The Secret Tenure Tool - Jarema Credit.

Jarema credit.

When I speak to teachers who are this close [] to getting tenure and suddenly are being discontinued, no one seems to know about this.

Why? Is the UFT not telling anyone?

When you get a discontinuance because you do not have tenure, use all the arrows in your quiver. You have more than you think, so do your research.

Betsy Combier

What is Jarema credit? How may I apply for it?

You may receive credit to reduce your probationary time if you worked as a regular substitute in the same license area and same division (i.e., elementary, junior high, high school) in which you are subsequently approved. You can receive up to two years of Jarema Credit. Per diem days do not count toward Jarema Credit. See the application on the DOE’s website.

View more Q&As for Tenure >

Teacher Probationary Period Shortened Based On Tenure As A Teaching Assistant (4/05)
April 7, 2005

On February 26, 2005, the New York State Commissioner of Education decided that a teacher who had previously acquired tenure as a teaching assistant was entitled to a shortened two-year probationary period as a teacher. Matter of Alexander (Decision No. 15,172, February 16, 2005).

Probationary Period Requirements

The Education Law generally provides for a three-year probationary period for teachers. That three-year period may be shortened as a result of service as a "regular substitute" immediately preceding the probationary appointment (so-called "Jarema Credit"). This credit may be applied to shorten the probationary period by up to two years. Also, Section 3012 of the Education Law provides for an automatic one-year reduction in the period if the teacher has acquired tenure in another district or another tenure area. This prior tenure exception of Section 3012 was at issue in Alexander.

The Facts In Alexander

In 1996, Lynda Alexander was tenured as a teaching assistant by the Ramapo Central School District. She continued to work in Ramapo until the spring of 2000, when she acquired a second teaching certificate in general special education. The following academic year, Ms. Alexander became a special education teacher for the South Orangetown Central School District. She was appointed to a three-year probationary period, effective September 1, 2001. At the time of her appointment, the South Orangetown board of education was aware of her previous tenure as a teaching assistant, but did not believe that it had any impact on her current appointment as a special education teacher.

Ms. Alexander did not oppose her three-year probationary term and continued to teach until February 2003, when she took a maternity leave. She returned to the District in September 2003, and continued as a special education teacher there until she was terminated on June 30, 2004. Ms. Alexander challenged her termination, arguing that she was entitled to a reduced probationary period as a result of her prior tenure as a teaching assistant, and that she had acquired tenure by estoppel as a result of the shortened probationary period.

The Commissioner's Holding

The Commissioner held that Section 3012(1)(a) of the Education Law requires school districts to give teachers who had been appointed on tenure in another school district, either as a teacher or a teaching assistant, a reduced probationary period of two years.

The Commissioner first noted the absence of any precedent on this question. The Commissioner noted that he was sympathetic to the District's arguments in support of its position that acquiring prior tenure as a teaching assistant should not reduce the probationary term for a teacher. The District had argued that the statute should be construed as being strictly limited to prior tenure as a "teacher" because a person holding prior tenure as a teaching assistant had never been evaluated as a teacher and had not "endured the rigors of the teacher tenure process." The District had further argued that the duties and responsibilities of teaching assistants are different from those of teachers, and that the requirements to obtain a certificate as a teaching assistant are much lower than the requirements to be a teacher.

Nevertheless, relying on a Court of Appeals decision involving the shortening of a teacher's probationary period based on prior tenure in a different teacher tenure area, the Commissioner held that Ms. Alexander was entitled to a reduced two-year probationary period. The Commissioner noted that if the Legislature had intended Section 3012 to exclude prior tenure as a teaching assistant, it could have done so. In the absence of such an exclusion, the Commissioner found that the statute, read literally, was applicable to previously tenured teaching assistants and required an automatic one-year reduction in the probationary period for any subsequent teaching appointments. Consequently, Ms. Alexander was found to have acquired tenure by estoppel due to the continuation of her teaching services beyond the two-year probationary period.

What Should School Districts Do?

In light of this decision, school districts should review the personnel files of all teachers who received probationary appointments in the last three years, to see if any of them received tenure as a teaching assistant, either in the same district or elsewhere in New York. Probationary teachers who have teaching assistant tenure should receive a decision on tenure after their second year of probation, even if their original probationary appointment stated that it was for three years. School districts must also keep in mind that probationary teachers who have teaching assistant tenure and who are also entitled to Jarema Credit should receive a decision on tenure after their first year of probation, regardless of the stated duration of their original probationary appointment. Individuals with prior teaching assistant tenure who have already served the requisite number of years as probationary teachers may have already achieved tenure by estoppel, but if a district is dissatisfied with the performance of any individuals in this situation, it should consult with labor counsel concerning what strategies may be available to keep the district's options open in case Alexander is reversed by the courts.

If you have any questions regarding the Commissioner's Alexander decision or need assistance evaluating the District's obligations to newly hired teachers, please contract:

In the Capital District, call 518-533-3000 or e-mail:
Nicholas J. D'Ambrosio ndambrosio@bsk.com




In Central New York, call 315-218-8000 or e-mail:
R. Daniel Bordoni dbordoni@bsk.com





On Long Island, call 516-267-6300 or e-mail:
Terry O'Neil toneil@bsk.com





In New York City, call 646-253-2300 or e-mail:
Louis P. DiLorenzo ldilorenzo@bsk.com




In Western New York, call 716-566-2800 or e mail:
Richard C. Heffern rheffern@bsk.com

UFT: Getting Tenure

ADVOCATZ believes in tenure.

For the past 15 years we have been researching case law and attending as well as assisting at teacher tenure hearings (3020-a Arbitration), and we offer below some guidelines from the UFT on how to get tenure.

We recommend that each and every observation, email, meeting, letter, or notes given to you or sent to you be rebutted/responded to. We suggest that you carefully and honestly state facts, and drop incendiary items such as large type, insults, the use of derogatory terms, etc.

We can help you with that, just contact us at betsy@advocatz.com.

Grieve any harassment (Article 23), grieve U-ratings and Appeal any false APPR ratings. Don't be fearful of asserting your rights, these are stepping stones which must be done in order to defend your position later on.

When you get into a hearing, dont sit back and let your representative do whatever they want, partner with your representative, and make sure that they do what you want. You have the facts of the matter, you count. Don't be silent, but say what you want to say professionally.

What does that mean? Contact us.

Betsy Combier

All you need to know about getting tenure

 

 

 

BY RACHEL NOBEL | APRIL 5, 2018 NEW YORK TEACHER ISSUE

Gaining tenure is an important milestone for new teachers. Having tenure means you can’t be terminated without due process and you’re entitled to a hearing if the Department of Education takes disciplinary action that could lead to termination.

Teachers hired before July 1, 2015, generally serve a three-year probationary period. Teachers hired after July 1, 2015, are generally eligible for tenure at the end of their fourth year.

There are two ways to reduce your probationary period. If you worked as a regular substitute in the same license and at the same school level, you can reduce the normal probationary period by up to two years. This is called Jarema Credit, and you should apply if you think you are eligible. The application form is online. Another way to reduce your probationary period is called “traveling tenure.” If you received tenure in one license area and elect to take an appointment in a new license area or if you were tenured in another school district in New York State, you should apply to have your probationary period reduced by one year.

If you think you are eligible for either of these options, or have any questions, contact your UFT borough office.

There are many steps you can take to prepare for your tenure decision. First and foremost, you need to know your tenure date. To find it, check with your payroll secretary. You’ll want to be proactive in meeting with your principal in advance of your tenure decision to review your work.

In New York City, tenure is granted in your license appointment area, which is why it is of utmost importance that your license code match the subject and level in which you are teaching.

Tenure isn’t automatically granted at the end of your probationary period. To be granted tenure, you must:

• Be on track to complete all your state certification and city licensing requirements, file an application and receive professional certification;
• have a record of acceptable service during your probationary period; and
• be recommended for tenure by your principal.

