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Chancellor Carmen Farina Starts Her Superintendents Scrambling For The "Great People" To Govern The NYC DOE

January 16, 2015, 6:24 am
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Carmen Farina leading the pack
From Betsy Combier:

Who are the "great people"? I saw Carmen in action at PS 6. We define words differently....I put the health, safety, and welfare of the children first and I mean it.

Just askin'......

Network staffers jumping ship ahead of Fariña’s system overhaul
by Patrick Wall, Chalkbeat, January 16, 2015
LINK







The school-support networks created during the Bloomberg era are shedding leaders and staffers ahead of an overhaul of the city’s school governance system, which Chancellor Carmen Fariña will announce next week, according to multiple sources.

Fariña will reveal changes to the way schools are managed and supported during a speech next Thursday at the Association for a Better New York, according to network leaders and teachers who were told about the speech by their union president.

 The revamped system is widely expected to diminish or dismantle the support networks and restore authority to district superintendents, who were weakened under Bloomberg.

Several current network leaders have already taken new jobs working for superintendents as “principal leadership facilitators,” according to principals and network leaders.

 “A bunch of my colleagues have applied, gotten offers, accepted, and are starting their jobs in the next few weeks,” said one network leader who, like the others, spoke about the behind-the-scenes reshuffling on the condition of anonymity.

That represents a major power reversal for network chiefs who, under the previous administration, overshadowed superintendents. While network leaders oversaw staffs of a dozen or more employees who helped principals run their schools, superintendents had only a handful of helpers and served mainly to evaluate principals.

Meanwhile, some network employees are leaving to work in schools or various education department offices, even as a network hiring freeze keeps their bosses from replacing them. The effect is that some networks have had their operations undermined before they have officially lost any authority.

“The transition is happening without anybody announcing anything,” another network leader said.

As many as a dozen network chiefs are said to have accepted the new principal leadership facilitator jobs, which are being informally referred to as “deputy superintendents,” according to the network leaders. Their role will be to give principals instructional support and help superintendents evaluate them. (A few network leaders have also been hired as superintendents.)

At one recent meeting, an education department official told a group of network leaders that they should “seriously consider” applying for those new roles, according to an attendee. Lately, some network chiefs who had planned to wait until the new governance structure was announced have started applying for the openings in the superintendents’ offices because they don’t want to lose out on their chance to take them, several said.

"I think everybody right now is trying to think about their careers and how they’re going to survive this transition,” one network leader said. She added that superintendents, who have orders to build up their own teams, are eager to recruit highly regarded network leaders before their peers poach them.

“All the superintendents are trying to grab all the great people now before they’re all gone,” she said.

Some principals said they were upset that the city is allowing all this hiring to happen before any official restructuring has been announced. The principals are also worried that the reshuffling might mean they will have fewer places to turn for support during the transition.

A Brooklyn principal said some of her colleagues have already found that network employees they used to work with regularly have recently left. She worried that as she tries to push her own students to graduation this year and starts hiring for next school year, she might not get the support she needs.

“We’re really concerned about this gap in instructional support,” the principal said, “and how that’s going to affect kids.”

Education department officials said that no school governance changes have been made yet, but that when they are, they will be announced early enough to allow a smooth transition before next school year. Spokeswoman Devora Kaye added that many families and school leaders have not been satisfied with their support networks.

"The chancellor recognizes that educators, families and students have not felt clear and equitable support across the city,” she said. “Improving the department’s management structure will be yet another critical element in lifting up all children and better supporting principals and schools.”

 The system of nearly 60 networks, which span multiple boroughs and usually support about 25 schools, has earned mixed reviews over the years.

 Principals who favor the system point out that it separates support from supervision, allowing school leaders to share problems with their networks without fear of reprisal. Their ability to choose which network to join, they say, lets them collaborate with like-minded colleagues outside their geographic districts.

 But critics call the structure inefficient and impractical, leaving low-performing schools with too little oversight and parents without local officials to turn to. They point out that network leaders cannot compel the leaders of struggling schools to make changes and say that the quality of the different networks vary widely.

 At a meeting Wednesday, United Federation of Teachers President Michael Mulgrew told the teachers to expect an announcement about a new school-governance system the following week, according to attendees. He also criticized the networks, which he has attacked beforefor focusing on schools’ compliance with city rules than instruction.

The Bloomberg administration “designed a system that’s not about supporting schools,” he said in 2013. “They designed a system that’s about accountability.”
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On The United Federation of Teachers Not Defending Members

January 18, 2015, 6:48 am
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By Kim Janos
Times Ledger, January 18, 2015

Michael Mulgrew, UFT President

 
 
The United Federation of Teachers has long been perceived as a powerful union in New York City. So, why would so many of its members find themselves in need of legal representation when they find themselves unfairly targeted by an unethical principal when members pay so much in dues?
This is the question many teachers are asking. So many of us are being harassed, abused and even brought up on false charges. In the age of “accountability,” the only accountable people seem to be teachers. Administrators do not need toaccount for anything, even abusing their employees. Teachers will call on their chapter leader and district reps only to be given false information. The UFT does NOT want members to know their rights. Why?
When teachers find themselves unfairly targeted by their principal, even after an excellent career, there is very little they can do. Their only course of action is to get an attorney. Expensive veteran teachers are encouraged by their union representatives to retire. Whether they are financially able or not is irrelevant. Untenured teachers are told to just resign and move on to other careers. It doesn’t matter if the accusations against the teacher are founded or not. If the principal decides you are the target, you have no chance. If that principal wants to lie, manipulate, use other teachers against a particular teacher, there is nothing the UFT will do about it.
That’s the little secret the UFT doesn’t want to get out: they are powerless and they don’t want members to know.
My question is why pay union dues to a union that doesn’t support its members and only exists to pay fat salaries to union leaders who do absolutely nothing?
New York City teachers deserve better. They deserve new union leadership — one that will advocate for its members.

Kim Janos, Teacher
Fresh Meadows
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The Slippery Slope of What Defines "Due Process"

January 18, 2015, 12:56 pm
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From ADVOCATZ President Betsy Combier:

In my opinion, when any Attorney yells at a client or "convinces" (forces) a person to give up on going through a 3020-a arbitration because he/she "will be terminated" or "lose his/her pension", as we hear so often from NYSUT and even private attorneys such as Bryan Glass and Jordan Harlow, the due process rights of that individual is being denied to him/her.

How does an Attorney/advocate/representative know that the person charged will be terminated? Before that final judgment there is always mediation, settlement, negotiation.

I believe that most attorneys do not want to go through a 3020-a because it is time consuming, and a drain on time and money. Certainly, it is a lot easier to "convince" someone to give up, than to fight.

While I and the private attorneys that I work with do not go for the argument that someone will be terminated, there are never any guarantees. But we are willing to settle for a withdrawal of charges if the teacher wants to not pursue a full hearing. We have saved the jobs of more than 40 teachers who have hired us to represent them.

But to demand that a person give up his/her right to argue against false charges that will forever damage his/her reputation and future earnings? No thank you.

Due process is the legal requirement that the state must respect all of the legal rights that are owed to a person.

Henry J. Friendly wrote about a fair hearing in his excellent essay, Some Kind of Hearing. Yet this is not what the DOE wants to provide at a 3020-a, and that is why you win in your defense. You must add the context and motive to the charges because the DOE will not do that. For example, the DOE attorney may obtain testimony that on X day you, a teacher, did not hand in a lesson plan, and suddenly you are charged with incompetency, conduct unbecoming a teacher, etc. There is not other evidence given. But let's say you were in the hospital, or the day you were supposed to hand in the lesson plan, you were absent? or, you did hand it in, and they want to say you didn't? Your defense and proof are what matters.

It seems to me that the DOE always presents the same case, no matter what the specifications, so the defense of innocence and giving testimony on motive/context becomes the key to winning. Of course, it also seems to me that ADVOCATZ is the only entity which cares about the process that is "due".

Here is a definition I like from Cornell University Law School Legal Information Institute:
Due process
 
LINK
 
Introduction

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures. Most of this essay concerns that promise. We should briefly note, however, three other uses these words have had in American constitutional law.
Incorporation

The Fifth Amendment's reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states. Did the Fourteenth Amend­ment change that? In the middle of the Twentieth Century, about a century after its adoption, a series of Supreme Court decisions found that the Due Process Clause "incorporated" most of the important elements of the Bill of Rights and made them applicable to the states. These decisions almost obliterated any difference between the Bill of Rights and the Fourteenth Amendment. If a Bill of Rights guarantee is "incorporated" in the "due process" requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. The right to a jury trial, to take just one example, means the same in state and federal courts; there are no differences about the number of jurors required, whether they have to be unanimous in their verdicts, and so forth.
Equal Protection of the Laws.

If the courts stretched Fourteenth Amendment “due process” to apply the Bill of Rights to the states, they stretched Fifth Amendment “due process” to require the federal government to afford equal protection of the laws. The Equal Protection Clause of the Fourteenth Amendment forbids the states from establishing segregated schools or otherwise discriminating invidiously against some of their citizens. There is no equal protection clause in the Bill of Rights. In a case involving segregation in the schools ofWashington, D.C., which as the nation's capital is a federal enclave governed by federal law, the Supreme Court found that the Due Process Clause operates against the federal government just as the Equal Protection Clause does against the states.
Substantive due process

The words “due process” suggest a concern with procedure, and that is how the Due Process Clause is usually understood. We have just seen, however, that the clause has been taken as a kind of proxy for other rights. In those cases, the rights were actually expressed somewhere in the Constitution, but only as rights against federal (or state) action. What about rights the Constitution does not mention — “unnamed rights,” as Charles Black calls them, like the right to work in an ordinary kind of job, or to marry, or to raise one's children as a parent? The dominant constitutional controversy of the first third of this century, which still echoes in the arguments about abortion and other “privacy” issues like sexual preference, was about an idea called “substantive due process.” The question was whether "due process of law" might put substantive limits on what legislatures could enact, as well as require procedures of judges and administrators. Thus, in 1905, the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, because it thought the public benefit of the law did not justify depriving the bakers of their right to work under whatever terms they liked. For thirty years, conservative judges sometimes used this idea to find legislative judgments about social or economic programs invalid, retarding the emergence of social welfare legislation. In the late 1930's, after years of sharp criticism, the substantive due process approach was repudiated for "economic regulation." Many think the idea is still vital as a barrier to legislation curbing other individual liberties.
The promise of legality and fair procedure

While the text of the due process clause is extremely general, the fact that it appears twice makes clear that it states a central proposition. Historically, the clause reflects the Magna Carta of Great Britain, King John's thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes that country's Seventeenth Century struggles for political and legal regularity, and the American colonies' strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause often thought to embody that commitment.
The clause also promises that before depriving a citizen of life, liberty or property, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn't say anything about discipline. Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.”

How can we know whether process is due (what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If "due process" refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling just to accept legislative judgments have to find answers somewhere else. The Supreme Court's struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.
In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In two decisions at the very beginning of the Twentieth Century the Supreme Court held that only politics (the citizen's “power, immediate or remote, over those who make the rule”) controlled the state's action setting the level of taxes, but if the dispute was about a taxpayer's individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether. Another early case suggested flexibility about the timing and nature of a required hearing. When a health inspector decided some chickens in cold storage had rotted, he didn't have to hold a hearing before he could seize and destroy them, so they could not be sold; but the owner of the chickens could sue the inspector afterwards, and if it convinced the jury that the chickens were not rotten, make the inspector repay their value.

Whether process is due

The cases just mentioned established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn't govern how Ohio sets the rules for student discipline in its high schools; but it does govern how Ohio applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.
Even when an individual is unmistakably acted against on individual grounds, there can be a question whether the state has “deprive[d]” her of “life, liberty or property.” The first thing to notice here is that there must be state action. The Due Process Clause doesn't apply to a private school taking discipline against one of its students (although that school will probably want to follow similar principles).

Whether state action against an individual was a deprivation of life, liberty or property was initially resolved by a distinction between “rights” and “privileges.” Process was due if rights were involved, but the state could act as it pleased in relation to privileges. But as modern society developed, it became harder to tell the two apart. Was a driver's license a “right” or a “privilege”? How about a government job? Enrolment on welfare? An initial reaction to the increasing dependence of citizens on their government was to look at the seriousness of the impact of government action on an individual, without asking, as such, about the nature of the relationship affected. Process was due before the government could take an action that affected a citizen in a grave way.

In the early 1970's, however, this gave way to an analysis that accepted as a threshold question whether “life, liberty or property” was directly affected by state action, but that required these concepts to be very broadly interpreted. Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? Previously, a state job was a “privilege” and the answer to this question was an emphatic “No!” Now, the Court decided that whether either of the two teachers had "property" would depend in each instance on whether persons in their position, under state law, held some form of tenure. One teacher had just been on a short term contract; because he served "at will"— without any state law claim or expectation to continuation — he had no “entitlement” once his contract expired. The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. This could create an “entitlement,” the Court said; the expectation need not be based on a statute, and an established custom of treating instructors who had taught for X years as having tenure could be shown. While, thus, some law-based relationship or expectation of continuation had to be shown before a federal court would say that process was "due," constitutional “property” was no longer just what the common law called “property”; it now included any legal relationship with the state that state law regarded as in some sense an “entitlement” of the citizen. Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away. This restated the formal “right/privilege” idea, but did so in a way that recognized the new dependency of citizens on relations with government, the “new property” as one scholar influentially called it.

The application of this threshold test for whether process is due has presented three problems. The first is called the "positivist trap." Since whether one has an entitlement depends on the prescriptions of state law, legislatures may be able to define important relationships — ones on which citizens in fact come to depend — in ways that preclude the conclusion that an "entitlement" is present. Recent "welfare reform" legislation has been explicit that one its purposes is to end any idea that welfare is an "entitlement"; although largely directed to the question how long one may remain on welfare, the rhetoric seems also aimed at the “new property” idea.

We are not discussing “liberty,” but you can see that similar problems will arise, perhaps even more importantly. What decisions affecting prisoners involve their “liberty” has been a particularly aggravating problem. The courts do not want to engage in close supervision of prison issues, but at the same time must recognize the plain command of the language of the clause.

Moreover, if the provisions of a state law define not only an entitlement but also the procedures by which that relationship can be ended or altered, how can a court separate the two? Mustn't the citizen be prepared to accept the "bitter with the sweet"? This issue was presented when civil servants, enjoying tenure under statutes that provided for the procedures to be followed for removal, challenged the constitutionality of aspects of the removal procedures. The Court rejected the "bitter with the sweet" reasoning, but not without indicating a high level of respect for legislative judgments about what procedures would be fair.

The second problem might be described as a problem about what is a "deprivation." A series of cases involving state harm to citizens led the Court to an almost inexplicable series of "due process" results. For example, an early case held that a state could not post a picture of a person naming him as an habitual drunkard without first providing a chance for a hearing; the posting made it unlawful for that person to be served alcoholic beverages in a bar. Yet when a city circulated the photograph of a person recently arrested (but not convicted) for petty theft under the heading "Active Shoplifters," causing enormous damage to his reputation, the failure first to provide a hearing was not objectionable. Another case established that school officials could not suspend a student for ten days without first giving him some kind of hearing; attendance at public school was an "entitlement." Yet a teacher who physically punished a student so severely that it kept him out of school for several days (but who did not formally exclude him from school) had not deprived her student of liberty or property without due process of law. Where liability was denied, perhaps one could say the challenged official acts did not change the victim's legal status. It was still lawful to shop, or to come to school if health permitted. Yet the harms seem if anything worse than in the cases where procedure was required. Some have thought it important that in these cases (and others), state law appeared to provide a remedy after the fact; the victim could sue the official for slander or for assault. To find "due process" violations in such matters would involve the federal courts in what had traditionally been the business of state law. As a dissenter in the corporal punishment case observed, these considerations appear to explain the results in a technical sense. Yet it seems fair to characterize the justice of the opposing results in these cases as deeply questionable.

Finally, what about cases of potential entitlements for which a citizen is applying, and has not qualified? Does a statute saying that every citizen with characteristics A, B and C shall receive stated benefits or earn a driver's license create an "entitlement," so that "due process" constrains the application procedures the state can choose? Once qualified, the citizen could not be deprived of her "entitlement" without due process. Yet the Supreme Court has not said directly whether the same judgment applies at the application stage, and some Justices apparently believe that it does not. On the one hand, it can be said that the law is always more solicitous of established relationships than expectations. However, the "entitlement" analysis suffers some embarrassment in this argument. The claim of the citizen to state legality seems the same whether he has wrongly been denied access to an entitlement he has not yet enjoyed or has been terminated in one previously recognized.

When process is due

In its early decisions, like the rotten chicken case, the Supreme Court seemed repeatedly to indicate that, where only property rights were at stake (and particularly if there was some demonstrable urgency for public action) necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in 1970 with the decision in Goldberg v. Kelly, a case arising out of a state-administered welfare program. New York was seeking to terminate the enrolment of Kelly and others in its welfare program. It conceded that a federal statute required it to provide a full hearing before a hearing officer before finally terminating their enrolment and even — anticipating the new property, “entitlement” approach — that the Due Process Clause required such a hearing. At issue in the case was only its effort to suspend payments pending that full and formal hearing, a question in effect of timing. For this limited purpose New York employed a more informal process. It was willing to give persons like Mrs. Kelly opportunities to confer with responsible social workers and to submit written views before suspension, but it gave no "hearing" in the judicial sense before the suspension was put into effect.

The tremendous need facing a person dependent on welfare, even over a few weeks or months, persuaded the Goldberg Court that a suspension is in itself a deprivation, one that requires a hearing before it could be put into effect. Except for the situations mentioned earlier, where the courts have thought that a tort action could be an adequate remedy against officials who cause harm without affecting legal status, Goldberg in effect created a pre­sump­tion that hearings must come first. The "hearing first" aspect of its holding spread rapidly through a variety of civil judicial remedies — for example, limiting traditional summary procedures lenders had used to repossess cars bought on credit, when payments ceased. This aspect seems reasonably stable in today's law.

It is interesting that these cases have never made what might seem an obvious comparison. In criminal law, the state often takes very damaging actions against people pending trial, with only limited procedural safeguards. Arrest and search require, at most, that police satisfy a judicial officer, a magistrate, that they have reasonable grounds to act; the person they are going to act against has no right to be present at the time. Detention pending trial requires no more than a showing of “probable cause,” and the person who is going to be detained has no right to present witnesses or ask questions of the persons who present evidence for the state. The result may be time in jail, disrupted families, terrible damage to reputation, the loss of a job. The inquiry New York made about Mrs. Kelley seems easily comparable to these criminal law inquiries, but that comparison was never made.

What procedures are due

Probably the hardest of the analytic questions arising under the procedural aspect of “due process” is this one, just what procedures are constitutionally due. This is a question that has to be answered for criminal trials (where the Bill of Rights provides many explicit answers), for civil trials (where the long history of English practice provides some landmarks), and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted. Because there are the fewest landmarks, the administrative cases present the hardest issues, and these are the ones we will discuss.

As we have seen, the earliest expressions were very indefinite. The state had to provide “some kind of a hearing,” giving the citizen “the right to support his allegations by arguments however brief and, if need be, by proof however informal.” The battle over incorporation, however, made this seem a very subjective inquiry, and the reaction to the excesses of substantive due process made that subjectivity suspect. Judicially defining the liberties "indispensable to the dignity and happiness of a free man" case by case seemed a hazardous enterprise. At the same time, developments in the 1950's underscored the importance of fair administrative procedures. This was the time of McCarthy­ism and the red-baiting that went with it. Rumors generated by faceless informers were widely used to deprive government employees of their jobs because of doubts raised about their loyalty and security. The resulting inquiries often left the employees with their honor challenged but no realistic possibility of response. They emphasized the value, in an administrative context, of procedural protections long associated with Anglo-American criminal trials: the right to have the assistance of counsel; the right to know one's accuser and the evidence against one; the right to confront and cross-examine that person; the right to have decision based solely upon a record generated in open proceedings; as well as the right to present argument and evidence on one's own behalf.

Yet, for each case that seemed to demand a detailed procedural prescription, another plainly required flexibility. A legislative investigation of alleged communistic activities could not be undertaken without respecting witness' claims to procedural safeguards; but the Court would not burden a legislative investigation into civil rights issues with rigid procedural requirements, although the investigation's conclusions might harm the reputation of witnesses before it in some parts of the country. An aeronautic engineer could not be threatened with loss of access to military secrets on which his profession depended, on the basis of anonymous accusations about his loyalty, without the opportunity to confront the information and his accuser; but a cook on a military installation threatened with loss of access to the installation (and hence that particular job), apparently on the basis of undisclosed concerns about her security status, had in all the circumstances no similar claim. The Court during this period seemed to agree on little, save the proposition that what the due process clause required could only be determined on the basis of all the circumstances of a given case -- a view not far distant from "the very essence of a scheme of ordered liberty.”

When the Goldberg Court came to answer the “what” question, it held that the state must provide a hearing before an impartial judicial officer, the right to an attorney's help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion. The Court's basis for this elaborate holding has never been clear, although it seems to have some roots in the incorporation debates. Various prior cases were cited for the different ingredients provided for in the naval engineer's case (but not the cook's), for example, on the question of cross-examina­tion — but without attention to the possibility the requirements of due process would vary from setting to setting. The opinion was written as if all would agree that the procedures it was discussing were generally required whenever procedure was “due.” Yet, overall, the collection of procedures it required was atypically demanding even of final government administrative determinations on issues of great importance. A survey of forty federal programs made a few years after Goldberg, for example, found only one other program (also welfare-oriented) in which all the Goldberg rights were respected. For the substantial majority, fewer than half were provided; only notice, the assurance of some degree of impartiality, and an explanation of the basis of decision were observed with any degree of universality.

Perhaps for this reason, an outpouring of cases after Goldberg's due process “explosion” quickly persuaded the Supreme Court to a more discriminating approach. Process was “due” to the student suspended for ten days, as to the doctor deprived of his license to practice medicine or the person accused of being a security risk; yet the difference in seriousness of the outcomes, of the charges, and of the institutions involved made it clear there could be no list of procedures that were always “due.” What the Constitution required would inevitably be dependent on the situation. What process is “due” is a question to which there cannot be a single answer.

