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Saturday, May 9, 2009

New Chancellor of NYSED Suggests That Statewide Reading Scores Are Not Valid

Scores 2009: NY DAily News

City kids make major gains on state English test scores for grades 3 through 8
BY Ben Lesser, Rachel Monahan and Meredith Kolodner
DAILY NEWS STAFF WRITERS, Friday, May 8th 2009, 7:41 AM

Just weeks before Albany decides if the mayor can keep control of the schools, officials announced Thursday that more and more city students passed the state reading test.

"I don't think there's any doubt; by every measure, mayoral control is better serving the interests of the children of New York," Chancellor Joel Klein said.

"If you had told me that this was going to happen, I would have said when are we going to celebrate?"

The percentage of students passing the exam soared to 68.8% from 57.6% last year.

In all, 68.9% of fourth-graders passed the exam, up from 46.5% in 2002, and 57% of eighth-graders passed, up from 29.5% in 2002, when the mayor took office.

The most dramatic increase was with sixth-graders: 72.6% passed this year, a 19.9 percentage point gain from last year.

Klein said the emphasis on middle schools had paid off.

"What they've done ... is nothing short of amazing and exactly what this country needs," Mayor Bloomberg said.

He cited efforts to hold principals, teachers, students and parents accountable through progress reports, the end of social promotion and performance incentives for teachers.

"We've improved the test scores for New York City students compared to New York State," he added.

"We've improved the test scores for minorities, black and Latino kids compared to white and Asian kids who have always tested better.

"Seven years in a row of closing the outrageous ethnic gap in testing. ... Good news."

The city's black and Latino students passed the exams in greater numbers - with 62% of Latino and 62.9% of black students passing.

Though white students, with 84.8% passing, still outpaced their peers, the achievement gap fell by 4.3% for black students and by 5.5% for Latino students.

English language learners also improved relative to their English-speaking peers. They were up 12.2% over last year.

Special education students posted a 19.9% increase.

Critics of mayoral control said the results are misleading - and don't prove mayoral control is working.

"New York City is in the middle of the pack," said Billy Easton of the Campaign for Better Schools.

"That means that the argument that mayoral control is the cause of the gain just doesn't hold up to the scrutiny of the facts."

He pointed to other increases that matched the city's 11% jump, including about 12% in Buffalo and about 10% in Syracuse and Yonkers.

Board of Regents Chancellor Merryl Tisch pointed to an influx of resources, wider access to prekindergarten, a more unified curriculum and improved professional development for scores rising statewide.

The number of city children enrolled in pre-K grew to 54,038 from 45,589 in 2005, an increase of almost 8,500 children, city figures show.

Per pupil spending was about $11,640 in 2003 and rose to $16,236 in 2007, the most updated figure available from the city Education Department.

"The headline from me should be a four-year story," Tisch said, asking parents to look at long-term trends.

She noted that over the last four years, New York City and Rochester improved their scores by 18%, Syracuse by 19% and Buffalo by 24%.

Testing experts said the state's reasons made sense, but that more was likely at work.

"One of them is a huge increase in test preparation," said former testing chief for the city and NYU professor Robert Tobias. "It's kind of like how you get to Carnegie Hall - practice, practice, practice."

Above: Michael Bloomberg (with Joel Klein at far right) at the White House on May 7, 2009

Statewide reading scores for grades 3-8 are out, and students did well. This is good news to Mike Bloomberg and his sidekick Joel Klein, who desperately need nothing "bad" to come out in the press about their education policies. Bloomberg wants a third term as "the education mayor", and Joel Klein is in the position as the alleged "chancellor" to make sure that this happens.

Well, it seems that teachers throughout the state are saying the tests were easier this year. Merryl Tisch, New York State Education Department Chancellor, (pictured below) evidently agrees. I have spoken with teachers in schools of every borough and they all say that the statewide tests are nothing more than public relations plugs.

May 8, 2009
More New York Students Meet State Standards in English

The number of elementary and middle school students meeting standards in English rose sharply in New York City and across the state, according to test results released on Thursday by the State Education Department. But the scores used to determine who has met the standards showed much smaller gains, with signs that many students continued to struggle.

In New York City, 69 percent of students from Grades 3 through 8 met state standards, meaning they reached Levels 3 or 4 on the test. Last year, 58 percent met state standards in the city. Statewide, 82 percent of students reached Levels 3 or 4, up from 74 percent.

Test scores rose more modestly. In New York City, the average was 662, up 7 points from the year before.

This year’s test scores are more crucial than ever to Mayor Michael R. Bloomberg, who has staked his reputation on improving the city’s schools and is seeking a third term in office. He also is pressing state legislators to renew the 2002 law that gave him control over the city schools; the law expires on June 30.

The mayor, speaking to reporters in Washington, pointed to the gains as the latest evidence of his success, saying, “It is nothing but good news.”

But the raw numbers behind the news also drew scrutiny, both because they show more modest progress and because skeptics wonder whether the tests are becoming easier to pass.

“We’ve learned that statistics can both sometimes illuminate successes, but also sometimes obscure the facts,” said Merryl H. Tisch, the newly elected chancellor of the State Education Department. “Focusing on only those who are meeting state standards hides important data.”

The actual test scores and the percentage of students meeting standards can tell very different stories because it takes only a few correct answers to cross the line between Level 2, which is considered failing, and Level 3. For example, in the eighth grade, 57 percent of students met standards in New York City, compared with 43 percent last year. The actual scores show a different picture, with the average rising to 653 out of 790, up just 6 points from 647 last year.

Ms. Tisch said that while the improvements were moderate, “you cannot look at this data and not see trends of progress.”

The mayor and the city’s schools chancellor, Joel I. Klein, have said that their success should be judged on the numbers, and the results released on Thursday could raise questions from state lawmakers about how effective their policies have been. While the scores show moderate and steady gains, they suggest more subtle improvements than those that the administration has trumpeted over the last several years.

New York City students performed better than students in the other four big cities in New York, with more students meeting state standards and earning higher mean scores. But students in three of those cities, Buffalo, Rochester and Syracuse, have shown larger improvements on the average scores since 2006, when the state began annual testing of students in the third through eighth grades.

There are other signs of progress. This year’s sixth graders, who were in kindergarten when Mr. Bloomberg took over the school system, have posted roughly the same scores on the test over the last four years, gaining just one point from last year to this year. Yet compared with other years, when student scores typically dropped between the fifth and sixth grades, it was a sign of improvement.

The percentage of students scoring at the lowest level on the state test has also dropped significantly in the last four years, to just under 3 percent in 2009, from 11 percent in 2006.

In past years, the release of scores was typically met with jubilant news conferences in the city, but on Thursday, Mr. Klein and Mr. Bloomberg were in Washington, where the mayor met with President Obama to discuss school reforms.

“This is confirmatory of the fact that results continue to grow and increase,” Mr. Klein said in a telephone interview while he was on his way back from Washington. “I think we have multiple data points now that show that we are making that progress.”

Mr. Klein said he still defined success much as he did when he began — to bring the performance of city students up to the statewide average. Over all, the state average score was 668, six points higher than in the city.

He said he was particularly proud of gains made at the middle school level, where students have often stagnated.

The test is given to public school students in the third through eighth grades. Math scores are expected to be released later this spring.

Several lawmakers and critics have said they were suspicious of gains in the state tests, compared with results on the National Assessment of Educational Progress test, which showed few signs of progress for New York City students in 2007, the most recent year for which results were available. City officials dismissed that criticism on Thursday, saying that the national assessment results for 2009, which will be released in the fall, could show a different picture.

“Nothing is clear here,” said Michael Petrilli, vice president at the Thomas B. Fordham Institute in Washington. “You can spin these results however you want.”

Ms. Tisch suggested that New York and other states should adopt a single standard so that scores and proficiency levels could be compared. She raised questions about the difficulty of the state’s tests. “As a board, we will ask whether the test is getting harder or easier,” she said.

The Daily Howler
FRIDAY, MAY 8, 2009

Oversight styles of the rich and famous: Good grief. In New York State and New York City, passing rates improved this year on statewide reading tests. Jennifer Medina reports the new scores in this morning’s New York Times. Medina introduces a helpful new way of reviewing such scores, although she does make a series of technical flubs in the process. But we were stunned by the way her report ended—specifically, by a statement Medina attributes to Merryl Tisch, the “newly elected chancellor of the State Education Department.”

To her credit, Medina had already focused on a key question: Is there any chance that these statewide tests have gotten easier over the years? (For ourselves, we have no way to know. But the question is stunningly basic.) This basic question is even raised in her report’s sub-headline: “Welcome news, but skeptics wonder if the tests have become easier.” We give Medina big props for that. But at the end of Medina’s report, Tisch’s quote is a stunner:

MEDINA (5/8/09): The test is given to public school students in the third through eighth grades. Math scores are expected to be released later this spring.

Several lawmakers and critics have said they were suspicious of gains in the state tests, compared with results on the National Assessment of Educational Progress test, which showed few signs of progress for New York City students in 2007, the most recent year for which results were available. City officials dismissed that criticism on Thursday, saying that the national assessment results for 2009, which will be released in the fall, could show a different picture.

Ms. Tisch suggested that New York and other states should adopt a single standard so that scores and proficiency levels could be compared. She raised questions about the difficulty of the state’s tests. “As a board, we will ask whether the test is getting harder or easier,” she said.

Let’s be fair to Tisch. She’s new to her post as head of the Board of Regents—although she’s served as a member of the board since 1996. And we don’t have a full transcript of what she said. We just have Medina’s quote-and-paraphrase.