Your tenure becomes permanent only after you complete all your certification requirements.

In preparing for tenure, you’ll want to keep records and documents that reflect on your performance, such as observation reports; notes or emails to and from your colleagues, mentor, supervisors and parents; and evidence of your professional contributions to your school. Add a brief explanation or context for each piece of evidence you include and be sure to show how you differentiate to accommodate children with diverse abilities.

If applicable, you can document the work you’ve done for your school community, such as clubs or student groups you advise or activities in which you’ve participated.

There are many ways you can organize this information. Some teachers choose to build tenure portfolios using binders organized into subsections where they store lesson plans, student work and assessments, observation reports, certificates from professional learning activities and other records.

Other teachers recommend digital record-keeping, using online resources to organize files. Dropbox, Google Drive or iCloud are all services you can use to store your work.

If you are up for tenure and your principal asks you to agree to extend your probationary period, you should contact your chapter leader or a UFT representative to help ensure that your rights are protected.
The UFT offers tenure workshops in its borough offices. Check the UFT website’s events calendar for details.

Teacher Tenure Time Almost Up

Due to the disarray of the teacher discipline hearings, as well as the lack of accountability inside the New York City Department of Education where good teachers are fined/suspended without pay/terminated often for no reason, or for a reason (no one can figure out which, so everyone charged with 3020-a is put into the ineligible/inquiry list or "problem code"), the end of tenure in New York City may be sooner than suspected.

I support tenure for teachers.

The tenure system was set up to protect teachers and staff from the vagaries of a maniacal Superintendent, Principal, Assistant Principal, or other person with malicious intent. But tenure is not employment protection for life. What tenure does is give teachers a chance to have a due process hearing where they can defend against lies or mistakes, while keeping their well-earned career, or not.

I am very aware of teachers and other staff who should not be getting paid yet who have not been terminated because the 3020-a disciplinary process is broken. The guilty party can be kept on salary while an innocent charged person can be terminated. A representative who does not know enough about UFT rules and/or DOE Regulations or who doesn't care to know or submit these guidelines to an arbitrator cannot make a proper defense of a charged employee, and the employee can be terminated despite his/her innocence.

So basically what I am saying is, keep tenure, but change 3020-a hearings to be more accurate in who needs to be terminated or not. INVESTIGATE thoroughly the charges!

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials 

The 74


Good morning! We start today’s coverage with a late-breaking story about a tenure lawsuit in New York State that has survived its third legal challenge, in a stinging defeat for New York City’s teachers union.

On Wednesday afternoon, a New York appellate court unanimously ruled that Wright v. New York, a case brought by a group of parents arguing that teacher tenure laws and seniority-based job protections harm their children’s education, should go forward.

From Edlawfaqs:

The Appellate Division, Second Department on an appeal from a ruling from the Staten Island Supreme has determined that an action can go forward that may test the constitutionality of the State’s disciplinary system and layoff provisions for teachers.

Mymoena Davids aka Mona Davids supported by groups opposed to teacher tenure laws brought an action against the State alleging that ineffective teachers could not be properly dismissed and layoff provisions protected ineffective teachers causing irreversible harm to her teachers. (A similar action was brought in Albany County and joined with Ms. Davids case in Richmond County.)

Justice Philip Minardo of the Richmond County Supreme Court ruled that, on a motion to dismiss, the plaintiffs case could go forward despite a motion to dismiss based upon the changed statutory scheme and other arguments.

The Appellate Division affirmed. The appellate justices ruled, without much argument, that it was too early to dismiss the case as the plaintiffs’ concerns could, if proven, make out a case that their constitutionally protected right of a sound basic education was jeopardized by the current statutory scheme. While not determining the ultimate issue that Appellate Court found that a trial court could determine that the tenure and layoff provisions for teachers interfered with this constitutional right.

Davids v. State, __AD3d__, (2d Dept., March 28, 2018)

Effort to Overturn New York’s Teacher Tenure Laws Wins Unanimous Appeals Court Victory

The 74, March 28, 2018

Partnership for Educational Justice attorney Jay Lefkowitz speaks at a press conference at City Hall.
(Photo credit: Naomi Nix)

New York appellate court ruled unanimously Wednesday that a case brought by a group of parents arguing that teacher tenure laws and seniority-based job protections harm their children’s education should go forward.

The decision dealt the state Education Department, New York City, and New York teachers unions a third defeat in their years-long attempt to have the high-profile lawsuit dismissed.

In a six-page ruling upholding a lower court decision, the four-judge panel rejected arguments that the parents lacked standing to bring the complaint, which alleges that provisions of state education law relating to teacher discipline and dismissal saddle children with ineffective teachers, depriving them of their right to a “sound, basic education” under the New York State Constitution.

The case, Wright v. New York, was originally filed in 2014 by nine parents, aided by lawyers from the advocacy group Partnership for Educational Justice. The organization has pursued similar legal challenges in New Jersey and Minnesota. The New York City Parents Union, a student advocacy group founded in 2011 by Mona Davids, is also involved in the case.

“Today’s decision from the New York appeals court is an incredible victory for students’ rights,” said Alissa Bernstein, the partnership’s executive director. “While the defendants have repeatedly tried to delay and dispose of this case, today’s decision affirms the fact that the brave parents and children who brought this suit deserve their day in court. The fight for educational justice will continue so that we can give our students the education they are guaranteed under the state constitution.”

Among the parent plaintiffs is Tauana Goins, whose daughter’s teacher at Public School 106 — dubbed the notorious “School of No” because it had no books, art, or gym classes — allegedly bullied the girl and called her “a loser.” The Queens mom said she tried unsuccessfully to have her daughter reassigned, but the child was given the same teacher for first, second and fifth grades.

“We’re not anti-teacher,” Goins told The 74 in 2015. “We just want effective teachers and we want tenure to be performanced-based.”

The defendants, who include New York City’s United Federation of Teachers, argued the lawsuit should be tossed out, particularly after the state reformed teacher job protections in 2015 — including mandating a time frame under which school boards had to decide whether to fire teachers consistently rated as ineffective, and increasing from three years to four the length of the probationary period leading up to tenure.

“We are disappointed in this procedural decision by an intermediate court. Judges around the nation have dismissed claims similar to those filed in the Davids-Wright case, and we are confident as the case goes forward that New York courts will ultimately recognize the importance to students and schools of reasonable due process for teachers,” Adam Ross, the UFT’s general counsel, said in a statement.

Jay Lefkowitz, the plaintiff’s lead attorney, has said the revisions were minor and not enough to alter a system that leaves poor teachers in the classroom. State Supreme Court Justice Philip Minardo agreed in 2015, calling the changes “marginal” and “insufficient” as a reason for dismissal.

Lefkowitz said in a statement Wednesday that the plaintiffs were pleased the Appellate Court, Second Department affirmed Minardo’s decision, deciding “to allow this lawsuit to proceed and has once again rejected the effort by the state, the city, and the teachers unions to stop this lawsuit.”

“New York’s constitution guarantees all children in the state a sound, basic education, and the current teacher employment statutes are simply failing our children by keeping ineffective teachers in our public schools,” said Lefkowitz, a senior partner at Kirkland & Ellis. “This decision will finally allow us to get the evidence from the state that will vindicate the rights of parents and children across the state.”

The plaintiffs intend to seek teacher personnel records to argue their case. Minardo had halted the discovery process while the case was before the Appellate Court. The defendants are expected to appeal to the full Appellate Court to review the panel’s unanimous ruling.

Disclosure: Campbell Brown founded the Partnership for Educational Justice. She co-founded The 74 and sits on its board of directors. She played no part in the reporting or editing of this story. Walton Family Foundation provides financial support to PEJ and The 74.