A successor case to Goldberg, Mathews v. Eldridge, tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The approach it defined has remained the Court's preferred method for resolving questions over what process is due (although not one that the Court always refers to; sometimes it simply invokes tradition or some other basis for understanding). Mathews arose in a context much like Goldberg; Mr. Eldridge had been receiving disability benefits under a federally supported scheme. Responsible officials came to believe, on the basis of information he had provided and physicians' reports, that he was no longer disabled. They then notified him that they intended to terminate his benefits. Only written procedures were available before the termination was made provisionally effective. Eldridge was entitled to a full oral hearing at a later date, and would have received full benefits for the interim period if he prevailed. His argument, like Kelly's in Goldberg v. Kelly, was that even suspending payments to him pending the full hearing was a deprivation of a property interest that could not be effected without the use of the procedures specified in Goldberg.

Where Goldberg had listed procedures that had to be followed, Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Using these factors, the Court first found the private interest here less significant than in Goldberg. A person who is arguably disabled but provisionally denied disability benefits, it said, is more likely to be able to find other "potential sources of temporary income" than a person who is arguably impoverished but provisionally denied welfare assistance. Respecting the second, it found the risk of error in using written procedures for the initial judgment to be low, and unlikely to be significantly reduced by adding oral or confrontational procedures of the Goldberg variety. It reasoned that disputes over eligibility for disability insurance typically concern one's medical condition, which could be decided, at least provisionally, on the basis of documentary submissions; it was impressed that Eldridge had full access to the agency's files, and the opportunity to submit in writing any further material he wished. Finally, the Court now attached more importance than the Goldberg Court had to the government's claims for efficiency. In particular, the Court assumed (as the Goldberg Court had not) that "resources available for any particular program of social welfare are not unlimited." Thus additional administrative costs for suspension hearings and payments while those hearings were awaiting resolution to persons ultimately found undeserving of benefits would subtract from the amounts available to pay benefits for those undoubtedly eligible to participate in the program. The Court also gave some weight to the "good-faith judgments" of the plan administrators what appropriate consideration of the claims of applicants would entail.

Matthews v. Eldridge thus reorients the inquiry in a number of important respects. First, it emphasizes the variability of procedural requirements. Rather than create a standard list of procedures that, en gross, constitute the procedure that is "due," the opinion emphasizes that each setting or program invites its own assessment. About the only general statement that can be made is that persons holding interests protected by the due process clause are entitled to "some kind of hearing." Just what the elements of that hearing might be, however, depends on the concrete circumstances of the particular program at issue. Second, that assessment is to be made both concretely, and in a holistic manner. It is not a matter of approving this or that particular element of a procedural matrix in isolation, but of assessing the suitability of the ensemble in context.

Third, and particularly important in its implications for litigation seeking procedural change, the assessment is to be made at the level of program operation, rather than in terms of the particular needs of the particular litigants involved in the matter before the Court. Cases that are pressed to appellate courts often are characterized by individual facts that make an unusually strong appeal for proceduralization. Indeed, one can often say that they are chosen for that appeal by the lawyers, when the lawsuit is supported by one of the many American organizations that seeks to use the courts to help establish their view of sound social policy. Justice William Brennan, the author of Goldberg, wrote about it afterwards in just these terms, and dissented from Mathews in a manner that again drew strongly on the plight of the particular individual threatened with loss of welfare in that case, as distinct from the general situation of disability benefit recipients and the general operation of the program, on which the majority had focused. The approach required by the Mathews majority seems more likely to preserve than to endanger existing procedural arrangements. Finally, and to similar effect, the second of the stated tests places on the party challenging the existing procedures the burden not only of demonstrating their insufficiency, but also of showing that some specific substitute or additional procedure will work a concrete improvement justifying its additional cost. Thus, it is inadequate merely to criticize. The litigant claiming procedural insufficiency must be prepared with a substitute program that can itself be justified.

The Mathews approach is most successful when it is viewed as a set of instructions to attorneys involved in litigation concerning procedural issues. Attorneys now know how to make a persuasive showing on a procedural "due process" claim, and the probable effect of the approach is to discourage litigation drawing its motive force from the narrow (even if compelling) circumstances of a particular individual's position. The hard problem for the courts in the Mathews approach, which may be unavoidable, is suggested by the absence of fixed doctrine about the content of "due process" and by the very breadth of the inquiry required to establish its demands in a particular context. A judge has few reference points to begin with, and must decide on the basis of considerat­ions (such as the nature of a government program or the probable impact of a procedural requirement) that are very hard to develop in a trial. A not-at-all-surpris­ing result is to encourage judges to accept resolution of procedural issues by legislatures or others better placed to make these complex yet general assessments.

Two examples may illustrate the problems judges face. The first arose when one of the federal circuit courts of appeal had to decide a dispute about the procedures to be followed in determining certain low-value claims under the national medical insurance scheme. Initially, the court ruled with confidence that access to some kind of oral procedure was required under some circumstances, for no reported case had ever approved a completely written procedure for a setting in which process was "due." Yet this reference point arose outside the Mathews decision as such; and when the case returned to the court at a later stage, it became clear that the Mathews inquiry did not answer for the court just how tightly access to an oral procedure could be controlled and just how informal that procedure could be. For example, would provision for discussions over the telephone suffice? The detailed outcome of the lawsuit seemed much more likely to be the product of negotiations between the litigants than to be the result of judicial decision.

The second example involved a statute that, by very severely restricting the fees that could be paid, had the effect of denying veterans access to attorneys when they made claims under veterans benefits statutes. The Court was closely attentive to the Mathews formulation, and relied on statistics about the usual outcome of veterans' claims to establish that their need for attorneys' assistance was not high. Most veterans prevailed; veterans' organizations were available to provide substitute representation that seemed effective; and in the few cases in which lawyers had appeared, presumably without fee, veterans were not notably more successful than the general run. Yet these statistics cloaked what several of the Justices regarded as a real need for lawyers' assistance in a smaller group of much more complex cases. This was a focus the attorneys for the veterans groups had not developed. Some of the Justices thought that in a well-developed case the Mathews inquiry might demonstrate that attorneys help was constitutionally required in that sub-group of cases; others would have decided that, like the element of orality, access to an attorney was a necessary element of the process "due," one that could never be denied. What was apparent to both groups of Justices (together, a majority of the Court) was that the Mathews inquiry in this case was distorted by the great number of "easy cases," for which the desired procedural change would make little difference.

It follows from the preceding discussion that one cannot expect to list the elements of "required procedures" under American law. In the case involving a ten-day suspension from public school, a chance to tell the school principal (someone other than the complaining teacher) one's own side of the story was sufficient. Suspension of welfare payments may still be held to require all the elements specified in Goldberg, and actual termination of those payments, somewhat more. Nonetheless, an analysis made by the late Judge Henry Friendly in his well-regarded article, "Some Kind of Hearing," generated a list that remains highly influential, as to both content and relative priority:

  1. An unbiased tribunal.
  2. Notice of the proposed action and the grounds asserted for it.
  3. Opportunity to present reasons why the proposed action should not be taken.
  4. The right to present evidence, including the right to call witnesses.
  5. The right to know opposing evidence.
  6. The right to cross-examine adverse witnesses.
  7. A decision based exclusively on the evidence presented.
  8. Opportunity to be represented by counsel.
  9. Requirement that the tribunal prepare a record of the evidence presented.
  10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Again, these are simply the kinds of procedures that might be claimed in a "due process" argument, roughly in order of their perceived importance, and not a list of procedures that will in fact be required.

Author

The original text of this article was written and submitted by Peter Strauss

 
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Justin Baeder at Eduleadership Will Teach You How To Get Rid of a "Bad" Teacher - Calling All Supervisors

January 22, 2015, 5:28 am
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Justin Baeder

EDULEADERSHIP

How to Keep an Unsatisfactory Teacher Evaluation from Failing

Most teacher evaluations—I’ll conservatively say 98%—are “satisfactory” or better. (Here are some numbers from 2013).
That doesn’t mean that nearly all teachers are doing a great job; it just means that we as administrators very rarely go to the trouble of marking a teacher as unsatisfactory.
Why? Because it’s a lot of work, and it often doesn’t “work.”

What’s A Successful Bad Evaluation?

If you have a teacher who isn’t getting the job done, and hasn’t improved despite being urged and helped to do so, an unsatisfactory evaluation may be in order.
But what is this supposed to accomplish?
(And no, this is not a rhetorical question—we do need to give unsatisfactory evaluations when they’re called for).
We should be looking for one of two outcomes when we give a negative evaluation:
  1. Improvement. It’s a wake-up call, yes, but a negative evaluation should also result in a great deal more attention and support to help the teacher improve.
  2. Termination. If a teacher has repeatedly demonstrated that they aren’t going to improve to an acceptable level any time soon, an unsatisfactory evaluation should lead to that teacher’s termination.
    3. But too many principals rely on a deeply flawed assumption.

    Evaluation Is Not Harassment, and Harassment Is Not Evaluation

    A lot of administrators try to combine a little bit of evaluation with a little bit of meanness, thinking:
    “If I give them a hard enough time, they’ll leave.”
    No, no, and no.
    Time and time again, I’ve seen that backfire on administrators.
    Your options are:
    1. Help the teacher improve to an acceptable level.
    2. Do whatever it takes to have the teacher terminated.
    You cannot cause a voluntary resignation. You just can’t, and if you try, you’ll end up with a mess.
    Do a half-hearted job of documenting and supporting, and throw in a hefty load of meanness for good measure, and you’re going to have your whole staff mad at you, instead of thanking you for holding their underperforming colleague accountable.
    You can only do negative evaluations right if you have your ducks in a row, and far too many negative evaluations “fail” because we, the evaluators, don’t have our stuff together.
    The solution, as any Boy Scout could tell you, is to be prepared.

    What Unprepared Looks Like

    Not Knowing What’s Happening
    Final evaluations are usually due in May or June in the US, and we usually start thinking about them when certain deadlines—for goal-setting, for observations, for written reports, for renewal decisions—are approaching.
    Too often, though, we’re unprepared for these deadlines because we don’t know enough about what’s actually taking place in classrooms.
    We rely on proxies like collegial behavior, orderly students, or a lack of complaints for parents, and we have no idea what’s actually taking place during lessons.
    (If you want to make sure this isn’t the case in your school, join us for the free 21-Day Instructional Leadership Challenge).
    When we reach the end of the year and realize things aren’t going well in a particular teacher’s classroom, we’re left with a terrible choice: pretend everything is fine (since we don’t have enough evidence to submit a solid negative evaluation), or give an anemic unsat that will neither help the teacher grow nor result in their dismissal.
    Lacking Evidence
    It goes without saying that an unsat requires loads of evidence, and that evidence needs to be in writing (or in some cases, documents, photos, or other artifacts).
    We keep far too much in our heads.
    If you want to help a teacher improve, you need evidence of their current practice so you can identify specific steps for them to take. And you need evidence of their improvement.
    If you want to make sure a teacher doesn’t come back next year, you need evidence of what’s going on, what you’ve done to improve the situation, and how the teacher has responded.
    This evidence needs to be outside of your own head, and it needs to be organized so you can pull it together easily.
    (Keep stuff in Evernote if in doubt.)
    Failing to Decide What Outcome We Want
    The third way we can be unprepared is to be unclear about what we want to happen.
    If you don’t know whether you want the teacher to improve or be fired, your actions to make that happen are going to be scattershot.
    Of course, we should want all teachers to improve. But sometimes we also want people to leave, because we can tell it’s not going to work out, at least not without many more years of sacrificing students’ learning in the faint hope that the teacher will improve.
    (If you want someone to leave because they aren’t a good fit, that’s another issue. Bad evaluations are for bad teaching, period.)
    You never have to be mean, but at a certain point, you do have to decide which way it’s going to go, and proceed accordingly.
    If you’re going to fire someone, you can’t pull any punches. And if you’re going to help them improve and stay on your staff, you have a relationship to maintain—one that involves very clear expectations for continued improvement.
    But let me be very clear on this point: You should never simply hope that someone will leave voluntarily because you gave them a bad evaluation.
    That may well happen—in fact, it probably happens a hundred times more often than an actual termination—but if a voluntary resignation is your goal, you’ll get sloppy about collecting evidence and supporting the teacher’s improvement, and you can’t afford to do that.
    It’s just as likely that it’ll backfire, and you’ll end up with an angry staff, a very angry bad teacher, and nothing to show for it.

    Be Prepared

    Know what’s going on in your classrooms. Gather evidence, even if you’re not sure if you’ll need it. Be nice, but be diligent in preparing for all of your evaluations.
    And especially be prepared for those that might not be positive.
    I’ve been thinking about this a lot lately because of my workshop on the topic:
      I’m currently offering a new workshop (part of the High-Performance Instructional Leadership Network, but registration is open to the public) called Preparing for Negative Teacher Evaluations.
      I’ll share my best strategies for making the sure this painful, but necessary, process accomplishes its goals.
      You’ll learn:
  • How to distinguish between the “coaching hat” and the evaluator role
  • How to prioritize among struggling staff and avoid taking on too much at once
  • How to gain the support of key players such as union representatives and your supervisor
  • How to keep the paperwork straight and get it done on time
  • How to hold teachers accountable for their performance without creating unreasonable demands or causing discouragement
  • How to create and follow through on clear expectations for improved performance
About Justin Baeder
Justin Baeder helps school administrators increase their productivity through the High-Performance Instructional Leadership Network. Learn More »
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Carmen Farina Builds Her Home Ship: Superintendents Have The Power at the NYC Department of Education

January 23, 2015, 5:02 am
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Carmen Farina

Fury at Fariña’s push for enhanced superintendent power

, NY POST
LINK

Schools Chancellor Carmen Fariña announced a plan Thursday to restore a centralized system and give more power to superintendents that critics immediately slammed as lacking accountability.
“What is she and the mayor prepared to hold themselves accountable for, in terms of raising student achievement?” asked former Deputy Chancellor Eric Nadelstern.
“If you can’t measure it, you can’t manage it. There’s a lot of talk about accountability, but it seems to be a return to a time where there is little or no accountability.”
Fariña plans to dissolve school support networks by the end of the summer and shift their responsibility to 45 superintendents, who would report to Department of Education headquarters. Principals will retain control over hiring decisions, except in cases of struggling schools that will have a separate process.
The networks were established by the Bloomberg administration with the intention of dispersing power from central headquarters.
“Superintendents will be responsible for getting their schools the tools they need to succeed,” said Fariña at an Association of a Better New York breakfast.

Farina puts superintendents back in charge

Most of 55 networks created by Bloomberg given the boot

BY LINDA OCASIO | PUBLISHED JANUARY 22, 2015
LINK
Miller Photography
Chancellor Carmen Fariña announces her restructuring plan during the Association for a Better New York breakfast meeting on Jan. 22.
Schools Chancellor Carmen Fariña announced on Jan. 22 the end of the 55 school networks created by the Bloomberg administration and the introduction of a new structure that gives greater oversight and responsibility to superintendents.
"Beginning in the fall of 2015, superintendents will support and supervise schools, period," Fariña said during remarks at an Association for a Better New York breakfast meeting. 
She also announced the creation of seven Borough Field Support Centers — two in Brooklyn, two in Queens and one in each of the other boroughs. The centers will be staffed with experts in instruction, operations, student services, and working with English language learners and special education students. 
Principals, she noted, will retain control over their budgets and hiring.
The new support centers will open in the summer and the new system will launch in September.
UFT Michael Mulgrew applauded the restructuring.
"It's a welcome contrast to the previous administration, which left schools to sink or swim," he said. "Chancellor Fariña's initiative is designed to provide schools with the tools and advice they need to help them become and stay successful."
In the previous structure created by former chancellor Joel Klein, principals contracted with a network to provide an array of operational and academic support services. Schools from different boroughs often belonged in the same network, making coordination difficult. Many educators derided the networks for their inconsistency and their lack of accountability. The network system also sidelined superintendents, who had almost no staff and served mainly to evaluate principals.
In the new structure, each superintendent will have six staff members, including representative s responsible for family engagement.
Fariña said the new structure will give her a clearer picture of what’s working and what’s not, and superintendents will understand what is expected of them. The centers will also promote one of her key beliefs: Collaboration is better than competition to help schools succeed. 
"The central element of our new approach is creating clear accountability and giving superintendents the authority and resources they need to improve what happens in our schools and in our classrooms," she said.
The move was long expected. Fariña has expressed her preference for clear lines of authority. In laying the groundwork for the change, Fariña had superintendents reapply for their jobs last summer, and all new superintendents must now have at least 10 years of teaching experience, with at least three years as a principal. 
Not all the networks were banished. Fariña praised the nonprofit organizations that performed well, including New Visions for Public Schools, the Urban Assembly and CUNY, as valued partners that will continue providing support to their schools as affinity groups. But those groups will now report to the superintendent and be held accountable for results, she said.
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NY State Governor Andrew Cuomo: I Will Get Rid of The Teachers In This State

January 23, 2015, 5:24 pm
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Andrew Cuomo


Andrew Cuomo to New York State: Your Teachers Stink. I Will Fire Them. I will Break Their Union.

 
Daniel Katz, PhD.
The gauntlet that New York Governor Andrew Cuomo and New York Regents Chancellor  Merryl Tisch picked up with their public correspondence in December has been thrown down.  The Governor announced his plans to revamp and revise education in New York with his State of the State address on January 21st, and it was accompanied by a book detailing his policy proposals.  On teacher evaluation, Governor Cuomo is delivering a massive change — and a direct challenge to community control of their teacher workforce.  If the governor gets his way, 50% of teachers’ evaluations will be controlled by students’ annual progress on standardized tests, and no teacher rated “ineffective” in either half of the evaluation will bescored higher than “developing.”   The other 50% of annual evaluations will be comprised of two observations, one by a school administrator and another by an “independent observer” in the form of an administrator from another district or a state approved outside agency.  The so-called “independent observer” observation will count for 35% of the evaluation.  Local administrators are to be restricted to 15%.
New York State principals?  Andrew Cuomo says you cannot do your jobs.  New York State communities?  Nobody in your town is qualified to evaluate your children’s teachers.  Andrew Cuomo wants to take that away for Albany.
Governor Cuomo insists that these draconian measures are necessary because only a third of New York students scored as proficient or highly proficient on the new Common Core aligned standardized examinations, and by his logic that means the teacher evaluation system, which currently weights the results of those exams for 20%, is “baloney” because only 1% of teachers were found ineffective.  However, tying a criticism of the teacher ineffectiveness to the CCSS aligned exams is flagrantly mendacious because “proficient” was never tied to “grade level” or “passing”;  it was tied to SAT scores loosely predictive of college success.
Governor Cuomo’s teacher evaluation plan is set to punish teachers for not graduating vastly more students ready to succeed in college, as measured by one test score, than currently attend college.
What can reasonably be predicted as an outcome of this?  Plenty.  And none of it will be pretty.
First, this policy will fall heavily upon districts with high levels of poverty which are tightly concentrated because of New York’s appallingly high Residential Income Segregation Index.  We know from disaggregated PISA data that schools with high levels of poverty struggle in standardized test achievement compared to schools in affluent communities. Following Governor Cuomo’s logic it is not that these schools and their teachers struggle with the long established deprivations of poverty upon their student population and would benefit from aggressive plans of economic renewal and integration; it is that their teachers are ineffective and need to be fired.
Second, no teacher in New York will be actually safe no matter how good they are or how talented their students.  The value-added models (VAMs) of teacher performance based on standardized tests are by now subject to so much research demonstrating their unreliability that using them at all is indefensible.  The American Statistical Association (ASA) warned last year that teacher input can only account for 1-14% of student variability on standardized tests, and VAM generated rankings of teachers are not stable, meaning a teacher can be in the top 20% in one year and slide below the median in a subsequent year.  If you think that your child attending a selective public school with a math teacher whose students all pass a challenging algebra examination will have that teacher spared via VAMs — think again.  Teachers who are excellent by every other conceivable model of assessment can be rated as the “worst” grade level teacher in New York City via value-added modeling.
And Governor Cuomo wants that to be 50% of teacher evaluations.
The predictable outcome of this will be an objectively worse education for nearly every student in the state.  Consequences from the No Child Left Behind law’s focus on test-based accountability include a steady narrowing of school curricula to subjects that are tested, leaving science, the social studies, the arts, and health as dwindling portions of public education.  Teaching to the test as is common practice in “no excuses” charter schools will become a prominent methodology in historically struggling schools, and it will grow in currently successful schools as well.  Teachers and administrators will have little choice — with so much riding on VAMs that unstable and able to find teachers of advanced students in the bottom 10% of teachers, test preparation as curriculum will spread.  Further, as experienced teachers are pushed out, the teacher workforce will become younger, assuming that New York State schools can possibly entice new teachers to start a career under these conditions.  These will be novices whose classroom skills will be on a steep learning curve for their early years, and many of them will be forced out by VAMs before reaching the point where their skills start to level off.
A less experienced teacher workforce teaching more and more to the test — THAT is the likely outcome of Governor Cuomo’s evaluation proposals.  There will also be no local measure that can preserve a teacher in his or her job because the only local component of the evaluation system – local administrator observations – will be restricted to 15%.  Are you a principal whose teachers work in underfunded facilities with students who live in poverty?  Tough.  Are you a parent whose child’s teacher works with gifted students in a curriculum accelerated 2-3 years beyond the test?  Tough.  Are you a school board member who wants to preserve the social studies, sciences, art, music, and health?  Tough.  85% of your teachers’ evaluations are outside the input of any local stakeholders; Albany will be in control.  And Governor Cuomo will hold nearly three quarters of a potential increase in aid for schools hostage unless he gets his way.
It is impossible to not connect the dots here.  Among Governor Cuomo’s most reliable donors are Wall Street supporters of charter school expansion who can turn such schools into revenue streams for private corporations using public money.  Charter schools, among whose strongest supporters at the Thomas B. Fordham Institute recently admitted are in the business of pushing out harder to educate children, have been turned into a way to monetize our public education budgets.  Governor Cuomo, who raised half of his $40 million election war chest from just 341 donors, owes that sector.
The only entity with enough members and resources to resist that is the NYSUT.
Most of Governor Cuomo’s teacher evaluation plans (and his other education proposals) will make our schools objectively worse places to learn with many fewer experienced teachers and a diminishing curriculum.  However, they will make the teachers’ union much weaker with an unstable and uncertain cadre of members who have less experience and no practical job security — and who will not be able to effectively resist more and more of our public schools turned over to private interests.
Everything about this is wrong.
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Re-posted From 2013: Chapter Leaders and Freedom of Speech

January 23, 2015, 7:23 pm
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Chapter Leaders and Freedom of Speech in NYC Public Schools
Link to US Supreme Court Decisions Involving the First Amendment

Policy and practice are out of sync and the United Federation of Teachers (UFT) is missing in action.That's why chapter leaders are being brought to mandatory arbitration under "Just Cause" for termination, and why this is all wrong. Many government officials look at speaking out as a matter of national security and against public policy.

