IN THE MATTER OF THE TENURE HEARING OF JENNIFER O’BRIEN, STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF PATERSON, PASSAIC COUNTY, 12/12/11, (#544-11)

#544-11 (OAL Decision: http://lawlibrary.rutgers.edu/oal/html/initial/edu05600-11_1.html)
IN THE MATTER OF THE TENURE 	:
HEARING OF JENNIFER O’BRIEN, 	: 	COMMISSIONER OF EDUCATION
STATE-OPERATED SCHOOL DISTRICT 	: 	DECISION
OF THE CITY OF PATERSON, 	:
PASSAIC COUNTY. 	:
SYNOPSIS
The petitioning Board certified eight tenure charges against respondent – a teacher who has been
employed by Paterson schools since 1998, most recently instructing first graders – for conduct
unbecoming a teaching staff member. All of the charges arose from two statements that respondent
admitted to posting on her Facebook page in March of 2011, specifically: “I’m not a teacher – I’m a
warden for future criminals!” and “They had a scared straight program in school – why couldn’t
i (sic) bring 1 st graders?” The charges asserted that respondent: breached her duty to maintain a safe,
caring and nurturing educational environment for her first-grade class; offended District parents and
libeled her students; made statements that reflect a low opinion of the children entrusted to her care;
failed to exercise appropriate discretion; disrupted the educational environment by her actions;
undermined public confidence in the Paterson schools; and violated District Policy 3281, which
states that “(s)chool staff shall not make inappropriate comments to pupils or about pupils.”
Respondent denied having engaged in conduct that warranted her dismissal or other discipline.
The ALJ found, inter alia, that: the respondent is not a novice in the classroom; 	respondent’s
Facebook comments are not protected by First Amendment rights, as they were not intended to
address a matter of genuine public concern but rather were a personal expression of job
dissatisfaction; in a public-education setting, thoughtless words can destroy the essential partnership
between home and school; respondent’s actions in posting her comments on Facebook showed a
disturbing lack of self-restraint and inappropriate behavior which was detrimental to her role as a
professional educator; respondent’s lack of sensitivity and her inability to fully understand the
serious impact of her actions suggests that she could not effectively return to the classroom in
Paterson. 	The ALJ concluded that the Board has met its burden of proving all charges against
respondent with the exception of Charge Three, which pertains to claims of libel and slander over
which the Commissioner has no jurisdiction. Accordingly, the ALJ dismissed respondent from her
tenured position in petitioner’s schools.
Upon independent review of the record and the Initial Decision, the Commissioner adopted the ALJ’s
decision as the final decision in this matter for the reasons comprehensively detailed therein.
Respondent was dismissed from her tenured employment, and a copy of this decision was forwarded
to the State Board of Examiners for action against respondent’s certificate(s) as that body deems
appropriate.
This synopsis is not part of the Commissioner’s decision. It has been prepared for the convenience of the reader. It
has been neither reviewed nor approved by the Commissioner.
December 12, 2011

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OAL DKT. NO. EDU 5600-11
AGENCY DKT NO. 108-5/11
IN THE MATTER OF THE TENURE 	:
HEARING OF JENNIFER O’BRIEN, 	: 	COMMISSIONER OF EDUCATION
STATE-OPERATED SCHOOL DISTRICT : 	DECISION
OF THE CITY OF PATERSON, 	:
PASSAIC COUNTY. 	:
____________________________________
The record of this matter and the Initial Decision of the Office of Administrative
Law (OAL) have been reviewed. Exceptions of both the Board and the respondent – submitted
in accordance with the requirements of N.J.A.C. 1:1-18.4 – were fully considered by the
Commissioner in making his determination herein.
Exceptions 	of 	the 	Board 	simply 	urge 	the 	Commissioner 	to 	adopt 	the
Initial Decision of the Administrative Law Judge (ALJ) in its entirety.
Respondent’s exceptions effectively recast and reiterate her arguments advanced
below, 	essentially again 	arguing: 	1) 	the 	tenure 	charges 	against 	respondent 	violate 	her
constitutional right of free speech – because her comments were not made to students, in the
presence of students or in a forum where her first grade students were likely to become aware of
them and caused relatively little disruption in the District – she 	cannot be deprived of her
constitutional free speech rights because of fear of reaction or because her opinions are
unpopular; and 2) even if it is determined that respondent’s postings were inappropriate,
discipline imposed on her must be minimal in light of the fact that they represent a sole
transgression in a career of over a decade with the District. In that it is determined that the ALJ