ICYMI: New Jersey Parents Appeal Dismissal of Lawsuit Challenging Last In, First Out Teacher Layoff Policies

Parents Cheer after Judge Denies Second Request to Dismiss New York Teacher Tenure Case

Convincing Arguments Made in Teacher ‘Tenure’ Appeal

NEA Today MARCH 1, 2016

What Teacher Tenure Is — And What It’s Not
By Kevin Hart, September 17, 2010
A recent Time magazine poll asked members of the public how they felt about teacher tenure. And, in the course of a 26-word question, Time managed to perpetuate three myths that educators say are contributing to the public’s misunderstanding over what tenure is — and what it’s not.

Specifically, Time asked, “Do you support or oppose tenure for teachers, the practice of guaranteeing teachers lifetime job security after they have worked for a certain amount of time?”

The problem is, tenure does not guarantee teachers a job, does not offer any lifetime employment security, and, regardless of the implication of Time’s question, does not just happen after a “certain amount of time.”

Educators participating in a recent discussion on NEA Today’s Facebook page said that these three tenure myths are prevalent among the media and the general public, and are distractions in the debate on how to improve America’s public schools.

The notion that tenure is a guaranteed job for life must have come as a shock for Lancaster, Calif., teacher Carolyn Heia Brown, who said that she received tenure and was laid off in the same month.

If you thought tenured teachers couldn’t lose their jobs, you’re not alone — it’s a common misunderstanding, but that doesn’t make it accurate. Tenure does not guarantee teachers a job, but instead mandates that due process be followed before tenured teachers are dismissed.

The reason is simple enough, said Alabama educator Shannon Keith Ginn, who calls tenure a “measure of protection against personal vendettas and personality conflicts.”

After all, qualified, effective educators who are benefiting students and raising student achievement should not be removed from the classroom because of political disagreements with an administrator — or because the sibling of a local, influential figure wants a job.

And teachers who receive tenure often endure a marathon process before it is granted. At most jobs outside the field of education, a newly hired employee may be considered probationary for six months, or even a year.

When teachers are hired, it is common for them to serve as untenured, probationary employees for three or four years. At this point they can be — and often are — dismissed for any reason whatsoever. That time period also gives school administrators an extended opportunity to evaluate a teacher before determining whether or not the school district, at its discretion, should grant the teacher tenure.

“When explaining tenure, I first make sure to emphasize that tenure is earned, not just handed out to every teacher who walks through the door,” said Illinois teacher Chris Janotta. “Where I work, for instance, a teacher becomes tenured after four probationary years. I explain that the administration has the power to let a teacher go for any reason during these four years. Period.”

Much of the public debate over tenure has focused on whether it is possible to fire tenured teachers who are no longer making the grade. The fact is, contracts between unions and school districts in no way forbid the firing of tenured teachers.

Janotta said he has personally seen two tenured teachers with 20 years of experience let go because of performance issues.

“Did proper steps need to be taken before these teachers were terminated? Of course,” he said. “Were these steps so overwhelming that administration decided it wasn’t worth proceeding with them? Obviously not, or those teachers would still have their jobs.”

Tenure is about due process — not about guaranteeing jobs for life. And it’s not about protecting “bad” teachers — it’s about protecting good teachers.

The typical tenure agreement lays out steps and documentation necessary for dismissing a tenured teacher. Many private corporations also have termination processes and documentation requirements that managers must follow before firing an employee.

Determining which teachers are making the grade depends on a thorough and rigorous evaluation process, and many teachers complain that the evaluation systems at their schools are not functioning. Teachers say they are not evaluated enough, the criteria are murky, and sometimes they receive conflicting evaluations from different administrators.

So why is there so much attention being paid to issues like tenure? Meg Gruber, a teacher from Virginia, believes the issue is largely being driven and pitched to the media by anti-union individuals and organizations. Kelle Stewart, an elementary school teacher from Tennessee, said the heavy focus on tenure keeps the education debate from focusing on real issues that significantly affect public schools.

“Tenure is a red herring that really has nothing at all to do with the problems our schools are facing,“ she said. “I think all the attention paid to tenure should be refocused on NCLB which is hurting us far more.”

New Teachers and TENURE

Tenure

UFT.org

Appointment and New York City licensure

When a New York City school permanently hires you to fill a vacancy you are “appointed” to that position. Your appointment must match your state certification by both subject and level.

As part of this appointment process the DOE automatically generates its own teaching license. This New York City license must match your New York State certificate subject area and, in addition, the grade level of your NYC teaching assignment. The NYC license specifies the area in which you will be considered for tenure decisions and accrue seniority; the latter can be very important if there isexcessing in your school. While there are no more New York City paper licenses, there are still license/appointment areas, each with a different code. When you begin teaching, the DOE notifies you by personal email of your license/appointment area and includes the license code. Make sure that you are appointed in the subject area and division level (i.e. elementary, middle or high school) that matches your state certification.

You can only be appointed in an area that matches your state certificate. It can be a little confusing, however, as New York State certification often includes different grade ranges than those of a New York City license. For example, a New York State English or math or social studies certificate will state it is appropriate for grades 7-12 (middle and high schools). A New York City license, however, differentiates between high school and middle school, depending on your appointment.

Unfortunately, “out of license” teaching assignments are not unusual. Since some teaching positions are harder to fill than others, newer teachers are often assigned to teach out of their license areas, in a different level, subject area or both. While such “out of license” assignments don’t affect your salary, they could affect your ability to attain tenure and your right to keep your position if excessing occurs. Teachers who have taught “out of license” could find their probation period extended if the principal or superintendent thinks there is not enough experience in, or evidence of, effectiveness in the appointed license area.

If you believe your appointment, New York City license, or teaching assignment does not match your state certification, speak to your chapter leader at once. Your chapter leader can help you discuss this with your principal and get your program corrected as soon as possible. Or you can call your UFT borough office immediately and ask to speak to an educational liaison.

You can be appointed under only one license at a time, and your license area of appointment determines the area in which you will be granted tenure. Sometimes your certification permits you to be appointed under another license; however, if you agree to switch to a new appointment you are on probation again. In addition, if you switch to another license before you receive tenure in your first license you must serve probation in that license, and there may be other ramifications. Contact yourUFT borough office before you switch your license.

In any case, your salary does not change when your license changes. Be sure you check with your payroll secretary that your appointment date is correctly entered in the computer.

Probationary period

State law requires teachers and other staff to serve a four-year probationary period after being appointed to a position. During that time supervisors are supposed to observe you several times a year and evaluate you in areas including classroom management, lesson planning, presentation skills and how you use student data to help plan instruction.

Generally, at the end of four years of acceptable service, you will be entitled to due process rights under Section 3020a of the state Education Law, which governs the discipline and dismissal of tenured educators. This is commonly called acquiring tenure, but it is effectively the completion of your probationary period.

If the DOE intends to discontinue, that is, terminate, your service at any time prior to the completion of your probationary period you must be given 30 calendar days’ notice. If you are discontinued, call your UFT borough office. They will assign an advocate to assist you in fighting the termination.

Sometimes a principal will ask you to sign a document stating that you agree to an extension of your probationary period beyond the four years. If this occurs contact your chapter leader or your UFT borough office immediately so we can arrange, if necessary, for an attorney to review the document in order to protect your rights as a probationary educator.

There are two ways to reduce your probationary period:

• If you worked satisfactorily as a regular substitute in the same license and in the same school level you can reduce the normal four-year probationary period by up to two years. This is called Jarema Credit and you should apply if you think you are eligible. The application form is online.
• Another way is called "traveling tenure." If you received tenure in one license area and elect to take an appointment in a new license area or if you were tenured in another school district in New York State, you should apply to have your probationary period reduced to three years.

If you think you are eligible for either of these options, or have any questions, contact your UFT borough office.

