Join the GOOGLE +Rubber Room Community

Monday, April 27, 2009

The Bronx Early College Academy Site Rally

For Parent/Family Rights in Public School Education


DATE: Friday, May 1, 2009
TIME: 2:00 PM
PLACE: City Hall Park (Fountain South)

As B.E.C.A. strives to achieve success in higher education as part of the Early College Initiative program at CUNY, Lehman College, we have been faced with the challenge of misleading conduct throughout the site process by the Department of Education. As a result, B.E.C.A. is being relocated to a site that does not meet the requirements for the overall success of our children’s educational future.

Bronx Early College Academy (MS 324) Mission Statement

“Preparing ALL students for college success”

The mission of Bronx Early College Academy is to prepare ALL students to be successful college graduates who positively impact their local and global communities. BECA is a collaborative learning community highlighting academic rigor and challenging enrichment programming. Our college partnership with Lehman College equips students with the tools and skills necessary for them to work towards earning up to TWO years of college credits.

We are thankful for your support in this initiative for our students to successfully achieve our mission in the Early College Initiative Program.

* For additional information, please contact Ibrahim Bah at (646) 228-1025 or
Annabelle Wright at (917) 496-3757

Press Release
April 24, 2009
NYC School Affected By the D.O.E.’s Poor Planning And Misleading Conduct
Parents Of Students At The Bronx Early College Academy Rejects “Proposed” Future Site

Funded by the Gates’ Foundation, The Bronx Early College Academy (BECA.), an Early College Initiative school partnered with the City University of New York, Lehman College began operations in September, 2006. Prior to the school opening, parents were promised that BECA would be situated at a temporary site in the Riverdale community for the 1st year and then moved to a permanent site on or close to Lehman College. In July 2008, prior to the school’s 3rd year at the temporary site, the Department of Education established an in-school site committee to include parents in the site evaluation process. With a site process marked with ongoing misleading communication to parents, a site decision was made without inclusion of the in-school site committee that may adversely impact the ultimate success of BECA as part of the Early College Initiative program.
At the presentation at Lehman College, held the summer of 2006, parents were promised that BECA would be situated in a temporary site in the Riverdale community for one year, after which a permanent site to house the school growing one grade each year until it reaches grade 12, would be located on or close to partner college, Lehman.
After the first year at Riverdale and the first Principal change, when parents asked CUNY representative Ms. Cass Conrad where the school will be moved, they were told that the plan was to stay in the current location for one more year 2007/2008 school year before a permanent site is found. Parents accepted this new change and with the arrival of a new principal, Ms. Sharon Freedman for the 2007/2008 school year hoped that things will move towards the right direction. She was unable to steer the program in the right direction and after an outcry from parents was replaced in June, 2008.
During the summer of 2008, Parents’ received a letter from the Department of Education’s Office of Portfolio Development dated June 24, 2008 stating that ‘due to space requirements of housing a 6 – 12 in one facility, it is unlikely that a permanent site will be found at this point. As a result the committee needs to review other options. Some of these options could mean that BECA will not grow to include a 9th grade in the 2008/2009 school year.
This led to parents’ outcry that brought the Office of Portfolio Development, CUNY and Parents to the table and the beginning of the site committee meetings to find a permanent site for BECA in July 2008. Parents were promised that they will be involved when the list of available sites is finalized and all options will be presented to the committee before a final decision is made.
On March 14, 2009, the Office of Portfolio Development arranged a walkthrough of the “proposed” future site for BECA at 250 E 164 Street. At this time, the DOE representative Ms. Natasha Howard revealed to parents for that this was the permanent location for BECA.
Parents are outraged that the DOE did not involve them as promised in the final decision making. The major concerns are:
1. Overall impact to the success of BECA as an Early College Initiative School

2. Loss of critical instructional time that will be used for traveling to and from Lehman
3. Limited and reduced access to valuable Lehman College resources
4. Impact to parent/student partnership with CUNY/Lehman College
5. Shared site with 5 schools, including a failing school and suspension site
6. Safety of our children in the neighborhood of the site
As part of the Early College Initiative program to foster collaboration, parents and families are included in school decision making. The Department of Education has not respected the parents and families of B.E.C.A. by not including us in this critical decision.
The program and mission of the school cannot be compromised by the poor planning and misleading conduct of the DOE.
Parents, families and supporters of BECA’s mission and parents’ rights in education are coming together to rally the rejection of the site and the decision process taken by the Department of Education’s Portfolio Development Office.
The rally will be held at the City Hall Park on May 1st at 2:00pm. Please join us in support of this initiative. Together, we can make a difference.
For additional information, please contact Ibrahim Bah at 646-228-1025 or Annabelle Wright at 917-496-3757

Mission of the Bronx Early College Academy (MS 324)
“Preparing ALL students for college success”
The mission of Bronx Early College Academy is to prepare ALL students to be successful college graduates who positively impact their local and global communities. BECA is a collaborative learning community highlighting academic rigor and challenging enrichment programming. Our college partnership with CUNY equips students with the tools and skills necessary for them to work towards earning up to TWO years of college credits.