In NYC, UFT Chapter Leaders are being charged and brought to 3020-a quickly, just like the teachers they are supposed to represent. As a result of this process very few people want to be Chapter Leaders. Mayor Mike Bloomberg built his 3-term mayoralty on getting the tenure laws changed or made so meaningless that no tenured teacher remains in the public school system, over which Bloomberg has total control.

So far, Mike Bloomberg has failed to be successful as the "education mayor". He is bothered, sources say, because he failed to make the changes to the teaching force that he wanted and tenure rights still exist.

Dennis Walcott
For the past several years, he has encouraged, through his puppet NYC DOE Chief Officer Dennis Walcott, the removal of Chapter Leaders (CL) from NYC public schools. Chapter Leaders get in the way. They want to stop the removal of a teacher for no reason; they will grieve something the principal does to a staff member, and sometimes they will win the grievance, which is not good. Any act or speech which makes the Department of Education or a member of the administration "look bad" is punished with charges and threatened with termination, because the machine works only when all systems face the same direction. The UFT is missing in action as the CL's rights are steadily and constantly ignored and denied.

1. The contentious situation between principals and Chapter Leaders

There is a current disconnect between policy and practice in NYC concerning the rights of chapter Leaders. According to the Chapter Leader Handbook, CLs are the collective voice of the union staff in the school. As the voice of the many, and elected to office, CLs who take their responsibilities seriously will speak on the members' behalf when necessary, and tell the principal what the staff is concerned about. bad move, although this is a duty of the CL.

Here is an excerpt from the UFT Chapter Leader Handbook:

Ways to keep your chapter informed –
1) Hold regular chapter meetings in your school or site. To bolster attendance,publicize the meeting date, time and location in advance and prepare an agenda that covers timely topics. Invite members to ask questions and raise issues, and then brainstorm how the chapter can tackle those issues. Report on your monthly consultation meeting with the principal and solicit suggestions about what needs to be on the agenda of the next one. Report on other UFT activities to your chapter and promote the union by explaining the actions and positions it takes and talking up union victories.
2) Publish a chapter newsletter. As chapter leader, you should publish a newsletter, whether printed or electronic, as frequently as your time allows and the situation requires. The weekly Chapter Leader Update is an excellent source of content for your newsletter (just cut and paste relevant parts), but always add your own school’s activities in the mix.
3) Use your school’s UFT bulletin board. Every school must have a bulletin board reserved in an accessible place for the UFT (see Article 19F of the UFT/DOE contract). Keep your bulletin board useful by posting up-to-date information about the union’s activities, including budget and other legislative fights, as well as important grievance and arbitration decisions and collective-bargaining updates. Post all UFT materials on the bulletin board as soon as you receive them. Invite members to get involved in union initiatives.
4) Face-to-face communication. Personally approach members who are directly affected by the issues. Make a point of introducing yourself to new members in your school and offer them your support.
Hold Monthly Consultation Meetings with the Principal – Improvements in your school are up to you, and your members. The principal must meet monthly with a UFT consultation committee to discuss matters of school policy and implementation of the contract. (Agree. Art. 19H) The UFT chapter should decide how it wishes the school procedures and routines to be changed and give guidance to the committee that meets with the principal. Minutes of these meetings should be made available to the chapter members preferably through the chapter newsletter or at chapter meetings.

Legislation and political action:
Political action, including legislative efforts, are vitally important to the welfare of our schools, our members and our union. Because education is a public function, publicly funded and regulated by the city and state and to a lesser extent the federal government, it’s crucial for union members to be politically involved. Rights that we have won at the bargaining table can be weakened or nullified by legislation. Legislative campaigns are a staple of our political work, and chapter leaders are important to their success. Every chapter should have a committee that is active in the union’s political work.

Organizing a legislative campaign
Elect or appoint a COPE/legislative representative for the chapter, along with a committee of
assistants so that there is one person to cover each floor, department or lunch period. That way your team can reach everybody to distribute information and materials, to collect back completed letters if you are doing a letter-writing campaign, and also to solicit COPE checkoff cards. Make sure to pass on information from the union dealing with legislation to the legislative representative and his/her committee.

Letter-writing campaigns
Be sure to follow UFT instructions in addressing letters to the chairperson of the committee considering a particular bill in each house, to legislators from each member’s home district, and to key people as directed by the UFT. Always identify bills by their bill numbers. Keep letters short, to the point and personal. Provide sample letters. AVOID FORM LETTERS.
Create a routine for writing letters. Devote one lunch period to it, or set up a legislative corner with stationery and directions in the faculty lounges and workrooms. Have all the completed letters mailed by the school legislative committee. Keep track of members who have participated in your letter-writing effort.

Mike Mulgrew


COPE
A critical responsibility for you and your political action team is the collection of COPE payroll deduction cards from each member. COPE is an acronym for Committee on Political Education. COPE is the union’s political action arm. UFT members make voluntary contributions to COPE so that the union can make political contributions to candidates who share our concerns about education, human rights and labor issues. Members need to fill out only one card one time in their career. If they are returning from a leave, they should check their payroll stub to see if deductions are being made. In addition to collecting COPE cards, it is important to encourage members to volunteer for the UFT’s telephone banks and other political activities.

UFT endorsements
For local (New York City) races—Mayor, City Council, Borough President, District Attorney—
recommendations are made to the UFT Executive Board and Delegate Assembly. For statewide and national races, recommendations are made to the NYSUT Board of Directors. Generally, new people running for office are screened at the borough, district or city level. Incumbents’ voting records are very carefully scrutinized, as well as their activities in their home districts.

Creating parent support:
Meet and confer with the Parent Association – Parents of your school can be strong allies. Reach out to the leaders of the PA/PTA and develop ongoing communications. Alert them to your chapter’s priorities and program when appropriate and advisable and find out what issues are of concern to parents. The chapter leader should confer with PA/PTA leaders on issues such as school-based management, safety and improvement of school-wide programs. Parents also might be interested in learning more about UFT-sponsored programs and materials that offer direct help to families, such as Dial-A-Teacher, the union’s annual parent conference and the UFT Scholarship Program. Make sure Dial-A-Teacher information is distributed as soon as it arrives. It really helps students complete their homework. Parent outreach is of the greatest importance to the UFT, because from partnership comes
progress for all our kids. The UFT has a great parent liaison in every borough (contact them through the borough offices, listed at the front of this manual), along with conferences, workshops and committees to help engage parents in all critical areas of their children’s education. School + parents + students = success.

Contract enforcement/conflict resolution:
Your job is multifold – In addition to your work in building the chapter and organizing your school, you have an important role in resolving grievances and enforcing various contracts. It is important that you deal with situations in the school in a way that demonstrates that the UFT is concerned about members’ professional welfare, and that it stands ready and able to help them. One of the purposes of the grievance procedure is to secure the satisfactory resolution of disputes. That is why the UFT places so much emphasis on the “conference” rather than the “hearing” as a step in the procedure. This is by no means merely a semantic difference. It is a frank recognition that there must be free communication and mutuality of striving in order to reach such resolutions.
A word of caution – Don’t let personal likes and dislikes influence your decisions. Always keep in mind the need for unity in the chapter. If a problem seems likely to arouse dissension within the chapter, try to handle it so as to secure a consensus rather than a simple majority. Seek assistance from your district representative if you need it.

Chapter elections and referenda:
There are a variety of elections that may be conducted in your school under your direction. The procedures for properly running those elections are contained in the booklet How To Run A Chapter

The underlying assumption is that the CL is protected by the First Amendment and the Collective Bargaining Agreement, and his or her speech is protected when he/she meets with a principal about staff concerns. This is no longer true, at least in the minds of principals.

For many years principals have not given any special consideration to anyone in the CL elected position. In fact, as their "job" is not just to teach, but to file grievances against the principal, grieve and report all violations of the contract and law, and in general watch out for every staff member's health, safety, and welfare. A principal who sees these responsibilities as an obstruction of, and hindrance to, the leadership required, may, and will, go after charging the CL and removing him or her from the school.

The process available to principals to charge and remove employees who "get in the way" gives no special consideration to CLs who, a principal may say, is either incompetent as a teacher or commits corporal punishment. Nor should they. However, when a CL speaks out as a CL on behalf of the constituents who elected him/her, policy considerations and the Collective Bargaining Agreement give the CL a "right" to say what the many cant.

Yet in practice, large numbers of Chapter Leaders are brought to 3020-a for simply asserting the concerns of the staff. It is essential to keep in mind that labor arbitration systems are the result of negotiated arrangements between often powerful institutional parties who are concerned with collective, as opposed to, individual rights. (Alexander v Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, 7 F.E.P. cases 81 (1974)). When a CL is brought to arbitration and the issue under review becomes one of whether or not the CL has the right to speak out about collective concerns, then an arbitrator should give special attention to the "right" of the CL to say what these concerns are, pursuant to the CBA, and this speech is protected. As the context of the speech under review here incorporates public employees, the standard of review is raised to a level where additional questions such as "bad faith" and "just cause" must necessarily be attached to outcomes of the protected speech.

Thus, if a CL speaks out as a messenger of information and concerns from the staff to the principal, and is subsequently punished, policy and practice are not in sync.

In labor arbitrations arbitrators are selected pursuant to, and derive their authority from, the collectively bargained agreement. They are constrained to avoid dispensing their own brands of industrial justice. (United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L.Ed.2d 1424, 46 L.R.R.M. 2423 (1960)).

Martin Scheinman and Dan McRay, in their very interesting article "Labor Arbitration and the First Amendment" (ADR News November 2011/January 2012, p9, 32-39) write that:
"Arbitral standards of just cause place primary emphasis on whether the employer has been harmed as the justification for discipline - rather the offensiveness of the speech or conduct" and, "'Just cause' is the typical standard an employer must meet in order to discipline an employee protected by a collective bargaining agreement. Lurking in the background when the employer is a government entity is the First Amendment and whether it requires some different test or heightened restriction on discipline of speech than just cause requires."

Scheinman and McRay ask,
(a) can a just cause analysis allow a public employee to be disciplined for engaging in conduct protected by the Constitution?

(b) If not, should the application of the just cause standard include an explicit analysis of First Amendment cases?

They argue that First Amendment jurisprudence does not just focus on employer harm...(but also) whether the speech is on a matter of "public concern" (i.e., "newsworthy"). They review the termination of a teacher who worked for the NYC Board of Education and was also a leader of the North American Man/Boy Love Association (NAMBLA). This organization encouraged sexual activity between adult men and underage boys. The arbitrator in that case ruled that the employer could, indeed, terminate the teacher because of his political expression and association as well as because his presence in the school would cause too great a disruption of the normal day. (p. 33).

Scheinman and McRay continue,
"Government employers have less authority than private employers to restrict free speech of their employees because the First Amendment only applies to government action. However, the government has greater authority to restrict the speech of its employees than it does members of the general public because of its obligation to ensure the efficiency of its operations....public employees do not give up all their First Amendment rights when they accept employment with the government. The Supreme Court has consistently ruled a government has no right to discipline an employee for outside political speech or associations absent a showing of harm to the operations of the employer." (pp. 34-35)

Under the Pickering test (Pickering v. Board of Education of Township High School, 391 U.S. 563 (1968)) the court first determines whether the employee is speaking on a matter of public concern as opposed to a private matter. Because speech involving matters of public concern is closer to the "core" of the First Amendment, a government employer has less authority to impose discipline than for speech involving private concerns. The Supreme Court has defined a matter of public concern to be a "subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." (p. 35). City of San Diego v. John Roe, 543 U.S. 77, 83-84 (2004).

"If the matter is of public concern, under the Pickering test the burden shifts to the employer to show the reason for the discipline was not to penalize the employee for the speech, but rather because there is a substantial showing that the speech is, in fact, likely to be disruptive to government operations." (Waters v Churchill, 511 U.S. 661, 674 (1994).

Scheinman and McRay believe that "Proof of demonstrated harm to the employer is a more reliable standard.....even if the employer is harmed, the employee might still win if he or she has a sufficient "interest" in the speech....The greater the interest of the employee, the more harm the employer must show to justify discipline. The lesser the interest of the employee, the less harm the employer must show." (p. 38)

2. Implied covenant of good faith

The Chapter Leader may rely on the contract and the CL duties and responsibilities as a part of a common law employment “contractual” doctrine. This 'doctrine', agreed to in the UFT-DOE Bargaining Agreement, guarantees a safe environment in which to work and offers an implied in law covenant of good faith and fair dealing. Rosen v Gulf Shores,Inc. 610 So. 2d 366, 369-70 (Miss. 1992). Express or implied in fact promises usually obligate the employer to continue employment as agreed to in the bargaining agreement until the occurrence of a condition subsequent, which is any fact the existence or occurrence of which by agreement of the parties operates to discharge a duty of performance after it has become absolute. In the instant case CL and employer agreed to continue working together with both sides protecting and preserving rights of the other in terms of safe and secure environment, etc. Restatement of Contracts § 250(b) (1932); Murray §101, at 553-56. American Bank Stationery v Farmer, 106 Nev. 698, 799 P.2d 1100, 1102 (1990).

In Rethinking Wrongful Discharge: A Continuum Approach by Robert C. Bird, (University of Cincinnati Law Review, Winter, 2004, 73 U. Cin. L. Rev. 517) Bird writes:
“Employers acting with just cause treat their employees with punctilious concern for fairness and equity. Only the most qualified employees are promoted. Office politics and arbitrary decision making do not infect the employment relationship…….. Whenever the employer acts, it subjectively believes that it has the company's altruistic motives in mind and objectively possesses substantial evidence or good reason to support its decision. Anything less than substantial evidence cannot justify the employer's conclusion that the employee is "guilty" of misconduct. Finally, the employer's disciplinary action is evenhanded, proportionate to the proven offense, and considers the employee's length of service with the company. If the employer fails to achieve any or all of these high standards, it risks punishment in a court of law. This is the idealized domain of "just cause" employment.”

Estelle D. Franklin asks questions in her Maneuvering Through the Labyrinth: The Employers' Paradox in Responding to Hostile Environment Sexual Harassment-A Proposed Way Out, 67 Fordham L. Rev. 1517, 1562 (1999) (citing Enterprise Wire Co., 46 Lab. Arb. Rep. (BNA) 359 (1966) (Daugherty, Arb.)):
“The arbitrator, as stated by Franklin, articulated the following factors: (1) Did the company give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee's conduct? . . . . (2) Was the company's rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company's business and (b) the performance that the company might properly expect of the employee? . . . . (3) Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? . . . . (4) Was the company's investigation conducted fairly and objectively? . . . . (5) At the investigation, did the [factfinder] obtain substantial evidence or proof that the employee was guilty as charged? . . . . (6) Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees? . . . . (7) Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employee's proven offense and (b) the record of the employee in his service with the company? Id. (citing Enterprise Wire, 46 Lab. Arb. Rep. (BNA) at 363-64)). The standard was applied strictly, the failure to satisfy even one of the seven factors would preclude a finding of just cause. Id. (citing Enterprise Wire, 46 Lab. Arb. Rep. (BNA) at 362); see also Grief Bros. Cooperage Corp., 42 Lab. Arb. Rep. (BNA) 555 (1964) (Daugherty, Arb.)."

3. Cases
The Department wants arbitrators at 3020-a hearings to believe that a finding of “Just Cause” is subjective and discretionary. In New York State and New York City it is not, at least in disciplinary hearings where public school tenured teachers are involved.

Richard Santer, appellant, v Board of Education of East Meadow Union Free School District

Like other public employees, teachers "do not leave their First Amendment rights at the schoolhouse door, even though it is plain that those rights are somewhat diminished in public employment" (Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d 185, 192, cert denied 540 U.S. 1183, 124 S. Ct. 1424, 158 L. Ed. 2d 87). HN5 In determining whether a disciplinary measure taken against a public employee violates the employee's First Amendment rights, a court must first determine whether the speech that led to the discipline related to a matter of public concern. If so, the court must balance free-speech principles against the threat to effective government operation presented by that speech (see Pickering v Board of Educ. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193; Rankin v McPherson, 483 U.S. 378, 384-388, 107 S. Ct. 2891, 97 L. Ed. 2d 315). The government bears the burden of showing that the disciplinary measure is justified (see United States v Treasury Employees, 513 U.S. 454, 466, 115 S. Ct. 1003, 130 L. Ed. 2d 964; Rankin v McPherson, 483 U.S. at 388; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193).

Santer's "speech" regarding collective bargaining issues indisputably addressed matters of public concern (see Clue v Johnson, 179 F3d 57, 61; Boals v Gray, 775 F2d 686, 693). Moreover, despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030, 933 N.Y.S.2d 106), we find that the District failed to meet its burden of demonstrating that Santer's exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline (see Rothschild v Board of Educ. of City of Buffalo, 778 F Supp 642, 656).
The Supreme Court of the United States has stated that HN6 "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools" (Shelton v Tucker, 364 U.S. 479, 487, 81 S. Ct. 247, 5 L. Ed. 2d 231). The disciplinary measures imposed on Santer would likely have the effect of chilling speech on an important matter of public concern—the negotiation of a collective bargaining agreement.

In the Matter of the Application of Lisa Capece f/k/a LISA GRANDE, Petitioner, against Margaret Schultz, Individually and in her capacity as Community Superintendent of Community School District 31, COMMUNITY SCHOOL DISTRICT 31, by its Trustees and/or Directors; and THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondents.

In her verified petition, petitioner alleges that she was subjected to harassment and discriminatory treatment at the hands of the administration of P.S. 1, in particular Principal Gordin and Assistant Principal Lisa Arcuri, at least in part in retaliation for her union activities. In support, petitioner reiterates that she received solely satisfactory evaluations, letters of praise, and commendations from the previous administration and her colleagues for the prior two and a half years of her probation, as evidenced by, inter alia, the six initial "Supervisor Observation Forms", and APPR's dated June 6, 2005, June 1, 2006 and June 18, 2007, some of which were authored by Principal Gordin, herself. According to petitioner, everything changed after March 15, 2007, "in apparent revenge" for her continuing activities as the UFT co-chapter leader. It is further alleged that "in order to create their false and fabricated file" of unsatisfactory performance, Principal Gordin and co-conspirator Assistant Principal Arcuri engaged in "an intense, guerilla campaign of intimidation, criticism and unwarranted attacks upon her…and a pattern of issuing her conflicting instructions and engaging in discriminatory treatment." By way of example, petitioner notes that in her final June 18, 2007 APPR, although she received an overall "satisfactory" rating, three of the twenty-three categories were rated "unsatisfactory" by Principal Gordin based upon her alleged manipulation of test score data using a "skewed" analysis to compare the performance of petitioner's students against other students. Allegedly, no other fifth grade teacher was evaluated in this way. In addition, petitioner claims that during the observations of her teaching performance by Principal Gordin on or after March 15, 2007, the latter engaged in a series of disruptive actions calculated to intimidate petitioner and disrupt her lessons from proceeding as planned. Illustrative of the foregoing, is the Principal's purported sorting through items on and inside petitioner's desk while the latter was trying to teach, examining folders that were irrelevant to the lesson, and interrupting petitioner during "guided reading" and "share time". Petitioner also claims to have been "denied continued enrollment" in a literacy workshop for teachers due to her observance of a Catholic holy day of obligation which happened to coincide with the first day of the workshop. It is claimed that none of her colleagues were similarly penalized. Her petition also includes other instances of alleged harassment and abuse on the part of Principal Gordin in support of the contention that her termination was unjust and that she was "singled-out by an administration that took revenge for her serving as an advocate for unionized colleagues."

Stated alternatively, judicial review of the discharge of probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason (see Matter of Swinton v Safir, 93 NY2d 758, 763, 720 N.E.2d 89, 697 N.Y.S.2d 869; Matter of Johnson v Katz, 68 NY2d 649, 650, 496 N.E.2d 223, 505 N.Y.S.2d 64). In such cases, it is the employee who "bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation " (Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d at 368). Were it to be held otherwise, substantial evidence of, e.g., bad faith, would be required in every case of a probationer's dismissal, thereby standing the probationary process on its head (see Matter of Cipolla v Kelly, 26 AD3d 171, 812 N.Y.S.2d 462). Thus, the law has developed that the appropriate standard of review to be applied in these types of cases is whether the determination to terminate petitioner's probationary employment was arbitrary and capricious (see Von Gizycki v Levy, 3 AD3d 572, 574, 771 N.Y.S.2d 174).

Consonant with the foregoing, it is the Court's opinion that petitioner herein has sustained her evidentiary burden by the production of sufficient evidence to raise a material issue of fact as to whether or not her discontinuance was made in bad faith, i.e., as a "retaliatory measure designed to punish her at least in part for her exercise of her constitutional right to engage in activities as a member of the local teachers' union" (Matter of Tischler v Board of Educ., Monroe Woodbury Cent. School Dist. No. 1, 37 AD2d 261, 263, 323 N.Y.S.2d 508).