Tenure

Principals making tenure decisions use the DOE's Tenure Decision-making Framework as a guide.

The framework affects only teachers who are on probation, not teachers who already have tenure. It has no bearing on the rating system that administrators use for their annual review of all teachers.

Under New York State law, appointed educators achieve tenure after completing a probationary period and fulfilling all requirements for the professional certificate. In New York City, tenure is granted in your license appointment area, which is why it is of utmost importance that your license code match the subject and level in which you are teaching.

Having tenure means you may not be disciplined or terminated without due process. As a tenured member you have the right to a hearing before an independent arbitrator regarding any charges brought against you. This due process right protects you from being fired for personal, arbitrary or political reasons.

As described above, the process for determining whether or not you will get tenure is rigorous, and tenure is not automatic at the end of the probationary period. You must:

• Complete all your state certification and city licensing requirements, file an application and receive professional certification.
• Have a record of acceptable service during your probationary period.
• Be recommended for tenure by your principal.

In order to recommend you for tenure, your principal will use a framework developed by the DOE in 2010. He or she will rate you as highly effective, effective, developing or ineffective in three categories:

• Instructional practice, which can be measured by formal and informal classroom observations, your work products and annual reviews;
• Professional contributions to your school and profession, which can be verified by feedback from students, parents and colleagues; your attendance and punctuality; and the work you do on school teams; and
• Impact on student learning, or the gains your students make in meeting New York State standards as evidenced by their work, portfolios, passing rates and achievement on state exams.

Principals are encouraged to recommend highly effective and effective teachers for tenure. If you are rated a developing teacher, your principal may ask you to agree to extend your probationary period to a fifth year. In this case, you should contact your chapter leader or UFT representative to help ensure that your rights are being protected.

How can teachers prepare for their tenure decision? 

The UFT encourages teachers to be proactive in preparing for their tenure decision. Here are some steps you can take throughout your probationary period:

• If your principal has not initiated a meeting about your tenure decision, ask for an appointment to find out where things stand and what is expected of you. Do this even if your tenure decision is a year or two away so you have time on your side.
• Become familiar with the multiple sources of evidence for each factor that principals will use to prepare their tenure recommendations.
• Put together a professional portfolio of your effectiveness as a teacher. Organize your portfolio with a table of contents to separate the various components. Include a cross-section of your work but be selective in choosing the materials to include. Add a brief explanation or context for each piece of evidence you include and be sure to show how you differentiate to accommodate children with diverse abilities.
• Every spring the UFT offers workshops in our borough offices to help teachers prepare for tenure. Check the union newspaper, New York Teacher, and theUFT website for a schedule of tenure workshops.

Communities For Teaching Excellence: Dont End Tenure, Change It

Teachers on Tenure: Change It, Don’t Chuck It

by SARAH ROSENBERG on MAY 31, 2012

in TEACHER QUALITY

LINK

Last week, Communities for Teaching Excellence released a policy brief  advocating for common sense tenure reform. The brief describes what we already know: after a few years in the classroom, teachers in most districts receive tenure, essentially a promise of lifetime employment. While it’s possible for a district to terminate a tenured teacher, the burden in terms of time, cost, and paperwork is often insurmountable. State and district policymakers, recognizing this burden and its impact on developing an effective teaching force, are changing tenure laws.Nineteen states  have amended their tenure laws for K12 teachers in the last year alone. Even Randi Weingarten, the head of the AFT, agrees  that tenure should not be a barrier to firing ineffective teachers. “Make sure tenure is about fairness,” she recently said, “and make sure it’s not a shield for incompetence.”

Our new teacher survey (based on a nationally representative sample of 1,100 public school teachers, a follow up to our 2008 Waiting to Be Won Over ) asked teachers what they thought about tenure. Teachers, for the most part, agree with Randi. Only a third of teachers say they would actually consider trading tenure, for example for a $5000 pay bonus (those without tenure are, not surprisingly, more likely to trade it). But they are ready and willing to make changes to tenure-related dismissal policies. Teachers think the union should play a role in simplifying the process of removing ineffective teachers. Compared with teachers in 2007, teachers today are more likely to favor the union doing this: from 63 percent in 2007 to 75 percent in 2011. Veterans, the teachers most likely to favor strong job protections, have increased their support for unions taking on this function from 60 percent in 2007 to 75 percent in 2011. Newcomers show even stronger support, from 62 percent in 2007 to 91 percent in 2011. With “last-in, first-out” policies still the rule in most places and layoffs looming, this may reflect newer teachers’ frustration that their jobs are at risk, and conversely that veterans’ jobs are not, based purely on length of service.

According to our survey, teachers want the protection of tenure, but they don’t want tenure to be a barrier to removing ineffective teachers. The recommendations proposed in Communities for Teaching Excellence’s policy brief align with what teachers are saying: use comprehensive, research-based evaluation to inform the tenure decision process, lengthen the probation period to better determine teacher effectiveness before granting tenure, and return tenured teachers to probationary status if they are shown to be ineffective.

And there is some evidence that tenure is becoming a more meaningful signal of teacher effectiveness than it was just a few years ago. In 2007, only 23 percent of teachers said that awarding tenure meant that a teacher “has proven to be very good at what s/he does” as opposed to just a formality; in 2011, the number increased to 28 percent. A small increase, but a significant one that bodes well for fair and effective tenure reform.

Once Again, The Teacher Tenure Debate: It's About Who Will Get the Billions In Public Money, not Teacher Effectiveness

I wrote a short post on my view of tenure after one of my daughters' teachers disappeared without a trace when she was in the 11th grade at NEST+M. The Principal, Dr. Olga Livanis, who had followed me to NEST after I spent 8 years at Stuyvesant High School with 2 of my daughters and hoped never to be in the same building with her again, didn't like English teacher Adam Miller, for reasons known only to her. My daughter and all of her friends thought that Adam was the most amazing teacher ever, and he was going to write their college recommendations for them, until he just wasn't there anymore. He sued and won his job back, at NEST, but my daughter had started college by then.

What happened when Adam left? Dr. Livanis had substitutes, one replacement (for 2 days) came from Bronx Science, and the last was a young guy that was just starting out in a career of teaching. The kids liked him a lot, so decided that he was ok, and he stayed until the end of the year.

I went to parent visiting day, and the teacher from Bronx Science tried to teach the students, and she was probably an excellent teacher. But the students wanted her to bring Dr. Livanis to the classroom and tell them what happened to Adam. Finally, she went to get Dr. Livanis, who eventually came into the classroom with Superintendent Alexis Penzell, who I knew quite well from the theft of money at Stuyvesant HS. Dr. Livanis and Ms. Penzell tried to explain that there are decisions that had to be made, and that was that. This insufficient response pleased no one. The teacher in place that day resigned her position at NEST+M and, I heard, went back to her former position.

I watched all the mini-tenure advocates with first, amazement; and then admiration. They wanted Adam Miller back, and stood up for what they wanted.

Unfortunately, all the students did not learn what they could have learned, academically, but they all did well on their Regents and SAT tests, because they were all G&T, which masked the fact that the curriculum was interrupted permanently by Dr. Livanis' game-playing.

 The debate over teacher tenure is a debate about politics in education and who is going to get paid the $billions in public money, not about teacher effectiveness. See Good Teachers Denied Tenure: Harris Lirtzman

and: 

Chronicles of (the conceptually incoherent & empirically invalid world of) VergarNYa

Betsy Combier


The Teacher Tenure Debate
NYC Rubber Room Reporter 2010

Theresa Europe, Director of The Administrative Trials Unit, NYC Board of Education (pictured at right)

Is holding onto a tenured teacher a policy of the past that has no value for the present?

I've read alot about tenure, especially after being involved in the rubber room process for seven years as a journalist/paralegal/educator, yet I am a parent, too, of four daughters.