Sunday, April 26, 2009

The Secret Bloomberg Administration

Mayor Bloomberg, with City Council's Christine Quinn standing behind him

I wonder why citizens of New York want a Mayor that closes the door to public scrutiny of all policy determinations. Bloomberg's disdain for accountability is obvious to anyone who has tried to obtain information about him, and/or his staff pursuant to the freedom of information law.

If you read the new website of the Committee on Open Government, you will read about the many violations of FOIA and FOIL by both Mayor Bloomberg and Mr. Joel Klein. More about Mr. Klein's violations in a later article. So let's go now to the New York Times' requests for information on Mayor Bloomberg's successful campaign to get himself into a third term as Mayor, as you can see in the Times' article posted below.

By the way, I have heard that any New York City Council member who can win a third term on the Council gets free health insurance paid by the New York City taxpayer for the rest of his/her natural life. This is good to know, isnt it?

Wake up, New York.

Betsy Combier

April 25, 2009
E-Mail Sheds Little Light on Term Limits Campaign in City Hall

“Many thanks.”

In the middle of the pitched battle over Mayor Michael R. Bloomberg’s plan to re-engineer the city’s term-limits laws, those are the only two words that the first deputy mayor, Patricia E. Harris, (pictured below with Mayor Bloomberg) wrote about the topic.

Or at least those are the only two words that City Hall will allow the public to see.

On Friday, six months after The New York Times requested copies of all e-mail messages about term limits sent or received by six top aides to the mayor under the Freedom of Information Act, the Bloomberg administration released 66 pages of correspondence.

Much of what the city released amounted to fan mail for the mayor, from businesspeople, friends of his aides or ordinary citizens.

“My husband and I fully support your bid for a third term,” a husband and wife wrote the mayor. Their names were withheld.

In an e-mail message to the mayor, Edward B. Ryder IV, from Farmington, N.Y., wrote a ringing endorsement of the third-term plan. “If there was a case to be made for lifting term limits, I’m sure you will make it and make it well,” he wrote.

The Times sought e-mail messages written or received by Mr. Bloomberg; Ms. Harris; Edward Skyler, deputy mayor for operations; Kevin Sheekey, deputy mayor for intergovernmental affairs (pictured below); Stu Loeser, the mayor’s press secretary; and James Anderson, communications director.

The administration did not release any e-mail messages written by Mr. Bloomberg, Mr. Skyler (pictured below)or Mr. Anderson.

The mayor’s office released 17 e-mail messages that encouraged him to change the law and seek a third term, and four others opposing the move. The remainder consisted of press releases, poll results and inquiries about Mr. Sheekey’s young twins. None of the messages reflected discussions of strategy, support-building or organizing the broader campaign around the issue, which consumed the administration for months in the second half of 2008.

In a letter to The Times, a lawyer for the mayor, Anthony W. Crowell, said the administration was withholding other correspondence because it falls under an exemption for “interagency or intra-agency” materials.

Gene Russianoff, (pictured at right) a senior lawyer at the New York Public Interest Research Group, which also sought the records, said that the city’s release of the e-mail messages “can’t be the full story.”

“It sounds like a very selective release of memos and that support for term limits was spontaneous combustion,” Mr. Russianoff said. “It’s hard to believe this was conceived by spontaneous combustion. People on the scene felt like it was well orchestrated. But you can’t orchestrate without an orchestra.”

A spokesman for the mayor, Jason Post, said on Friday afternoon, “We released all the e-mails that were subject to disclosure.” He noted that Mr. Bloomberg did not personally respond to many of the e-mail messages on term limits.

Even those e-mail messages that offer a window into City Hall’s thinking about term limits are long on logistics and short on substance.

An e-mail message to Mr. Sheekey from an official at 32BJ, a union representing custodial workers in the city, bears the subject line “Term Limits.”

The union official wrote: “Are you back in the U.S.A. for good? Want to talk on this A.S.A.P.” Mr. Sheekey responded: “Just back this a.m. Let me know where/when to call you.”

And even while citing the exemption for correspondence between agencies in City Hall as a reason for not disclosing other messages, the administration nevertheless included one e-mail message from Mr. Loeser, sent on Oct. 3, 2008, in which he forwards the result of a poll to his City Hall colleagues, including Ms. Harris, Mr. Sheekey and Mr. Anderson. The poll found that most New Yorkers backed the idea of a third term for Mr. Bloomberg.

Mr. Post said that because the e-mail message contained “final statistical tabulations,” the city determined it should be disclosed.

Still, the documents do provide a glimpse of the ego-stroking and subtle hierarchies that govern the political world.

When writing last October to Patrick Gaspard, (picture at right) a Barack Obama campaign aide who is now deputy political director at the White House, Mr. Sheekey urged him: “Focus on winning the national election. If you can take some time out from the transition, find some time for me.”

Then Mr. Sheekey quoted the character Leo McGarry, the White House chief of staff on the television series “The West Wing.” (Picture at left is actor John Spencer as Leo McGarry).

“We have the ability to affect more change in a day at the White House than we will have in a lifetime once we walk out these doors. What do we want to do with them?”

Mayor Bloomberg's e-mail stormed by New York voters - pro and con - after OK'd 3-term bid
Saturday, April 25th 2009, 1:09 AM

3rd time's the charm

How do you feel about Mayor Bloomberg running for a 3rd term?