That said, Tisch’s statement is quite remarkable.

“As a board, we will ask whether the test is getting harder or easier?” What has the board been doing for the past thirteen years? To state the blindingly obvious, the question Tisch raises is well beyond basic; it makes no sense to compare test scores from one year to the next unless we know that the tests in question have remained equally difficult. And in New York City, this question was specifically raised by skeptical teachers at least as far back as 2005 (see THE DAILY HOWLER, 10/6/05). But good God! Four years later, Lady Tisch is quoted saying, somewhat airily, that the Board of Regents will now check this out. What on earth has the board been doing up until now?

Again, let’s be fair: All we have is the quote Medina presented; Tisch’s full statement may make fuller sense. Then too, why wouldn’t Medina see the oddness of the statement she recorded? As we’ve noted in the past: State education departments should be able to demonstrate that this year’s test is as hard as last year’s. If tests of this type have been competently devised, this shouldn’t be a matter of guesswork. State departments should have technical manuals which show the new tests are equally hard. For some time, we’ve noted that reporters at newspapers like the Times should be insisting on this.

But the New York Times hasn’t insisted. And now, years later, we’re airily told that the board will look into the matter!

In education, as in other fields, the screaming incompetence of oversight boards can be a thing to behold. A few years back, the state board in Virginia stared off into space while a deeply ludicrous test-score scam was perpetrated on the public. One member of the nine-member board was a major “educational expert”—we didn’t know until years later—but no one said boo about the scam until the HOWLER came along, heroically busting the matter wide open (see THE DAILY HOWLER, 3/23/06). Now, Lady Tisch has apparently declared, at least four years after the question went public, that New York’s board will engage in a type of oversight that should have been done from the start.

But so it may go when oversight boards are composed of the rich and connected.

Who the heck is Merryl Tisch? By all accounts, she’s a very fine person. And she may turn out to be a great chancellor. But what follows is part of a New York Times profile written when Tisch ascended to head of the board. Lisa Foderaro described Tisch’s vast wealth and social connection—then quoted a strange assessment of Tisch’s remarkable status:

FODERARO (4/4/09): Dr. Tisch's ability to press her strengthened not only by her ascent to chief regent but also by her rank in New York's ruling class as the wife of James S. Tisch, the chief executive of the Loews Corporation, a conglomerate that includes hotels, insurance and oil-drilling operations.

She has enjoyed a decades-long friendship with her Upper East Side neighbor Mayor Michael R. Bloomberg. She has celebrated Passover Seders with Schools Chancellor Joel I. Klein. She counts among her closest friends Iris Weinshall, the wife of Senator Charles E. Schumer.

''One thing about Merryl—she's not afraid to say what she thinks,'' said Seymour Fliegel, president of the Center for Educational Innovation-Public Education Association, a nonprofit organization. ''That goes for the mayor and chancellor and so on. People who have a lot of money tend to be more independent than people who don't have a lot of money, and the Tisches have a lot of money.”

In fact, the Tisches are enormously wealthy (link below)—not that there’s anything wrong with it! But what an amazing presentation we get in that Times profile! Foderaro frankly describes Tisch as part of “New York’s ruling class”—close friends, for example, with Bloomberg and Klein, people whom the Board of Regents is supposed to be overseeing. Most amazingly, we then see these apparent conflicts turned directly on their head. According to Fliegel, the fact that Tisch is vastly wealthy and vastly connected means she’s just that much more likely to tattle-tale on her close friends! Let’s just say that Fliegel’s a man who knows how to see things half full.

At any rate: After thirteen years on the Board of Regents, Lady Tisch has now decided to find out if the sky is blue—or at least, she says she’s planning to do that. In a culture which turns on wealth/fame/connection, it can be quite an “education” to see the way oversight works.

More on Medina’s report at a later date. She does introduce a helpful new type of analysis, while making some flubs in the process. Meanwhile: For a tangier account of Tisch’s “fabulously wealthy family,” you know what to do: Click here. Oversight styles can really be grand among the rich and famous.

Can anyone play this ball game: As you may recall, Joel Klein seemed to say, in a recent letter, that he doesn’t know if the tests have gotten easier! (See THE DAILY HOWLER, 4/25/09.) Does anyone in the whole state of New York know how this ball game is played? So it goes when fellers like Klein get oversight from their good friends.

April 5, 2009
Advancing Education, Through Work Ethic and Connections

Merryl Tisch, left, with Rebecca H. Cort, a deputy commissioner of the Education Department.

Speaking to a group of Catholic educators in a conference room high above First Avenue, Merryl H. Tisch interrupted a dry barrage of bureaucratic references to attendance mandates and Title 2A with a seeming non sequitur.

“When my refrigerator is broken, I don’t call the service department,” said Dr. Tisch, the newly elected chancellor of the New York State Board of Regents and, by marriage, part of one of New York’s wealthiest families. “I call the head of G.E.”

Dr. Tisch, who tends to lower her voice just as she is making an important point, urged her audience to enlist the soon-to-be head of the Archdiocese of New York, Timothy M. Dolan, to make the case in Albany for religious education. She said that she happened to watch the announcement of Mr. Dolan’s appointment, which was televised live from the Vatican at 3 a.m., and was impressed by his style. “Lay it on the line,” she advised.

That moment amid the blueberry muffins and tepid coffee spoke volumes about a woman whose political savvy, work ethic and careful use of connections in furthering the cause of education are legend. It had the added fillip that as a member of the powerful Tisch clan — whose philanthropic fingerprints are everywhere in New York — she was, quite possibly, serious about phoning the head of General Electric about a balky fridge.

Dr. Tisch, 53, assumes the helm of the Board of Regents at a critical moment, as the Obama administration brings a new philosophy toward public education and the stimulus package yields new sources of revenue. In coming months, the board will hire a new commissioner of the state’s 3,200-employee Education Department, a selection that could influence education policy for years.

The 16-member board, on which she has served since 1996, is little known but powerful, overseeing all education activities in the state, from museums, libraries and professional licensing to all colleges and some 700 public school districts. Several people suggested in interviews that the board would have a higher profile under Dr. Tisch’s tenure, both as a bully pulpit and by exerting its significant regulatory authority.

Dr. Tisch’s ability to press her agenda — closing the achievement gap among demographic groups, bolstering career and technical education, and giving equal access to disabled students are among the priorities — is strengthened not only by her ascent to chief regent but also by her rank in New York’s ruling class as the wife of James S. Tisch, the chief executive of the Loews Corporation, a conglomerate that includes hotels, insurance and oil-drilling operations.

She has enjoyed a decades-long friendship with her Upper East Side neighbor Mayor Michael R. Bloomberg. She has celebrated Passover Seders with Schools Chancellor Joel I. Klein. She counts among her closest friends Iris Weinshall, the wife of Senator Charles E. Schumer.

And she and her husband recently pledged $40 million to Mount Sinai Medical Center for a cancer institute, which will join gifts donated by their relatives at New York University, the 92nd Street Y, the Central Park Zoo and the Metropolitan Museum of Art.

“One thing about Merryl — she’s not afraid to say what she thinks,” said Seymour Fliegel, president of the Center for Educational Innovation-Public Education Association, a nonprofit organization. “That goes for the mayor and chancellor and so on. People who have a lot of money tend to be more independent than people who don’t have a lot of money, and the Tisches have a lot of money.”

Dr. Tisch said she is honored to be part of the Tisch family and that she wakes up every morning — usually at 5 a.m., to hop on the treadmill — asking, “Are you sure, God, that you didn’t make a mistake in choosing me?” But she also said she had spent the better part of her adult life cultivating, as she put it, “the Merryl part of my name.”

She grew up on the Lower East Side, the daughter of a Hebrew school principal and a Reform rabbi who, at 82, still comes to the Tisches’ East 79th Street apartment at 6 a.m. daily for breakfast, then drives Mr. Tisch to his office. She married at age 20, four years after being set up by Laurence A. Tisch, who became her father-in-law and who died in 2003. Besides being a billionaire, he was, Dr. Tisch said, a lifelong “matchmaker — without shame.”

As she tells it, the date was supposed to be with Thomas Tisch, her husband’s younger brother, but when Thomas came to her home, he took one look at her and abruptly changed his mind. Dr. Tisch said this brother-in-law “is very precious to me,” explaining that she was overweight at the time and “very studious.” So the elder Mr. Tisch offered $50 to James, who was a freshman at Cornell University, saying, “I promised this girl a date.”

“We grew up in totally different worlds, but we have similar values,” she said of her husband, 56. “The importance of family, education, hard work.”

In an interview at the Post House, an upscale seafood spot on the Upper East Side, Dr. Tisch related one of her favorite stories: She and her mother arrived at a luncheonette they frequented to find an otherwise stalwart panhandler asleep on the sidewalk. “My mother nudged him and said, ‘Tom, wake up. You’re supposed to be working,’ ” she recalled. “My parents are very productive people. They made everything possible.”

But while eager to talk about her modest roots, she can also be fiercely private. She refused, for example, to be interviewed at home or to discuss the 12,000-square-foot Fifth Avenue town house, with nine fireplaces and a gracious bow-front facade reminiscent of an Edith Wharton novel, that the Tisches acquired last fall and are renovating.

“After 25 years I said to Jimmy, ‘Gosh, I want to try something else,’ and he said, ‘Why don’t we try a house?’ ” Dr. Tisch said with characteristic understatement.

She has a weakness for fine shoes and scarves but wears no makeup, and she offers a steady stream of one-liners. Her highest praise seems to be that someone is a “hard worker.” That was her response in a recent meeting with Teach for America when someone referred to her daughter, Jessica Tisch, as a “genius.”

