New York Law Review

Feinerman v. Board of Cooperative Educational Services, 48 N.Y.2d 491 (1979): Enforceability of Teacher’s Waiver of Tenure Rights

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The New York Law Review

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48 N.Y.2d 491 (1979)

A prospective teacher may knowingly and freely waive the right to be appointed to a three-year probationary period in a tenure-bearing position, provided the waiver is not the product of coercive influences.

Summary

Muriel Feinerman was hired by the Board of Cooperative Educational Services (BOCES) for successive one-year contracts to teach in an adult education program that was federally funded. Each contract stated the position was non-tenure-bearing. Feinerman signed each contract. After several years, BOCES terminated her employment due to decreased enrollment. Feinerman sued, arguing her position was legally probationary and thus tenure-bearing, entitling her to seniority rights. The New York Court of Appeals held that Feinerman knowingly and voluntarily waived her right to a probationary, tenure-track position by signing the contracts, so her termination was lawful.

Facts

  • In February 1974, Muriel Feinerman was hired by BOCES as a business subjects teacher in an adult education program funded by the federal government.
  • Her contract, which she signed, ran until June 30, 1974, specified a per diem wage, and stated, “There is no tenure with this position.”
  • Feinerman was reappointed for the 1974-1975 and 1975-1976 school years under similar terms.
  • In September 1975, she received a letter stating her salary would be per diem and no tenure would attach, which she signed to indicate acceptance.
  • A collective bargaining agreement in effect stated, “Tenure is not applicable in annually funded Day Time Adult Occupational Education projects.”
  • In June 1976, the superintendent informed Feinerman her position would be terminated on June 30, 1976, due to decreased enrollment.

Procedural History

  • Feinerman filed an Article 78 proceeding seeking reinstatement.
  • Special Term dismissed the petition, finding she consented to a temporary, non-tenure position.
  • The Appellate Division modified the judgment, awarding her 60 days’ back pay, but denied reinstatement, reasoning she could have been terminated anyway during the probationary period.
  • Both Feinerman and BOCES appealed to the New York Court of Appeals.

Issue(s)

Whether a prospective teacher may waive the right to be appointed to a three-year probationary period in a tenure-bearing position.

Holding

Yes, because such waivers are valid if they are knowingly and freely made, and not the product of coercive influences.

Court’s Reasoning

  • The Education Law (§ 3014, subd 1) requires teachers to be appointed for a probationary period of up to three years.
  • The court distinguished cases preventing the subversion of tenure statutes through “temporary” designations or delayed appointments, noting Feinerman expressly agreed to limited, non-tenure-bearing terms.
  • The court relied on Matter of Baer v Nyquist, stating it implicitly recognized that public policy doesn’t absolutely bar a teacher from waiving the right to a probationary period. The court emphasized that a waiver must be knowing and voluntary.
  • The court cited Matter of Abramovich v Board of Educ., which allowed a tenured teacher to waive statutory protections, reasoning that if a tenured teacher can waive rights, a probationary teacher’s waiver of a mere expectancy of tenure is even more acceptable.
  • The court emphasized that 3014 of the Education Law doesn’t bar teachers from waiving the three-year probationary period.
  • The court noted Feinerman willingly signed contracts stating, “There is no tenure with this position,” and didn’t allege coercion.
  • The court stated, “Only when it is clearly demonstrated that a teacher voluntarily, knowingly and openly waived the right to be appointed to a three-year probationary term in a tenure-bearing position and there is no evidence of coercion or duress should the public policy considerations embodied in the tenure statutes be said to yield to the terms of the employment agreement between the parties.”
  • Dissent: Judge Wachtler argued that teachers should not be required to waive tenure rights and that such waivers in original employment contracts are against public policy.

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