Great - He's doing the best he can - all he needs is another chance.

Disappointed - I've lost hope in him - we need a new mayor.

Angry - I belive in term limits - you should only get two terms.

Mayor Bloomberg got an earful from New Yorkers last fall when he tossed term limits so he could run for reelection, according to e-mails released Friday by City Hall.

"This is a sad day for New York City. How dare you?" wrote one disgruntled citizen to Bloomberg the day after City Council voted to make the change in October.

Another urged him not to run for mayor again because "fatigue can set in," while a third wrote, "The way this is being handled is hurting you - it really is."

Others were more encouraging.

"We are thrilled to hear the news about the third run. THANK GOD," Mara Manus of the Film Society of Lincoln Center e-mailed the mayor.

"We only regret you didn't run for President," an enthusiast e-mailed after urging him to seek a third term.

The exchanges between City Hall and outsiders suggest Bloomberg was trying to line up labor support days before the Council voted on the controversial measure.

Deputy Mayor Kevin Sheekey was arranging meetings in early October to discuss the term limits debate with Stuart Applebaum of the Retail, Wholesale and Department Store Union (at right) and Peter Colavito of SEIU 32BJ, records show.

"Want to talk on this ASAP," Colavito wrote.

Sheekey also appeared to discuss the issue with President Obama's political director, Patrick Gaspard, who wrote on Oct. 21 he "wanted to talk term limits."

Gaspard was previously an operative at SEIU 1199, which opposed term limits. Bloomberg is now courting the union for a reelection endorsement.

The Council narrowly voted to extend term limits for itself and citywide elected posts on Oct. 23 despite opposition from good-government groups and several politicians.

Bloomberg received support from Intrepid Sea-Air-Space Museum chief Bill White, who ended his e-mail with, "Hope to see you at the Intrepid for the Grand Reopening."

Adrian Flannelly, chairman of Irish Radio Networks, wrote after the vote, "Congratulations. We look forward to your leadership of New York City for the next five years."

The e-mails were provided to the Daily News through a Freedom of Information request, though the names of most e-mail senders were redacted.

Saturday, April 18, 2009

The Education Equality Project Statement on Teacher Quality

Joel Klein and Al Sharpton have joined together to reduce the achievement gap between children of different racial/academic/social categories.

My thoughts: we, the public, will soon start hearing about the huge success of this new collaboration, and the statistics issued will be wildly accepted by the elite of the education-political-complex.

Education Equality Project |895 Broadway, 5th floor, NY, NY 10003 | 212.253.2021 |


No reform is more critical to closing the nation’s shameful achievement gap than boosting the quality of teachers in high‐poverty schools. Absent a large influx of better teachers for low‐income minority students, every programmatic initiative to close the achievement gap will ultimately fall short. As President Obama has
suggested, great teachers in inner‐city schools are the unsung heroes of education reform. “The single most important factor in determining [student] achievement is not the color of their skin or where they come from,’’ says President Obama. “It’s not who their parents are or how much money they have—it’s who their teacher is.”

Without “the right people standing in front of the classroom,” the Hamilton Project at the Brookings Institution concludes, “school reform is a futile exercise.”
Low‐income minority students, who already struggle with the burdens of poverty and the vestiges of discrimination, should, by all rights, be taught by the nation’s most effective teachers. But in a travesty of the American creed of equal educational opportunity, access to the best teachers is now more a matter of zip

code than need. Stanford professor Linda Darling‐Hammond summed up this unjust distribution of teaching talent by noting that “analysts consistently find that the most inequitably distributed resource—and the one most predictive of student achievement—is the quality of teachers. Many schools serving the most vulnerable students have been staffed by a steady parade of untrained, inexperienced, and temporary teachers, and studies show that these teachers’ lack of training and experience significantly accounts for students’ higher failure rates on high‐stakes tests.” The next wave of school reform, as the New York Times put it in a recent editorial, must “end the odious practice of dumping the least qualified teachers into the neediest schools.”

How wide is the teacher effectiveness gap in high‐poverty schools? A recent study in Los Angeles of 9,400 math classrooms in grades 3‐5 found that students in the district’s poorest schools were nearly three times as likely to have teachers from the bottom quarter of teachers (measured by teacher effectiveness in raising math achievement) than students in the district’s most affluent schools. At the same time, the Los Angeles study shows that effective teachers have a profound impact on student learning. On average, students assigned a teacher in the top quartile increased their math achievement scores 10 percentile points more than students who had a teacher in the bottom quartile—a huge one‐year gain.

In practical terms, that suggests that if low‐income minority students could be assured of having teachers who fell in the top 25 percent of effective teachers four years in a row in lieu of a sub‐par instructor, the students could effectively eliminate the achievement gap altogether. No single reform‐‐ inside or outside of school‐‐comes close to having such a profound impact on the achievement gap.

Creating a new generation of more effective teachers for disadvantaged students is similar to the human capital challenge faced by any organization: How to identify, attract, develop, and retain the talent that best accomplishes its mission. In the case of schools, that mission is to elevate student achievement. Yet the shortage of topnotch teachers in inner‐city schools today stems less from the poor choices of teachers or any personal shortcomings than from a system for cultivating teaching talent that regularly fails both teachers and students.