Ms. Tisch, 28, earned law and business degrees from Harvard in three years and works in the counterterrorism bureau of the New York City Police Department. She has two younger brothers, both of whom went to Brown University, where their uncle Thomas was on the board of trustees and in 2007 became chancellor. Sam Tisch, 24, works at Citigroup, while Ben, 26, works for Fortress Investment, a hedge fund.

Dr. Tisch went to Barnard College, then worked as a first-grade teacher in Jewish schools in Manhattan before earning a master’s degree in education from New York University and a doctorate from Teachers College.

“She is not someone who would assume that anything would be due her,” said her longtime friend Dr. Shonni J. Silverberg, an endocrinologist and a professor of medicine at Columbia University College of Physicians and Surgeons. “She decided that the way to further her involvement was to get to know as much as she could.”

Another friend, Linda Moser, recalled driving Dr. Tisch up to Albany when she was being considered for a spot on the Board of Regents. “I’m testing her in the car, and it’s snowing, and we were talking about which glasses she should wear,” she said.

Mr. Fliegel said, “She’s very knowledgeable, and you can’t snow her,” adding: “She knows the right questions. She knows what’s happening. She knows what buttons to press.”

Though she is friendly with the chancellor and the mayor, and a strong supporter of mayoral control of city schools, Dr. Tisch has occasionally criticized the Bloomberg administration. Last spring, for instance, she called Mr. Klein’s argument that Albany should loosen rules on how the city spends state aid “bogus,” saying “nobody appointed him czar” and suggested that the city fill any shortfall from the state, which is what ended up happening.

“She calls them as she sees them,” Mr. Klein said. “She doesn’t always agree with me, and I don’t always agree with her.”

The two communicate about work by e-mail or phone several times a month, he said, and socialize with their spouses. “We were at their daughter’s wedding,” he said. “I’ve been to their apartment for a couple of Passover Seders, and we go out to dinner.”

It is such social connections that make Dr. Tisch’s influence difficult to quantify.

“When she needs something, she’ll pick up the phone and call the mayor or governor,” Mr. Fliegel said. “Merryl is not reluctant to intercede if she thinks it’s the right cause.”

Randi Weingarten, president of the United Federation of Teachers, agreed, saying: “She has a passion for education and political street smarts that people have always underestimated because of her demure demeanor. Merryl knows a lot of people, and she uses her access judiciously, but she uses it.”

Ilene Lainer, who has a 12-year-old autistic son, said that Dr. Tisch’s persistence and knowledge of the system were crucial in persuading the state to approve a charter school geared toward children with moderate to severe autism, which opened in 2005.

“She was a huge supporter in a sea of doubters,” Ms. Lainer said. “I would call when we’d hit a wall or I’d e-mail her, and she’d tell us to go back and suggest names of people to talk to. She’d say, ‘Stand your ground.’ ”

Besides her unsalaried position on the Board of Regents, Dr. Tisch sits on the executive committees of a half-dozen groups, including the Washington Institute for Near East Policy, and is chairwoman of the Metropolitan Council on Jewish Poverty.

As president of the council from 1996 to 2001, she increased the number of families served by its food pantries to 7,000 a month, from 200, and handed out coats to the needy in Borough Park, Brooklyn.

“Merryl was right there on the front line,” said William E. Rapfogel, the council’s executive director. “She was asking these people what they had in mind — ‘What kind of coat would you like?’ — like they were customers at Saks Fifth Avenue instead of coming in for a free coat.”

Dr. Tisch said such volunteer work is a way to bridge her childhood experiences on the Lower East Side with her rarefied Fifth Avenue perch, something she believes will serve her well as chancellor. “Someone coming from where I started,” she said, “to where I am today, which was a long march, has a perspective that a lot of other people may not have.”

Test numbers too good to be true, hide achievement gap of poor students, some veteran educators say
JFriday, May 8th 2009, 5:45 AM

Too unbelievable to be true.

That's what some veteran educators say about the huge jump in public school reading scores state and city officials released Thursday.

In just one year, average scores for all New York City elementary pupils zoomed by an unheard of 11%.

Even more astonishing, fifth graders recorded a 20% increase.

All across the state, scores rose by an average of 9%, and even beleaguered Buffalo's schools matched the jump our city students registered.

"It's impossible that you would see this kind of change in just one year," said Martha Foote, an education researcher with Time Out From Testing, a group critical of high-stakes testing.

"After seven years of these improved test scores, how come the children we're getting in high school aren't reading any better and don't show any greater love of literature?" said a veteran secondary school principal who scoffed when she heard the results.

Today, we will be told that city charter schools - one of the most touted yet most controversial aspects of Mayor Bloomberg's educational reforms - showed even bigger gains in testing than regular public schools.

What the Bloomberg administration doesn't like to admit is how the approximately 100 charter schools created in recent years have steadily evolved into institutions that do not serve the poorest and most vulnerable students.

A review of 2007-2008 state report cards for the charter schools reveals that students who are still learning English rarely get admitted.

Those students comprise 14% of overall public school enrollment, but they are less than 4% of the charter school population.

Meanwhile, the poorest children in the school system, those who qualify for the federal government's free lunch program, made up 65% of the citywide school population last year, yet they were only 57% of charter school enrollment.

That gap becomes even more glaring when you realize that charter schools are concentrated in the city's poorest neighborhoods, Harlem, the South Bronx and central Brooklyn, where even higher numbers of students qualify for free lunch.

Then there's the disparity in special education enrollments. Last year, a review by city Controller Bill Thompson found less than 5% special education students in charter schools - far below the 15% citywide.

In other words, if you have language problems, if you're poor, or if you have special needs, you're far more likely to end up in the regular public school population than in a charter school.

"We've dealt with several cases of English Language Learners who couldn't get into charter schools, or if they were enrolled couldn't get the proper services," said Arlen Benjamin-Gomez of Advocates for Children.

In some cases, those children were wrongly classified by charter school administrators as special education pupils, she said.

"Charter schools need to do a better job attracting families who do not speak English in their homes," conceded Department of Education spokesperson Melody Meyer when asked about the problem.

To compare charter schools with such skewed demographics to regular public schools is a bogus apples-to-oranges comparison - and charter school advocates need to admit that.

As for the unprecedented rise in test scores, it couldn't have come at a better time for Bloomberg - just as he's running for reelection and weeks before the Legislature decides whether to extend mayoral control of the schools.

As skeptics have noted, the federal government's national assessment tests keep puncturing the claims of local officials that New York tests scores have been rapidly improving.

Results of the next national assessment won't be made public until November, so we won't know for sure until then.

But I learned a long time ago that when something looks too good to be true, it usually is.

Diana Ravitch commented on this problem in 2007after state-wide tests looked too good in May, 2007:

Diane Ravitch
New York State Test Scores: Who to Believe?
National tests cast doubt on New York’s feel-good story.

28 September 2007

The release of national test scores in reading and math on September 25 was an embarrassment for the New York State Education Department. While scores nationally and in many individual states showed modest gains between 2005 and 2007, New York State did not. Only in fourth-grade math was there significant improvement.

The federally-sponsored National Assessment of Educational Progress (NAEP), which is known in the education world as the gold standard of testing, has been collecting test samples of students in the states since 1992. In the No Child Left Behind (NCLB) Act of 2002, Congress authorized NAEP testing in every state to serve as an external monitor of the states’ own claims about their progress. The states develop and administer their own tests, and Congress rightly worried about the possibility that states would dumb-down their tests to inflate the results.

The latest NAEP had very little good news for New York State. Only a few months ago, the state’s Education Department celebrated large test-score gains for eighth-grade students in both reading and math. In May and June, The New York Times ran front-page stories heralding major improvements in the state test scores for eighth-graders: “Eighth Graders Show Big Gain in Reading Test” and “City Students Lead Big Rise on Math Tests.” The Education Department reported that in grade 8, the proportion of students meeting state reading standards jumped from 49.3 percent to 57 percent, a remarkable increase in a single year, especially in a grade where academic performance had stagnated for several years. Similarly, the state reported that the proportion of eighth-graders meeting the state’s math standards jumped from 53.9 percent to 58.8 percent. These are very impressive gains.

Unfortunately, all of the state’s gains in eighth grade disappeared in the NAEP results—a fact the New York Times mentioned not on its front page but at the end of a story on page A20. The NAEP tests performance in two ways: by scale scores (on a scale from 0-500), and by achievement levels (“below basic,” “basic,” “proficient,” and “advanced”), which are supposed to show what students ought to know and be able to do in their grade. The results:

Only in fourth-grade mathematics did New York students post a solid gain, from a scale score of 238 in 2005 to 243 in 2007. In eighth-grade mathematics, where the state claimed big increases on its own tests, the NAEP scale score was 280 in 2005 and 280 in 2007.

In fourth-grade reading, New York’s scale score went from 223 in 2005 to 224 in 2007, not a significant change. In eighth-grade reading, New York’s scale score went from 265 in 2005 to 264 in 2007, again not a significant change.

The achievement levels demonstrate the severity of the “achievement gap” among different groups in New York. In fourth-grade reading in 2005 and 2007, 19 to 20 percent of white and Asian students were “below basic,” as compared with 48 to 50 percent of black and Hispanic students. These numbers did not change significantly from 2005 to 2007. The size of the gap is similar in eighth-grade reading and eighth-grade math, where about half of black and Hispanic students score “below basic.” Only in fourth-grade math did a majority of black (69 percent) and Hispanic (74 percent) students score at or above the basic level of performance, while 94 percent of white and Asian students ranked at basic or above in 2007.