Here, the evidence before the Court indicates that the unsatisfactory performance evaluations and alleged incidents of professional misconduct occurred solely within the period that she was engaged in union activities. This is also the same period during which she filed the harassment grievance against Principal Gordin. In fact, even the recommendation of discontinuance by the majority of the members of the Chancellor's Committee was forced to concede that the onset of petitioner's "negative evaluations…[happen to] coincide with her…election as the union's co-chapter leader." All teachers have the right of free association and union membership as guaranteed by the First Amendment, and where the dismissal of a probationary teacher represents a substantial interference with his or her First Amendment rights, "such action cannot be permitted to stand unless it can be shown that the conduct in question has a clear relationship to the maintenance of an efficient educational system, and the dismissal was motivated by a desire to benefit the system rather than to interfere with the exercise of his or her constitutional rights" (id. at 264).

Under these circumstances, since the retaliatory nature of petitioner's dismissal cannot be determined on the facts thus far adduced and the reasonable inferences that may be drawn therefrom, judicial review is mandated (see Matter of New York City Dept. of Envtl. Protection v New York City Civil Serv. Comm., 78 NY2d 318, 323, 579 N.E.2d 1385, 574 N.Y.S.2d 664), and the matter must proceed to trial (CPLR 7804[h]; see Martinez v. State Univ. of N.Y.-College at Oswego, 13 A.D.3d 749, 750-751; cf. Matter of Anonymous v Commissioner of Health, 21 AD3d 841, 844, 801 N.Y.S.2d 302; but see Matter of Johnson v Katz, 68 NY2d at 650; Matter of Weintraub v Board of Educ. of City School Dist. of City of NY, 298 AD2d 595, 748 N.Y.S.2d 685).
Accordingly, the petition is granted to the extent that the parties are to appear for a Preliminary Conference on September 15, 2009 at 9:30 A.M.

Local Union 1392, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner, v. National Labor Relations Board, Respondent; Indiana & Michigan Electric Co., Intervenor

No. 85-5221

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

786 F.2d 733; 1986 U.S. App. LEXIS 23325; 121 L.R.R.M. 3259; 104 Lab. Cas. (CCH) P11,797

February 13, 1986, Argued
March 26, 1986

PRIOR HISTORY: On Petition for Review of an Order of the National Labor Relations Board.

CASE SUMMARY

PROCEDURAL POSTURE: Petitioner union filed a petition for review of a decision by respondent National Labor Relations Board, which ruled in favor of the employer. Respondent found that the employer did not violate § 8(a)(1) and (3) of the National Labor Relations Act when it imposed a harsher discipline on 2 union officers than on 10 other employees.

OVERVIEW: Petitioner union filed unfair labor practice charges against an employer under § 8(a)(1) and (3) of the National Labor Relations Act (Act) because the employer imposed a harsher discipline on 2 union officers than it did on 10 other employees for an unauthorized work stoppage. Respondent National Labor Relations Board found no violation and dismissed the complaint. Petitioner sought review and the court denied the petition and ordered enforcement of respondent's decision. The court held that an employer could impose selective discipline of a union official based on his union status if the union had made a "clear and unmistakable" waiver of its officials' statutory right to be free from such disparate treatment. The court found that the contractual language in this case showed petitioner's intent to waive its officials' right to be free from selective discipline when they engaged in unauthorized work stoppages. The court held that the union employees were bound by the waiver. The court concluded that respondent's interpretation of the collective bargaining agreement was reasonable and consistent with the policies of the Act.

OUTCOME: The court denied petitioner union's petition for review of a decision by respondent National Labor Relations Board, and ordered enforcement of respondent's decision to dismiss petitioner's complaint. The employer could impose selective discipline of a union official based on his union status because petitioner had made a "clear and unmistakable" waiver of its officials' statutory right to be free from such disparate treatment.

CORE TERMS: union official, work stoppage, discipline, steward, unauthorized, contractual, selective, participated, no-strike, labor practice, statutory right, contractual language, unmistakable, unfair, union officers, illegal strike, valid waiver, collective bargaining agreement, superseniority, rank-and-file, disparate, administrative law, suspensions, harsher, plant

Governments > Legislation > Statutory Remedies & Rights
Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination
Labor & Employment Law > Discrimination > Disparate Treatment > Employment Practices > Adverse Employment Actions > Discipline

An employer may impose selective discipline of a union official based on his union status if the union has made a "clear and unmistakable " waiver of its officials' statutory right to be free from such disparate treatment.

Governments > Legislation > Statutory Remedies & Rights
Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination
Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages
HN2
A valid waiver of an employee's statutory right renders the right unprotected under the National Labor Relations Act. Clearly, rank-and-file employees may be discharged for disobeying a contractual no-strike clause. A valid waiver of union officials' protected rights should have the same effect.

Labor & Employment Law > Collective Bargaining & Labor Relations > Strikes & Work Stoppages

A union's assumption of the duty to end an unauthorized work stoppage necessarily imposes a concomitant duty upon its officials to implement that obligation.

Labor & Employment Law > Collective Bargaining & Labor Relations > Arbitration > Judicial Review of Awards > General Overview
Labor & Employment Law > Collective Bargaining & Labor Relations > Federal Preemption
Labor & Employment Law > Collective Bargaining & Labor Relations > Interpretation of Agreements

The National Labor Relations Board's interpretation of a collective bargaining agreement is entitled to deference if it is reasonable and consistent with the policies of the National Labor Relations Act.

COUNSEL: Laurence J. Cohen, Robert D. Kurnick, and Victoria L. Bor, (argued), Sherman, Dunn, Cohen, Leifer, Counts, Washington, District of Columbia, for Appellant.

Guy Farmer, (argued), Jonathan A. Cohen, Vedder, Price, Kaufman, Kammholz & Day, Washington, District of Columbia, and Fredric L. Sagan, Senior Labor Counsel, American Electric Power Ser. Corp., Columbus, Ohio, for Intervenor.

Elliott Moore, Deputy Associate General Counsel, National Labor Relations Board, Washington, District of Columbia, and Fred Havard, (argued) and William Little, Regional Director, Region 25, National Labor Relations Board, Indianapolis, Indiana, for Appellee.

JUDGES: Keith and Martin, Circuit Judges; and Weber, * District Judge.
* Honorable Herman J. Weber, United States District Judge for the Southern District of Ohio, sitting by designation.


OPINION BY: MARTIN, JR.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.
Local 1392 of the International Brotherhood of Electrical Workers petitions this Court for review of a decision of the National Labor Relations Board in favor of the employer, Indiana & Michigan Electric Company. 273 N.L.R.B. No. 193 (1985).
In November, 1978, Local 1392 filed unfair labor practice charges against Indiana & Michigan alleging that the employer had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by imposing harsher discipline on two union officers than on ten other employees, all of whom had participated in the same unauthorized work stoppage. After an investigation, the Board's General Counsel issued a complaint against the employer. The administrative law judge upheld the unfair labor practice charges, finding that the employer had violated the Act. On review, the NLRB reversed the administrative law judge's decision and dismissed the complaint. The Union appeals this dismissal.
The facts of this case are straightforward and undisputed. On August 21, 1978, fifteen employees in the line department at Indiana & Michigan's Muncie, Indiana plant staged an unauthorized work stoppage. The employer issued three-day suspensions to the ten rank-and-file members who participated in the work stoppage, and five-day suspensions to the two instigators of the incident and two union stewards. 1 The employer based its harsher discipline of stewards Ridley and Maxwell on their "greater responsibility [**3] to end the unauthorized work stoppage"; the company did not contend that the stewards led or actively promoted the misconduct.

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1 The Union's highest official at the plant was not suspended because the employer's investigation revealed he attempted to persuade the employees to return to work.

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The issue presented by these facts is whether an employer's selective discipline of a union official, based on his union status, violates section 8(a)(3) of the NLRA. The Board's inconsistency on this issue 2 was resolved by the Supreme Court's decision in Metropolitan Edison v. NLRB, 460 U.S. 693, 75 L. Ed. 2d 387, 103 S. Ct. 1467 (1983), which held that HN1 an employer may impose selective discipline in this situation if the union has made a "clear and unmistakable " waiver of its officials' statutory right to be free from such disparate treatment. Id. at 707. The parties agree on the applicability of the legal principles of Metropolitan Edison to this case; they disagree as to whether their particular contractual language constitutes the requisite "clear and unmistakable" waiver.

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2 The Board's most definitive holding on this issue prior to Metropolitan Edison was in Precision Castings Co., 233 N.L.R.B. 183 (1977), in which it held that selective dismissal of a shop steward who participated in and made no effort to terminate an illegal strike constituted discrimination based solely on the holding of union office and thus was violative of sections 8(a)(1) and 8(a)(3). Before Precision Castings, the Board, on several occasions, had found no unfair labor practice in the dismissal of union stewards based on their participation in illegal strikes. See, e.g., Chrysler Corp., 232 N.L.R.B. 466 (1977); Super Value Xenia, 228 N.L.R.B. 1254 (1977).

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The Metropolitan Edison court, in reaffirming union officials' statutory right to be free from selective discipline based on their union status, held that a general no-strike clause was insufficient to establish waiver of such a protected right. Id. at 707-08. The court recognized, however, that "a union and an employer reasonably could choose to secure the integrity of a no-strike clause by requiring union officials to take affirmative steps to end unlawful work stoppages." Id. at 707. Specifically, the court ruled that "a union may waive this protection by clearly imposing contractual duties on its officials to ensure the integrity of no-strike clauses." Id. at 710.

We agree with the Board that Indiana & Michigan's contract with Local 1392 imposed affirmative duties on union officials sufficient to establish a waiver of those officials' section 8(a) 3 right to be free from disparate discipline. The relevant contractual language provides:
The Union agrees that, in the event of any violation (other than lockout) of the provisions of the foregoing paragraph, it will in good faith and without delay publicly disavow such violation, exert itself to bring about a quick termination of such violation and insist that the employee or employees involved cease such violation. To that end the Union will promptly take whatever affirmative action [**6] is necessary. If the Union has not authorized, participated in or condoned such violation and fulfills its obligations under this paragraph with respect to any such violation, the Company agrees that it will not sue the Union for any damages resulting from such violation.
Art III, § 2.

The Union argues that because the language of the contract refers to the union as an entity, and not to its individual officers, the union officers owe no duty to the employer. It correctly notes that the contractual assumption of these duties imposes damage liability on the union under Carbon Fuel v. Mine Workers, 444 U.S. 212, 216-18, 62 L. Ed. 2d 394, 100 S. Ct. 410 (1979), and contends that this liability is the extent of the employer's remedy for breach of the provision. The Union bases its argument on the well-established principle of agency that an agent is liable only to the principal for a breach of a duty owed to a third party.

The Union's reliance on agency principles in this context is misplaced. A valid waiver of an employee's statutory right renders the right unprotected under the National Labor Relations Act. Clearly, rank-and-file employees may be discharged for disobeying a contractual no-strike clause. A valid waiver of union officials' protected rights should have the same effect. The District of Columbia Circuit assessed a similar argument advanced by the Board as "wholly unconvincing," Fournelle v. NLRB, 216 U.S. App. D.C. 173, 670 F.2d 331, 339 & n. 16 (D.C. Cir. 1982), and we agree.
In a case decided before Metropolitan Edison, the Third Circuit found the language of a collective bargaining agreement imposed specific enforceable duties on union officials. Gould, Inc. v. NLRB, 612 F.2d 728 (3d Cir. 1979), cert. denied, 449 U.S. 890, 101 S. Ct. 247, 66 L. Ed. 2d 115 (1980). The contractual obligations assumed by the union in that case were very similar to those agreed to by Local 1392. The language of the Gould contract, however, imposed these duties specifically upon "the Union, its officers and representatives" (emphasis added) rather than on the Union alone. Id. at 730, n. 3.

This difference in language cannot hold the legal significance attributed to it by the Union in this case. Obviously, unions act only through their officers. A union's assumption of the duty to end an unauthorized work stoppage necessarily imposes a concomitant duty upon its officials to implement that obligation. We believe that the contractual language in this case illustrates the intent of the Union for its officials to attempt to prevent unauthorized work stoppages, and that this language constitutes a "clear and unmistakable waiver" of those officials' right to be free from selective discipline. 3 This waiver is the result of the specific additional duties assumed by the union under the contract, and is not necessarily inherent in an employee's position as a union official. NLRB v. Babcock & Wilcox Co., 697 F.2d 724, 732-33 & n. 9 (6th Cir. 1983). Compare Indiana & Michigan Electric Co. v. NLRB, 599 F.2d 227, 230 (7th Cir. 1979).

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3 In its amicus brief, the Chamber of Commerce notes that imposing these obligations on union stewards is the logical corollary to the award of superseniority against layoff permitted the officials because of the importance of their function. Dairylea Cooperative, Inc. 219 N.L.R.B. 656 (1975). This interesting argument is not persuasive here, both because we have no evidence before us concerning the parties' agreement on the contractual issue of superseniority, and because this Court has already rejected the notion of a higher responsibility imposed on union representatives by virtue of their office. NLRB v. Babcock & Wilcox, 697 F.2d 724, 732 (6th Cir. 1983).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

The Board's interpretation of a collective bargaining agreement is entitled to deference if it is reasonable and consistent with the policies of the Act. NLRB v. City Disposal Systems, 465 U.S. 822, 829-30, 79 L. Ed. 2d 839, 104 S. Ct. 1505 (1984); NLRB v. Local 534, Construction & General Laborers' Union, 778 F.2d 284, 287 (6th Cir. 1985). The Board's interpretation of the language of this contract was reasonable, consistent with the policies of the Act, and in accord with the Supreme Court's pronouncements in Metropolitan Edison. The petition of the Union is therefore denied, and the order of the Board is enforced.
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Martin Scheinman and The Retiree Retro Issue (November 2014)

January 23, 2015, 7:26 pm
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Martin Scheinman

Arbitrator to help resolve retiree retro issue

BY DEIDRE MCFADYEN | DECEMBER 4, 2014 NEW YORK TEACHER ISSUE
LINK
A new arbitration decision has cleared a pathway for paying recent retirees the lump-sum retroactive payments they have been expecting.
One of the independent arbitrators who helped the UFT and the Department of Education reach a new collective-bargaining agreement last spring has offered his services to find a way to make up the $60 million shortfall in the settlement fund set up to make whole all UFT members who retired between Nov. 1, 2009, and June 30, 2014.
The arbitrator, Martin Scheinman, wrote in his Nov. 17 decision that he would determine how to cover the shortfall by adjusting the contract’s terms.
“Out of a multiyear package costing billions of dollars, such modification shall not be difficult and shall be relatively minor,” he wrote. “I also conclude such an approach would be reasonable, equitable and would serve the purpose for which the Settlement Fund was created.”
UFT President Michael Mulgrew said he was eager to work with the arbitrator to swiftly resolve the issue.
“An arbitrator has now said that our members should receive all the money they are entitled to,” he said. “We accept his offer to quickly work out the details. We appreciate working with the city getting this contract done and will now work out this detail to make sure everyone is made whole.”
During the contract ratification process, the UFT explained that all its retirees who were in service at the time covered by the contract would receive full retroactivity for the two 4 percent wage increases arising from the 2009–11 period. The union said that the retroactive monies would arrive in a one-time, lump-sum payment to those submitting retirement papers by June 30, 2014.
Scheinman said it was “readily discernible” from reading the Memorandum of Agreement that the goal shared by both sides was to make the retirees whole, but the $180 million set aside to pay the retroactive wages was not adequate to cover the number who opted to retire. According to the Teachers’ Retirement System, there was a 48 percent increase in retirements by UFT members employed by the DOE at the end of the 2013–14 school year compared to the end of the previous school year.
While he concluded that the city’s obligation to fund the retirees’ claims was capped at $180 million, Scheinman offered to find alternatives to make up the shortfall to avoid any reduction in payments.
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My Life As a NYC Teacher: Chap. 84: ODD OD

January 23, 2015, 9:15 pm
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CHAPTER 84: FACULTY ODD

Disciplinary Meeting

LINK
Can the Danielson classroom management rubric be applied by supervisors to teachers?

I ask this question because I found myself in the position of putting my ATR supervisor into a Danielson bind.  According to the Danielson rubric for classroom management, the highly effective teacher need only glance at a misbehaving student for that student to straighten up and fly right.  I quote the Danielson Puppet for “highly effective” classroom management:

In addition to the characteristics of “Effective”:
·   Student behavior is entirely appropriate; no evidence of student misbehavior.
·   The teacher monitors student behavior without speaking – just moving about.
·   Students respectfully intervene as appropriate with classmates to ensure
compliance with standards of conduct.

As noted in chapter 31, of course, this ridiculous rubric doesn’t necessarily translate perfectly to intimate interactions between husband in wife.  (See The Charlotte Danielson Rubric for the Highly Effective Husband.)  Or maybe it does.  Hopefully the Danielson group will be doing some studies on the husband - wife interaction in the near future - double blind studies, of course.  I mean, there’s a reason why we close our eyes ….

But why wouldn’t the Danielson rubric translate within educational circles?  Why wouldn’t my ATR supervisor be held to the same standard that I am held to?  Why wouldn’t an educational supervisor be expected to perform in the same way that the people he/she is supervising are expected to perform?  Just because a student’s behavior is often beyond the control of the teacher, does it follow that a teacher’s behavior should be beyond the control of the supervisor?  Aren’t we all civilized, educated adults here?

Having been U rated in an ATR advisory coverage, it was going to take more than “just moving about”  or monitoring ATR behavior “without speaking” to get me to behave like a highly effective student, or like the highly effective student of the highly effective teacher.  The Danielson bind for my ATR supervisor was that I simply refused to comply with her “plan of assistance” no matter what she didn’t say or what sort of highly effective look she gave me.  What does the highly effective teacher do when a student simply refuses to do the work?  The highly effective teacher magically makes it happen even though by this same rubric such behavior doesn’t exist - “no evidence of student misbehavior.”

More than mere talk was required in order to correct my inappropriate behavior - I didn’t agree with the evaluation or the circumstances of the evaluation and refused to do my homework, i.e., submit lesson plans a week in advance - lengthy lesson plans that primarily assure that I would do as little teaching as possible so that the students could interact with one another as the focus of learning.  As one supervisor put it succinctly in one P.D., “Kids today are going to talk so we have to give them something to talk about.”   Listening is out of the question.  By the Danielson rubric, my ATR supervisor was already struggling to achieve “developing:”  “Teacher attempts to maintain order in the classroom but with uneven success; standards of conduct, if they exist, are not evident.”

I listened but didn’t like what I was hearing.  On Tues., Dec. 2, 2014 I received a notice that there would be a “disciplinary meeting” on Friday, Dec. 5, 2014 at Women’s Academy of Excellence (WAE), which was my current ATR assignment.  The UFT chapter leader at WAE was notified that this meeting would take place.  He met with me the next morning to find out what this was all about.  In Danielson terms this might be considered the equivalent of the parent - teacher - counselor intervention, something the highly effective teacher, of course, never has to resort to.

This meeting took place as scheduled in the office of principal Dr. Crocker, who was present as a silent witness, a very good student.  UFT chapter leader Rick Steckmeister, who proved to be a highly effective (by any rubric) chapter leader, sat by my side as ATR field supervisor Annelisse Falzone recounted the numerous incidents in which I had refused to respond to her more highly evolved monitoring technique by telling her that her original observation was a crock and that in no way could it be considered a reasonable evaluation tool, certainly nothing on which to base an “unsatisfactory” observation.

I might digress here on the topic of “insubordination.”  Teachers use this weapon against students.  If a teacher instructs a student to do something three times and the student refuses to comply, that student is officially guilty of the offense of insubordination.  Disciplinary action can be taken.  When a student refuses to change his seat when instructed by the teacher, for example, and refuses a second and a third time, that student becomes insubordinate.  The teacher can then officially waste 20 minutes of class time to deal with the situation, which is likely to recur the next day.  That less than highly effective teacher has then lost 20 minutes of instruction that might have benefited the majority of students who never are insubordinate and are only there to learn.  Such defiant students are present, however, in every teacher's classroom from the ineffective to the highly effective.  The Danielson rubric is oblivious to this reality. 

In 2012 when I was judged to be “unsatisfactory” in another observation by a supervisor who quoted nonexistent people in the room in her “evaluation” of my teaching, I begged the principal to accuse me of insubordination.  I refused at that time, too, to comply with various directives that resulted from that observation.  I begged my supervisor to charge me with insubordination.  I assumed that there would be some sort of hearing outside of the school in front of an “independent” arbitrator.  My exact words were:

If this is insubordination, Ms. Clarke, then I suggest that you charge me now with 5 counts, Monday through Friday, so that I can get a hearing on this subject beyond you and your principal, Mr. Hoxha.  Your incompetence at JLHS must be exposed….  ( See Chapter 36: Division by Zero in the middle.)

I was never charged with insubordination even though I had put it in writing.  Idealistically I hope that this meant that the principal realized that he would be embarrassed by his A.P.  Realistically I know that no one really gave a damn.

I again admitted to what I thought was insubordination at this ATR disciplinary meeting on Dec. 5, 2014.  I assumed that by refusing to comply with their “plan of assistance” many more than three times, I was being insubordinate to my ATR supervisor.  As I told my UFT representative, I hoped that I would be accused of insubordination because I don’t believe that anyone in their right mind would agree that an observation of an ELA ATR in a coverage of an advisory class when most of the students were on a class trip is meaningful.  On the other hand I knew I was dealing with the NYC DOE.  But this put Steckmeister in a sticky position given that it is the UFT chapter leader’s role to keep teacher’s out of trouble while I was trying to get into more trouble. 

My ATR supervisor recounted everything that I had refused to do as well as the somewhat acrimonious interactions between us that had already occurred and I didn’t disagree.  She recounted our relationship since that fateful day at restorative justice haven Mott Hall Bronx accurately.  Thus I was hopeful that a charge of insubordination was forthcoming.

Unfortunately, all I got out of it was the charge that I was “out of compliance” with my “plan of assistance.”  That doesn’t have the same ring to it.  “Insubordination” carries some weight.  “Out of compliance” sounds more like the dog ate my homework.

Perhaps my ATR supervisor was giving me the benefit of the doubt, given that she had seen a good lesson in that advisory coverage and given that by this date, Dec. 5, 2012, she had observed a good lesson at my new assignment school on Dec. 1.  At least I thought it was a good lesson, if not “highly” effective, at least effective.  But that was merely an informal observation.  It was an observation of my teaching in a real ELA class with students that I had by that time taught for two days and it was a lesson that ought to have been rated very highly.  But I got nothing about this lesson.  Instead, all I got was feedback based on the advisory coverage observation - more student interaction and better closure.