The syllogism is painfully straightforward: If the business of schools is boosting student learning, and if effective teaching is the most powerful means to that end, educators need to make profound changes to the five links of the human capital chain to maximize the productivity of instructors. Just like skilled managers in any sector, reform‐minded lawmakers and policymakers should be looking to:

1) Recruit the best possible candidates for teaching jobs;
2) Give aspiring and veteran teachers the right incentives and training to perform
well in the classroom;
3) Evaluate teacher performance fairly but rigorously;
4) Dismiss incompetent instructors after they have had an opportunity to improve their performance; and
5) Place the best teachers where they are needed most.

Unfortunately, the nation’s current system for recruiting, developing, and maintaining effective teachers fails all five steps of a sensible human capital program. In fact, the current K‐12 system has erected institutional and contractual bulwarks, vigorously defended, to protect the very practices most in need of change.

Despite a universal consensus among researchers that teacher effectiveness is by far the most important variable in raising student achievement‐‐especially for disadvantaged students‐‐serious efforts to address the teacher quality gap almost invariably fail. From the moment a prospective teacher enters a teachers college to the day of his/her retirement party, a teacher’s ability to elevate student learning is poorly assessed (if at all), and virtually never linked to consequences—either positive, as in the case of awarding merit pay, or negative, like being dismissed for poor performance.

Aspiring teachers in both traditional education schools and alternative certification programs have little or no classroom experience working with great teachers of disadvantaged students. And during the first three years of their careers, when teachers are typically on probationary status working toward tenure, a teacher’s impact on student achievement is rarely evaluated well. A 2009 report from the National Council on Teacher Quality reports that “only two states require any evidence of teacher effectiveness to be considered as part of tenure decisions. All other states permit districts to award tenure virtually automatically.” Since 2006, two of the nation’s most populous states‐‐California and New York, home to more than 600,000 teachers‐‐have even enacted laws that effectively bar school administrators from considering a teacher’s impact on student performance in teacher pay and tenure decisions.

Once teachers receive tenure, they are typically blocked from earning merit pay and bonuses by demonstrating a proficiency at boosting student learning. Under the single‐pay salary schedule, teachers with equivalent years of experience and educational attainment receive the same salary, irrespective of how much their students are actually learning or whether they teach in underserved schools. This uniform salary
schedule, with all of its perverse incentives, was conceived almost a century ago, when schools were thought of as factories where teachers played the role of interchangeable assembly line workers. But in the 21st century, teachers are long overdue to join the ranks of other white‐collar professionals, whose remuneration is based chiefly on job performance.

Compounding the dearth of performance incentives, a small minority of tenured teachers who are incompetent continue to teach for years on end in inner‐city schools‐‐no matter how poorly they serve their students. A study by The New Teacher Project (TNTP) of five big‐city school districts with nearly 75,000 tenured teachers found a grand total of four teachers who were formally terminated the previous year for poor performance. The TNTP data suggest that a tenured teacher’s odds of being formally terminated in a given year for incompetence are about 1 in 18,500. Over the course of a lifetime, a teacher has a greater chance than that of being struck by lightning.

School administrators and lawmakers have attempted to raise the quality of the teaching force but with little success. For the most part, educators have sought to raise barriers to entry into the teaching profession‐‐ employing educational credentials, licensure, and certification as proxies for teacher quality. The No Child Left Behind Act, for example, requires teachers in core academic subjects to be “highly qualified,” as evidenced by a bachelor’s degree, full state licensure and certification, and demonstrated subject‐area competence on tests (or by having completed academic coursework). Yet research has consistently found that education
credentials, licensing, advanced degrees, and both traditional and alternative certification all have little predictive value when it comes to the development of effective teachers. Educators, in short, have fallen prey to pushing new “inputs” as the solution to the teacher quality problem (like revised curriculum or training) but
lost sight of the importance of maximizing teacher “outputs”—namely, the impact of teachers on student achievement.

In stark contrast, the impact of teachers on student performance during the first three years in the classroom is a potent predictor of whether teachers go on to become great instructors or weak ones. Building a new and radically different system to track, evaluate, and reward teachers based on their impact on student achievement after they start work in the classroom could dramatically improve the quality of the teaching force.


The Education Equality Project believes that the current system for recruiting, rewarding, and retaining teachers must be turned on its head. In place of the hidebound system that now restricts entry into the teaching profession, fails to reward merit, and protects failing teachers from dismissal, teachers should be
rewarded on the basis of their performance in the classroom—that is, on how well they fulfill their central mission of elevating student learning. Transforming the teaching profession into a merit‐based system is a simple, even obvious first step toward solving the problem of educational inequality in America. Yet a
progress‐based system has powerful foes in education schools, teachers unions, and district bureaucracies.

To make teaching a merit‐based profession, the Education Equality Project supports far‐reaching reforms at every stage of a teacher’s career‐‐from the start of his or her training through induction, tenure, and the awarding of salary hikes. The ultimate goal of transforming the teaching profession is that every classroom will one day be led by an effective instructor, who advances student learning. As the education historian Diane Ravitch has written, “The quality of teachers in the nation’s schools matters very much. For some children, the quality of their teacher is the difference between success and failure. A nation with a goal of ‘no child left behind’ will have to find effective strategies to ensure that every child has good teachers and that every teacher has working conditions in which to do his or her job well.”

