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Educator License Waivers – Superior Court Decision

To:Superintendents of Schools, Executive Directors of Approved Special Education Private Schools, and Other Interested Parties
From:Mitchell D. Chester, Ed.D., Commissioner
Date:December 19, 2011


A recent state court decision addresses the process for school and district officials to obtain hardship waivers in cases where they seek to employ educators who do not yet hold a Massachusetts educator license. This memo summarizes the decision and informs you of anticipated next steps.

Court Decision

On December 8, 2011, the Worcester Superior Court (Judge Douglas Wilkins) issued a decision in Nordberg v. Mass. Department of Education, requiring the Department of Elementary and Secondary Education (Department) to change its current computerized system of granting first year waivers of the educator licensure requirements upon request and certification by school superintendents. Under the educator licensure statute (G.L. c. 71, s. 38G) the commissioner may, upon request of a superintendent, grant a one-year exemption (waiver) from the requirement to employ a licensed educator when compliance with the licensure requirement "would in the opinion of the commissioner constitute a great hardship in securing teachers for that school district." The court held that the Department's current computerized waiver system is deficient because it does not obtain and evaluate all the necessary information from the superintendent, and the waiver is granted automatically based on the information provided.1


The Department set up the computerized waiver system in 2002 to maintain efficiency despite funding and staffing cutbacks in the Office of Educator Licensure. From January 1, 2002, through December 31, 2010, the office has processed more than 12,000 first year licensure waiver requests. The court acknowledged that use of a computerized system is permissible, as long as the system collects and evaluates the necessary information and allows for the exercise of discretion. The court also agreed that abruptly halting the current system would have an adverse impact on school personnel operations, and granted a 30-day stay of its decision to permit an appeal or to permit time for the Department to bring the system into compliance in an orderly fashion. We expect to request additional time from the court to allow us to explore and implement necessary changes to the system.

Next Steps

We will keep you informed of changes to the system that may need to be made to ensure that the system is consistent with state law, uses available resources efficiently, and serves the needs of school districts and approved private special education schools. We may make some technical changes to the system in the short term. Such changes will likely be followed by revisions to the educator licensure regulations, which will require a longer period of time to implement. We intend to reach out to superintendents and personnel directors for input and recommendations.

In the meantime, if you anticipate the need to request a hardship waiver for the current school year, you should continue to document and maintain on file your hiring process for the position, including internal and external job postings, a statement as to why any licensed applicants were not recommended for hire, and the reason(s) that the unlicensed applicant is the most qualified for the position.

We will inform you of any anticipated changes before they take effect. Should you have questions, please email Brian Devine, Director of the Office of Educator Licensure, at

Last Updated: December 27, 2011
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