The New York State Education Department has already suffered a series of embarrassments. A federal study released in June held that New York’s tests were not as rigorous as those administered in many other states. The New York Daily News reported early in September that the state’s math tests in 2005 were easier than those given in 2002. A few days later, The New York Sun reported on a study which found that the reading tests of 2005 were also easier than in previous years.

The disparity between state and national test scores points to one conclusion: New York State—with its multi-billion-dollar annual investment in public education—needs an independent, nonpartisan, professional audit agency to administer tests and report results to the public. Such an agency should be staffed by testing professionals who have no vested interest in whether the scores go up or down. At present, when scores go down, the public is told that the test was harder this year; but when scores go up, state officials never speculate that the test might have been easier. Instead, they high-five one another and congratulate the Regents for their wise policies and programs.

What the public needs are the facts. No spin, no creative explanations, no cherry-picking of data for nuggets of good news. Just the facts.

Diane Ravitch is Research Professor of Education at New York University and a senior fellow at the Brookings Institution and the Hoover Institution. From 1997-2004, she was a member of the National Assessment Governing Board, which supervises NAEP.

May 23, 2007
Eighth Graders Show Big Gain In Reading Test

The number of eighth graders reading at grade level or above in New York State climbed impressively this year for the first time since 1999, when the state adopted tougher educational standards and its modern testing system, according to scores released yesterday from the annual statewide English exam.

The eighth-grade results showed the most clear-cut advances in a year in which students in all tested grades, third through eighth, demonstrated better reading ability, including overall gains by students in New York City, where Mayor Michael R. Bloomberg has made education a cornerstone of his administration.

The results were complicated, however, by a new federal requirement that the exam be administered to all students who have been in school in the United States for at least a year, even those who have yet to learn English.

Because of the change, nearly 40,000 more children with limited English ability, most of them in New York City, took this year's test than in 2006, creating an appearance of declining scores in Grades 3 and 4. When those students' results were factored out to make the numbers comparable to last year's, officials said there was slight improvement.

The sharp increase in the proportion of eighth graders reading at or above grade level statewide, to 57 percent from 49.3 percent, provided a first spark of hope that school districts were beginning to turn around a long record of academic failure in middle school. Scores also improved in the sixth and seventh grades though more modestly.

It was the first time since the modern testing system was adopted in 1999 that more than half of the state's eighth graders showed an ability to read proficiently.

''We have deplored low performance in middle grades in the past,'' said the state education commissioner, Richard P. Mills, at a news conference in Albany. ''But when you see improvement and you call and find out that people earned improvement by doing the right things, we have an obligation to celebrate that.''

He acknowledged, however, that the overall middle school results remained sobering, with more than 40 percent of seventh and eighth graders still failing despite this year's gains.

In New York City, home to more than three-quarters of the state's students with limited English skills, officials said they were pleased with the scores, which they said showed that the city was holding onto recent gains in the early grades and making new strides in the middle grades.

When the results of the students with limited English were excluded, scores in New York City improved in all grades except third grade, where scores were flat. Overall, across all grades, the proportion of New York City students meeting the state English standards rose 2.8 percentage points, to 56 percent from 53.2 percent last year.

And in eighth grade, the city showed the same solid gain that the state did, with the students meeting standards rising to 46.4 percent from 38.5 percent. The city's gains, however, mostly disappeared when the students with limited English were factored in. With those students included, the proportion of all New York City students meeting the standards remained essentially flat, moving to 50.8 percent from 50.7 percent.

And including these students in early grades led to a drop in scores, of 5.1 percentage points in third grade, 2.9 points in fourth grade and six-tenths of a point in fifth grade.

Still, Schools Chancellor Joel I. Klein said that the results showed ''significant, consistent growth'' citywide and that he was heartened by improvements in scores among black and Hispanic students and children with disabilities.

Mr. Klein, too, said he was keenly aware of the large numbers of students still failing to read at grade level. ''It's a question of whether the glass is half empty or half full,'' he said at a press briefing. ''It's clearly half full and getting fuller by the year.''

But not everyone was impressed. Diane Ravitch, a historian of the city school system, said that officials had long propped up scores by excluding non-English speakers. Such students should be tested, she said, and their results included in any official tally.

''I don't see a revolution in these scores,'' she said. ''I see small, crablike steps. The scores are pointed in the right directions, but they are small, small gains and I would have expected big gains. By now they can no longer blame the dysfunctional system. They own it. ''

Overall, statewide, fewer students scored at the lowest level on the exam, which demonstrates serious academic failure. Scores overall improved for black and white students but declined for Hispanic and Asian students because of the increase in the number of students tested who speak limited English.

There was an increase in the overall proportion of students with disabilities meeting the state standards, up 2.6 percentage points, to 22.8 percent from 20.2 percent.

Among the state's biggest cities, only Yonkers had a decline. New York, Buffalo, and Syracuse had increases, while Rochester stayed flat.

In explaining the improvements in eighth grade, Mr. Mills said he believed that educators were alerted by last year's test results, the first year in which the state tested Grades 3 through 8 rather than just Grades 4 and 8.

Those results had shown a precipitous drop in achievement from fifth to sixth grade and steady decline through eighth grade.

Mr. Mills said he believed those scores had shocked many schools into providing extra help for struggling students.

''Last year was a dramatic moment,'' Mr. Mills said in an interview. ''I think that was a very sobering picture for people.''

He added, ''Of course it takes a while for people to change their practice, just like it takes time for people to change their habits when they get a report from their physician about their cholesterol level. But some people do change radically.''

While the drop-off in scores after fifth grade persists statewide, the decline was not as steep this year.

In releasing yesterday's results, Mr. Mills also drew attention to a substantial gap in the academic achievement of boys versus girls. In third grade, 70.9 percent of girls statewide are reading at grade level compared with just 63.6 percent of boys -- a difference of 7.3 percentage points. The gap widens by eighth grade, Mr. Mills said, explaining why more girls graduate from high school on time.

Still, the greatest attention yesterday was on the students who speak limited English. And the way they affected yesterday's results showed how standardized testing is much like public opinion polling: a lot depends on exactly who is answering the questions.

The federal Education Department's requirement that New York State test thousands more of its non-English-speaking students to comply with the No Child Left Behind law was a matter of dispute for much of last year, just as it has been in other states with large numbers of immigrants.

Many state and local officials feared seeing their schools sanctioned for failing to make progress on the annual tests.

In the past, New York had exempted many students with limited English ability from the state's annual English Language Arts exam, which is given in January, and instead had measured their progress using a separate test for English as a second language.

But federal officials had deemed that exam insufficient and ordered New York to judge any student who had attended schools in the state for at least a year using the regular test.

This excellent article was posted in 2007:

With the New York City Department of Education all set to dole out merit pay bonuses to schools and teachers based on standardized test scores, we really ought to take a closer look at the claims the state and the city are making about their test score results.

Mayor Bloomberg and Chancellor Klein like to claim they have raised test scores on both city and state tests dramatically since they started their first reforms of the public school system back in 2002.

They like to throw around phrases like "record gains" and "best performance ever" when describing how well students are doing on tests now that they have implemented their reform and accountability movements (see this press release from for a sample of this kind of hype.)

The New York State Education Department also likes to brag how students' test scores have increased in recent years in both reading and math.

But as Diane Ravitch noted in a September 28th, 2007 City-Journal article, the latest federally-sponsored National Assessment of Educational Progress (NAEP) test results showed that the state test score increases in reading and math that the New York State Education Department was bragging about back in May and June of this year were all hype.

On the state tests, the Education Department reported that eighth graders meeting state reading standards jumped from 49.3 percent to 57 percent - a remarkable one year jump considering there had been little movement in those scores in previous years. Similarly, the Ed Department reported the proportion of eighth-graders meeting the state’s math standards increased from 53.9 percent to 58.8 percent.

Yet when the NAEP results were released in September, they showed very different results:

Only in fourth-grade mathematics did New York students post a solid gain, from a scale score of 238 in 2005 to 243 in 2007. In eighth-grade mathematics, where the state claimed big increases on its own tests, the NAEP scale score was 280 in 2005 and 280 in 2007.

In fourth-grade reading, New York’s scale score went from 223 in 2005 to 224 in 2007, not a significant change. In eighth-grade reading, New York’s scale score went from 265 in 2005 to 264 in 2007, again not a significant change.

Ravitch says the NAEP is "known in the education world as the gold standard of testing" and "has been collecting test samples of students in the states since 1992." After No Child Left Behind was passed into law in 2002, the NAEP has become an "external monitor" of the states' own claims for progress on test scores.

New York State has failed its external monitoring test on its claims for test score progress.

Unfortunately few people know about the discrepancies between the state's test score results and the federal test score results because the NAEP test score article was buried on page A20 of the NY Times.

Funny how that works - the "good" testing news gets trumpeted on the front page of the papers while the "bad" testing news gets hidden deep in the National or Metro sections.

Ravitch also notes how the NY Daily News has reported that the 2005 state math tests were much easier than those given in 2002 (and lo and behold, the 2005 test scores went up!) while the NY Sun has reported that the latest state reading tests are also easier than in previous years (and of course those scores have increased as well.)

Ironically, it was a United Federation of Teachers-sponsored analysis of the state's reading tests that found the state is dumbing them down. Randi Weingarten actually told the Sun that:

"It's part of why I keep saying, be careful about data. Standardized test scores can't be used for these high-stakes measures for kids or for teachers," she said.

Of course that comment was issued last month before Weingarten agreed to allow these same suspect standardized test scores to be used to dole out merit pay bonuses to some schools and teachers in the system.