None of this is to suggest that teachers are to “blame,” or that improving the professional environment in which teachers work is not a critically important goal as well, as Ravitch notes. It is both fair and sound practice to give teachers every opportunity to be successful with adequate resources and training targeted to
their accountability for elevating student performance. Until, however, lawmakers and educators are serious about taking every step possible to identify, develop, and rigorously evaluate teachers for their impact on student learning, our national aspirations for educational excellence and equity will remain unmet.

Toward this end, EEP supports seven policy initiatives—call them the Seven Habits for Highly Effective Teachers—most of which are already being piloted in a variety of programs and school districts:
1) Cast a wider net for prospective teachers by lowering the entry barriers to the teaching profession. At the same time, teacher colleges, alternative certification programs, and districts should redouble efforts to develop more effective human capital strategies for recruiting and selecting promising teachers.
Despite a looming teacher shortage, prospective teachers who are recent college graduates or professionals looking for a mid‐career switch are often discouraged from becoming teachers by requirements for certification and master degrees. Advanced degrees and certification are not linked to producing effective teachers, and traditional schools of education typically attract college students with low GPA’s from less competitive institutions. By contrast, Teach for America, and the Baltimore
and New York City Teaching Fellows programs have shown that alternative recruitment and certification programs can successfully attract high‐caliber teaching candidates. In fact, TFA teachers are at least as effective at raising academic achievement as their peers. Meanwhile, other alternative certification programs, like the defense department’s Troops to Teachers initiative, are also demonstrating that mid‐career and retiring professionals could provide a rich source of new teaching talent, particularly in high‐need subject areas in inner‐city schools, such as math and science.

While preparation and training at teacher colleges and alternative certification programs generally do a poor job of preparing graduates to teach in high‐poverty schools, the shortcomings of the current system do not mean that educators should abandon efforts to find a better way to identify and train promising instructors. Programs like Teach for America are working hard to define teacher attributes
that help predict student achievement gains. The EEP supports continued research designed to identify the background, personal characteristics and pathways to the teaching profession that are linked to better student learning. In addition, the EEP supports funding for research and assessments that can lead to better education and training of novice teachers‐‐and it applauds pioneering schools of education that are rethinking their curriculum, with the intent to boost teacher effectiveness.

2) The federal government should require states and districts to develop
longitudinal data systems that would allow school administrators and principals to use value‐added data to measure and track the impact teachers have on student achievement. To move toward a performance‐based system for teachers, school districts will need to have information that tracks the effect that individual teachers
are having on student performance from year‐to‐year for a number of years. Performance‐based metrics must not only be fair but transparent. To achieve both aims, a value‐added model must isolate “teacher effects” by holding constant an array of variables outside of a teacher’s control, such as the starting achievement level and specialized needs (e.g., English Language Learner or special education status) of his or her students, and the educator’s years of experience. Unfortunately, only a relatively small number of states and districts have developed data bases that allow the creation of a model that enables school officials to track the performance of individual teachers and students over a multiyear period.

Tennessee has pioneered the use of value‐added analysis of teacher effectiveness, and several states and numerous districts have followed suit. The federal government also provides modest funding for states to develop teacher quality metrics in high‐needs schools through programs like the Teacher Incentive Fund. But the federal government can do much more to support the development of longitudinal, value‐added data systems. It could, for example, reposition much of the Title I funding for
disadvantaged students to Title II, the teacher quality section of the Elementary and Secondary School Act. States and districts need far more robust data systems than they have today to make value‐added analysis a reality, and urban districts especially need to move aggressively to implement and fine‐tune value‐added analyses of teacher performance during the next decade.

To be sure, value added analysis is still a work in progress and methodological challenges remain. Yet for all its imperfections, value added analysis is still a vast improvement on the existing system, which fails in its elemental duty to use the one measuring stick that really matters: Compared to other educators with similar students and facing similar challenges, how well are a given teacher’s students actually acquiring the knowledge and skills they need to succeed in life? While psychometricians debate the finer points of the value‐added model, it is now clear that, at minimum, it is a fair and responsible way to identify instructors at either end of the competence bell curve.

Given the poor job existing evaluations systems do to reward teaching excellence and redress clear incompetence, failing to develop and use value‐added methodology as one important indicator of effectiveness is unjustifiable.

3) States and districts should be encouraged and free to use a variety of outcome‐based measures to evaluate teacher effectiveness. Yet any system that states devise to evaluate teacher performance should include student test scores as a key measuring stick‐‐and should not succumb to the temptation to substitute input‐based measures to gauge teacher effectiveness (like licensure status and education
credentials). While student test scores over a multiyear period should figure prominently in valueadded assessments of teacher performance, it is neither desirable nor practical to use them as the only metric of effectiveness. At present, there is no single consensus about the best system to measure teacher effectiveness‐‐and within limits, states and districts should be free to pick and choose their own outcome measures. Structured classroom observations by principals and master teachers over the course of the year, independent assessments of student work, teacher attendance, mentoring of other teachers, and assessments of videotaped classes are just a few of the other outcome‐based measures that districts might employ. Denver’s ProComp merit‐pay program rewards teachers and schools that meet academic goals, exceed expectations on state exams, and earn good evaluations from principals.

