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Commonwealth Court tells district to reinstate principal fired in cheating scandal

Michelle Burns was fired based on what happened when she was principal of Tilden Middle School

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

Commonwealth Court has ordered the School District to reinstate a principal fired due to cheating at her school, upholding an arbitrator’s ruling that while she failed to stop tampering with PSSA test booklets, no evidence was offered that she actively participated in it.

The three-judge panel also ordered the District to give Michelle Burns back pay, minus money from a 60-day suspension ordered by the arbitrator in 2015 who found that she failed to adequately supervise test administration while she was principal of Tilden Middle School. While he found her behavior to be negligent, the arbitrator had rejected the harsher penalty of termination.

District spokesman Lee Whack could not be reached for comment on whether the District would appeal this decision to the state Supreme Court. District offices were closed for Good Friday, as were the offices of the Commonwealth Association of School Administrators, which appealed the case on Burns’ behalf.

Tilden was one of dozens of District schools flagged by state investigations of cheating on the mandated PSSA tests between in 2009 and 2011. The probes were undertaken after the Notebook and Newsworks disclosed the existence of a "forensic audit" of test booklets from 2009 done by the testing company.

In 2014, the District said that as many as 130 educators may be implicated. So far, 53 District schools and several charters have been investigated. Seven educators have been charged criminally, and an unknown number disciplined since personnel actions are kept confidential.

Burns headed Tilden between 2006 and 2010. When the District fired her in 2014, she was principal of Kensington Urban Academy, now merged into Kensington High School.

After Burns was fired in 2014, CASA sought arbitration under its contract, which allows the District to terminate employees "for cause." The arbitrator ruled that termination was excessive and imposed the suspension without pay instead. The District appealed that decision to Common Pleas Court, and Judge Linda Carpenter sided with the District.

State law invests great weight to arbitrator rulings in labor cases, but allows exceptions when "public policy" is compromised. Carpenter cited that exception in her decision.

"The arbitrator’s decision to reinstate Burns offended a clear and well defined public policy against a top school administrator creating or condoning an environment that promotes cheating," Carpenter ruled. She wrote that it "strains credulity to argue that public policy does not dictate that one of a school principal’s main duties is to ensure that…tests are to be free of cheating and manipulation…Public confidence in public education is eroded when the principal of a public school turns a blind eye to such obvious cheating perpetrated by employees in her direct supervision."

At the time, then-CASA president Robert McGrogan called Carpenter’s ruling a "gross overstep"

Judge P. Kevin Brobson, writing for the Commonwealth Court panel in Thursday’s decision, said that the court recognized that "a fundamental public policy exists to ‘preserve the integrity of PSSA testing,’ in order to provide students…with an effective learning envrironment." But it concluded that the arbitrator ‘s ruling should stand due to lack of evidence that Burns actively participated in the misconduct.

"Although the cheating which occurred at Tilden is abhorrent and such conduct must be rooted out, the Arbitrator found only that Burns failed to uncover the cheating and prevent it. Thus, we cannot conclude an award reinstating an administrator after finding her guilty of mere negligence violates a fundamental public policy."

Burns was quoted in the Inquirer as saying that her life had been "turned upside down" for three years and that she was "ecstatic" after the decision.

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