In any case I was disappointed in my ATR supervisor at this meeting.  She didn’t charge me with insubordination but when questioned by Mr. Steckmeister, she admitted that a letter would be introduced to my file.  My file by now may require its own file cabinet drawer.  Mr. Steckmesiter pursued this line of inquiry.  Ms. Falzone didn’t say what the letter would state but said again that I was “out of compliance” with my plan of assistance.  At this Mr. Steckmeister wisely asked what that actually meant?  Could I still receive at the end of the year an “S” rating if further observations were satisfactory?

My ATR supervisor said that that was a possibility.  My UFT rep then asked for further clarification on what exactly “out of compliance” meant.  My ATR supervisor then said that she had seen cases in which teachers had submitted letters that stated that they refused the assistance offered by the “plan of assistance.”  This was new to both me and my union rep.  Was this true or just a ruse to get me to put my insubordination into writing?  Since I had begged to be charged with insubordination in the past and was now looking to be charged with it again, this admission looked like gold.

Steckmeister brilliantly pursued this line of inquiry but, of course, as my union protector, his job was to keep me out of trouble.  He asked if I could still be rated “S” at the end of the year even if I gave her a letter stating that I was refusing her assistance.  "Yes" was the answer.  That could still happen.  At least, that was the theoretical possibility.  I could still be rated a satisfactory teacher even if I put in writing that I was guilty either of insubordination or being “out of compliance” with directives.

With this the meeting was adjourned.  I left with the suggestion from my ATR supervisor that I had the option of refusing the “plan of assistance” in writing.  Steckmeister too, was of the opinion that my supervisor had made a suggestion that was to my benefit - if it wasn’t purely some sort of confession.  Since I didn’t mind confessing to being insubordinate, I was leaning toward the idea of refusing “assistance” in writing since I’d been refusing it without putting it in writing all along.  Why not just put it on the record?

That was my disciplinary ATR meeting.  I was disappointed in not being charged outright with insubordination but happy to hear that I could put my insubordination on record in writing.  That was clearly the best course of action.

When I started teaching in the Bronx, I had doubts that there really was such a thing as ODD - oppositional defiance disorder.  That sounded to me like just another fake mental disorder created by psychiatric interests looking for more business.  A year or two of teaching in the Bronx, of course, taught me that this disorder is for real.  For real!  Maybe you’ve got to see it to believe it but when you watch enough teenagers refuse to do the simplest things and refusing to do them with streams of obscenities that come as naturally to them as spit to a spittoon and a complete disregard to whom they streaming, you become convinced that ODD does, indeed, exist and that it would be nice if there were some real treatment for it - that is, until one of your best ODD kids curses out an administrator for sticking their nose into something that is none of their business.  Then it becomes nothing short of justice pure and and as simple as an "Equalizer" movie.

Never did I imagine in those days, however, that I might become the educator equivalent of the ODD student.  But I was not yet familiar with the workings of the DOE.  Nor had modern educational reform kicked in.  In the era of modern educational reform, does a real educator have any choice but to become clinically ODD?

Neither did I imagine that the burden of responsibility for a student’s performance would be shifted from the student to the teacher.  Once upon a time the teacher was responsible for teaching and the student responsible for learning.  This is no longer the case.  The teacher is now responsible for both the teaching and the learning while the student is responsible for nothing at all.

I predict that the number of ODD teachers is on the rise.

As for the Danielson rubric applied to administrators … fat chance.
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NYSUT Fights Back Against Cuomo's Attack on Teachers

January 24, 2015, 10:26 am
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Misinformed, misguided governor shows his true colors

If you harbored any doubts whether Gov. Andrew Cuomo disrespects public education, you can set them adrift, light them on fire and push 'em out to sea. He's flying his true colors now.


cuomo
Illustration by M. Sharer

State Budget 2015

Cuomo's executive budget proposal is an assault on public education and the teaching profession. It proposes a strings-attached increase of $1.1 billion for school aid, half of the amount recommended by the Regents.
His proposed increase is contingent upon lawmakers approving a vicious "reform" agenda that would gut tenure and collective bargaining, double down on high-stakes testing and shortchange public higher education. (See related story: "NYSUT blisters Cuomo's draconian anti-teacher agenda.").
It also would hold school aid hostage to his "reforms," including a harsh, simplistic and punitive new teacher evaluation system, a back-door voucher tax credit and a permanent tax cap. If legislators don't go along with his plans, he'll cut that increase by two-thirds. Perhaps the ugliest slap in the face to communities, educators, school boards, parents and students - whose worlds revolve around public education - is his petty extortion scheme to withhold proposed district-by-district aid data from local school districts until he gets his way in the Legislature. Districts are on strict timelines to prepare draft budgets, present them to voters and get them approved on May 19. They cannot even begin without those school-aid runs.
Gov. Cuomo knows this. He doesn't care.

Misinformed and misguided

"The governor is misinformed," said NYSUT President Karen E. Magee. "New York has one of the strongest public education systems in the nation and a professional, highly dedicated teaching force. He should be celebrating that excellence. Instead, we get intellectually hollow rhetoric that misrepresents the state of teaching and learning. "Students, parents and teachers, who know better, aren't buying this agenda, which everyone knows is driven by the governor's billionaire hedge-fund friends," she said. NYSUT Executive Vice President Andy Pallotta, who leads the union's legislative and political department, said the governor is misguided and invited him to attend a series of community forums planned for the coming weeks.
"We want him to listen to the aspirations of students who want to excel but don't have art, music, foreign languages or guidance counselors," he said. "We want him to hear from parents who want a greater state and local investment in their public schools, so their sons and daughters can have a full range of services and aren't crammed in classes of 30 or 35 with outdated textbooks.
"And, we want him to listen to the experts - educators and administrators who love their jobsand are dedicated to their students, who know a greater focus on standardized testing is wrong and who know that 'opportunity' is just a word unless it's backed by enough funding that goes to the right places."

Recession era

Nearly 1 million New York schoolchildren - including more than a third of African-American and Latino students - live in poverty. The state's systemic failure to provide enough resources for all of its students and to do so equitably - while giving all teachers the tools and support they need - is "the real crisis and the one our governor is trying to sweep under the rug," Magee said.
Schools are repeatedly being asked to do more with less. Due to aid cuts since the recession hit, more than half - 51 percent - of the state's schools are receiving less state aid in the current year than they did in 2008-09. These gaps in state funding - and the tax cap and tax freeze - are the reason.
During this legislative session, NYSUT activists are advocating strongly and loudly for what students need:
  • equitable school aid so financially starved, high-needs districts receive the resources they need;
  • expansion of Career and Technical Education;
  • investments in the arts and other programs;
  • increased funding for BOCES and Special Act schools; and
  • increased funding for public higher education to relieve the burdens on students and their families.
NYSUT advocates also seek increases in health care spending so SUNY teaching hospitals can continue to provide quality medical services to their communities.
What students and educators don't need is an executive budget proposal that includes numerous onerous plans that must be stopped:
  • Empowering the state to take over "failing" schools, eliminating local control, tenure, seniority and collective bargaining agreements.
  • Creating a back-door voucher tax credit to benefit wealthy donors to private and charter schools, to the tune of $100 million per year.
  • Tying public higher ed funding to campus "performance" rather than enrollment.
  • Destroying teacher prep programs at SUNY and CUNY.
  • Allowing private equity firms to own and operate hospitals, which will set the stage for privatization of SUNY hospitals.
  • Eliminating the $14 million funding for teacher centers.
  • Making the tax cap permanent.
NYSUT and its coalition partners agree that New York state, with its improved fiscal condition, is in a position to help schools turn the corner financially. Statewide education organizations issued a report in January outlining the need for a $2 billion state education aid increase so schools can continue current services and make progress on critical new initiatives.
The Board of Regents proposed a $2.2 billion state aid increase. Even Chancellor Merryl Tisch, whose "reform" agenda is seriously problematic, insists this money is essential. Cuomo asked for half that.
It's simply not enough.
"Far too many school districts are still digging out from budget holes created during the recession," Pallotta said. "A greater commitment of school aid - more resources for vital initiatives such as community schools and for English language learners - is the way to ensure that every child is ready to learn at high levels, graduate and succeed in college or the workplace."
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NYSUT: Teacher Evaluation and Development

January 27, 2015, 9:00 am
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FACES: NYC DOE "Gotcha Squad" Attorney Jordana Shenkman

January 29, 2015, 9:03 pm
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  1. NYC Department of Education
  1. Bronx County District Attorney's Office,
  2. Lansner & Kubitschek,
  3. United States Attorney's Office
Edit experience
  1. The George Washington University Law School
When Jordana Shenkman moved into her 430-square-foot rental this March, she wasted no time getting settled. "I actually put this entire thing together from nothing in one month's time," she says. Spurred by a small-space contest on design blog Apartment Therapy (apartmenttherapy.com), the government attorney had roughly 30 days to furnish her pad before the competition's deadline. "I did nothing but run all over the place," Shenkman recalls. "Every day after work I'd be going to another discount store." But the glory of winning (she didn't) wasn't her only motivation to quickly decorate: "I'm 33, but I've never had my own apartment," explains Shenkman, who had lived with a roommate since moving to the city seven years ago. "I'm sure a lot of people in New York have that same experience. It's kind of delayed youth here."

Experience

Administrative Attorney

NYC Department of Education
– Present (6 years 9 months)New York, NY
Prosecute administrative hearings against school administrators and teachers charged with employee misconduct with a high rate of successful outcomes.
Selected to handle high-profile, press cases for the unit.
Responsible for drafting charges, investigation, settlement negotiation, discovery, witness preparation and litigating cases.
Present oral arguments including appeal before panel of judges at the New York City Civil Service Commission.
Work in conjunction with the New York City Law Department, New York City District Attorney's Offices, New York Police Department and other independent investigative agencies.
Conduct legal research and offer legal advice on Education and Labor Law issues.

Assistant District Attorney

Bronx County District Attorney's Office
– (3 years 9 months)Bronx, NY
Prosecuted bench and jury trials to verdict, including high-profile felony crimes.
Responsible for trial strategy, criminal investigation, civilian, police and expert witness preparation and plea negotiations with caseload of approximately eighty.
Presented hundreds of felony cases to the Grand Jury for indictment; competitively selected as only junior assistant to present homicide case.
Drafted motions and argued constitutional and evidentiary issues of law.

Legal Intern

Lansner & Kubitschek
– (3 months)New York, NY
Prepared clients in class-action, civil rights lawsuit against the City of New York.

Legal Intern

United States Attorney's Office
– (3 months)Washington, D.C.
Sex Offense/Domestic Violence Unit.
Handled discovery, evidence gathering, legal memorandum and witness interviews for felony sex crimes.

Legal Assistant

Dewey Ballantine, LLP
– (10 months)New York, NY
Member of trial team for complex, civil litigation case involving a lawsuit of first impression against the tobacco industry.

Intern, Congresswoman Nita Lowey's Office

U.S. House of Representatives
– (3 months)Washington, D.C.
Wrote constituent correspondence, analyzed, researched and reported on political policies involving women's rights issues.
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Cami Anderson Returns To NYC As Superintendent of District 79 And Starts Her Unravelling of Assistance to the Neediest of the City's Kids Once Again

January 30, 2015, 1:27 pm
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 Cami Anderson, booed offstage in Washington DC by parents from Newark N.J. who were angry enough to be bussed to Washington DC to rally against her, has made her way back to New York City. She has decided to close the Rikers Island schools

Of course she has. She is now back in NYC as Superintendent of the NYC DOE District 79, working with her protector Carmen Farina. And former Superintendent Tim Lisante took a Deputy Superintendent's position to work with her. Huh?

I might be missing something here.

Betsy Combier

NJ Students To 'Escalate' Actions After Demanding Superintendent Cami Anderson's Removal


Posted: Updated:
 
 
Cami Anderson

City replacing two Rikers schools with one smaller program

by Maura Walz on June 28, 2010 8:54 pm
 
 
 
 
 
LINK
Teachers at the only two schools on Rikers Island learned today that their schools will close next year. In their stead, a new school will open — one with a smaller and possibly new set of teachers.
The change is part of a wider attempt to end programs under the city’s alternative schools office, known as District 79, that city officials believe are ineffective, Department of Education officials said today. Earlier this year, the city announced it was also closing its only school designed to transition students from detention back into mainstream high schools.
“Despite some of our best efforts, we’re not making the gains for the students in some of the specialized programs,” said Timothy Lisante, District 79’s deputy superintendent for corrections and detentions.
Tim Lisante
 
In an interview today, Lisante and District 79 Superintendent Cami Anderson said that consolidating the two programs would allow for smoother day-to-day operations of the school. Restarting the program will also give the city the opportunity to redesign its placement process, directing some students towards coursework that will prepare them to return to their community high schools and giving others more vocational training.
“The prime vision here is to do everything we can to create a program that will accelerate [student's] progress so they can return to their home school or, if they’re older, go into a rigorous GED program,” Anderson said.
But teachers union officials are crying foul at the city’s timing, arguing that the last-minute announcement was disrespectful to the school’s teaching staff.
“We’re certainly for improving programs but no one’s going to convince me that they just woke up in June and thought this had to be done,” said United Federation of Teachers Secretary Michael Mendel.
The city currently runs two academic programs on Rikers Island. Students under the age of 18, who are legally required to attend school, enroll in the Island Academy, while Horizon Academy enrolls older students who opt into the program. (Last month, I visited the Island Academy for a Top Chef-style competition among its culinary arts students.)
Together, the schools employ about 197 staff, including teachers, counselors, psychologists and other support staff. On an average day, approximately 900 students attend classes at the two schools, each of which are split into a number of different sites throughout the island’s detention facilities.
Lisante estimated that the new school that opens in the fall will serve the same students but with about a 20 percent smaller staff. City and union officials said today that they were negotiating whether and how the schools’ staff members can apply for positions in the new program. Lisante said that the city would consider teachers who currently teach at the schools but would also look at outside candidates.
Mendel charged that announcing the restructuring so late in the year put teachers at a disadvantage; teachers will now have to reapply for their jobs over the summer, when many have already made plans to travel.
Data on the two schools’ credit accumulation and Regents pass rates wasn’t immediately available today, but I’ve asked the DOE for the schools’ achievement statistics and will update the post when I receive them. Because students in the schools are so transient — many students stay on Rikers Island for only around 30 days — achievement data for the programs is tracked differently than for other city schools.
City officials said today that they took the September arrival of new Department of Corrections Commissioner Dora Schriro as an opportunity to re-evaluate the educational programs in the city’s correctional facilities and that the new plan came as a result of recommendations from the corrections department as well as from teachers in the two schools.
In an interview today, Schriro said she had spoken to the DOE “regularly but infrequently,” but that the two departments share the same goal. “We’re looking for opportunities to be more efficient but more effective as well,” she said.
                 

Hey, Cami Anderson–don’t run away, answer the question

LINK

I’ve listened to the tape many times and, as best as I can determine, Natasha Allen said this to Cami Anderson at Tuesday night’s Newark school board meeting: “I’m trying to figure out, like, do you not want for your brown babies what we want for ours?”  That’s when the superintendent abandoned  her responsibility and ran away.

Natasha Allen
Natasha Allen
I spoke to Ms. Allen afterwards and asked her to repeat what she said and she offered a fairly close paraphrase. Ms. Allen was not speaking from a script, she was speaking  extemporaneously and from anger, so the words might have been a little different when she repeated them to me.
I took it as a sincere question from one young mother to another that really meant this:
Why can’t you understand we want for our children what you want for yours?
I found nothing offensive about the remark. I found it poignant and honest and direct–and maybe the most important challenge thrown at Ms. Anderson the entire evening. And I am seriously puzzled by why the superintendent chose that moment to run away from her responsibility to explain her disruptive plans to the residents of Newark.
I’ve read some accounts that the state-appointed superintendent was “driven” from the meeting. That is utter nonsense. She left freely–and, indeed, the audience booed her for running away. The city’s residents wanted an answer to the question–why doesn’t a state official have the just plain human decency to understand the pain of others?
Ms. Anderson appears, on the tape, to be shaking her head and saying, “Not my family,  not my family.”  I get that public officials don’t want their private lives dragged into the public sphere–including public officials like Gov. Chris Christie who put his family into taxpayer-funded campaign ads posing as ads aimed at raising money for relief from Superstorm Sandy.
But let’s be real here. Natasha Allen is not a school employee afraid of losing her job. She is not a politician running for office. She is a mother–her daughter Sapphire Allen, a 16-year-old honor student t at Newark Vocational, also spoke that night–and she came to a recklessly overcrowded venue Tuesday night to express her fears and her anger about what the superintendent was doing to her child and all other “brown babies” in the city.
“I used the words ‘brown babies’ because it’s the black and Latino children who are the most hurt by her plans,” Ms. Allen told me.
Ms. Allen was direct. She set the tone early, insisting she would not call the superintendent “Ms. Anderson” because she felt the boss of the Newark schools had shown disrespect for the city’s residents and children. She expressed anger about reports–so far denied by her press spokesman, Matthew Frankel–that the schools superintendent moved to Montclair.
So there it was: One woman, one mother, against another. Face to face. One woman asking another an important personal question. One mother asking another mother why Ms. Anderson doesn’t understand that, despite poverty, despite racism, despite the state’s criminal neglect of its cities and their schools, the mothers of brown babies love their children as fully and as passionately as more affluent, more fortunate, mothers love their babies–brown or white or black.
The superintendent owes Ms. Allen an answer. She owes all parents an answer. Not as the former executive director of Teach for America. Not as Christie’s $300,000 agent in Newark. Not as one of Time magazine’s up-and-comers. Not as a school superintendent.
But as a mother. Cami Anderson–this is a woman who has disrupted thousands of families in Newark with a plan that will close their schools, require them to put their children in unfamiliar neighborhoods. She has insulted parents by suggesting their children would cause an  increase in crime if they stayed home from school because of the teachers’ convention.
So how about an answer? To my paraphrase of Ms. Allen’s remark: Why can’t you understand we want for our children what you want for yours?
Or, as Ms. Allen put it that night: “I’m trying to figure out, like, do you not want for your brown babies what we want for ours?”
You can’t run away, Cami Anderson. Come back and answer the damned question.
 

19 comments

  1. Kelly
    I agree completely Bob. I was there and was one of the “overflow” attendees who were finally allowed into the cafeteria so we wouldn’t freeze to death outside. Three of us carpooled and drove around the area for at least 30 minutes looking for parking (which was ludicrous considering the school had an empty underground lot and there were PLENTY of police to secure it).
    Luckily, a friend inside was keeping us abreast of what was happening via instant messaging. We then decided to “FaceTime” so we could see and try to hear part of the proceedings but the noise level and lack of satellite signal eventually ended that solution. At about 8:00, our friend on the inside alerted us that many people left and there were plenty of seats available.
    I told that to one if the many officers in the hallway and asked if we could be let in to occupy those seats. He replied, “It doesn’t work that way. They’re not allowing anyone else in.” Really?
    So my colleagues and I quickly texted and posted via Facebook to the Union leaders. By 8:20, we were ushered in to the vacated seats. Just in time for the hullabaloo.
    I believe Ms. Allen and all Newark parents deserve an answer to that question. I also commend the Board for continuing the meeting although that was not what Ms. Anderson wanted. They showed the community respect and it was returned with gratitude. The people of Newark are informed and have valid points. They will not be pushed around (and anyone who grew up in Newark knows that). If the powers that be think this was the climax of events, they are sorely mistaken. This is a taste of Newark citizens waking up and getting READY to fight. We are relentless and focused. In the words of a Newarker, “You don’t mess with mine”. Looks like gloves are coming off.
    Bob Braun: Thank you for your insightful note. Twice in one week the Anderson administration risked the welfare of the city’s residents–first by keeping schools open in a storm and then by scheduling what it new would be a heavily attended meeting at an inappropriate site. Mindless.
    Reply         
    • Ms Anderson risks the welfare of the children of Newark every single day by
    • allowing them to attend schools that are in dangerous disrepair – full of exposed
    • mold, asbestos, poor air quality, poor heat and ventilation. And she has not used her direct line to the Governor to expedite repairs. I believe endangering the life of a
  4. covert racism. They storm away in a huff to make it about their hurt feelings and distract
  5. from the issue at hand. It’s her way of trying to sabotage the discussion, dialogue, and even
  6. the meeting. The other textbook reaction was to ensure she had people around her who would pat her on the back to comfort her *pain* and hurt feelings. Well, what about the pain and
  7. hurt feelings of the children, parents, and community of Newark? They are hurting too. Don’t their hurt feelings and pain matter? But here is the deal: the people of Newark were not there for her hurt feelings; they were there for their democracy, their survival, and the education of their brown babies.
    Bob Braun: Nicely put.
November 14, 2014

Cami Anderson: A national embarrassment

LINK

 


The stark, black screen says it all. “Please stand by. Starting soon…The story of Newark.”  Nothing is exactly what did happen–nothing ever did appear on the blank YouTube screen that was supposed to provide a live feed of a speech Thursday by Cami Anderson to the American Enterprise Institute (AEI) in Washington, D.C.

Anderson, already an embarrassment to herself and the state of New Jersey, never did speak, at least not publicly. She canceled her PUBLIC speech. Why? Because a busload of 40 students, parents, and other community residents showed up to hear what she had to say and, perhaps, to ask her a few questions.  They had to go to Washington because Cami Anderson won’t talk to them in Newark. Won’t attend public board meetings. Hasn’t since January. The Hermit Queen of Newark.
So those 40 people who yesterday followed her to Washington literally scared her speechless, poor dear.  Little Miss Muffet fled indecorously from her tuffet when people like Sharon Smith and Michael Dixon and Kristin Towkaniuk tried to sit alongside her. She recorded her comments “for media only,” according to AEI officials.