The Teacher Advancement Program, which Secretary Duncan implemented on a pilot basis in Chicago during his stint as superintendent, helps teachers use data to improve their instruction and provides bonuses for teachers who raise test scores. Owing to gaps in NCLB’s testing regimen, districts inevitably will be obligated to look beyond test scores to assess teacher effectiveness. Under NCLB, virtually all students are tested in reading and math in grades 3‐8. But high school students and K‐2 students are not universally tested, and even in grades 3‐8, instructors who teach subjects other than English and math may not give widely‐used, standardized tests. A rich evaluation system, using a variety of performance measures, is more likely to
earn the support and respect of teachers.

4) Every school and district should assess and document the impact that probationary teachers have on student learning from the moment they enter the classroom. Fledgling teachers should receive better professional development support, including on‐the‐job mentoring and supervision from peers and master teachers. Just as barriers to entering the teaching profession should be lowered, barriers to earning tenure must be raised. At present, probationary instructors can earn tenure almost
automatically merely for surviving their first two to three years in the classroom.

Professional development during the probationary years is now largely a lost opportunity, despite the fact that a teacher’s first three years in the classroom provide a good indication of whether they will develop into an effective teacher.
The paltry effort that districts currently make to assess the impact of probationary teachers on student performance is inexcusable and counterproductive. Better on‐the‐job training and mentoring could assist struggling teachers to become more effective instructors. Just as aspiring doctors serve stints as interns and residents in teaching hospitals, aspiring teachers might well receive similar supervision,
feedback, and assessment. A number of successful residency programs, like Chicago’s Academy for Urban School Leadership (AUSL), the Boston Teacher Residency Program, and the Boettcher Teacher Program in Denver, recruit talented college graduates and then put them through year‐long paid residencies under the supervision of master teachers. Clinical supervision and fieldwork, rather than academic course work, can help speed a shift in professional development to promoting effective teaching.

5) To transform tenure into a progress‐based prerogative, states and districts should require tenure candidates to demonstrate that they are effectively boosting student learning—a process that should take a minimum of five years. At the same time, the least‐effective probationary instructors should be denied tenure. Once districts have in place better professional development programs and a fair process for assessing the impact of probationary instructors on student performance, they should end the practice of indiscriminately granting tenure. At present, most probationary teachers receive tenure after only two to three years in the classroom—a time when they typically are not effective instructors, and before they have accrued enough years of value‐added data to judge their impact on student performance. If the waiting period for tenure was lengthened to five years, and if the least‐effective probationary instructors had an opportunity to improve their performance (as indicated by student outcomes) but failed to do so, then the residual core of probationary teachers who are poor performers should be denied tenure.

Disadvantaged students cannot continue to be saddled with inferior instructors because school administrators and principals are reluctant to judge the
performance of their employees. Nor should the perfect be allowed to become the enemy of the good in assessing teacher performance‐‐especially at the critical juncture when the protections afforded by tenure are at stake. By a teacher’s fifth year, value added analysis will be based on multiple years of data, reducing the risk
of error. Moreover, teachers who fall at the bottom of the effectiveness continuum tend to do poorly on multiple measures, while teachers in the top quintile tend to do well. Identifying the most effective and least effective probationary instructors would provide principals and teachers with an invaluable opportunity to reward their most promising instructors‐‐and discourage bad teachers from staying in the classroom, to the detriment of their students.

6) Teachers who demonstrate their effectiveness at raising student achievement should receive large bonuses for teaching in high‐poverty schools and extra compensation for teaching core subjects in shortage areas, like math and science. At present, topnotch instructors often end up leaving inner‐city schools to teach at suburban schools that are closer to home, less disruptive, and pay higher salaries.
To stem the suburban tide, urban school districts should pay large bonuses—on the order, perhaps, of 25 percent of annual compensation‐‐to effective teachers who stay to teach disadvantaged students. Some districts already offer bonuses to instructors who teach in high‐poverty schools or underserved subject areas. But to avoid rewarding bonuses to ineffective instructors in high‐poverty schools, the
EEP believes bonuses should only be awarded to teachers who demonstrate that they are successfully boosting student achievement.

7) Tenured teachers should periodically be reassessed to ensure that they are still raising student achievement. Tenured instructors who are doing a good job should receive significant merit pay hikes. But persistently incompetent teachers should be dismissed‐‐after getting a chance to improve their performance. In much the same spirit, unionized teachers should enjoy the due process protections and seniority rights afforded to other white‐collar professionals‐‐but not be shielded by excessive dueprocess requirements from meaningful job performance assessments or layoffs. Teachers first sought tenure, seniority, and collective bargaining rights a half‐century ago to protect against arbitrary dismissals by principals. Today, however, labyrinthine contract provisions have made it a laborious ordeal to fire an incompetent tenured teacher, even though the federal government and states now
have a battery of laws on the books to protect employees from arbitrary dismissals.