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comprehensively considered and addressed these issues in her decision, and recognizing that
respondent’s exceptions raise no valid challenge to the ALJ’s resolution of these issues, further
discussion of them here is not warranted.
Upon comprehensive consideration of the record of this matter – which includes
transcripts of the 3 days of hearing at the OAL,1
Turning to the appropriate penalty to be imposed in this matter, the Commissioner
is mindful that the “[f]actors to be taken into account in making a penalty determination include
the nature and circumstances of the incidents or charges, the individual’s prior record and present
attitude, the effect of such conduct on the maintenance of discipline among the students and
staff, and the likelihood of such behavior recurring.” 	In the Matter of the Tenure Hearing of
Deborah Suitt-Green, State-operated School District of the City of Newark, Essex County,
decided by the Commissioner October 14, 1997, slip. Op. at 32, citing In re Hearing of
Ostergren, Franklin School District, 1966 S.L.D. 535, 541; In re Fulcomer, 93 N.J. Super. 404
(App. Div. 1967).
the Commissioner concurs with the ALJ’s
findings and her conclusion that the Board has proven charges 1, 2, 5, 6, 7, and 8 against
respondent by a preponderance of the credible evidence. 	Respondent’s posting of derogatory
and demeaning comments about her first grade students on Facebook – where she had 333
“friends” – showed a disturbing lack of self-control, insensitivity and unprofessionalism; was
wholly inappropriate; and, without question, constituted unbecoming conduct.
While duly considering respondent’s 13 years of apparently unblemished service
in the District, the Commissioner nonetheless concludes that the entirety of the record supports
1 Hearing was held on August 3, August 4, and August 24, 2011.

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the ALJ’s cogent evaluation of these requisite factors set forth on pages 14-16 of the
Initial Decision:
O’Brien’s conduct would be inexcusable anywhere, and in any school district.
But the District urges, and I agree, that O’Brien has demonstrated a complete lack
of sensitivity to the world in which her students live. 	This raises my concerns
about her poor judgment to yet an even higher level.
A student’s hopes and fears about the future are more intensely felt in the urban
environment where O’Brien’s students live, and where children do not have the
luxury of being shielded from poverty, violence and crime. O’Brien teaches in a
community where the sentiment that a six-year old will not rise above the
criminal element that surrounds him cuts right to the bone. 	To have those
comments come from the very person entrusted with expanding the opportunities
available to Paterson children cuts even deeper. 	Indeed, O’Brien is responsible
for far more than teaching her first graders to read, write and wait their turn. She
is responsible for nurturing their potential. 	O’Brien urges strenuously that a
decision about her future employment should not rest in the hands of public
opinion. 	In theory, I agree, but the fallacy in O’Brien’s argument is that the
concerns expressed by the Paterson school community about her fitness to teach
their children are understandable and valid. 	The parents of Paterson rightly
demand a teacher who fully appreciates that she holds their children’s destiny in
her hands, and who embraces that obligation with loving dedication.
O’Brien’s prior record is unblemished, and she urges that she should not be
unduly penalized for a momentary lapse in judgment. This argument has appeal.
But O’Brien’s “present attitude” is as troubling as her Facebook posts. If this was
an aberrational lapse in judgment, a reaction to an unusually bad day, I would
have expected to have heard more genuine and passionate contrition in O’Brien’s
testimony. I needed to hear that she was terribly sorry she had insulted her young
students; that she loved being their teacher; and that she wanted desperately to
return to the classroom. I heard nothing of the sort. Rather, I came away with the
impression that O’Brien remained somewhat befuddled by the commotion she had
created, and that while she continued to maintain that her conduct was not
inappropriate, she was sorry others thought differently. With some further time to
reflect, and with some sensitivity training, O’Brien could successfully return to a
public school classroom. 	But I do not believe that she can effectively do so in
Paterson. 	Her relationship with the Paterson school community is irreparably
damaged, not because the community thinks so, but because O’Brien fails to
understand why it does.
Under these circumstances, the Commissioner finds and concludes that respondent is unfit to
discharge the duties and functions of her position as a teacher in Paterson and he, therefore,

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cannot entertain the prospect of respondent’s return to the District and the resultant potential for
the perpetration of an unhealthy educational environment.
Accordingly, the recommended decision of the OAL is adopted for the reasons
comprehensively detailed therein. 	Respondent is hereby dismissed from her tenured teaching
position with the State-operated School District of the City of Paterson. 	This matter will be
transmitted to the State Board of Examiners for action against respondent’s certificate(s) as that
body deems appropriate.
IT IS SO ORDERED.2
ACTING COMMISSIONER OF EDUCATION
Date of Decision: December 12, 2011
Date of Mailing: 	December 12, 2011
2 This decision may be appealed to the Appellate Division of the Superior Court pursuant to P.L. 2008, c. 36.
(N.J.S.A. 18A:6-9.1)