I dont hear very often about how children see "teacher effectiveness", or how a child feels when a teacher disappears, so I asked my youngest daughter, Marielle, who is now 17 and heading off to college in September. She recalled the day two years ago that a teacher she liked suddenly disappeared without explanation. She remembered every detail, and she told me that all of her friends were tormented by the disappearance. She and her friends valued the way this teacher listened to their statements in class, and how this teacher respected their answers, telling each of them that there was value in every perspective. This was a social studies teacher who also was funny at times, serious with his aim to focus on the lesson, but always respectful of each student and his/her contribution to the daily conversation.

One day he was there and the next day a substitute sat at his desk. Marielle and her friends were insulted at the Principal's lack of concern for their feelings, and never totally forgave her (the Principal).

I'm going to continue to ask the kids what they think, because isnt all the talk about teacher tenure really about educating young people to become the best they can be? We all must listen to all voices, no matter what age and/or training he/she has in the biography.

Is Teacher Tenure Necessary?
LINK

Tenure is under attack. The century-old system of protecting experienced teachers from arbitrary dismissal — long viewed as sacred — has triggered hot political debates in several states.

"Teacher effectiveness" has emerged as the biggest buzz phrase in education policy circles. Because teachers have such potential for affecting the quality of children's education, some people are starting to argue that it must become easier to get bad teachers out of the classroom.

"There seems to be a lot of drive to do away with tenure," says Sandy Kress, who helped write federal and state education laws as an adviser to George W. Bush and other policymakers. "Tenure has proved to be just a horrible barrier to getting rid of that small percentage of teachers who are just not effective."

Action All Over

This is not merely an academic debate. A bill in Colorado that would change tenure rules and tie them to student performance passed out of a Senate committee last week and has the support of Democratic Gov. Bill Ritter. A Florida bill to abolish tenure was vetoed this month by Republican Gov. Charlie Crist, but a similar bill is pending in Louisiana.

Debates about tenure rules are happening at the local level as well, notably in Washington, D.C., where a proposal to eliminate tenure and seniority rules in exchange for higher pay led to protracted arguments over the local teachers' contract.

Washington state, meanwhile, along with Maryland and Ohio, has recently lengthened the number of years teachers have to wait before becoming eligible for tenure. Elementary and secondary school teachers can become eligible for tenure after as little as two years on the job, although the time frame varies by state.

"What's become so problematic about tenure is that it's awarded almost automatically, without regard to performance in student learning," says Sandi Jacobs, vice president of the National Council on Teacher Quality, which advocates changes to the teaching profession.

A Matter Of Due Process

Unlike tenure for university professors, tenure for K-12 teachers does not, in theory, shield them from dismissal. Instead, it's simply a guarantee of due process — that if a teacher is fired, it will be for cause.

The advent of tenure, which coincided roughly with World War I and the suffragist movement, was meant to protect teachers, who, in olden days, were often fired for reasons that had nothing to do with their work, including race.

Teachers were often let go when a new political party came to power locally, or if the principal wanted to hand out jobs to his friends, or even if a teacher got pregnant.

"These laws were passed in state after state to protect good teachers from arbitrary actions," says Dennis Van Roekel, president of the National Education Association, which is the country's largest teachers union.

"Due process is necessary in order to avoid the type of abuses of the past," he says. "It's very upsetting that in 2010, under the guise of improving schools, we suddenly get rid of protections from firing teachers for inadequate or wrong reasons."

Are Protections Still Needed?

Advocates of overhauling tenure say they favor due process. But they point out that tenure predates subsequent labor laws that guard against discrimination or other employer abuses. "So much has changed about our larger legal framework," says Tim Daly, president of The New Teacher Project, which helps place teachers in urban schools. "A law about teacher tenure, by far, is not the only thing that would protect you."

This point now is commonly made, but Susan Moore Johnson, who teaches at Harvard's Graduate School of Education, says, "I'm not really convinced there are more protections now. You continue to hear stories about how favoritism is alive and well in public schools."

For his part, Daly doesn't advocate the abolition of tenure, but he does believe it needs to be changed. Dismissals should be job related, he says. But the problem he sees is that there are so many legal and managerial hurdles involved in dismissing a teacher that tenure has become a de facto shield against firing even the worst teachers.

"Tenure says you can't be dismissed unless you are shown to be incompetent through the evaluation process," Daly says. "But the evaluation process doesn't work at all, so tenure is seen as an ironclad guarantee of a job."

Change May Be Coming

That's where policy advocates have spotted an opening. It's clear that the way teachers are evaluated will undergo change. The federal Race to the Top program, a $4 billion pot of money meant to encourage states to pursue innovative educational strategies, insists on tying teacher evaluation to student performance.

The ins and outs of how student scores on standardized tests are weighted in evaluating teachers can quickly turn into a topic of interest only to insiders. In contrast, the public can understand and respond to the idea that a lifetime job guarantee has become anachronistic in today's economy.

Getting rid of tenure is still going to be a tough sell. Teachers unions are generally considered among the strongest lobbies in most states, and job protection for their members goes to the heart of their mission.

Johnson, the Harvard professor, says that unions make convenient targets for blame in such matters, noting that even teachers without tenure are rarely dismissed. She has studied some of the few districts where teachers are regularly let go — which are those where joint panels set up by unions and administrators sit together in judgment.

"Principals will say, 'The reason I don't dismiss anyone is because the union will stand in the way,' " Johnson says. "But where teachers are dismissed, it's through a peer review that guarantees due process."

Less Than 1 Percent Fired

Firing teachers is hard. New York, Chicago and Los Angeles have each fired fewer than 1 out of 1,000 of their tenured teachers in recent years. Those numbers are not unusual.

Administrators complain that the process is too draining. Reviews of dismissal cases can take years to make their way through the system, costing tens of thousands of dollars each.

Teachers say that administrators are themselves at fault for performing perfunctory, "drive-by" evaluations. One study of selected districts in four states found that 99 percent of teachers receive "satisfactory" ratings.

Sometimes, bad publicity can curb the worst abuses on either side. The Los Angeles Times found last December that L.A. schools deny tenure to fewer than 2 percent of probationary hires, with evaluations often amounting to nothing more than a single, pre-announced classroom visit lasting 30 minutes or less.

Following the report, Superintendent Ramon C. Cortines pledged greater scrutiny. In February, the district announced it would fire more than 110 nontenured teachers for performance -— three times the annual rate in recent years.

Earlier this month, New York City Mayor Michael Bloomberg and the United Federation of Teachers announced the city would close the district's "rubber rooms," where teachers are paid to sit and do no work, often for years, while awaiting the outcome of dismissal hearings.

Newspaper and magazine articles about the rubber rooms — which Bloomberg labeled "study hall for teachers" — had embarrassed both the city and the union. Now, teachers will be assigned to administrative or nonclassroom duties while cases are pending, with the city hiring more arbitrators to speed up the process.

The Teacher Tenure Debate

Theresa Europe, Director of The Administrative Trials Unit, NYC Board of Education

Is holding onto a tenured teacher a policy of the past that has no value for the present?

I've read alot about tenure, especially after being involved in the rubber room process for seven years as a journalist/paralegal/educator, yet I am a parent, too, of four daughters.

I dont hear very often about how children see "teacher effectiveness", or how a child feels when a teacher disappears, so I asked my youngest daughter, Marielle, who is now 17 and heading off to college in September. She recalled the day two years ago that a teacher she liked suddenly disappeared without explanation. She remembered every detail, and she told me that all of her friends were tormented by the disappearance. She and her friends valued the way this teacher listened to their statements in class, and how this teacher respected their answers, telling each of them that there was value in every perspective. This was a social studies teacher who also was funny at times, serious with his aim to focus on the lesson, but always respectful of each student and his/her contribution to the daily conversation.
One day he was there and the next day a substitute sat at his desk. Marielle and her friends were insulted at the Principal's lack of concern for their feelings, and never totally forgave her (the Principal).