That shows how far media has sunk into corporate sycophancy. They are supposed to represent the people, not join in secret cabals with organizations like AEI and privatized school entrepreneurs.
Anderson, the highly-paid toadies she brought with her on the junket to the nation’s capital, and staff members from the AEI, a conservative think-tank, made asses out of themselves by panicking and declaring a small group of perfectly well-behaved and properly registered  people “a security breach” and first tried to evict them, turned the lights off in their own auditorium, and then called the police.
A security breach? Some crazy guy with a knife hopping the White House fence and entering the executive mansion–now that is a security breach. Kids and adult chaperones showing up for a buffet lunch in Washington DC is a field trip.

What a spectacle.  Like elephants stampeding in the presence of a mouse.

“They just showed a lot of disrespect,” said Roberto Cabanes, a spokesman for NJ Communities United, which helped arrange the trip to Washington, along with organizations including the Newark Student Union, PULSE, and the People’s Organization for Progress.

Cabanes said the Newark residents properly registered and paid their fees for the event and behaved well when they got to the room in the building on 17th Street NW where Cami was scheduled to speak. But one of Anderson’s $175,000-a-year assistants, Peter Turnamian, noticed some familiar faces among the people who came to hear Anderson talk about her “successes” and “triumphs” in Newark.  Not the  sort of faces normally seen at the events of an organization run by some of the biggest capitalists in the nation–including that patron saint of free enterprise and maniacal public policy, former Vice President Dick Cheney.

(Turnamian, before he became one of Anderson’s roadies, is probably best known for founding a charter school that billed itself as “The Best School in Newark,” a charter school subsequently ordered closed by the state because it was such a failure. Naturally, he would be working for Cami Anderson.)
We call them our neighbors--they call them a "security breach."
We call them our neighbors–they call them a “security breach.”
Turnamian warned the nervous biddies who run the AEI of the dangerous “security breach” and tried to have some of them evicted. Meanwhile, the 11:30 a.m. program was delayed. The AEI folks then said Anderson’s talk would be given elsewhere, perhaps in a lavatory or slop closet somewhere in the building–then finally gave up and canceled Anderson’s antic  road show. The Washington Post, however, reported Anderson may have given the speech “without an audience.” Turns out, that’s exactly what she did.

Making us wonder: If Cami gave a speech and no one was there to hear it, would it still be a pack of lies?

The answer is: Yes.

When the students and parents tried to explain the reason for their presence to what was left of the AEI audience after the cancellation was announced, the organization’s staffers decided to combat the security breach by turning off the lights.  How better to ensure the safety of people inside a building than to plunge them into darkness? That should have made everyone feel more secure. It understandably got the Newark residents angry.

Want to laugh? Here’s how the AEI describes itself: “The American Enterprise Institute is a community of scholars and supporters committed to expanding liberty, increasing individual opportunity and strengthening free enterprise. AEI pursues these unchanging ideals through independent thinking, open debate, reasoned argument, facts and the highest standards of research and exposition.”

Independent thinking? Open debate? Reasoned argument?  Does all that include refusing to answer questions from constituents–and turning off the lights? And hiding behind closed doors?

Comments



Tim Lisante LinkedIn page:

Experience

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The Rise in Complaints Against School Employees (That Means Principals, Too) Is Due To Social Media

January 10, 2015, 9:15 pm
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When Carl (Campanile, NYPOST) called, I told him what I thought about the rise in complaints against school employees: secret recordings and social media.

New York State is a one party state. This means that as long as you are in a conversation with someone, you can secretly record the discussion and you do not have to tell the person/people with whom you are speaking that you are recording. You should assume that whenever anyone speaks with you at your school, especially in an office such as a Principal or AP, you are being recorded. Return the favor. Tape every meeting secretly and be creative.

I remember a teacher who recorded everyone, and the principal thought she was doing it, so whenever she entered the principal's office, she was given a pat down. So she kept the tape recorder in her bra or her sock.

You cannot secretly record any conversation in which you are not a party. Take a look also at the penal code for eavesdropping. You can, and should be documenting everything said to you, for your records. And remember that you are also legally allowed to secretly tape telephone calls in which you are a party.

Now that the cell phone ban is ending for all public school students, there will be more chances for a hidden tape recorder/phone to get an educator/principal/AP/Dean/etc saying something that is harassing, improper, or criminal.

If you look at the cell phone ban for a minute, consider this: the schools with high-scoring kids (NEST+M, La Guardia, Stuyvesant) never told students they could not bring their phones to school. Students were told  "don't have anyone see your phone in class, keep it in your backpack/bag". I know, because my daughters always had their phones with them, and went to those schools. My oldest daughter was a student at Stuyvesant on 9/11. There was no way I would let her on the subway or at school without her cellphone.

On the other side of the coin are the schools where the demographics are very different. Take Wadleigh HS on West 114th Street in Manhattan. Harlem. Parents told me that when the phone scanner officers were stationed at the door, parents and students - mostly African-American - were body searched. Who decides?

My  thoughts about why the cell phone ban was put in place was not to protect the learning experience but to guard against student exposure of employee misconduct.

Let's see what happens now that students throughout the city will be able to carry their phones inside the school building.

Betsy Combier

Probes into NYC teachers decrease, despite record complaints



LINK
Investigators were flooded with a record number of complaints against school employees last year — but pursued fewer cases against them, records show.
Investigators received 5,287 complaints in 2014, according to a report released Thursday by Special Schools Investigator Richard Condon.
But his office completed only 714 investigations, 123 fewer than last year, when there were 4,335 complaints.
Regina Romain, a spokeswoman for Condon, said many of the complaints were frivolous or did not fall under his purview.
“We do not have any control over the amount of complainants that call our office,” she said.
“We open investigations based on the severity of the allegations. Although the amount of complaints may increase, the allegations may not be as serious.”
One advocate who helps defend teachers in disciplinary cases attributed the complaint surge to an explosion in the use of high-tech gadgets and social media.
“Everybody is carrying around a tape recorder” in the form of a smartphone, said legal aide Betsy Combier. “People know they can secretly tape. It’s a social-media thing.”
If anything, she said, the number of complaints will continue to go up because “now students will be allowed to carry their phones in school.”
One Brooklyn principal said it has become easier to file complaints through the 311 hot line.
“Administrators are being called in and hearing, ‘We got a 311 complaint,’ ” said Dakota Keyes, principal of PS 272 in Canarsie.
She said the situation is frustrating because many of the accusations are unfounded.
Keyes recalled one incident in which her students held fund-raisers for a classmate who was hospitalized.
When she delivered the money to the student’s parents in front of numerous eyewitnesses, someone complained.
“There was a 311 call saying the funds were not used for what was intended,” said Keyes.
“It’s annoying. Sometimes the complaints are mean-spirited.”
Investigators discovered evidence of sexual misconduct in 52 out of 581 complaints received that had a sexual component.
The cases included an after-school aide in PS 300 in The Bronx who allegedly abused two 8-year-old female students; Brooklyn Tech teacher Sean Shaynak’s alleged relations with seven girls in his classes; and a school investigator who sext-messaged a teacher he was investigating.
Few cases resulted in dismissals.
Condon recommended that the city fire only 63 school employees and never rehire 115 others who left on their own.
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Disgraced Former Principal Elif Gure-Perez Is Appointed Executive Director of The NYC DOE Office of School Improvement-State and Federal Education Policy

January 11, 2015, 9:01 am
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Ok, I'm stumped. Mayor De Blasio and Chancellor Carmen Farina appoint a person to oversee the State and Federal policies that she was found guilty of violating by a jury in federal court?

I think we are owed a detailed explanation of this one. Please describe your reasons, Carmen and Bill!

Betsy Combier
betsy.combier@gmail.com

Weinstein Allows Reargument on Dismissed Case
LINK
Oct, 09 2014

Judge Jack Weinstein
 
Article source:http://www.newyorklawjournal.com
 
A judge has given an assistant principal a second chance to argue that she was a victim of retaliation for refusing to frame African-American teachers for disciplinary violations.Saying he was acting to "correct a possible injustice," Eastern District Judge Jack Weinstein (See Profile) agreed to allow reargument on the 1981 retaliation claim of Christina Villavicencio that she was punished by P.S. 316 principal Elif Gure-Perez for failing to write false reports.
Weinstein said case law on discrimination was overlooked, and he cited cases not mentioned by either party.
He had granted a motion for summary judgment on Oct. 2 in favor of Gure-Perez and the New York City Department of Education in Villavicencio v. Gure-Perez, 14-CV-0889.
He made that decision on the basis of Leibovitz v. N.Y.C. Transit Authority, 252 F.3d 179 (2d Cir. 2001), where the U.S. Court of Appeals for the Second Circuit said a plaintiff had no cause of action for discrimination that she did not observe herself.
But Weinstein reversed course on Wednesday, issuing an order and withdrawal of dismissal, saying that a line of U.S. Supreme Court and Second Circuit cases shows that a 42 U.S.C. ?1981 cause of action could be pursued against a superior where an employee suffers retaliation for trying to prevent discrimination by that superior.
Villavicencio worked as an assistant principal on probationary status from 2008 to 2009 at P.S. 316, where Gure-Perez allegedly told her to "aggressively supervise" older staff members--all but one of whom was African-American--to "shake them up."
Gure-Perez allegedly instructed Villavicencio to focus on two employees, give them "unsatisfactory" ratings and use "fear" and "intimidation" against a third teacher she wanted forced into retirement.
Villavicencio refused, and in her complaint, she charged that once Gure-Perez realized she would not take part in "her plan to use trumped-up write-ups, fraudulent evaluations and false pretenses to get rid of older African American staff at P.S. 316," Gure-Perez created "a false paper trail" to get rid of Villavicencio.
Gure-Perez placed seven disciplinary letters in her file on a single day on March 17, 2009. Nine days later, Villavicencio received her first unsatisfactory rating of her career along with a notice of discontinuance of her probationary status.
When she was reassigned to another school, P.S. 161, the principal, who was a friend of Gure-Perez's, allegedly gave her a hard time and threatened disciplinary action. Villavicencio was advised by a United Federation of Teachers representative to leave the school because the principal and her friends "are after you." She went on medical leave for anxiety and depression.
Weinstein said that neither side in the summary judgment phase of the case cited any cases that he said favored Villavicencio. Among them are Thompson v. N. Am. Stainless, LP, 131 S.Ct. 863 (2011) where the Supreme Court said third-party reprisals are not categorically excluded from the anti-retaliation provisions of Title VII, and CBOCS W., Inc. v. Humphries, 553 U.S. 442, where the court said a ?1981 claim can be made where a person suffers retaliation for trying to help a person who was the target of discrimination.
The Supreme Court also said in Sullivan v. Little Hunting Park, Inc. 396 U.S. 229 (1969), that a person can sue under the Civil Rights Act if he or she could show they were "punished for trying to vindicate the rights of minorities." And the Second Circuit held in Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988) that "non-minority plaintiffs may bring an action under ?1981 against one who retaliated against them because they did not engage in purposeful discrimination."
Weinstein said that these cases and more "provide grounds for distinguishing the decision in Leibowitz" which was his basis for granting the motion for summary judgment.
In an interview Thursday, Weinstein said that after issuing the decision, "we thought about it and did further research" on the matter that led to the withdrawal of dismissal.
He set Oct. 23 for reargument.
Assistant Corporation Counsel Leah Schmelzer argued for the Department of Education.
Kenechukwu Okoli represents Villavicencio.
Okoli said Thursday he had argued that Liebovitz did not apply and the judge had to look at the totality of the circumstances in deciding retaliation. He said he did not cite the cases, but argued nonetheless that a person who refused to participate in discrimination can state a case of retaliation.
"I'm happy that the judge took the time to take a second look at the case," he said.



Elif Gure-Perez

Executive Director, NYC Department of Education
  1. NYC Department of Education, Office of School Improvement-State and Federal Education Policy,
  2. New York University, Steinhardt School of Culture and Human Development
  1. NYC Department of Education, Office of School Quality
Edit experience
  1. New York University

Experience

Adjunct Professor

New York University, Steinhardt School of Culture and Human Development
– Present (13 years)New York, New York
Design and deliver graduate level courses regarding study of approaches, methods, and techniques used in teaching language skills and developing cross-cultural understandings to second/foreign language learners at the elementary and secondary levels. The emphasis of the courses include curriculum development, language development through development stages and content areas, language testing, lesson planning, and micro-teaching.

Deputy Executive Director

NYC Department of Education, Office of School Quality
– (2 years)new york, new york
Lead cross-functional initiatives including NYC Principal Performance Evaluations, School Quality Reviews and Formative Quality Reviews. Manage professional development design and facilitation for quality reviewers and principal performance evaluators.

Director for School Quality

NYC Department of Education, Office of Academic Quality
– (1 year 1 month)New York, NY
Lead design, implementation and delivery of Quality Review (QR) trainings for NYC Quality Reviews. Implement and deliver QR orientations for principals across networks. Oversee field support and quality assurance for QR process and reports. Facilitate professional development for quality reviewers. Oversee and guide each QR to ensure that they are adequately staffed and supported, resulting in high quality feedback to schools for continued school improvement.

Principal

NYC Department of Education
– (3 years)
Lead and foster a culture of improvement through personal leadership. Utilize multiple sources of data to set high learning goals and increase student achievement. Leverage deep knowledge of curriculum, instruction and assessment to improve student learning. Develop staff, share school leadership and build strong school community. School received and sustained a score of A on the NYC Progress Report Card and Good Standing on the NYS School Report Card.

Achievement Manager

NYC Department of Education
– (2 years)
Implement accountability measures and instructional systems designed to assist schools in improving student achievement. Assist principals in capturing and disseminating best practices around school improvement. Design and present school and network level trainings on the use of diagnostic and formative assessment tools. Conduct and facilitate instructional rounds for quality review assistance. Support principal in formulating and achieving performance review targets as well as facilitate collaborative action research projects.

Instructional Specialist

NYC Department of Education
– (1 year)Region 7
Design and implement curriculum and professional development, federal, state and city compliance monitoring and supervision systems as well as instructional support for teachers, administrators and parents of English Language Learners in NYC Department of Education schools.

Title VII Federal Grants Director

NYC Department of Education
– (2 years)Region 7
Manage the implementation and evaluation of system-wide discretionary federal grants projects including the design, implementation and coordination of a teacher training curriculum for a co-sponsored Master’s Degree Program for pre and in-service teachers as well as supplemental educational programs for immigrant students and families in NYC schools.
 

DOE names accused racist to ‘school improvement’ post

, January 11, 2015
Elif Gure-Perez was named as an executive director in the DOE’s Office
of School Improvement.

 
LINK
The de Blasio administration promoted a disgraced principal to a top Department of Education post despite multiple charges that she’s racist, The Post has learned.
Elif Gure-Perez, who was named in June as an executive director in the DOE’s Office of School Improvement, created a “hostile, race-based work environment,” a Manhattan federal court found months before her appointment.
Gure-Perez, the former principal of PS 316 in Prospect Heights, Brooklyn, called one staffer the N-word to her face; referred to an African-American teacher as “Shining,” an insulting term for a shoe shiner; and spoke of buying a bright orange blouse to wear to school “since I know black people like loud colors,” witnesses testified.
She denied the accusations.
In her new post, Gure-Perez is assigned to support 14 high schools in the mayor’s $150 million School Renewal Program for struggling schools, according to DOE spokesman Will Mantell. Her salary is $144,195.
Asked why Chancellor Carmen Fariña promoted Gure-Perez in light of the complaints, the DOE had no comment.
Former PS 316 parent coordinator Carolyn Lovejoy testified she broke down in tears when Gure-Perez yelled at her, “Get out of my office, you n—-r, get out!”
In March, a Manhattan jury found Gure-Perez liable for civil damages, awarding Lovejoy $110,000, which the city is paying.
An assistant principal who testified in Lovejoy’s case, Martin Williams, said Gure-Perez repeatedly used the phrase “black ass” in discussing teachers, and told him to “crack the whip.”
“I felt belittled, and as a black person and an astute student of history, it smacks of racism to me,” Williams said.
Williams said he complained to then-Chancellor Joel Klein after Gure-Perez made reference to a story called “Old Black Joe,” which teachers considered a negative stereotype, at a faculty meeting.
Within 24 hours, Gure-Perez sent Williams to the infamous rubber room, he said, where he sat for four months on “trumped-up charges.”
In a related suit, Elizabeth Butler, a veteran teacher trainer at PS 316, accused Gure-Perez of repeatedly saying she sat on her “old ass.”
“Total disrespect and constant embarrassment” drove Butler to retire, she says.
In another pending suit, then-assistant principal Christina Villavicencio claims Gure-Perez punished her for defying orders to give bogus “Unsatisfactory” ratings to older African-American teachers, and to use “fear and intimidation” tactics to drive them out.
Villavicencio, who is seeking $1 million in damages, said Gure-Perez slapped her with seven disciplinary letters in one day, gave her the first U-rating of her career and fired her.
“From the moment Villavicencio refused to file false reports on these African-American teachers, Gure-Perez started a campaign to terminate Villavicencio’s employment as assistant principal,” Manhattan federal Judge Jack Weinstein wrote in a November ruling. The case is set for trial on Jan. 27.
Gure-Perez, 40, who immigrated from Turkey in 2001, got her bachelor’s degree from Istanbul University and a master’s degree in education from NYU. She joined the DOE in 2002 and quickly took administrative posts. She was principal of PS 316 from 2008 to 2011, then was moved to DOE headquarters.
On her Twitter page, Gure-Perez has supported the policies of Mayor de Blasio, including curbing co-locations of charter schools in DOE buildings. Last February, she retweeted a Chalkbeat.org article headlined “Fariña’s game plan to undo (and redo) the Bloomberg years.”
After her termination, Villavicencio went back to teaching, but became principal of PS 197 in Far Rockaway, Queens, in 2012. She declined to comment. Lovejoy said only, “It’s been horrible.”
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FACES: Dr. Timothy F. Lisante, Superintendent of District 79

January 30, 2015, 1:27 pm
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Riker's Island. The kids incarcerated there are forgotten. Nothing shows the disconnect between the NYC DOE and reality more than the reports of those reporters and people who believe that horror has to be public.

Report Found Distorted Data on Jail Fights at Rikers Island
By , and

October 1, 2014  

Getting Teen-agers out of Solitary at Rikers

By

 


 
Justice Scholars Enable Teens to Get Back on Track
By: Bianca Flowers | July 14, 2014





 
Superintendent tlisant@schools.nyc.gov
Pathways of Possibility Conference
CUNY Baruch  College
February  27, 2013
GED Plus 
GED 
Career & Technical Education
Services for Student Parents
Educational Programs for Students in Drug Treatment
Correctional Education
Co Op Tech
LYFE
ReStart Academy
Phoenix Academy
East River Academy
Passages Academy 
Youth Justice Education
(Involuntary Settings) 
Programmatic Areas
Schools & Programs 
Educational Pathways/  Challenges / Promising Practices
STEP
District 79 Portfolio of Programs
EAST RIVER ACADEMY – Rikers Graduation  2012

GED PLUS  Graduation


Critical Partnerships for D79 Programs that serve

Court-Involved Students
      City Agencies:
      • New York City Police Department/School Safety
      • Department of Probation
      • ACS/Division of Youth and Family Justice
      • Department of Health and Mental Hygiene
      • Department of Youth and Community Development
      • Department of Correction
 Interagency Committees/Networks
      • NYC Juvenile Justice Advisory Committee
      • School Justice Taskforce
      • Alcohol/Substance Abuse Provider’s (ASAP) Youth Committee
      • ICC Court-Involved Youth Working Group
      • Re-Entry Education Network

D79 Advocacy                 Solutions Intervention

 DOE Court Liaisons provide current and applicable information that supports court-involved students in achieving their educational goals
Back on Track (collaboration with the District Attorney’s Office) and Outreach Academy are Re-Start  programs that serve as alternatives for overage middle school students. GED classes in 3 different NY courts Close to Home initiative expanded Passages Academy to support students in building social and emotional and academic skills. Close to Home impacts youth placed by the Family Court in ACS custody.  Adolescent Behavioral Learning Experience (ABLE) is a partnership between  DOE, DOC and the Osborne Association to supportERAstudents in reducing the likelihood of re-incarceration 

 Re-Entry Support
 
      • Home School Re-entry Processallows students who transition out ofERAand Passages to return to the their home school’s register immediately
      • Referral Centers for High School Alternativesconnect students who have had an interruption in their studies to alternative education program 
      • Transition Counselorsat ERA and Passages prepare student for their return to the community and connect students with no home school to Referral Centers 
      • Specially trained Probation Officers for 16-17 year olds

Current Initiatives for Students who are Court-Involved Intervention 
      • PEAK program is a school based diversion program in collaboration with the Department of Probation which will  provide  support  and programming including robust after-school and summer offerings
      • Enhanceoptions for Overage Middle School students (Bx/ Man) 
 Re-Entry Support 
      • Plan to Succeed NYCwill serve as an electronic portfolio and individual learning plan that will help Passages and ERA students stay on a pathway to graduation and plan for transition
      • Transition Coacheswill serve ascommunity-based support to assist in re-entry into home schools  
      • Friends of Island Academy Initiative will enhance services for 16-year-olds at ERA 
      • Cross-over youth pre-release planning initiative will be a collaboration between ACS and the DOE to support students on Rikers who are also ACS-involved 
Tim Lisante  LinkedIn page:

Experience
NYC Department of Education
Superintendent
NYC Department of Education
– Present (37 years)Education
 

 City replacing two Rikers schools with one smaller program
by Maura Walz on June 28, 2010 8:54 pm
 
LINK
Teachers at the only two schools on Rikers Island learned today that their schools will close next year. In their stead, a new school will open — one with a smaller and possibly new set of teachers.
The change is part of a wider attempt to end programs under the city’s alternative schools office, known as District 79, that city officials believe are ineffective, Department of Education officials said today. Earlier this year, the city announced it was also closing its only school designed to transition students from detention back into mainstream high schools.
 
“Despite some of our best efforts, we’re not making the gains for the students in some of the specialized programs,” said Timothy Lisante, District 79’s deputy superintendent for corrections and detentions.
 
In an interview today, Lisante and District 79 Superintendent Cami Anderson said that consolidating the two programs would allow for smoother day-to-day operations of the school. Restarting the program will also give the city the opportunity to redesign its placement process, directing some students towards coursework that will prepare them to return to their community high schools and giving others more vocational training.
 