Not surprisingly, Weingarten said nothing about the suspect test scores at the press conference she held with Mayor Bloomberg and Chancellor Klein to announce the merit pay program based on test score results.

Bloomberg, Klein, Weingarten, most of the press and nearly all of the so-called "education-reformers" continue to ignore the elephant in the room - the scores on these state and city tests are suspect at best and fraudulent at worst.

If we could get an independent panel of testing experts to look at the city and state tests, I have little doubt that they would find institutionalized cheating at the both city and state level where they are creating the tests and the grading rubrics.

I have little doubt a panel of independent experts would also recommend changing in-house grading for these high-stakes tests. Having teachers and administrators grade the tests their schools are evaluated on and their compensation will be partly based on is like having a baseball team umpire itself.

The state and the city will never agree to a truly independent panel of experts to look at their testing methodologies, of course.

For years, Chancellor Klein refused to create an independent panel of researchers and auditors to look at his education reforms and test scores.

This year he finally did agree to create such a panel, but he stacked it with cronies and hacks:

Critics note that Klein and teachers union President Randi Weingarten will serve on the board.

Other board members will include Robert Hughes of New Visions for Public Schools, a school reform nonprofit organization with many ties to the city schools; Kathryn Wylde of the Partnership for New York City, a business group, and Chung-Wha Hong of the New York Immigration Coalition.


Sol Stern of the Manhattan Institute, a conservative think tank, said, "The whole thing is a fraud.

"Every one of these people has a stake and an interest in what the research will show," he said.

The whole thing certainly is a fraud - from the merit pay program based on suspect test score results to the school system that privileges tests and test prep over everything else.

And things are only going to get worse before they get better.

This year, Klein and Bloomberg have added 8 additional standardized tests to the curriculum - 4 in math and 4 in English.

The full battery of tests won't be given until 2008-2009 because the NYCDOE moved forward with the additional testing before the actual tests were created by McGraw-Hill, the company that received the lucrative testing contract.

Nonetheless you can be sure these tests will be as suspect as the current battery of city and state tests.

The mayor and the chancellor will nonetheless trumpet the results as proof positive that their constant reorganizations of the school system are working and many in the press will be happy to uncritically publish the stories on page A1. The so-called "education reformers" will agree and call for more standardized testing and more Bloombergian reform to public education.

And then a few years down the road, when all the current political hucksters, con artists and education reform swindlers touting standardized testing, merit pay based on test scores, public school privatization and the like move into retirement, honest people are going to look at the supposed test score increases and so-called improvement in student achievement and reveal them for what they are - dishonest and fraudulent.

And of course the real victims in all this are the students who are now subjected to 188+ days of test prep a year.

I just hope whatever jobs they take in the future require lots of bubbling and pencil sharpening.

Daily News exam finds math scores up when difficulty rating went down

Zachary Avery sweats hard stuff during News' math test experiment.

* 2002 state Grade 4 math test
* 2005 state Grade 4 math test
* Answer keys

The News obtained technical details on high-stakes math tests given to fourth-graders across the state over the past six years and found that in every year when scores went up, testmakers had identified the questions as easier during pretest trials.

In years when scores were lower, pretest trials showed the questions were harder.

"That's pretty strong evidence that something is just not right with the test," said New York University Prof. Robert Tobias, who ran the Board of Education's testing department for 13 years.

"If this were a single year's data or two years' data, I would say it would be inappropriate to make conclusions," Tobias said. "But with the pattern over time ...that's prima facie evidence that something's not right."

In 2005, for example, when a record-breaking 85% of New York State's fourth-graders passed the test, the questions had the highest average easy score in years. The easy score was .73 - meaning the average question was answered correctly by 73% of the kids who participated in pretest trials.

In contrast, when 68% of kids passed the state test in 2002, the easy score was .61.

State education officials insist their tests are carefully crafted to ensure apples-to-apples comparisons, except in years like 2006 when the test was subjected to an overhaul.

The easy score - called a Probability-value or P-value - is just one measure that testmakers use as part of a sophisticated test-equating process.

And a higher easy score could mean that the kids in the trials for 2005 were simply smarter than the kids in the 2002 trials.

"We are confident that the test development, scoring and equating were done accurately," state testing director David Abrams said in a statement.

David Cantor, a spokesman for the city Education Department, also defended the test results.

"Even if we were to credit these findings, which we don't, New York City fourth-graders rose 25 points in math between 2002 and 2005, twice the gain of students in the rest of the state," he said. "All were taking the same tests."

The News gave the multiple-choice portions of the 2002 and 2005 fourth-grade tests to 34 kids in a Brooklyn College summer program.

Though the two exams were supposed to be equally difficult, the kids did significantly better on the 2005 test, the exam the P-value showed was easier.

Three experts said The News' findings were valid.

"There's less than a 5% chance that [the results] are due to chance," said James Corter, a professor of education and statistics at Columbia University's Teachers College. "The fact that it's a small sample is not at all important. I think you've got really good evidence here ... that the 2005 test was easier."

In 2005, the happy news that city fourth-graders had dusted their predecessors and showed record gains on the state exam helped buoy Mayor Bloomberg's reelection drive just weeks before Election Day.

Did Bloomberg's leadership boost the scores?

Not if you ask 9-year-old Kirwin Seger.

When he participated in The News' experiment, he was among several students who said he finished the 2005 test faster than the 2002 version.

"The 2002 questions were more complicated than in 2005," he said. "In 2005, they kept it short, simple and sweet."

None of this means that testmaker CTB/McGraw-Hill or the state Education Department deliberately dumbed-down tests or tried to manipulate politically sensitive results. Experts say there is as much art to test-making as science.

"There's always some error that creeps in there, some lack of comparability," said Joseph Pedulla, a testing expert at Boston College.

In an era when test scores affect everything from principal bonuses to even if a school can continue to exist, parents, students and educators count on the tests to be consistent so fair comparisons can be made.

Tobias said he's not sure that's happening.

"I consider this as just one piece of evidence," Tobias said of The News' findings. "All you have to do is call it into question once and, by generalization, that calls the scores for all the years into question."

Another way the public can see whether or not Mayor Bloomberg is doing what he says he is can be gleamed from what he keeps hidden from public view - for instance, the discharge rates of high school students who dont graduate.

Workplace Defamation Lawsuits Give Richard Condon, Joel Klein Alot To Worry About

From Betsy Combier: Anthony Di Salvo taught 10th grade Global History at NEST+M in New York City for a short time, September 2007 to March, 2008. He was my daughter's teacher. I visited his class during Open School Week, November 2007, and I told him that I thought he was one of the best teachers I have ever seen.

On or about March 7, 2008 he was removed from the school, and on or about March 10, 2008 Dr. Olga Livanis sent all the parents of students in the Upper School an email telling us that Anthony Di Salvo had been permanently removed from his classes by Dr. Livanis. We parents believed he had committed a crime. I followed up and found out that not only was there no "investigation" before the email was sent, but that Mr. Di Salvo had suggested to Dr. Livanis that the spanish teacher who taught first period, Ms. Molly Marie Coulibaly, was upsetting the kids who were in her class with racial slurs against African Ameicans, Hispanics, and Mexicans...(he taught the same group right after Ms. Coulibaly).

In November 2007 Dr. Livanis substantiated racial discrimination and verbal abuse charges against Ms. Coulibaly as reported by the students in her classes to Dean Bill Moyers. However Livanis kept Ms. Coulibaly in all her classes anyway. Anthony was not so lucky. He was sent to a re-assignment room immediately after bringing this subject up to Livanis in March 2008.

I sent Mr. Di Salvo the email that was sent to me and all the parents of students in the NEST+M high school. Recent court cases may give Mr. Di Salvo a claim for damages from the New York City Board of Education and Dr. Livanis.

In New York City, Richard Condon, (pictured at left) his "Special Commissioner of Investigation" business, and the incompetent so-called 'investigators' who work for him, publish in the Daily News and other dailies stories that "they" - the education-media-complex - want to substantiate without an efficient look into the facts. By the way, if you call SCI to complain as the website urges you to do, this may open an investigation of YOU and NOT the person you were reporting.

OSI retired cop Dennis Boyles was quoted as saying to a UFT rep and teacher at a meeting in the school while supposedly looking into allegations of corporal punishment, "I am here to find you guilty". The pattern and practice seems to be that Mr. Condon or the Office of Special Investigations - both NYC BOE Divisions are paid by the New York City BOE, as are the "investigators" at the Office of Equal Opportunity (OEO)- send out a press release so that the reporters of the newspapers can publish a story on the 'findings' that they want to have the public believe.

I spoke with reporter Elizabeth Lazarowitz the day before she published her story on Elivira Sacco, and she told me that she could publish the report that Ms. Sacco had used the "N-word" in her class because OEO sent the report to her, therefore as "they" substantiated the allegation, it was true and this is 'news'. I wrote an article for this blog on what Ms. Sacco had to say.

The exact same process made Teddy Smith a "potential killer" of his 3020-a arbitrator Jack Tillem, and I'm re-posting my story of Teddy here for your information on how serious this strategy is for the reputations of anyone, innocent or not.

The Daily News published this article about Mr. Smith on October 10, 2007, and this posting led to second arbitrator Howard Edelman's decision to suspend Teddy for a year without pay:

Teacher 'slay threat'

A Manhattan gym teacher facing 27 counts of misconduct allegedly threatened to kill the arbitrator presiding over his case, authorities said.

Theodore Smith, 46, who taught at the Museum School in Manhattan, allegedly said he was going to "kill that f---ing arbitrator" and "break him in half," according to a report by Special Schools Investigator Richard Condon.

