, her formal observation and annual evaluation report for 2003-2004 should be devalued in their importance. 

            The evidence reveals that on January 15, 2004, Ms. Brock received both a Performance Review Report, CEO Exhibit No. 5, and a PIP, CEO Exhibit No 7.  While the  PIP stated that the assistance to be provided to her would include release time for her to attend demonstration lessons on the techniques and strategies of effective teaching, the improvement plan also provided that "Administrators will provide articles and release time to attend demonstration lessons on effective teaching techniques and strategies."  In a Memo dated January 23, 2004, Re: "Article on Teaching Styles and Strategies," the Principal furnished Ms. Brock with materials on "Teaching Styles and Strategies" (CEO Exhibit No. 6) 

In addition, the PIP enumerated other assistance that Ms. Brock would need from the Principal to help correct her problems.  For example,  Ms. Christ, an Academic Coach,  would review lesson plans weekly and make recommendations for alternative strategies and administrators would monitor lessons to ensure that instructional materials and resources were suitable  to the instructional goals and productively engage students in meaningful learning at all times.  There was evidence, acknowledged by Ms. Brock, that this assistance was provided.  In her testimony when asked she replied that "Ms Christ helped me. She helped me a lot. She planned with me." (Tr. 446; 458-459)  Ms. Williams too, according to Ms. Brock helped her. "She would come up, she would come around"  and with Ms. Thomas, "would tell me . . .  different strategies to use the next day." (Tr. 367) 

However,  following a formal observation on March 18, 2004, by the Principal, Ms. Brock's "Planning and Preparation,"  the learning environment that she created for her             students and her instructional activities were judged in need of improvement.  Consequently, after her Principal reviewed her PIP on March 26, she decided to continue Ms. Brock on her PIP. 

Thus, while Ms. Brock may not have been given the release time before her formal observations in March 2004 and her Annual Evaluation on April 1, 2004 (CEO Exhibit No. 10), she continued to receive support to help her correct problems as per her January 15, 2004 PIP.  For example, she observed several teachers, one a special ed teacher, in April 2004 and testified that she "got a lot from them." (Tr. 370) In fact, she testified on cross examination that she acknowledged to  Ms. Williams that she had never received as much support as she had at Coldstream during the school years in which she received unsatisfactory evaluations.  (Tr. 460)  However, her unsatisfactory performance continued             through the 2004 and the following school year as shown by unsatisfactory evaluations.

Ms. Brock also claimed that she did not have support and certain materials - tapes, transparencies, etc related to the "Open Court Curriculum" which is a step by step program that BCPSS had used since the late 90's to teach students at the primary level to read using strategies such as phonetics, letter sound recognition, and blending sounds together to make words.  She testified that she had never been trained in Open Court when she started at Coldstream. ^[7] However, on her October 21, 2004, Formal Observation Report, she commented that she "would continue to work at learning open court the way (Ms. Christ) showed (her) to implement the Plan."  (CEO Exhibit No. 19) In addition, when asked on cross examination whether Ms. Christ had assisted her, "implementing the open court series into your instruction  . . . and making it a part of your instruction,"  she replied that she could not answer yes or no to that, but she conceded that Ms. Christ "told" her the "components of open court," if that what you meant by implementation, because the components are the same on every level."  (Tr. 463) Thus, the record corroborates a finding of fact that Ms.Brock was given instruction and support in the curriculum.  (Tr. 76-77; 80-82; 336-338)  

       V. Conclusions of Law

In public school  labor relations dispute litigation where, as in the present case, the LEA's right to dismiss a teacher is circumscribed by statute that enumerates the specific grounds for termination, the employer has the burden of producing evidence or other information sufficient to persuade the Hearing Officer that such grounds to terminate the employee were  present - in this case that Ms. Brock was "Incompetent."  BCPSS has met that burden.

A major premise of the PBES, as well as a growing body of research, discloses that student achievement is heavily influenced by the quality of the teacher, and that the most significant gains in student achievement will be realized when students receive instruction from good teachers over consecutive years.  The No Child Left Behind law recognizes that good teaching is central to all of the efforts to improve public education. Indeed, Title II of the law requires that every classroom have a "highly qualified" teacher by the end of the 2005-06 school year.   

Thus, Ms. Brock's claim that her dismissal is not justified  must be assessed not only in terms of her rights as a teacher but in light of how her classroom performance affects student learning.

The testimony and documents amply demonstrate that Ms. Brock's performance during the school years in question was "unsatisfactory."   In each of those years, formal observations by "qualified observers" corroborated the annual evaluations of her inadequate performance in the classroom.  While she appended written comments on certain of these instruments, she did not deny their substance, nor did she exercise her statutory and /or contractual rights to grieve them under the BTU Agreement or to appeal them under State law.      

Despite her claim that she was given inadequate support, the record revealed that in fact, Ms. Brock was regularly supported by the school administration with support in each of the domains in which she was in need of improvement. The evidence confirmed that even with support and assistance from colleagues, an instructional support teacher and administrators, and even though only two or three students were in her class for most of the two years in question, Ms. Brock failed to show improvement in her instructional program and in the maintenance of an effective classroom environment.

Even though the record of her performance exposes a distinct negative reflection on her competence, the school personnel who testified were clear that Ms. Brock had a genuine concern for her students and their welfare.  As her counsel described her, she "is a dedicated and caring" teacher. (Tr. 287)  Indeed, as shown on the documents that she introduced, while she recognized the poor behaviors of her student, she sought to find ways to improve their conduct.  The letter that she wrote to parents talked of the standards of behavior that was essential for establishing and maintaining a successful learning environment and encouraged their support.

Nonetheless, despite these admirable qualities, she did not provide the level of teaching that BCPSS had the right and duty to expect of her. While it is difficult to focus on any one comment or report in the evidence presented by BCPSS, the comment in Ms. Williams' April 1, 2004 Observation Report that Ms. Brock "allowed an atmosphere to exist that is a detriment to the learning process," and another in her November 24, 2004, Formal Observation Report, that allowing Ms. Brock to continue as a teacher in the BCPSS  "contributes to some students being ill served by the school" amply demonstrate the danger expressed in the PBES that  "Allowing incompetent teachers to remain in the school system continues to victimize the students." (CEO Exhibit No. 23) ^[8]