To improve teaching quality in high‐poverty schools, good teachers must be rewarded and bad teachers must be encouraged to leave the profession. Yet last year, the New York Department of Education had to spend nearly $256,000 and almost 8,000 hours of staff time to fire a single tenured teacher for incompetence—and the department has had to spend even more in the past to remove an incompetent instructor.

For poor children, the danger is no longer that they will lose a great teacher because of an arbitrary principal but rather that they can never be freed from a weak instructor. As President Obama, a supporter of performance pay, summed up at his first press conference, “Bad teachers need to be fired after being given the opportunity to train effectively.”

In the midst of the nation’s deep recession, principals and school administrators across the country are now being forced to lay off thousands of teachers by seniority irrespective of their skills, as mandated by collective bargaining agreements. These last‐hired, first‐fired layoffs bear no relationship to teacher
performance, and they are sure to only accelerate teacher turnover in high‐poverty schools, which have disproportionate numbers of novice and probationary instructors.
Even more egregious, school districts are now required under collective bargaining agreements to provide full salary and benefits for years on end to teachers who are removed from classrooms after being accused of serious misconduct or criminal offenses. Onerous due process requirements, which go far beyond the protections afforded most public sector employees, effectively block district officials
from removing accused teachers from the payroll until investigations of any alleged offenses are concluded with a finding of wrongdoing. In Arizona, teachers who cannot be dismissed yet cannot work in the classroom are assigned to “the bus;” in New York City, they sit in the city’s designated reassignment centers or “rubber rooms,” where they may play cards, listen to iPods, and pursue other diversions. At present, New York City has more than 500 teachers assigned to rubber rooms at a cost to
the city of more than $56 million. To be fair, some teachers in the rubber rooms are vindicated and return to the classroom. Even so, such expenditures are indefensible at a time when cash‐starved districts and talented teachers are facing layoffs.

Transforming the teaching profession into a merit‐based system will not be easy. But there are signs, too, that the anti‐performance strictures of the current system are beginning to break. Promising new alternative pathways to teacher certification like Teach for America and the New York Teaching Fellows have emerged for the first time in numbers in inner‐city schools; first‐rate residency programs like AUSL are bolstering teacher quality in failing urban schools; and a number of districts and states have already started to experiment with teacher performance pay initiatives.

For the first time, the nation has a Democratic president who campaigned on the promise of merit pay for teachers and forthrightly acknowledges that bad teachers should be fired‐‐despite the fact that unions are a traditional Democratic stronghold. Even a few union leaders have thrown open the door to rethinking tenure, the single‐salary pay structure, and merit pay. Last November, Randi Weingarten, president of the American Federation of Teachers, pledged that “no issue [with the exception of vouchers] should be off the table” anymore in urban school reform. “I will start,” Weingarten declared, “by tackling the tough issues like teacher assignments, tenure, and differentiated pay.”

To be sure, many union leaders and education school professors still oppose efforts to move the teaching profession in the direction of a meritocracy, and some do not take seriously the notion that educators should be held accountable for student learning. But urban school reform and closing the achievement gap can no longer be about protecting the prerogatives of union representatives, district bureaucrats, and professors at teachers colleges. However politically charged such reforms may prove, the EEP’s mission is to boost student learning and speak up on behalf of disadvantaged students. Holding teachers accountable for student learning would constitute a radical shift in our nation’s schools, and that chain of accountability for student achievement should extend straight up to principals and the school superintendent. The good news is that this radical transformation of the teaching profession could again help make education the great equalizer in America—and not an ongoing source of inequity and injustice.

Sunday, April 12, 2009

A Brief Introduction To New York City Pension Law By Jeffrey D. Friedlander

Municipal Law, New York Law Journal
Jeffrey D. Friedlander, 03-23-2009

In our present economic circumstances, stories repeatedly appear in the press decrying alleged pension abuses and the cost of pension benefits provided to New York City retirees. At the same time, public employees argue against any changes to the system designed to provide taxpayers with some relief from what may be an unsustainable burden.

While public pension law must surely be one of the most recondite of legal topics, it is useful at this time to examine the structure of the city's pension system, some of the issues that are being litigated, the role played by the New York City Law Department in the defense and administration of the system and, very importantly, the efforts to recover losses to the pension funds due to corporate fraud.

First, there is no single New York City pension fund; there are five: the New York City Employees' Retirement System (NYCERS), which is the largest of the group, the New York City Police Department Pension Fund, the New York City Fire Department Pension Fund, the New York City Teachers' Retirement System, and the New York City Board of Education Retirement System.1 These funds are each administered by a different board of trustees, with authority shared by public and union representatives. With close to 600,000 active and retired members and assets exceeding $83 billion, the city funds are cumulatively one of the largest public pension systems in the country.2

The second salient feature of the system is that all five pension funds are defined benefit plans. That is, retirees who have made their required member contributions receive a specified amount at retirement, generally based on years of service and salary, as opposed to defined contribution plans, in which benefits generally are based on amounts contributed and the investment earnings on those contributions.

Defined benefit plans have become rare in the private sector, where defined contribution plans are now the norm. In times of fiscal austerity and poor market conditions, a member of a defined benefit pension plan holds a very valuable asset.