The Education Department will continue to seek Smith's termination, a spokeswoman said.

Carrie Melago

Let's hope that the efforts of Teddy. Anthony, me, and others so outraged by the defamation tactics used by Joel Klein will be able to "stop the train".

Theodore "Teddy" Smith Wins His NY State Supreme Court Appeal To Overturn Arbitrator Howard Edelman's 3020a Decision and Award

New York State Supreme Court Judge Alice Schlesinger throws out arbitrator Howard Edelman's decision to punish excellent teacher Teddy Smith because, she writes, "Mr. Smith is challenging the decision and penalty…of the disciplinary process and finally and most importantly the performance of the second Arbitrator who decided the controversy based solely on the transcript of the proceedings before the first Arbitrator, thereby violating his due process right to a fair and impartial hearing...…It is fundamental to the fact finding process to be present when testimony is given, testimony which constitutes the evidence upon which the determination will be made...When an individual is denied fundamental due process, an argument that substantial evidence supports the decision is irrelevant."

Teddy Smith
From Betsy Combier:

NYC public school teacher Teddy Smith has fought City Hall since 2004 and has won a small but precedent-setting battle against Mayor Michael Bloomberg, Joel Klein, Richard Condon, and New York media who blindly follow the directives of the Special Commissioner and publish false information in order to "get" someone. Anyone. It could be you, next time.

Read below about how Carrie Melago of the New York Daily News and Richard Steier of The Chief published stories on Teddy Smith's threats to kill arbitrator Jack Tillem, all made up by Teddy's former Attorney David Kearney, to convict Teddy for not paying his made-up fees. Ms. Anne Carroll, Attorney for the NY Daily News told me: "Whatever Richard Condon prints or says, we will print because he is a public person." In addition, she said that she saw no reason for Carrie Melago to call Teddy Smith and ask whether or not Condon's report was true.

Theodore "Teddy" Smith

Theodore (Teddy) Smith was born and raised in Suffern, New York and graduated from Hampshire College with a BA degree, Goddard College with an MA, attended Sarah Lawrence as a special student, and has a BS degree from Empire State College, an obtained certification as a School Administrator from Fordham University. He has lived in New York City for over fifteen years.

He currently works as a account manager and on-air personality working afternoon drive for Central Broadcasting in Worchester County, Massachusetts; on-air personality for WGHT in North Jersey; WTBQ AM/FM in Orange County, NY, and WPAT Multi-cultural Broadcasting in New York. He has also worked full-time in New York City for the Department of Education as a physical education and health teacher, currently with a Supervisory Administrator’s License (SAS), with “satisfactory” service for over ten years, with tenure in 1999. Concurrently, Mr. Smith taught part-time for the United Nations After-school Program as a physical education and martial arts teacher for thirteen years.

“Teddy” Smith is a New York City was harassed in 2004-2005 and 2005-2006 into teaching a part-time gym class with more than 65 children (often almost 100 at one time) at The Museum School on West 17th street in Manhattan. He also has a heart condition for which he asked his Principal to be accommodated – although he was and is able to perform his job - but was turned down and his needs were ignored. Following his request for class size reduction, which is mandated by the NYC BOE, Principal Lindley Uehling removed him from the school and told him to report to a re-assignment center at 333 7th Avenue, commonly known as a “Rubber Room” in 2005.

Two years later he was subjected to a 3020a hearing under arbitrator Jack Tillem. In October, 2007, Teddy's attorney, David Kearney, wanted out. (FYI, the law firm of Neal Brickman has told me that David Kearney was fired after the Smith case publicity- Editor). Kearney had filed a federal court case against the New York City Department of Education on June 15, 2006, but made an agreement to work on a contingency basis, and did not want to continue. So, he told NYC BOE Attorney Theresa Europe that Teddy had made threats against arbitrator Jack Tillem's life, and she called the Special Commissioner For Investigation, Mr. Richard Condon, and told him that Teddy Smith had threatened to kill his arbitrator. Condon wrote a report that was posted online without ever interviewing Teddy Smith, and then Carrie Melago at the NY Daily News and Richard Steier of The Chief printed this story as if it was true, without checking the facts. Teddy says that he never threatened to kill Jack Tillem. Jack Tillem recused himself, saying he had heard nothing from Teddy about killing him, but could not continue as the arbitrator in Teddy's case, and a second arbitrator was appointed: Mr. Howard Edelman.

Mr. Edelman decided Teddy's 3020a matter solely on the printed record, and suspended Teddy for 1 year without pay. Edelman decided that termination was too punitive, as Teddy was an "excellent" teacher. But, he had to be taught a lesson.

Then, on April 30, 2008, New York State Supreme Court Judge Alice Schlesinger threw out Mr. Edelman's decision as a violation of Teddy Smith's due process rights. Read her decision, because we believe that she will lead the way in creating a more fair hearing process for all teachers currently sitting in NYC re-assignment centers.

Theodore Smith's story

New York City’s public school system in Manhattan includes Districts 1, 2, 3, 4 and 5. Researchers who want to find the most segregated and yet politically powerful schools in the NYC BOE need look no farther. Former PS 6 Principal Carmen Farina introduced fuzzy math and the workshop model to NYC at PS 6 (45 East 81st street) and prosecuted Susan Schwartz for helping implement the program. Former District 3 Superintendent Patricia Romandetto was well-known for racial discrimination practices and for re-allocating federal funds away from the children who needed special services.

Teddy Smith, is a teacher who consistently received satisfactory and excellent ratings from 1995, and was given tenure in 1999. From 1995 to 2001 he worked for the Beacon School in District 3, and received satisfactory ratings for each of the six years he taught there. At the High School of Art & Design he received the highest praise and performance ratings, then transferred to Chelsea High School while he completed his administrative license at Fordham University. Teddy stepped into the quagmire of Manhattan public school politics when he was appointed a position with an experimental pilot school called the New York Museum School in or around July of 2004. The Museum School “was having difficulty retaining physical education teachers in part because it housed a mixed group of middle and high school students, did not have a functional gymnasium, and was devoid of safety equipment” Teddy reports.

When Teddy began his teaching at The Museum School, Principal Lindley Uehling gave him a full salary for a part-time .6 position, and directed Teddy to teach classes of sixty-five (65) students at a time with little or no assistance, far in excess of the 50-student maximum mandated by the teacher’s contract. He was told to teach up to 100 students in a separate program with no assistance at all. He was never notified officially by the Principal of the number of students as the contract specifies (article 7M). There was no gymnasium, no regularly scheduled meeting space, and no safety equipment for the group of 65 students sent to PE at one time. But, Teddy was well-received by Principal Uehling, who acknowledged the poor conditions and pledged additional personnel and resources. She also evaluated Teddy positively.

Teddy began to suffer from the unmanageable circumstances of his job, and wrote about his concern for the safety of the children and staff to the Priincipal. In 2004 he complained to Principal Uehling about the oversized classes and lack of promised support, but no action was taken. Immediately following Teddy’s complaints about the dangerous and overcrowded conditions and lack of support, Principal Uehling began to give him frequent “unsatisfactory” classroom evaluations and threatened him that if anyone was hurt it would “reflect very badly” on him.

In or around January 2005 Principal Uehling, seemingly tired of receiving Teddy’s complaints, wrote to Mr. LaForgia’s office and asked for advice of how to “get rid of” Smith. On January 29, 2005 at 7:26AM, Teddy received an email from Fay Pallen, an administrative staff support employee with LaForgia’s office. The email was sent in reply to Uehling’s message and was a confidential communication to Uehling. The email was mistakenly sent to Teddy’s home email account from Pallen’s Blackberry.

On February 2, 2005, Victor Ramsey, Regional Fitness and Physical Education Director for the NYC DOE arrived at the school to observe Teddy and evaluate his class. His written evaluation was, initially, overwhelmingly negative, but he changed this after being asked why he told Teddy that the class was “great”. Teddy filed an Article 23 Harassment Grievance with the United Federation of Teachers (“UFT”) on March 7, 2005. Two weeks later Principal Uehling sent a warning of termination and a “U” rating to Teddy. On March 23, 2005 Teddy submitted a letter to LaForgia, Ramsey and Uehling asking for accommodations for his medical condition. This letter was accompanied by a letter written by his doctor verifying his ability to do his job fully and competently.

On April 5, 2005, Ramsey wrote a letter accusing Teddy of “unprofessional” conduct, “irresponsibility”, and a lack of motivation and effort. He also criticized Teddy for his medically approved absences. Teddy was told the same day to report to a DOE medical examination on April 28, 2005, which was re-scheduled for May 24, 2005. When Teddy asked why he was directed to submit to a medical exam, he was told that there were documents in his file, submitted by Uehling and endorsed by LaForgia, detailing a pattern of absences that could be seen as fabricated by Smith – but Teddy had never seen these documents. Teddy told Uehling that he needed to see the documents accusing him of lying about his condition before he would go to any DOE medical office. He filed a second grievance with the UFT on May 5, 2005 and several other grievances on May 18, 2005, demanding that he have access to his file and that the discrimination and harassment against him immediately cease. Principal Uehling responded by charging him with insubordination on May 26, 2005. Throughout June 2005 Teddy complained about the conditions he had to work with, and asked the Principal, AP, and Chancellor Klein to please let him transfer to another school. His pleas were ignored.

On June 8, 2005 Teddy’s doctor sent to all parties a second letter detailing Teddy’s medical condition and confirmating that Teddy could nonetheless perform his job competently and fully. On June 17, 2005 Teddy received an “unsatisfactory” performance rating from Principal Uehling. This was the first “U” that Teddy had ever received during his 10 years as a teacher for the NYC BOE. Teddy's grievance was denied.