“The prime vision here is to do everything we can to create a program that will accelerate [student's] progress so they can return to their home school or, if they’re older, go into a rigorous GED program,” Anderson said.
 
But teachers union officials are crying foul at the city’s timing, arguing that the last-minute announcement was disrespectful to the school’s teaching staff.
 
“We’re certainly for improving programs but no one’s going to convince me that they just woke up in June and thought this had to be done,” said United Federation of Teachers Secretary Michael Mendel.
The city currently runs two academic programs on Rikers Island. Students under the age of 18, who are legally required to attend school, enroll in the Island Academy, while Horizon Academy enrolls older students who opt into the program. (Last month, I visited the Island Academy for a Top Chef-style competition among its culinary arts students.)
 
Together, the schools employ about 197 staff, including teachers, counselors, psychologists and other support staff. On an average day, approximately 900 students attend classes at the two schools, each of which are split into a number of different sites throughout the island’s detention facilities.
Lisante estimated that the new school that opens in the fall will serve the same students but with about a 20 percent smaller staff. City and union officials said today that they were negotiating whether and how the schools’ staff members can apply for positions in the new program. Lisante said that the city would consider teachers who currently teach at the schools but would also look at outside candidates.
 
Mendel charged that announcing the restructuring so late in the year put teachers at a disadvantage; teachers will now have to reapply for their jobs over the summer, when many have already made plans to travel.
 
Data on the two schools’ credit accumulation and Regents pass rates wasn’t immediately available today, but I’ve asked the DOE for the schools’ achievement statistics and will update the post when I receive them. Because students in the schools are so transient — many students stay on Rikers Island for only around 30 days — achievement data for the programs is tracked differently than for other city schools.
 
City officials said today that they took the September arrival of new Department of Corrections Commissioner Dora Schriro as an opportunity to re-evaluate the educational programs in the city’s correctional facilities and that the new plan came as a result of recommendations from the corrections department as well as from teachers in the two schools.
In an interview today, Schriro said she had spoken to the DOE “regularly but infrequently,” but that the two departments share the same goal. “We’re looking for opportunities to be more efficient but more effective as well,” she said.
 
Tim Lisante LinkedIn page:

Experience

Education

International Univ of Graduate Studies, Ph.D.
M.A.
****************************
Dr. Lisante's former boss, Cami Anderson, is the very same current NJ Superintendent who is alienating Newark parents.

See below.

Betsy Combier

                 

Hey, Cami Anderson–don’t run away, answer the question

LINK

I’ve listened to the tape many times and, as best as I can determine, Natasha Allen said this to Cami Anderson at Tuesday night’s Newark school board meeting: “I’m trying to figure out, like, do you not want for your brown babies what we want for ours?”  That’s when the superintendent abandoned  her responsibility and ran away.

Natasha Allen
Natasha Allen
I spoke to Ms. Allen afterwards and asked her to repeat what she said and she offered a fairly close paraphrase. Ms. Allen was not speaking from a script, she was speaking  extemporaneously and from anger, so the words might have been a little different when she repeated them to me.
I took it as a sincere question from one young mother to another that really meant this:
Why can’t you understand we want for our children what you want for yours?
I found nothing offensive about the remark. I found it poignant and honest and direct–and maybe the most important challenge thrown at Ms. Anderson the entire evening. And I am seriously puzzled by why the superintendent chose that moment to run away from her responsibility to explain her disruptive plans to the residents of Newark.
I’ve read some accounts that the state-appointed superintendent was “driven” from the meeting. That is utter nonsense. She left freely–and, indeed, the audience booed her for running away. The city’s residents wanted an answer to the question–why doesn’t a state official have the just plain human decency to understand the pain of others?
Ms. Anderson appears, on the tape, to be shaking her head and saying, “Not my family,  not my family.”  I get that public officials don’t want their private lives dragged into the public sphere–including public officials like Gov. Chris Christie who put his family into taxpayer-funded campaign ads posing as ads aimed at raising money for relief from Superstorm Sandy.
But let’s be real here. Natasha Allen is not a school employee afraid of losing her job. She is not a politician running for office. She is a mother–her daughter Sapphire Allen, a 16-year-old honor student t at Newark Vocational, also spoke that night–and she came to a recklessly overcrowded venue Tuesday night to express her fears and her anger about what the superintendent was doing to her child and all other “brown babies” in the city.
“I used the words ‘brown babies’ because it’s the black and Latino children who are the most hurt by her plans,” Ms. Allen told me.
Ms. Allen was direct. She set the tone early, insisting she would not call the superintendent “Ms. Anderson” because she felt the boss of the Newark schools had shown disrespect for the city’s residents and children. She expressed anger about reports–so far denied by her press spokesman, Matthew Frankel–that the schools superintendent moved to Montclair.
So there it was: One woman, one mother, against another. Face to face. One woman asking another an important personal question. One mother asking another mother why Ms. Anderson doesn’t understand that, despite poverty, despite racism, despite the state’s criminal neglect of its cities and their schools, the mothers of brown babies love their children as fully and as passionately as more affluent, more fortunate, mothers love their babies–brown or white or black.
The superintendent owes Ms. Allen an answer. She owes all parents an answer. Not as the former executive director of Teach for America. Not as Christie’s $300,000 agent in Newark. Not as one of Time magazine’s up-and-comers. Not as a school superintendent.
But as a mother. Cami Anderson–this is a woman who has disrupted thousands of families in Newark with a plan that will close their schools, require them to put their children in unfamiliar neighborhoods. She has insulted parents by suggesting their children would cause an  increase in crime if they stayed home from school because of the teachers’ convention.
So how about an answer? To my paraphrase of Ms. Allen’s remark: Why can’t you understand we want for our children what you want for yours?
Or, as Ms. Allen put it that night: “I’m trying to figure out, like, do you not want for your brown babies what we want for ours?”
You can’t run away, Cami Anderson. Come back and answer the damned question.
 

19 comments

  1. Kelly
    I agree completely Bob. I was there and was one of the “overflow” attendees who were finally allowed into the cafeteria so we wouldn’t freeze to death outside. Three of us carpooled and drove around the area for at least 30 minutes looking for parking (which was ludicrous considering the school had an empty underground lot and there were PLENTY of police to secure it).
    Luckily, a friend inside was keeping us abreast of what was happening via instant messaging. We then decided to “FaceTime” so we could see and try to hear part of the proceedings but the noise level and lack of satellite signal eventually ended that solution. At about 8:00, our friend on the inside alerted us that many people left and there were plenty of seats available.
    I told that to one if the many officers in the hallway and asked if we could be let in to occupy those seats. He replied, “It doesn’t work that way. They’re not allowing anyone else in.” Really?
    So my colleagues and I quickly texted and posted via Facebook to the Union leaders. By 8:20, we were ushered in to the vacated seats. Just in time for the hullabaloo.
    I believe Ms. Allen and all Newark parents deserve an answer to that question. I also commend the Board for continuing the meeting although that was not what Ms. Anderson wanted. They showed the community respect and it was returned with gratitude. The people of Newark are informed and have valid points. They will not be pushed around (and anyone who grew up in Newark knows that). If the powers that be think this was the climax of events, they are sorely mistaken. This is a taste of Newark citizens waking up and getting READY to fight. We are relentless and focused. In the words of a Newarker, “You don’t mess with mine”. Looks like gloves are coming off.
    Bob Braun: Thank you for your insightful note. Twice in one week the Anderson administration risked the welfare of the city’s residents–first by keeping schools open in a storm and then by scheduling what it new would be a heavily attended meeting at an inappropriate site. Mindless.
    Reply         
    • Ms Anderson risks the welfare of the children of Newark every single day by
    • allowing them to attend schools that are in dangerous disrepair – full of exposed
    • mold, asbestos, poor air quality, poor heat and ventilation. And she has not used her direct line to the Governor to expedite repairs. I believe endangering the life of a
  4. covert racism. They storm away in a huff to make it about their hurt feelings and distract
  5. from the issue at hand. It’s her way of trying to sabotage the discussion, dialogue, and even
  6. the meeting. The other textbook reaction was to ensure she had people around her who would pat her on the back to comfort her *pain* and hurt feelings. Well, what about the pain and
  7. hurt feelings of the children, parents, and community of Newark? They are hurting too. Don’t their hurt feelings and pain matter? But here is the deal: the people of Newark were not there for her hurt feelings; they were there for their democracy, their survival, and the education of their brown babies.
    Bob Braun: Nicely put.
November 14, 2014

Cami Anderson: A national embarrassment

LINK

 


The stark, black screen says it all. “Please stand by. Starting soon…The story of Newark.”  Nothing is exactly what did happen–nothing ever did appear on the blank YouTube screen that was supposed to provide a live feed of a speech Thursday by Cami Anderson to the American Enterprise Institute (AEI) in Washington, D.C.

Anderson, already an embarrassment to herself and the state of New Jersey, never did speak, at least not publicly. She canceled her PUBLIC speech. Why? Because a busload of 40 students, parents, and other community residents showed up to hear what she had to say and, perhaps, to ask her a few questions.  They had to go to Washington because Cami Anderson won’t talk to them in Newark. Won’t attend public board meetings. Hasn’t since January. The Hermit Queen of Newark.
So those 40 people who yesterday followed her to Washington literally scared her speechless, poor dear.  Little Miss Muffet fled indecorously from her tuffet when people like Sharon Smith and Michael Dixon and Kristin Towkaniuk tried to sit alongside her. She recorded her comments “for media only,” according to AEI officials.

That shows how far media has sunk into corporate sycophancy. They are supposed to represent the people, not join in secret cabals with organizations like AEI and privatized school entrepreneurs.
Anderson, the highly-paid toadies she brought with her on the junket to the nation’s capital, and staff members from the AEI, a conservative think-tank, made asses out of themselves by panicking and declaring a small group of perfectly well-behaved and properly registered  people “a security breach” and first tried to evict them, turned the lights off in their own auditorium, and then called the police.
A security breach? Some crazy guy with a knife hopping the White House fence and entering the executive mansion–now that is a security breach. Kids and adult chaperones showing up for a buffet lunch in Washington DC is a field trip.

What a spectacle.  Like elephants stampeding in the presence of a mouse.

“They just showed a lot of disrespect,” said Roberto Cabanes, a spokesman for NJ Communities United, which helped arrange the trip to Washington, along with organizations including the Newark Student Union, PULSE, and the People’s Organization for Progress.

Cabanes said the Newark residents properly registered and paid their fees for the event and behaved well when they got to the room in the building on 17th Street NW where Cami was scheduled to speak. But one of Anderson’s $175,000-a-year assistants, Peter Turnamian, noticed some familiar faces among the people who came to hear Anderson talk about her “successes” and “triumphs” in Newark.  Not the  sort of faces normally seen at the events of an organization run by some of the biggest capitalists in the nation–including that patron saint of free enterprise and maniacal public policy, former Vice President Dick Cheney.

(Turnamian, before he became one of Anderson’s roadies, is probably best known for founding a charter school that billed itself as “The Best School in Newark,” a charter school subsequently ordered closed by the state because it was such a failure. Naturally, he would be working for Cami Anderson.)
We call them our neighbors--they call them a "security breach."
We call them our neighbors–they call them a “security breach.”
Turnamian warned the nervous biddies who run the AEI of the dangerous “security breach” and tried to have some of them evicted. Meanwhile, the 11:30 a.m. program was delayed. The AEI folks then said Anderson’s talk would be given elsewhere, perhaps in a lavatory or slop closet somewhere in the building–then finally gave up and canceled Anderson’s antic  road show. The Washington Post, however, reported Anderson may have given the speech “without an audience.” Turns out, that’s exactly what she did.

Making us wonder: If Cami gave a speech and no one was there to hear it, would it still be a pack of lies?

The answer is: Yes.

When the students and parents tried to explain the reason for their presence to what was left of the AEI audience after the cancellation was announced, the organization’s staffers decided to combat the security breach by turning off the lights.  How better to ensure the safety of people inside a building than to plunge them into darkness? That should have made everyone feel more secure. It understandably got the Newark residents angry.

Want to laugh? Here’s how the AEI describes itself: “The American Enterprise Institute is a community of scholars and supporters committed to expanding liberty, increasing individual opportunity and strengthening free enterprise. AEI pursues these unchanging ideals through independent thinking, open debate, reasoned argument, facts and the highest standards of research and exposition.”

Independent thinking? Open debate? Reasoned argument?  Does all that include refusing to answer questions from constituents–and turning off the lights? And hiding behind closed doors?


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EDLAWFAQs: Jose Rodriguez Wins His PERB Complaint (Rodriguez v DOE 2013)

January 31, 2015, 8:28 pm
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Can a U-rating be reversed when a teacher is disciplined for protected activity?
Posted on 

LINK
Yes. The Public Employees’ Fair Employment Act codifies public employee labor relations in New York State. The statutory framework provides for a Board to oversee the public employee labor relations and has certain powers to protect public employees engaged in Union activity termed protected activity.
Rodriguez taught at P.S. 173 and for 32 years “had an unblemished record.” He was also the Chapter Leader at the school and had never filed a grievance on his behalf. In April 2010 he submitted a preference sheet and was not assigned his preference. He filed a grievance.
Rodriguez alleged that, as a result of his grievance, he was subjected to an excessive number of classroom visits and observations including 58 unannounced “pop-in” visits. After the filing of a second grievance regarding lesson plans Rodriguez was subjected to still further scrutiny.
Additional animus was evident from the filing of a disciplinary letter to Rodriguez file and rating him with a U-rating.
Rodriguez appealed to PERB where he demonstrated the anti-union activity bias. AlJ Elena Cacavas ruled that the DOE had violated the act and ordered that the disciplinary letter and unsatisfactory rating be rescinded.
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New York State Education Department's Part 83: Too Arbitrary to Define What "Moral Character" Means

February 1, 2015, 11:47 am
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Teachers As Role Models  Teaching Character And Moral Values.
 But What Are They Teaching?

Moral character or character is an evaluation of a particular individual's stable moral qualities.
The concept of character can imply a variety of attributes
including the existence or lack of virtues such as empathy,
courage, fortitude, honesty, and loyalty, or of good behaviors or habits.

Part 83 Determination of Good Moral Character

Section 83.1. Determination of good moral character.


(a) Any information indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the department.
(b) The appropriate official in school districts which by statute are empowered to grant teaching licenses shall notify the professional conduct officer of the revocation, annulment or suspension of any license issued under that authority, together with the reasons therefor.
(c) Information in the possession of any person indicating that an applicant for a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, may be referred to the executive director of the Office of Teaching Initiatives of the State Education Department. Information in the possession of any person indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, may be referred to the professional conduct officer of the department.
(d) The department shall review the findings and recommendations of hearing panels in hearings on charges against tenured teachers pursuant to Education Law section 3020-a and all such cases involving criminal convictions shall be referred to the professional conduct officer.
8 NY ADC 83.1
8 NY ADC 83.1
2008 WL 75116020
8 NY ADC 83.1
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Section 83.2. Investigation.
The professional conduct officer shall direct that an investigation be done of the circumstances surrounding such conviction or act, and shall submit a report of the findings and a recommendation as to whether to proceed to a formal hearing to the State professional standards and practices board for teaching or to a subcommittee of such board, as determined in the bylaws of the board, composed of no fewer than five members approved by majority vote of the board, to consider such reports.
8 NY ADC 83.2
8 NY ADC 83.2
2008 WL 75116021
8 NY ADC 83.2
Top
 
Section 83.3. Review by board.
If upon review of the report of the professional conduct officer, such board or subcommittee concludes that a certified individual's moral character is adequate to permit continued certification as a teacher, or that an applicant's moral character is adequate to permit certification as a teacher, a report to this effect shall be forwarded by the board or subcommittee to the executive director of the Office of Teaching Initiatives. If upon such review, the board or subcommittee concludes that a substantial question exists as to the moral character of a certified individual or an applicant, notice of the basis for this conclusion and a copy of this Part shall be sent by certified mail, return receipt requested, to the certified individual or applicant.
8 NY ADC 83.3
8 NY ADC 83.3
2008 WL 75116022
8 NY ADC 83.3
Top
   
Section 83.4. Hearing.
(a) If requested by the certified individual or applicant, in writing to the professional conduct officer within 30 days after receipt of said notice that a substantial question exists as to the individual's moral character, a hearing shall be held on the issue of whether the individual's certification should be revoked or suspended or whether another penalty should be imposed upon the certified individual as prescribed in section 83.6 of this Part or whether the application for certification should be denied. In the request for a hearing, the certified individual or applicant may request that the hearing be held solely before a hearing officer or, in the alternative, before a hearing officer and a three-member hearing panel. Upon receipt of a request for a hearing, a hearing officer shall be appointed by the commissioner to hear and recommend, and a hearing scheduled. In the order designating a hearing officer, the commissioner shall also designate the place where said hearing will be held. At least 15 days before the hearing, the hearing officer shall give to the certified individual or applicant written notice by mail of the time and place of said hearing.
(b) If a hearing panel has been requested, the members shall be selected in the following manner from the list maintained by the commissioner pursuant to the provisions of Education Law section 3020-a: one member shall be selected by the certified individual or applicant, one member shall be selected by the State professional standards and practices board for teaching or a subcommittee thereof, as determined in the bylaws of the board, and the third member shall be chosen by mutual agreement of the first two, or, if they fail to agree, by the commissioner. In the event that the certified individual or applicant has requested a hearing panel but fails or refuses to choose a hearing panel member within 30 days from the receipt of the panel list, the certified individual or applicant shall be deemed to have waived a hearing panel and the hearing shall be conducted before the hearing officer.
(c) The certified individual or applicant may be represented at the hearing by counsel and may produce witnesses and affidavits in proof of the individual's good moral character. The department shall have the burden of proof of lack of good moral character. The hearing officer may issue subpoenas on request of a party and shall conduct the hearing. A verbatim record shall be kept of the testimony.
(d) Evidence of conviction of a crime shall be admissible in any proceeding conducted pursuant to this Part, but such conviction shall not in and of itself create a conclusive presumption that the person so convicted lacks good moral character. In the case of a certified individual, proof of conviction for any of the following acts constituting a crime in New York State and committed subsequent to certification shall create a rebuttable presumption that the individual so convicted lacks good moral character:
(1) the criminal sale, possession or use of marijuana, a controlled substance, a precursor of a controlled substance or drug paraphernalia as defined in article 220 or 221 of the Penal Law; or
(2) any crime involving physical or sexual abuse of a minor or student; or
(3) any crime committed either on school property or while in the performance of teaching duties.
(e) In determining whether a certificate should be revoked or suspended or an application for certification should be denied based on a previous criminal conviction, the hearing officer or panel shall apply the standards for denial of a license application set forth in Correction Law, section 752 and shall consider the factors specified in Correction Law, section 753.
(f) Upon the conclusion of the hearing, the hearing officer shall submit to the commissioner and to the certified individual or applicant a report of the findings and recommendations or, if a hearing panel has been utilized, a report of the findings and recommendations of such panel, together with a copy of the transcript. The findings and recommendations of the hearing officer or the hearing panel shall be based solely upon the record and shall set forth the factual basis therefor.
8 NY ADC 83.4
8 NY ADC 83.4
2008 WL 75116023
8 NY ADC 83.4
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Section 83.5. Appeal.
Within 30 days after receipt of notification of the findings and recommendations of the hearing officer or hearing panel, the certified individual or applicant may commence an appeal to the commissioner pursuant to subdivision (a) of this section or, where applicable, the commissioner may initiate a review proceeding pursuant to subdivision (b) of this section.
(a) Appeal by certified individual or applicant. The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.
(b) Review proceeding by commissioner.
(1) In cases involving convictions for any of the following acts constituting a crime in New York State, the commissioner may initiate review of the findings and recommendations of the hearing officer or hearing panel to determine whether such findings and recommendations should be adopted as the final determination of the commissioner:
(i) the criminal sale, possession or use of marijuana, a controlled substance, a precursor of a controlled substance or drug paraphernalia as defined in article 220 or 221 of the Penal Law; or
(ii) any crime involving physical or sexual abuse of a minor or student; or
(iii) any crime committed either on school property or while in the performance of teaching duties.
(2) Such review shall be commenced by service of a notice of intent to review on the certified individual or applicant or the attorney of record of the certified individual or applicant, by certified mail, return receipt requested. The certified individual or applicant may file a written response with the commissioner within 30 days of being served with such notice, with proof of service by regular mail on the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of service of such notice, with proof of service by regular mail on the certified individual or applicant. In the event the certified individual or applicant files an appeal on or after the date the commissioner initiates review under this subdivision, the appeal shall be automatically consolidated with the review proceeding and the appeal papers shall constitute the written response of the certified individual or applicant under this subdivision.
(c) The commissioner shall review any appeal papers, or written responses filed, and the transcript and all evidence presented in the proceeding before the hearing officer or hearing panel. Based upon the record, the commissioner may affirm, adopt, reverse, or modify the findings and recommendations of the hearing officer or the hearing panel. If the commissioner determines to deny an application for certification, the commissioner shall communicate that decision to the applicant. If the commissioner determines to revoke or suspend a certificate, or to impose another penalty upon the certified individual as prescribed in section 83.6 of this Part, the commissioner shall execute an order to that effect and shall have the order served upon the certified individual. If no appeal is taken by a certified individual or applicant within the time prescribed in this section, and no review proceeding has been commenced by the commissioner, the conclusion of the hearing officer or the hearing panel shall be final and in the case of an annulment or suspension of a certificate or the imposition of another penalty upon the certified individual as prescribed in section 83.6 of this Part, the commissioner shall issue an order to that effect.
8 NY ADC 83.5
8 NY ADC 83.5
2008 WL 75116024
8 NY ADC 83.5
Top

Section 83.6. Penalties.
(a) In a proceeding brought pursuant to this Part, for individuals who are served with a notice that a substantial question exists as to moral character prior to November 1, 2000, a hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose the following penalties: denial of an application for certification, or suspension of a certificate, or revocation of a certificate.
(b) In a proceeding brought pursuant to this Part, for individuals who are served with a notice that a substantial question exists as to moral character on or after November 1, 2000, a hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose the penalty of the denial of an application for certification; and the hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose one of the following alternative penalties upon certified individuals:
(1) revocation of a certificate; or
(2) suspension of a certificate:
(i) wholly for a fixed period of time;
(ii) partially, until the certificate holder successfully completes a course of retraining in the area to which the suspension applies; or
(iii) wholly, until the certificate holder successfully completes a course of therapy or treatment;
(3) limitation of the scope of a teaching certificate through revocation of an extension to teach additional subjects or grades;
(4) a fine not to exceed $5,000; or
(5) a requirement that the certified individual pursue a course of continuing education or training.
(c) The date of the mailing of the notice that a substantial question exists as to moral character shall be the date of service of such notice for the purpose of determining whether the penalties prescribed in subdivision (a) or (b) of this section shall apply.
8 NY ADC 83.6
8 NY ADC 83.6
2008 WL 75116025
8 NY ADC 83.6
Top

From the School Administrators' Association of New York State: PART 83

A MAJOR LEGAL VICTORY: PART 83 AS TRIGGERING A NAME-CLEARING HEARING 

            In a major victory, an appellate court recently agreed with our argument that a district’s Part 83 referral to the State Education Department invoked a SAANYS member’s right to a due process name-clearing hearing. The five appellate judges unanimously granted our appeal, overturning a lower court’s earlier adverse decision. This was an important advance in protecting you from arbitrary and defamatory false allegations. 