I'm going to continue to ask the kids what they think, because isnt all the talk about teacher tenure really about educating young people to become the best they can be? We all must listen to all voices, no matter what age and/or training he/she has in the biography



Is Teacher Tenure Necessary?
LINK

Tenure is under attack. The century-old system of protecting experienced teachers from arbitrary dismissal — long viewed as sacred — has triggered hot political debates in several states.

"Teacher effectiveness" has emerged as the biggest buzz phrase in education policy circles. Because teachers have such potential for affecting the quality of children's education, some people are starting to argue that it must become easier to get bad teachers out of the classroom.

"There seems to be a lot of drive to do away with tenure," says Sandy Kress, who helped write federal and state education laws as an adviser to George W. Bush and other policymakers. "Tenure has proved to be just a horrible barrier to getting rid of that small percentage of teachers who are just not effective."

Action All Over

This is not merely an academic debate. A bill in Colorado that would change tenure rules and tie them to student performance passed out of a Senate committee last week and has the support of Democratic Gov. Bill Ritter. A Florida bill to abolish tenure was vetoed this month by Republican Gov. Charlie Crist, but a similar bill is pending in Louisiana.

Debates about tenure rules are happening at the local level as well, notably in Washington, D.C., where a proposal to eliminate tenure and seniority rules in exchange for higher pay led to protracted arguments over the local teachers' contract.

Washington state, meanwhile, along with Maryland and Ohio, has recently lengthened the number of years teachers have to wait before becoming eligible for tenure. Elementary and secondary school teachers can become eligible for tenure after as little as two years on the job, although the time frame varies by state.

"What's become so problematic about tenure is that it's awarded almost automatically, without regard to performance in student learning," says Sandi Jacobs, vice president of the National Council on Teacher Quality, which advocates changes to the teaching profession.

A Matter Of Due Process

Unlike tenure for university professors, tenure for K-12 teachers does not, in theory, shield them from dismissal. Instead, it's simply a guarantee of due process — that if a teacher is fired, it will be for cause.

The advent of tenure, which coincided roughly with World War I and the suffragist movement, was meant to protect teachers, who, in olden days, were often fired for reasons that had nothing to do with their work, including race.

Teachers were often let go when a new political party came to power locally, or if the principal wanted to hand out jobs to his friends, or even if a teacher got pregnant.

"These laws were passed in state after state to protect good teachers from arbitrary actions," says Dennis Van Roekel, president of the National Education Association, which is the country's largest teachers union.

"Due process is necessary in order to avoid the type of abuses of the past," he says. "It's very upsetting that in 2010, under the guise of improving schools, we suddenly get rid of protections from firing teachers for inadequate or wrong reasons."

Are Protections Still Needed?

Advocates of overhauling tenure say they favor due process. But they point out that tenure predates subsequent labor laws that guard against discrimination or other employer abuses. "So much has changed about our larger legal framework," says Tim Daly, president of The New Teacher Project, which helps place teachers in urban schools. "A law about teacher tenure, by far, is not the only thing that would protect you."

This point now is commonly made, but Susan Moore Johnson, who teaches at Harvard's Graduate School of Education, says, "I'm not really convinced there are more protections now. You continue to hear stories about how favoritism is alive and well in public schools."

For his part, Daly doesn't advocate the abolition of tenure, but he does believe it needs to be changed. Dismissals should be job related, he says. But the problem he sees is that there are so many legal and managerial hurdles involved in dismissing a teacher that tenure has become a de facto shield against firing even the worst teachers.

"Tenure says you can't be dismissed unless you are shown to be incompetent through the evaluation process," Daly says. "But the evaluation process doesn't work at all, so tenure is seen as an ironclad guarantee of a job."

Change May Be Coming

That's where policy advocates have spotted an opening. It's clear that the way teachers are evaluated will undergo change. The federal Race to the Top program, a $4 billion pot of money meant to encourage states to pursue innovative educational strategies, insists on tying teacher evaluation to student performance.

The ins and outs of how student scores on standardized tests are weighted in evaluating teachers can quickly turn into a topic of interest only to insiders. In contrast, the public can understand and respond to the idea that a lifetime job guarantee has become anachronistic in today's economy.

Getting rid of tenure is still going to be a tough sell. Teachers unions are generally considered among the strongest lobbies in most states, and job protection for their members goes to the heart of their mission.

Johnson, the Harvard professor, says that unions make convenient targets for blame in such matters, noting that even teachers without tenure are rarely dismissed. She has studied some of the few districts where teachers are regularly let go — which are those where joint panels set up by unions and administrators sit together in judgment.

"Principals will say, 'The reason I don't dismiss anyone is because the union will stand in the way,' " Johnson says. "But where teachers are dismissed, it's through a peer review that guarantees due process."

Less Than 1 Percent Fired

Firing teachers is hard. New York, Chicago and Los Angeles have each fired fewer than 1 out of 1,000 of their tenured teachers in recent years. Those numbers are not unusual.

Administrators complain that the process is too draining. Reviews of dismissal cases can take years to make their way through the system, costing tens of thousands of dollars each.

Teachers say that administrators are themselves at fault for performing perfunctory, "drive-by" evaluations. One study of selected districts in four states found that 99 percent of teachers receive "satisfactory" ratings.

Sometimes, bad publicity can curb the worst abuses on either side. The Los Angeles Times found last December that L.A. schools deny tenure to fewer than 2 percent of probationary hires, with evaluations often amounting to nothing more than a single, pre-announced classroom visit lasting 30 minutes or less.

Following the report, Superintendent Ramon C. Cortines pledged greater scrutiny. In February, the district announced it would fire more than 110 nontenured teachers for performance -— three times the annual rate in recent years.

Earlier this month, New York City Mayor Michael Bloomberg and the United Federation of Teachers announced the city would close the district's "rubber rooms," where teachers are paid to sit and do no work, often for years, while awaiting the outcome of dismissal hearings.

Newspaper and magazine articles about the rubber rooms — which Bloomberg labeled "study hall for teachers" — had embarrassed both the city and the union. Now, teachers will be assigned to administrative or nonclassroom duties while cases are pending, with the city hiring more arbitrators to speed up the process.

— Alan Greenblatt

Why Observation Reports Should Not Be Used To Terminate a Tenured Employee by Betsy Combier

re-posted from Parentadvocates.org           

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials


In New York City, teacher tenure is public policy. Tenure gives an employee the right to a due process arbitration hearing on his/her job before anyone can terminate or discipline him/her. A tenured person is not an employee at will, nor is a tenured position protected "for life", as opponents to tenure rights say. Tenured educators get terminated at 3020-a. Alot. Especially if you have a NYSUT Attorney, or a private attorney who does not have extensive experience with the NYC Panel, which is full of bizarre arbitrators and unethical DOE Attorneys.

Just yesterday I was at the 3020-a hearing offices for a new case I was hired to work on, and I wanted to say hello to teacher starting a 3020-a for incompetency who had called me to get some pointers on how to win his case. His NYSUT Attorney, Lori Smith, was sooooo concerned that I might have told him something useful, like about Elentuck v Green, that when she saw me near the room where the Respondent teacher was standing, she immediately went in and closed the door so that I could not say anything to the teacher. So sad. I would like to think that defenders of teachers are all warm and friendly, but unfortunately this is not the case with NYSUT. Lori - there is always the telephone!!!

I believe in tenure rights and that Tenure matters. In all parts of the world right now there are people, good people, who should be in the classroom teaching but are not, because an administrator, parent, child, or other person has lied about the character or job performance of the teacher in order to get the employee fired or removed from his/her job. This is harmful to the children (especially in pre-k to grade 3), who need to know that their teacher is there, ready to be with them all day, every day. Children need to trust this relationship and the person who will replace their parent or guardian. That's why tenure matters.