Teddy was examined by the BOE medical office on June 21, 2005, and was found fit to work. In July Teddy requested a “prosecutorial investigation” in several letters to Mayor Michael Bloomberg and others. Teddy was in constant contact with Mayor Bloomberg, Joel Klein, and NYC BOE Local Instructional Superintendent Michael LaForgia, who did nothing to end the complaints filed by Teddy of disability discrimination and retaliation.

Instead of investigating the Principal, Mayor Bloomberg and Joel Klein started an investigation of Teddy Smith under the Special Commissioner of Investigation, Richard Condon. Mr. Condon is a well-known soldier in the Bloomberg administration whose job it is to violate a victim’s due process rights if that victim has been randomly assessed by Klein to be a danger to the racketeering club known as the NYC Board of Education. No one is immune from Condon’s made-up “investigators” who are, for the most part, retired policemen looking for ways to earn a second pension and double benefits. If someone has information that could nullify or in any way show the falsity of an investigation, this person is never interviewed or his/her “testimony” is falsified.

On or about August 18, 2005 Teddy was placed on the Ineligible/Inquiry List, re-assigned to a “rubber room”, and advised he was going to be charged with insubordination, absenteeism, incompetence, and creating safety issues. He received 27 charges (“specification”) in December 2005. Lindley Uehling was removed from The Museum School at the end of July 2005, and was immediately hired by Hunter College High School where she now works as Director of the admissions office.

While sitting in the “rubber room” Teddy took action, filing a complaint with the Equal Employment Opportunity (EEOC) and with EEOC permission, he filed a federal lawsuit in June 2006. Judge Buchwald stayed this case until the 3020a procedure is finished.

Teddy reports the following:

“The charges against me are ridiculous, false, and are made in bad faith and with malice. Principal Uehling and the NYC BOE forced me into a dangerous situation and hoped that I would not whistleblow their scheme to endanger the lives of students in their school while saving money. (See Susan Jalowski's admission that Principal Uehling did "find out" that Teddy had no assistants). For my efforts to change the illegal practices going on I was sent to a “rubber room” where I sat for two years – a severe, unjustified punishment.

The ensuing ‘3020a’ proceeding beginning in January 2007 was an absolute sham. The DOE – represented by Attorney Susan Jalowski – presented their side of the case, and before I ever had a chance to testify or have any witnesses testify on my behalf Arbitrator Jack Tillem told my Attorney at the time, David Kearney (of counsel to Neal Brickman, the law firm handling the Rubber Room movie) and Ms. Jalowski that he had determined that I take a 3-6 month suspension without pay and keep the completely unjust “U” rating from the DOE. A “U” rating on a teacher’s record makes it virtually impossible to find another good teaching job. My attorney Mr. Kearney negotiated with the BOE who offered to drop the suspension time if I would agree to keep the “U” rating and to drop the Federal lawsuit. Of course, having been treated so unjustly, and especially for also having not been responsible for any wrong-doing, I refused.

In the February 8, 2007 transcript there is evidence that I did secure a job (e-mails with the Principal Marissa Lindsley), and my testimony on February 28 shows that she was harassing me out of my job for speaking out about the oversize classes. After she hired me and I accepted, I received a letter at about the end of August saying that I was put on the ineligible list. The process must have been started months earlier when I received my first “U”, and since the Museum School program was point .6, there was nowhere for me to have peer intervention, and this was their way of dealing with this… i.e., sending me to the rubber room. Uehling testified that she did not know that a U rating would prevent me from moving on.

From this point I found myself being compromised by my own attorney. First, he refused to submit specific documents and exhibits that would assist my case. Second, he was having “ex parte” conversations with the BOE lawyers. On April 18, 2007 NYC BOE Attorney Susan Jalowski stated on the record that the gym program at the Museum School had no illegal oversize classes because I had assistants. Both of these “facts” were refuted by the Principal, Lindley Uehling in her testimony. I tried to obtain the school budget for 2004-2005 but was denied this important information by the arbitrator. This was, indeed, a no-win situation.

Then, on May 10, 2007, in a telephone conference regarding the 3020a hearing, there was clear collusion between my attorney, David Kearney, the attorney at the BOE Theresa Europe, and the arbitrator, Jack Tillem. The conversation – from which I was excluded – centered around Kearney’s “deal” with the BOE to claim that Tillem was not impartial and should leave the case due to some of his rulings, however Kearney had already lied to Tillem and Europe saying that I had threatened to kill Tillem. Theresa Europe put on the record that she wanted Tillem to state the “real” reason for his recusing himself – so that I could not appeal on the grounds of improper, biased rulings – and say that he (Tillem) feared for his life. The record reflects that Jack Tillem recused himself from my case on May 10, 2007, due to my threatening to kill him, a libelous statement made up by Kearney. DOE Attorney Theresa Europe told SCI Special Commissioner about this, and then Condon based his report on this falsely reported threat. A press release was sent out to Carrie Melago at the NY Daily News and to The Chief. Both newspapers published reports of this threat on the life of Tillem as “actually” happening, without interviewing me. I wrote Mr. Condon a letter on May 22, 2007.

For several weeks David Kearney had called me and demanded his money - $58,000 - that I had never agreed to pay him. I tried to speak with Ms. Europe, but she wouldn't speak with me, and then I was told to go to the BOE medical office in Brooklyn for an examination. I went, in June, and was found fit to work.

A new arbitrator was appointed by the New York State Education Department in June, at the same time that I was told to go to the BOE Medical Office for an examination. Howard Edelman refused to grant me a new hearing (p. 44) even though he was aware that the record had been tainted. On October 1, 2007, my new Attorney Mr. William Gerard, stated that he would not participate in a hearing that he considered a “sham” based only upon a prior proceeding that was tainted. The closing statement of Susan Jalowski can be seen as contradictory to the record.”

Mr. Gerard, Teddy's Attorney, wrote a letter in November 2007 to Francesca Pena, High School Superintendent, in which he described the unreasonable procedure and false information that had just been processed against Teddy.

In his decision dated December 6, 2007, (73 pages) Mr. Edelman writes that Teddy had “certified teachers to assist in the performance of [his] duties” (footnote 2, p. 16), when he did not have any assistants, as placed in the record on February 28 2007 (p. 327) and in a letter sent to him after he filed a Freedom of Information request on April 28, 2008. Edelman found Teddy guilty of specification 19 (refusing to go to Peer Intervention) even though it has been dismissed by the DOE and he gives the page number from the transcript quoting Tillem. In addition there were voluminous other statements and exhibits from both Uehling and Teddy stating that he never refused peer intervention, as well as documents showing that he applied. Also, on Feb 8th, Uehling testified that teaching 100 students single handedly was a part of (his) job, not to mention up to 75 students without assistants.

On page 42 of his decision to suspend Teddy for a year without pay, Mr. Edelman states “The reasons for Mr. Tillem’s recusal are irrelevant to this proceeding” (footnote 3) when indeed the recusal and reasons for Tillem doing so are the MOST relevant reasons for his decision. Edelman also “believed” everything that the BOE and Uehling said without hearing her, in person. On p. 50 Edelman writes: “Therefore, I find, there is no credible evidence to suggest that Principal Uehling, or anyone else, did not give Smith a fair opportunity to succeed.” And, “”I can think of no reason why the Principal would claim students were playing in the yard without supervision if it weren’t true.” (p. 52)…”I credit her observations.” (p. 54).. “Respondent’s [Smith’s testimony] lacks the ring of truth” (p. 61).

How does truth ‘ring’ from paper?

Edelman continues: “Principal Uehling credibly testified…” (p.63)…”Respondent’s behavior…[was] cavalier…” (p. 64). “Based on the Principal’s credible testimony, it is clear Specification 16 has been proven.” (p. 64). [Respondent’s witness Maria Aragonez’s] testimony was unclear and vague…Instead of following the ‘work now, grieve later,’ rule, Respondent decided to take matters into his own hands by refusing to comply with the Principal’s legitimate directive.” (p. 66). “When Uehling suggested he enroll in the Department’s Peer Intervention Program, Smith refused to do so.” (p. 67) [UNTRUE] “”At the very least, Smith should have enrolled. Then, he could have evaluated whether or not it had value for him. Had he done so, perhaps some of his misfortune could have been avoided.” (p. 68). Yet on pp. 73-75, Edelman states that Teddy is a good – excellent - teacher, it seems, from what he has read. John Latchy, from Art & Design, stated that “Respondent did a very good job for us” (p. 75).

Edelman writes, “Nonetheless and based on the foregoing, I conclude that the appropriate penalty in the instant matter is a one year suspension without pay. Any penalty more severe than this would be punitive rather than corrective. Further, this penalty is appropriate and proportional for the misconduct that Respondent has demonstrated. It is so ordered.” (p. 76).

Mr. Edelman had, it seems, already made up his mind about Teddy before reading any testimony. I have heard that this is his pattern and practice.

Then within 10 days of receiving Mr. Edelman’s decision and order, Mr. Gerard filed a Petition To Vacate Arbitration Award (7511) and an Affirmation that described the violations of Teddy Smith's due process rights in Edelman's December decision. The Corporation Counsel answered Teddy's papers, of course, saying that there is nothing wrong with testimony that is written rather than heard (see the Verified Answer of the Corporation Counsel). NYS Supreme Court Judge Alice Schlesinger decided in Teddy’s favor on April 30, 2008. The City of New York has appealed.