You probably know that a Part 83 report is the means by which districts are required to report information raising questions about an educator’s moral character. Should a hearing panel confirm the allegations and conclude that they constitute a sufficient lack of moral character, SED may impose penalties on the educator, including revocation of all certifications. The latter results in current employment termination and forecloses all future employment opportunities in the educator’s chosen profession. 

The Part 83 process is notable by its failure to define moral character. The standard exists only in the subjective eye of the beholder; neither the statute nor the regulations provide any guidance as to what constitutes insufficient moral character. For example, the governing regulation, 8 NYCRR § 83.1, merely mandates districts report to the department behavior “which raises a reasonable question as to the individual’s moral character.” 

This failure puts you at risk. First, unfortunately, many individuals, including many in positions of power and authority, hold what may be charitably described as excessively narrow views of others’ personal choices, including choices of intimacy and religion, which may serve as the primary motivation for a moral character referral. Second, any allegation, even those identifying what are commonly perceived as immoral practices, may be unsupported by credible evidence. In either case, the report could conceivably lead to termination and foreclose future job opportunities. 

            The process initially focuses on the current employment. A SAANYS member is confronted with damaging and potentially job termination allegations. If probationary, the member is given a choice to resign quietly or to be terminated in short order and publicly by school board resolution; if tenured, the member is given a choice to resign quietly or to be served with 3020-a charges. Unknown to the member, the district simultaneously files the Part 83 referral with SED, whose jurisdiction remains regardless of whether the member resigns. 

            The continuing jurisdiction is the Part 83 problem. If the member resigns and seeks employment in another district, the member will have to disclose in the employment application that he or she resigned in lieu of termination or charges. If the member overcomes that hurdle, the hiring district will report the hiring to SED. As the Part 83 process continues, SED may advise the hiring district of the ongoing investigation and seek access to the now probationary employee’s computer and other work records as part of its continuing investigation. The stigma is reasonably likely to result in the member’s immediate termination from the new position.  It was this continuing stigma that prompted our lawsuit.

One of your fellow SAANYS members, serving in a probationary capacity in a new district, was accused of placing pornography on the district computer server and then using his district supplied laptop for pornographic purposes. He denied the allegations and requested a name-clearing hearing, including opportunity for an independent computer forensic expert to asses the evidence. The district refused! Instead, he was summarily terminated. We later learned the district had filed a Part 83 referral even before terminating the member.

We sued the district, seeking a due process name-clearing hearing in which the independent expert could review evidence the district had refused to disclose. Our basis was that even probationary staff have what is known as a liberty interest due process right to a name-clearing hearing. This constitutional right ensues when employment termination is coupled with the employer’s publication of defamatory allegations, the substance of which the employee denies. The rationale for the hearing is that otherwise the publication precludes further employment in the chosen profession.     

The subsequent legal arguments in this case focused on whether the Part 83 referral qualified as ‘publication’ for purposes of requiring the hearing. We argued the ongoing Part 83 process effectively discourages any district from hiring the member. We knew that was the referral’s practical effect. The name clearing hearing, including an expert’s review of the previously non-disclosed evidence, could serve to possibly terminate the Part 83 process and also to restore the member’s reputation with potential employers.   

Prior cases over the years had established that placement of stigmatizing allegations in employees’ personnel files qualifies as publication because potential future employers would request access to the file before making a final hiring decision. We believed the Part 83 referral similarly constituted publication because it, too, would become known to the potential future employer, and, similarly, the stigma would foreclose the employment opportunity. Further, we knew that if the employee failed to find re-employment, SED had little incentive to conclude the investigation, denying the member any opportunity to confront the false allegations, forever precluding re-employment. 

The judge rejected our argument, holding that the member could rebut the allegations at any subsequent Part 83 hearing. In other words, rebuttal would be reserved for a process and hearing that might never occur. We then appealed his decision to the Appellate Division of Supreme Court.       

The five judge appellate division panel unanimously reversed the judge below, holding that the Part 83 referral provides “a sufficient potential for public disclosure to establish petitioner’s entitlement to a name-clearing hearing.”   Due to the district’s initial denial of our requested constitutional due process relief, the appellate court also required the district to pay our attorney fees for the litigation.  That was a pretty good day here in SAANYS legal-land.

This victory is important to all SAANYS members because it provides for future instances a legal foundation for demanding districts provide name-clearing hearings on a timely basis. That’s important because, while victory is sweet, a lawsuit and its appeal take enormous resources and time. Further, the wheels of justice move slowly. The member was terminated in the summer of 2008. The lower court decision denying our lawsuit was issued in February, 2009. The appeals court reversed the lower court in July of this summer, 2010. The hearing we have now been granted has not yet occurred.   But next time this issue arises on behalf of a SAANYS member we can cite this appellate decision in insisting a district honor SAANYS members’ due process rights to a name-clearing hearing.

So the win was a good day not just here in legal-land, but also for each of you. The extensive time and work it required, including the many negotiations, affidavits, memorandums of law and court appearances, are another example of our commitment to protect the rights of all members by asserting the rights of a single member. Thank you for that opportunity.
          
PART 83: Moral Character

One of the more frustrating legal challenges any certificated member may face is a State Education Department moral character hearing. This is a proceeding available to certificate holders about whom the department believes there exists a substantial question as to the certificate holder’s moral character. This process is known as a Part 83 hearing (the formal legal designation is 8 NYCRR 83) and, because an adverse hearing outcome precludes both continued and future employment in any public school K-12 certificated capacity, the potential outcome is much more serious than that of 3020-a charges. Whereas 3020-a charges immediately affect only a person’s current employment, a Part 83 hearing outcome may result in revocation of all required professional certifications. While the person’s participation in the hearing is optional, failure to appear and successfully prove sufficient moral character may result in revocation of all education certifications. Absent certification, one’s public education career is over, immediately.    
Current and prior professional competence is not a defense; it has no bearing on the moral character question. The sole issue is whether the certificate holder possesses sufficient moral character. Thus, a record of competent performance and inspired leadership is irrelevant to whether the administrator also has sufficient moral character.
Perhaps surprisingly, the regulation governing this process contains no definition or guidance as to what constitutes sufficient or insufficient moral character. Instead, after hearing the evidence, a hearing officer or three-person panel makes a recommendation as to whether the administrator possesses sufficient moral character to retain certification, and the recommendation is forwarded to the commissioner of education who may affirm, reject, or modify the penalty.
We in your SAANYS Legal Department believe the recommendation of sufficient or insufficient moral character is based primarily on the hearing officer or panel’s personal morality standards. And the question as to sufficient moral character was referred to hearing only because the department found certain acts morally suspect, again absent any legal definition in the applicable regulation.
So what actions might result in a Part 83 hearing? Some are obvious and generally fall into the category that all interested observers of public school education likely would agree should exclude such persons from continued employability in public school education, such as theft of district funds, engaging in sex with students, or providing drugs to students.
A question of moral character may result from many other acts that, although wrong or even criminal, may not initially appear to many observers as sufficiently related to the education profession to warrant certification revocation. For example, driving while intoxicated during non-school hours; engaging in an illicit sexual affair during a work, but off-premises overnight conference; or soliciting a prostitute while on an off-premises school errand. Other likely candidates for Part 83 action include those using a school issued computer to access pornography or to email graphic or other offensive content, regardless of whether the computer use was during the school day or during non-school time, such as from home. This includes emailing racially or sexually offensive material.                    
While many of us would agree that professional educators should not engage in any of the above behaviors, it is important to note that the punishment for any that are illegal may include not just the criminal sanction, if any, but also loss of one’s career.
From our perspective, there are two important lessons here. First, never let a record of competent leadership lull one into a false sense of security that one could engage in actions some might find morally inexcusable – such as driving while intoxicated, passing on an inappropriate email, or using a school issued computer to learn if pornography is as widely available on the web as rumor has it. Second, remember that the ‘delete’ key doesn’t actually hide the ‘deleted’ material from a computer forensic expert. Such material is a candidate for déjà vu your career can’t afford.   
Are you being held to a higher standard?  Probably so, but remember that certification – as is any license – is a privilege easily lost.
 
Part 83 Case Decisions

  

 
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Sheldon Silver and Wife Rosa's Secret Bank Account

February 4, 2015, 8:38 pm
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Well, everyone knew but no one was talking.


Betsy Combier

Sheldon Silver’s wealth a well-kept secret

Outside Sheldon Silver's home in NYC
 
By Danika Fears, NY POST
 
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You’d have never known Shelly Silver had any money.
While the disgraced Assembly speaker is accused of raking in millions of dollars in bribes and kickbacks, he’s lived a low-key, modest lifestyle — never leaving his boyhood Lower East Side neighborhood.
Silver’s thrifty spending habits might be why federal authorities were able to seize those funds from eight of his accounts at six separate banks.
The Orthodox Jewish assemblyman still lives with his wife, Rosa, in a Lower East Side co-op apartment at 550 Grand St., which is just blocks away from the apartment he grew up in. He’s a fan of cheap haircuts at Astor Place Hairstylists — and insisted on driving his own car around when the Assembly was in session.
“You don’t see him with an entourage,” former Assemblywoman Joan Christensen, of Syracuse, told The Post-Standard in 2003. “He’s a very unpretentious guy.”
When Silver, 70, moved into the Cooperative Village’s Hillman Houses many years ago, his apartment was a “limited dividend co-op,” meaning it merited some serioustax exemptions in exchange for price regulations.
Back then, they might have paid less than $10,000 for the property — but its sale price is likely now $500,000.
Silver and Mrs. Silver, who used to work as a special-needs schoolteacher at PS 199, own just one vacation property together — a country getaway in the Catskills they bought for $106,000 in 1990, records show.
That was before he became speaker in 1994.
Silver also found creative ways to rack up free frequent-flier miles by using taxpayermoney to take detours through Philadelphia and Washington, DC, during his regular flights from New York City to Albany.
By turning the 150-mile trip into a 500-mile journey, Silver may have earned 205,834 frequent-flier miles with the scheme — enough for a free trip around the world.
Sheldon Silver’s empty Assembly seatPhoto: AP

He’s also been known to stay at inexpensive motels “to maximize his per diem” — and put the remainder in his pocket.
A Post reporter found Silver in 2011 at the Red Carpet Inn on the outskirts of Albany, where rooms go for as low as $45 a night.
The speaker, however, had a lucrative association with the law firm Weitz & Luxenberg and owns stocks in more than 70 firms, including Anheuser-Busch, Facebook and Citigroup, according tofinancial statements released in 2013. He also put some of his cash in a venture-capital fund, Lerer Ventures, that financed the BuzzFeed news website.
He planned to retire with between $1.78 million and $2.32 million in his retirementand deferred compensation plans.
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Schools With A Majority of African-American Students Are Like Prisons

February 5, 2015, 5:45 am
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Why Do Some Schools Feel Like Prisons?
 
Too Much Discipline Hurts Majority-Minority Schools

By Samina Hadi-Tabassum, Education Week

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Watching the protests and listening to the chants of "Hands up, don't shoot" following last summer's fatal police shooting of Michael Brown in Ferguson, Mo., fueled an argument that I have been making for some time with my graduate students and colleagues.

Rahm Emanuel
For almost two decades, I have been coaching and mentoring first-year teachers in Chicago's public schools; however, in the last few years, I have noticed a cultural shift in those schools with predominantly African-American enrollments. Some are turnaround schools that Mayor Rahm Emanuel's office has taken over because of low student test scores, as well as other complex challenges, including weak leadership and ineffective instruction.

When you enter these turnaround schools, there is often an eerie silence. You never hear children's voices in the hallways. Rather, you see lines of African-American children crossing the school with their hands behind their backs or their fingers pressed against their lips to indicate silence, and their eyes always facing front.

The monochromatic lines of uniformed children mimic prison lines, and the teachers' efforts seem focused on ensuring that students do not talk to each other and do not walk outside the line.

All day long, an immense amount of time and energy is spent making sure young African-American students are taught to obey.

In one K-12 school, when one of my graduate students had to go to the restroom, I walked her students to the cafeteria. Even in the cafeteria, children were not allowed to talk to each other.

I made the foolish mistake of having a conversation with a table of 1st grade girls when another teacher came over to me and yelled out, "You do not talk during lunch." At first, I thought the teacher was being sarcastic, but it was disheartening to realize after a few minutes that this young teacher, who was white, had been indoctrinated by her school to think that African-American and Latino children should not be allowed to talk at lunch. When the students were given time to actually act like children on the playground, they were often admonished for "acting like animals" when they returned to their classrooms.

Of course, my first-year teachers do not buy into this ideology of repression. But when I asked them whether their schools would have the same rules if the children were white, the young teachers responded with a unanimous no, coupled with the fear of losing their jobs if they, too, did not obey.

"When I asked them whether their schools would have the same rules if the children were white, the young teachers responded with a unanimous no."

Caught between educational theory that advocates for the whole child and a school culture that resembles a prison's, my first-year teachers have to make strategic decisions daily about what is best for their students and what rules they may need to subvert while avoiding the administration's gaze.

On this front, one of my graduate students, whom I'll call Angela, stayed after my class one day, quite upset.

I had taught my first-year teachers a literacy technique in which students come to the board and circle letters and sounds they recognize in a message written by the teacher. Then the students are told to put a square around a word they recognize and a triangle around a piece of punctuation, and to underline sight words from their classroom's "word wall." The interactive nature of the technique is what leads to its success.

However, when Angela was implementing this technique one day, a school administrator walked in and informally observed her teaching.

When Angela was finished, the administrator pulled her aside and told her she liked how the students identified the different parts of language, but that they were not allowed to come to the board to do so. Why? Because 1st graders make too much noise while at the board. Angela knew the suggestion was counterintuitive, and she knew that the noise her students made was from the joy of learning—a sound missing in turnaround schools. She came to me torn about what to do next.

Many days, after supervising my first-year teachers, I drive less than five miles to pick up my own children from their schools in Oak Park, Ill.—a middle-class suburb known for its diversity.

In the hallways of my daughter's elementary school, there is the cacophony of children laughing, running down the hallways, and slamming lockers.

On the floors, winter wear is strewn all over the place along with forgotten worksheets. In the cafeteria, the noise of children eating and talking can at times become overwhelming; so, too, the sight of discarded food on the floor.

Do we find this chaotic behavior tolerable and less threatening because the school is majority white? If these were mostly African-American and Latino children, would many administrators in the Chicago public schools and elsewhere not have tolerated it and perhaps even found it threatening?

Finally, when will turnaround schools take school culture into consideration and produce a school that enriches the whole minority child?

Samina Hadi-Tabassum is an associate professor of education at Dominican University, in River Forest, Ill., where she directs the English-as-a-second-language/bilingual program and works with cohorts of first-year teachers. She is writing a book addressing race relations in public schools.


Education Week

Where Do Biases Start? A Challenge to Educators

By Darius D. Prier
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Earlier this year, I was invited to speak to a few hundred African-American male high school students in Jacksonville, Fla. The young people there were searching for answers in the untimely death of their fellow Jacksonville resident Jordan Davis, 17, who was shot and killed at a gas station in November 2012 after playing what perpetrator Michael Dunn called "loud thug music."
Like the shooting earlier in 2012 of Trayvon Martin, another unarmed 17-year-old black male, this death represented a shocking example of some teens' sense of being trapped by a new kind of racial optics, what I call the "hip-hop gaze." This is when signs, symbols, and images in hip-hop (e.g., language, music, style of clothing), associated with urban youths in popular culture, unfairly convey trouble or criminality about black males to the mainstream public.
This term emerged from my previous research via a series of focus-group conversations with African-American male teens at a hip-hop-based youth center. The young students I spoke with felt teachers unfairly judged them with suspicion and fear based on the sagging of their pants and their wearing of do-rags on their heads, hoodies, and puffy "bubble coats."
Ultimately, students argued that their sense of style and aesthetics prompted teachers' overzealous efforts to suspend them even as they gave other students lesser punishments for the same offenses. After August's deadly police shooting of Michael Brown in Ferguson, Mo., legions of disaffected young people who also embodied a hip-hop style protested in the streets, facing off against heavily armed law-enforcement officers as the world watched. All of this suggests that these young people have perspectives we need to hear.
The tragedies of Trayvon Martin, Jordan Davis, and Michael Brown remind me of what young people in places like the youth center in Jacksonville have been saying for years. They remind me that distorted racial representations in popular culture can influence a culture of punishment toward black males.
As a challenge to educators, I offer the following questions: How do we weigh hip-hop youth culture in relation to the punishment of young people's identity? Where do we, as educators, learn the stereotypes, prejudices, and biases toward students that need to be unlearned? What proactive, practical strategies might we as educators take in writing new scripts for how we think about African-American males, different from what the mainstream media tell us? What is the role and critical awareness of cultural context in relation to lessening punitive practices against African-American males in K-12 schools?
Preservice teacher education programs might be a great place to start addressing these questions. I offer the following recommendations:
"Distorted racial representations in popular culture can influence a culture of punishment toward black males."
• Study race and masculinity. The study of race and masculinity in relation to the punishment of black males must become an integral part of preservice teacher education curricula. There is a documented, patterned history in government, academia, and news media of developing racially coded narratives of black males being aggressive, dangerous, and menaces to society. These packaged narratives exacerbate negative practices toward minority youths in schools and the larger society.
Stop-and-frisk policies, stand-your-ground laws, and suspension and expulsion practices that filter students into the school-to-prison pipeline are examples of this. Subsequently, a historical analysis in the social construction of race and masculinity in relation to past and present punishment practices toward black males would give preservice teachers insights into the differential treatment of this population.
• Explore critical media literacy. A majority of the education students I teach at the university level come from isolated, segregated, affluent, white communities. Many desire to be teachers in urban school settings, but have had limited contact with communities of color. Subsequently, much of what they know about the black community comes from the radio, music, movies, or television. These media often provide a narrow characterization of black male identity related to crime, sports, and entertainment.
Therefore, teacher education programs should offer opportunities for students to engage in critical media literacy. Students should learn to examine how representations in the news and popular culture can intentionally or unintentionally reinforce stereotypical representations of black males as criminals in our subconscious. When preservice teachers develop the skill set for critically reading how the media as an institution possess the power to distort racial identities, they gain a new consciousness that counters the image of black males as thugs to humanize their perceptions.
• Pursue community engagement. Given the de facto segregated living conditions of many preservice teachers, social interaction with diverse populations becomes extremely important in urban teacher education programs. Unfortunately, the term "urban" has come to mean "black," and the term black has come to mean all that is dangerous, poor, and dysfunctional. Therefore, schools in urban areas have come to mean teaching dangerous poor black children and teens. These cultural-deficit labels come to typify how black boys and men are viewed within mainstream society.
To counter these narratives, I have developed relationships with community leaders in some of the poorest areas of Pittsburgh and host many classes and community forums in these areas. At these classes and forums, black youths become "teachers," sharing their experiences of institutional racism; the aftermath and effects in the trauma of poverty, violence, and racial profiling; and the impact of these challenges on their education experience in schools. Preservice teachers come away from these discussions developing empathy and understanding the emotions that emerge from institutional and societal neglect. These narratives become the unofficial curriculum to guide my students' thinking in how to develop positive pedagogical relationships with urban youths.
• Engage with hip-hop learning communities. For better and worse, many students see themselves through the prism of hip-hop culture. To disengage with it is to disengage with the soundtrack to their lives. Hip-hop is a culture upon which the very best of the social-political tradition, rather than its gangsta proclivities, can be mobilized into an educational medium. Being socially and politically conscious means expressing discontent with institutional inequality; promoting peace and unity; and empowering youth voices for social justice.
When young people recognize that teachers know something about their culture in a way that does not denigrate or demonize them, an immediate pedagogical bridge is made in the teacher-student relationship. For example, I have invited socially aware hip-hop artists from the community into my classrooms and students from my classes into local hip-hop communities. These invitations create co-learning opportunities. The artists perform, relate their lyrics to contemporary issues, and discuss the music's impact on urban education. These learning experiences open preservice teachers' minds about innovations in teaching and how to make the curriculum relevant to the lived experiences of urban youths. They also increase these future teachers' familiarity with the language, culture, community, and social and political context from which hip-hop emerges.
Moving forward, the challenge is to utilize contemporary events in popular culture as a canvas to educate preservice teachers about how race, representation, and masculinity in media can affect how we treat others, such as black males in urban education. When we do this cultural work in urban education, perhaps the Trayvon Martins, Jordan Davises, and Michael Browns of the world will not die in vain, and we will keep kids in schools rather than push them out.
Darius D. Prier is an assistant professor in the Duquesne University School of Education, in Pittsburgh. He is the author of Culturally Relevant Teaching: Hip-Hop Pedagogy in Urban Schools (Peter Lang International Academic Publishers, 2012) and is a consultant and speaker on youth leadership, popular culture, and urban education. He is working on a forthcoming book, The Media War on Black Male Youth in Urban Education.
 
 

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