The first tenure statute in New York state was enacted in 1897 — 70 years before public-sector unions had a right to bargain here — in recognition of society’s deep interest in safeguarding its teachers from unfair firing and political pressure. But current trends in employment in the United States dictate a very different approach to hiring/firing in educational settings. The current trend is to apply a business model of education, where the employer must get rid of 10% of the weakest links in the production line in order to stay viable. This line of reasoning was promoted by GE CEO Jack Welsh, in his book “Winning”:
"To attract the right personnel, Welch instituted a strategy that earned him the moniker "Neutron Jack" and made him a favorite ally of Mike Bloomberg and former Chancellor Joel Klein. Walsh had GE cut all businesses in which the company could not dominate the market in first or second positions. Next, he had managers fire the bottom 10% of GE employees, while he fired the bottom 10% of management. Welch's housecleaning cleared away layers of bureaucracy that had built up at the organization and made way for a quicker flow of ideas."

So, some administrator/CEO, or Human Resources Manager believes an an employee is in the lowest 10% of the workforce, and goes after his/her termination - based on what? Some kind of data? What kind? How does the manager know that the employee is in the lowest 10%? This is the key problem with current human resources policy and procedure for any Department employee. The Department decides that someone is no good based upon whether or not he/she is a snooper, saw some AP or principal taking money that wasn't theirs, saw an administrator hurting a child, reported the administrator for not having service providers for special education children, etc. Rarely is anyone's career destroyed for a valid reason. Getting removed from your job does not have anything to do with your actual performance in the classroom. Trust me on this, I've tried my best to research every case in 3020a or the Courts since 2000.

I see harm in this approach because under the umbrella of getting rid of 10% of the workforce, every employee fears for his/her job on a daily basis, thinking that he/she will "be next". Mayor Mike Bloomberg believed in this and tried to implement this management strategy in 3020-a proceedings, and that is where we are at now. I believe that fear should not be used in any workplace to keep employees in line and under control. Vigilance, yes. Fear, no.

The New York City Department of Education has given administrators the right to go after anyone who they feel is subpar, or slows down the assembly line of the widgets' education. (students = products). This approach lends itself to a generalized feeling by teachers that they cannot be creative. Teachers are mindful that they have limited time to get the curriculum done and learned, and if they don't do this, their jobs will be terminated. But many education scholars urge educators to be creative.

The New York City gives educators no room for individual initiative, and this is a key problem. All educators feel that their expertise is not respected, and are further insulted by observers who know less than they do, or nothing at all about the subjects taught, and yet write/say that the pedagogy is terrible. What an insult to an educator, especially one who is tenured and has spent more than 10 years successfully doing the job?

Bloomberg was frustratingly blocked from his goal of getting any and all teachers, Guidance Counselors and school staff considered subpar for any reason by a member of the administration, out of his/her job. However, the general public and certainly those who work on 3020-a arbitration hearing have, over the past few years, become concerned that the pendulum has begun to swing in the direction of the Department in their effort to get teachers out of their schools and their jobs despite public policy and the mandate of tenure law to have a fair hearing and make sure the charged employee has due process. 

These proceedings are controlled by Education Law3020-a, and employees charged under this law must be given a full hearing if requested, so arbitrators must - at least are supposed to -seek the facts in a case, not simply the opinions of the administrators, in order to honor and protect tenure rights of the accused. But arbitrators on the NYC Panel often do not listen to the facts, and terminate because an administrator looks good and talks well. If the DOE witness is credible, and the charged employee does not use the arguments cited in this post, does not testify, or  does not present wrong-doing by the DOE witnesses, there is a good chance that termination will be the decision. The DOE gives their witnesses a script to testify to, and some witnesses are very good at testifying to the script, and others are not so good. A good defense team for the charged employee can win nonetheless, with a good argument and/or facts to prove the DOE witnesses lied.

A decision at employment arbitration must not rest on malicious prosecution alone. But the NYC Department of Education would like you to think that observations, which are subjective nonfinal opinions, can, indeed, be the sole basis for removing an employee from his/her job due to the nebulous concept known as "incompetence". How does an observation prove incompetence? Sorry, it doesn't work for me. I don't get it. If a principal, assistant principal, peer validator, Field Supervisor has the job of finding you, a teacher, incompetent or abusive to children, their perception of everything and anything that you do is bad, "proof" of wrong-doing/ineffective pedagogy, or whatever they need to bolster their pre-determined decision to get you removed from the school or your job, permanently.

But there is nothing objective about a perception. What you see is filtered through your opinion of someone. If you do not like someone, or you are told horrible things about a person before you meet him/her, and your opinion is clouded by this information, whether or not you are aware of it. This is called Implicit Bias, and I have posted articles about this phenomenon:

Implicit Bias. Everyone Has It

An observation by an administrator is supposed to be a helpful part of the evaluation of a teacher's performance and intervention and remediation should not come as an afterthought. From a historical perspective, teachers/administrators have helped teachers before anyone asked them. It was called collegial support and camaraderie. Today, the buzzwords are different, and classrooms are hostile arenas filled with misinformation from administrators of pedagogical errors and with hidden agendas from administration, peers, and parents.

Elentuck v Green

Even the most elaborate procedural safeguards in a statutory or contractual disciplinary system are useless if a teacher's conduct is measured against subjective standards, as done in an observation.

Thus, observations are meaningless for purposes of discipline. Any observation report basically informs an arbitrator of nothing except that an administrator/evaluator liked/did not like what he/she saw. If there is any bad faith then the subjective views must be discarded as invalid. What a person, let's say a principal, filled with malice "sees" can be far different from the reality of what the student or teacher is actually doing.

Facts matter, and according to the kings County Supreme Court and the Second Department Appellate Division, there are no facts or statistical data in observations, only nonfinal opinions. (See Elentuck v Green, 202 A.D.2d 425; 608 N.Y.S.2d 701; 1994 N.Y. App. Div. LEXIS 1956, 1994)

Observation reports are not public or business records and cannot be the sole evidence used to support any penalty at an employment arbitration hearing dealing with incompetency. I have written about this and my team uses this at all of our incompetency hearings. Opinions of a person whose goal is to get an employee terminated cannot be validated without student outcomes, results, data. A claim of “incompetency” must have supporting information that proves students in Respondent’s class did not learn what they were supposed to learn.

Yet in NYC, the Department of Education attorneys ignore this, and state that any student outcomes are "irrelevant". The only information an arbitrator needs, these attorneys say, is what they see in the observation, and whether or not the teacher had a good lesson plan (or a Guidance Counselor wrote a timely assessment of the child(ren)).

Any school administrator who sees that an employee is, according to what they "see", subpar, is given the right to create whatever papers they need to terminate this employee. It's a simple straight line: you don't like an employee and believe this employee to be a nuisance, so you use observations to create a paper trail and get the employee terminated. What is so frightening is that no one holds the administrators accountable for making up "fake news", and the UFT/NYSUT does not stop this from occurring, either.. In fact, the rubber rooms were invented to keep those "subpar" employees out of their schools so that the administration and the Department's legal services could create the necessary paperwork to "prove" that the employee is guilty of incompetent service. In this scenario the employee is guilty and must prove his/her innocence - exactly the opposite of the law and due process.This is not tenure support, folks, this is employment at will.

The opinions of an administrator who wants the Respondent removed from the school cannot be the only determining factor in any termination hearing nor in handing down penalty. As Arbitrator Joel Douglas wrote in Matter of Great Neck U.F.S.D. v M.H. (SED #5,043, July 20, 2008, Hearing Officer Joel Douglas):

“The record demonstrates that for a teacher to be charged with incompetence, and for the Specifications to be sustained, the teacher must fall below the minimum level of the competency expected of a reasonable teacher…That the Respondent did not live up to (her Supervisor’s] expectations does not de facto establish a degree of incompetency…."