The Order and decision of New York State Supreme Court Judge Alica Schlesinger is important, because it puts on the record the unfair practices of the process known as “3020a”. All persons undergoing this process or about to participate should read the decision. I excerpt the following:

“Mr. Smith is challenging the decision and penalty…of the disciplinary process and finally and most importantly the performance of the second Arbitrator who decided the controversy based solely on the transcript of the proceedings before the first Arbitrator, thereby violating his due process right to a fair and impartial hearing…These are very unusual and disturbing circumstances (p.2)…requests [for a hearing de novo] were denied although the Arbitrator offered William Gerard, petitioner’s new counsel, a one day opportunity to supplement the record. (p. 3).

Counsel for petitioner argues that virtually all the guilty findings made by Edelman involved credibility determinations. I believe this is borne out by the record…[the Arbitrator] “credits” or “accepts” the testimony of the witnesses testifying against Mr. Smith…in sustaining various specifications while finding petitioner and his witnesses lacking in credibility. (p. 3). …It should be noted that Arbitrator Edelman saw none of these witnesses present their testimony. All of his findings were made exclusively from the record. It should be also noted that these specifications were all vigorously denied by Mr. Smith, and to a large extent the determinations made by the Arbitrator were based on what was believable or not..

…the Education Law mandates arbitration of disciplinary matters such as this. Therefore, the court’s role is broadened considerably to include the factors of substantive and procedural due process. As Judge Breitel said in Mount St. Mary’s Hospital v. Catherwood, 26 NY2d 493, 500 (1970), when first considering the distinction between voluntary and compulsory arbitration.

“The simple and eradicable fact is that voluntary arbitration and compulsory arbitration are fundamentally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and substantive due process.”

In other words, the relevancy of due process in the literal sense can only be eliminated in voluntary arbitration. Id at 505.

Therefore, the question presented is whether the decision here based on an arbitrator’s exclusive reading of the record, without seeing or hearing any witness and thereby evaluating their credibility in such a limited fashion, comports with the dictates of due process. I find that it does not. (p. 4-5)

…It is fundamental to the fact finding process to be present when testimony is given, testimony which constitutes the evidence upon which the determination will be made.

When an individual is denied fundamental due process, an argument that substantial evidence supports the decision is irrelevant. (p. 6)…Once the recusal occurred… it was incumbent upon the new fact finder, one who was aware of these controversial and extraordinary circumstances, to grant Smith a hearing de novo. The fact that he did not, and proceeded to base virtually all of his findings on considerations of credibility without seeing and hearing the witness, was to deny Smith a fair hearing.

Therefore, the determination cannot stand. It must be vacated and the matter remanded for a new hearing before a different arbitrator.
Accordingly, it is hereby

ORDERED AND ADJUDGED that the petition is granted, the December 4, 2007 decision by Arbitrator Edelman is vacated, and the matter is remanded for a new hearing in accordance with the terms of this decision.

Dated: April 30, 2008”


Alice Schlesinger, J.S.C.

See also:
New York City Teacher Theodore "Teddy" Smith and the Perfect Storm of Injustice

Two Reports, "Investigating The Investigators", and 'The Gill Commission Report' (1990) Dont Improve New York City Public Schools

I have a suggestion: fire or retire Richard Condon and everyone in his office except secretaries and honest staff members who agree to speak out against the abuses they have seen of due process violations pursued against innocent citizens and taxpayers while hiding the corrupt practices of a protected few. I'll help this effort along with the Stuyvesant High School Parents Association financial records story in the near future.

Until then, read below:

April 13, 2009
Trend: Fired Thieves Sue for Negative References

The National Law Journal reports (see below article - Editor) that, in the down economy, workplace defamation lawsuits are on the rise. "A bad reference, statements made in employee performance reviews, internal documents, termination meetings and conversations among managers and supervisors" are all potential grounds for defamation claims.

One former Staples manager, fired for violating the company's travel and expense policy, sued after the company circulated an email message explaining (truthfully) why he had been let go. Reversing summary judgment for the employer, the First Circuit ruled the suit could proceed.

When firing an employee, "There is no risk-free way to go," said one prominent employment attorney. Escorting a terminated employee out of the building, or locking her out of computer systems, could lead to a defamation suit. But go easy, and the result could be the loss of proprietary information or vandalism accompanied by negligence claims.
Posted by Andrew Grossman at 9:11 AM | TrackBack (0)

Workplace defamation suits rise
Technology fuels a sensitive situation
Tresa Baldas, Staff reporter, The National Law Journal, April 13, 2009

Defamation lawsuits are on the rise in the workplace as employees take on employers over the right to reputation, suing over being labeled as damaged goods after losing their jobs.

With the economy forcing so many people out of work, lawyers say the environment is ripe for defamation claims.

Employers are facing mounting pressure over how to treat departing employees, and how to explain the departure without hurting their reputations. The employers' fear is that negative or offensive information will go out the door along with the exiting employee, providing grounds for defamation claims.

And technology — including e-mails, Twitter, Facebook and blogs — is making it easier to disseminate hurtful information about employees.

In Philadelphia, a former Rite Aid employee who was fired for alleged theft is suing the company and an online employee screening service for defamation. He alleges that he was wrongfully portrayed as a thief in an online database that tracks employees, causing him to be blacklisted in the retail industry. A judge has allowed the case to proceed, ruling that the store knowingly submitted an unfounded accusation to the screening company. Pendergrass v. ChoicePoint Inc., No. 08-188 (E.D. Pa.).

In a similar lawsuit, an assistant manager who was fired from Rite Aid for allegedly misusing her employee discount is also suing for defamation, claiming that a spotty background check based on false information is preventing her from finding work. Menefee v. ChoicePoint Inc., No. 08-981 (E.D. Pa.)

In New York, an ousted law partner and prominent intellectual property attorney filed a $90 million defamation lawsuit against Kasowitz, Benson, Torres & Friedman, claiming he was the subject of a "malicious and unwarranted smear campaign" that followed his firing. Pitcock v. Kasowitz, Benson, Torres & Friedman, No. 601984-2008 (New York Co., N.Y., Sup. Ct.). Soon after, the firm filed a breach of fiduciary duty and defamation suit against him. Kasowitz, Benson, Torres & Friedman v. Pitcock, No. 601965-2008 (New York Co., N.Y., Sup. Ct.).

In Boston, the 1st U.S. Circuit Court of Appeals recently upheld a Staples manager's lawsuit in which he claimed he was humiliated after the company sent a mass e-mail to roughly 1,500 employees, explaining that he had been fired for violating the company's travel and expense policy. Even though this was true, the court ruled that the e-mail was meant to single him out and humiliate him, and the company should not have identified him by name. Noonan v. Staples, 539 F.3d 1 (1st Cir. 2008).

"In this economy, people are working under enough of a handicap than to have this on top of everything else. [Defamation] just makes it impossible to find work," said Irv Ackelsberg of Philadelphia's Langer, Grogan & Diver, who is representing the Rite Aid employees in their defamation claims. "Defamation has now become accelerated by technology," Ackelsberg said. "And the consequences are much more severe."

Employers are well aware of that, said management-side attorneys.

Doug Christensen, a partner in the Minneapolis office of Dorsey & Whitney, said employers' actions following layoffs are being scrutinized as never before. He said employees aren't just suing over defamatory comments, but defamatory actions as well, such as investigating them for alleged theft or sexual harassment.

"The number of defamation by conduct actions is on the rise, and former employees have won a handful of wins in these type of cases," Christensen said. "The theory is that an employer's actions, rather than its words, created an impression that the former employee was involved in some kind of wrongdoing."

A bad reference, statements made in employee performance reviews, internal documents, termination meetings and conversations among managers and supervisors — all can serve as the basis for defamation claims, Christensen said. Inflammatory comments made by an employee on a competitor's Web site, at a public discussion group or on an employee-related bulletin board are also defamation risks, he said.

More on the horizon?

Phil Miscimarra of the Chicago office of Morgan, Lewis & Bockius believes more defamation claims are on the horizon.

"When you're talking about people who have fewer options, and fewer people that have the ability to vote with their feet — if they find that they lost their job for whatever reason, it's more common in an economic downturn for those people to end up litigating over what just happened to them," Miscimarra said.

Employers are struggling with how to deal with the departed employee and protect the company's interests at the same time. For example, if employees are escorted out of the building or locked out of their computers — measures often taken to protect proprietary information or prevent a scene from taking place — employers run the risk of a defamation suit.

If they don't take such measures, information could be stolen or a disgruntled employee could hurt someone, triggering negligence lawsuits. "There is no risk-free way to go," Miscimarra said.

Tina Maiolo of Washington's Carr Maloney advises employers to have a uniform policy that treats all terminated employees the same way. If there are fears that someone might steal information from the computers, lock all the terminated employees out of their computers. That way, no can feel singled out.

"As long as an employer has a good business reason for why they're doing something, they're going to be safe," Maiolo said.

But not all business motives are to be trusted, especially where the best interest of employees lie. So argues John Balestriere of New York's Balestriere Lanza, who is representing Jeremy Pitcock, the New York IP attorney who is suing his former firm, Kasowitz Benson, for defamation based on the firm's press release that he was let go for "extremely inappropriate personal conduct." His suit claims that there was no inappropriate personal conduct, only a brief consensual kiss between himself and an associate.

Balestriere alleges that Kasowitz Benson set out to ruin his client — who left Kasowitz Benson to take a job at New York IP boutique Morgan & Finnegan — and to prevent him from taking his business clients with him.

Gandolfo V. DiBlasi of New York's Sullivan & Cromwell, who is representing Kasowitz Benson, declined comment.