Arbitrators must not decide 3020-a cases only on hearsay, either. N.Y.C.
Arbitrator Josh Javits ruled in a decision
“It would be unacceptable to accept the hearsay evidence of an individual as conclusive proof of an allegation over the live testimony of a teacher with fourteen (14) years of teaching. The Respondent has the right to confront and challenge the testimony of her accuser, and to have the accuser’s credibility tested. Absent this right, the Hearing Officer cannot accept that hearsay evidence alone satisfies the Department’s burden of proof with respect to this issue.”

In DOE v. Rykman, SED File No. 17,731 (Bluth, 2012), at 49, Arbitrator Bluth wrote:
“It is well established that a disciplinary charge pursuant to Education Law 3020-a cannot be sustained when the only evidence to support a charge is uncorroborated hearsay.”

Certainly any of the phrases such as "failures in the nature of incompetent and inefficient service, neglect of duty, unwillingness and/or inability to follow procedures and carry out normal duties, and engaging in misconduct" do not define the word "incompetency" itself, although some forms of "misconduct", "unwillingness", "insubordination", etc., can be classified into categories of "unprofessional" or "improper" behavior within a properly made argument and context.

The above cited vague definitions used to clarify standards of conduct have been applied to other vague concepts such as maintaining "professionalism", and providing an "environment conducive to student learning". These subjective-relative ideas have no standard upon which to rely, leaving a void as to what penalty, if any, should be given which would be "adequate" under the circumstances presented.

Elentuck makes clear that that lesson observations are not “statistical or factual tabulations of data".
Significantly, if material such as lesson observations is non-factual, as Elentuck specifically held, observations are of little value to a 3020-a hearing on incompetency.

Observations are solely subjective and must be considered as such at 3020-a hearings. These reports are not proof of anything.

Why Tenure Matters
Teacher tenure is under attack in New York state and nationwide. In July 2014, two lawsuits were filed — Davids v. New York and Wright v. New York — that claim New York's tenure laws deprive students of their right to a sound basic education. The lawsuits specifically attack the tenure process, the use of seniority in layoffs, and the three-year probationary period for new teachers, which they claim is too short. Former news anchor Campbell Brown, fronting for a shadowy group calling itself the Partnership for Educational Justice, is bankrolling the Wright case. Brown, who won’t disclose her financial backers, makes the unsupported claim that tenure is responsible for low student achievement.
The New York state lawsuits were filed after a lower-court ruling in the case of Vergara v. California gutted that state’s tenure laws. NYSUT attorneys believe the California ruling will be overturned on appeal — but meanwhile it has emboldened copycat suits across the country. Bankrolled by the wealthy elite and anti-union forces, these attacks represent an all-out assault on the fundamental labor rights of working people.

NYSUT is mounting an aggressive and vigorous defense of tenure both in the courts and the court of public opinion.

What’s really important

New York state is widely recognized for its exemplary teaching force and has earned high marks for its rigorous standards and credentialing requirements — typically ranking among the nation’s top ten. Tenure is just one of the safeguards New York state has put in place to ensure every student has an effective teacher. A teacher must earn tenure after three years or more of effective teaching, oversight and evaluation. A teacher then is entitled to a fair hearing before being fired — a basic due process right. Focusing on a due process right that is used by a very few is a distraction from what must be our main priority: ensuring every child has an effective teacher. We need to focus on what helps students the most: recruiting and retaining quality teachers and providing the resources to help every child succeed.

Three key points about tenure

New York state’s rigorous teaching standards provide many safeguards that ensure children have good teachers. Tenure is one of them.

Tenure is a safeguard that ensures good teachers can speak up for what students need.
Tenure is a safeguard that protects good teachers from unfair firing — a basic due process right.
Tenure is working in New York state. The process has been reformed to be faster and more cost efficient, with most cases now resolved within five months. Meanwhile, New York state’s many safeguards for teacher quality ensure that its teaching force is among the best credentialed, most effective in the nation.
Tenure is a safeguard that ensures good teachers can speak up for their students.

Tenure helps safeguard children's right to an effective education because it provides teachers freedom to advocate for their students without fear of reprisal. Because tenure exists, teachers in New York state can speak out freely on issues such as over-testing, cuts in academic programs, elimination of art, music and language and inappropriate placements for students with disabilities.
Without tenure, working under the constant threat of arbitrary firing would have a chilling effect on a teacher’s professional judgment and create an environment that would erode, not enhance, educational quality.
There is no evidence that teachers’ employment rights have anything to do with student achievement. Teachers in the wealthiest districts have the identical due process and seniority rights as teachers in the poorest districts — yet students in wealthy districts have much higher graduation and college acceptance rates. The real factor contributing to these differences in achievement is poverty.
Students in our poorer districts have the greatest educational needs but are given the least resources, with our richest districts spending 180 percent as much on education as our poorer districts do.
Tenure is essential in empowering teachers to make the case that all students deserve an effective education — not just those who happen to be the children of hedge-fund millionaires. Attacking tenure, and seeking to make teachers vulnerable to being fired at will is a smokescreen for failing to tackle the real reason why students struggle: poverty.
Blaming tenure for low student performance is as illogical as it is inflammatory.
Student safety is paramount and it is safeguarded under the state’s tenure laws. Teacher-supported changes to the law in 2008 mean that any teacher, tenured or not, will automatically lose both job and teaching license if guilty of certain sexual offenses — without recourse to a hearing.
Blaming low-student achievement on teacher tenure —a meritless claim not supported by any evidence — is like blaming the due process granted to police officers for crime or blaming the due process granted to firefighters for fire.
If the wealthy elite truly cared about advancing student achievement they would partner with parents and teachers to achieve state budgets that provide equitable funding for all schools. They would oppose the state's tax cap, which worsens constraints on local communities. Instead, the wealthy elite and corporate forces are missing-in-action in these critically important battles. Teachers and parents stand together in calling for a renewed focus on learning and for the resources our students need to be prepared for college and career.
Tenure is a safeguard that protects good teachers from unfair firing — a basic due process right

Though it's been on the books for more than a century, New York state's tenure laws remain wildly misunderstood. Tenure, simply put, is a safeguard that protects good teachers from unfair firing. Once a teacher is granted tenure — a right that must be earned after three years or more of service, oversight and evaluation — a teacher cannot be fired without a fair hearing. Tenure does not mean a job for life. It means simply that a teacher has the right to a fair hearing on charges that could end a career. This is fundamental due process — an American value enshrined in our Bill of Rights and one that is not reserved only for the wealthy elite.
Tenure must be earned. It is not automatic. During a teacher’s three-year probation, school officials carefully evaluate that teacher's job performance. Upon completion of that evaluation, the local school board then votes whether to grant tenure — which simply means the teacher cannot be fired without a fair hearing.
Tenure is a safeguard that protects teachers’ civil rights. Tenure ensures good teachers cannot be fired for reasons of race, gender, age, religion, handicapping condition or sexual orientation. It ensures that good teachers cannot be fired because of cronyism or local politics. It ensures they cannot be fired for pregnancy. Before tenure was in place, teachers could — and did — lose their jobs for arbitrary and politically motivated reasons, or for no reason at all.
Seniority rights, which like tenure are a fundamental employment right, ensure that when layoffs are unavoidable, they are conducted fairly and objectively. A system based on seniority guards against abuses by those who would use ‘layoffs’ as another way to fire those who advocate too fiercely for their students or are at the top of the pay scale.
The obscene, profit-motivated attacks on the rights of working people in places like California and New York are why America no longer has the world's largest middle class. Fundamental rights for workers are essential to a decent standard of living in New York state. And fundamental rights for teachers are essential to fairness and defending what students need.