The final initial point is that city pension benefits are contractual rights that are protected by the New York state constitution from any diminishment or impairment.3 This means that budget cuts or other cost saving measures can never target existing pension benefits, and the Legislature is barred from amending the pension laws to diminish in any way the benefits of existing members or retirees.

Once a benefit is conferred, it cannot be taken away. Therefore, any consideration of pension reform aimed at reducing pension costs must be directed solely at the benefits of prospective new members of the system.

The Pensions Division of the Law Department, consisting of eight attorneys, represents the city's five pension funds in litigation challenging individual and class-wide benefit determinations, provides legal counseling and advice to the pension funds and city agencies, drafts and provides comments on proposed legislation relating to pensions, assists in the implementation of new laws, and, in conjunction with nine securities litigation firms retained by the Law Department, investigates and represents the city funds in securities fraud cases.

As statutory counsel to the funds, it is the duty and objective of the Law Department to provide advice and counsel to each of the city's pension systems. Pension Division attorneys face the challenge of representing and providing counsel to each of the five different funds, each, as noted, administered by a board of trustees composed of different officials and divided between city and employee representatives.

For example, the Board of Trustees of one of those systems, NYCERS, consists of a representative of the Mayor, the Public Advocate, the Comptroller, each of the borough presidents, and the chief executive officer of three employee labor organizations. Administrative Code §13-103.

In the course of their proceedings, city and employee representatives on the boards may differ on a number of issues, most frequently on the application and interpretation of provisions of the pension laws to individual applications for disability retirement. See Uniformed Firefighters Assn. v. Beekman, 52 N.Y.2d 463 (1981). In this situation, it is the role of the Pensions Division attorneys to provide reasoned and balanced legal advice based on case law, as well as information on the experiences of the pension funds in similar circumstances.

Disability Benefit Litigation

The majority of litigation against the city retirement systems involves challenges brought pursuant to Article 78 of the Civil Practice Law and Rules by individual pension members who have been denied accident disability retirement benefits. For uniformed members, such as police and firefighters, these benefits are very valuable, equaling 75 percent of their salaries, and, but for a small portion, are tax free.

The definition of "accident" in this context is one that has been defined through litigation. The Court of Appeals has defined the term, as used in the pension accident disability statutes, to be a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." Lichtenstein v. Board of Trustees of the Police Pension Fund of the Police Department of the City of New York, Article II, 57 N.Y.2d 1010, 1012 (1982).

In stating that "not every line of duty injury will result in an award of accident disability," the Court of Appeals contrasted "injuries sustained while performing routine duties but not resulting from unexpected events," which are not accidents, with injuries sustained by "precipitating accidental event[s] . . . which [are] not a risk of the work performed," which are accidents. McCambridge v. McGuire, 62 N.Y.2d 563, 567-68 (1984). More recently, the Court has stated that accident disability is properly denied if it is found that the member "was injured while performing his usual duties." Kehoe v. City of New York, 81 N.Y.2d 815 (1993), aff'g 186 A.D.2d 376 (1st Dept. 1992).

Last month, the New York Supreme Court upheld the New York City Fire Department Pension Fund's determination denying accident disability retirement benefits to a firefighter who was injured in a personal altercation with another firefighter.

The incident occurred on New Year's Eve 2003 at a Staten Island firehouse. The petitioner, who along with other firefighters was drinking alcohol while on duty, had an argument with a fellow firefighter that escalated into a physical altercation, culminating in the petitioner being hit over the head with a metal chair. The fact that as a result of the incident, petitioner suffered brain damage and was found to be disabled from performing the duties of a firefighter, did not entitle him to an accident disability pension. The Board of Trustees determined that petitioner was injured by the intentional act of his co-worker, which did not constitute an "accident" supporting the granting of the pension. Walsh v. Scoppetta, Index No. 23889/08 (Sup. Ct. Kings County, Feb. 25, 2009).

While the great majority of accident disability retirees collect their disability retirement benefits for life, that is not always the case. Pursuant to Safeguards on Disability Retirement laws,4 accident disability retirees may be called back to service if a determination is made that the person is no longer disabled from performing his or her job duties.

Recently, attorneys of the Pensions Division prevailed in a lawsuit brought by a former police officer whose accident disability retirement benefits were revoked after he was observed performing roofing work for his own company, and thereafter found by the Medical Board of the New York City Police Pension Fund to be no longer disabled from performing the duties of a police officer. The former officer then failed a pre-screening drug test and was consequently found unqualified for reappointment to the position of police officer or any other city position. Seiferheld v. Kelly, Index. No. 114351/07 (Sup. Ct. N.Y. County, Oct. 23, 2008).

Other Litigated Matters

Although disability benefit litigation constitutes the bulk of pension litigation, other benefit issues are also litigated, including a contest, yet to be finally resolved, by the parents of a firefighter killed at the World Trade Center who are challenging the determination of the City of New York Fire Department Pension Fund to grant their son's fiancée a portion of the death benefits payable by the pension fund, rather than granting the benefits in their entirety to the parents.5

After several interim orders and proceedings before the King's County Supreme Court and the Board of Trustees of the Fire Department Pension Fund, as well as the submission of additional evidence, the court ultimately found in 2008 that questions of fact existed, necessitating a hearing. See Prior v. Board of Trustees of the City of New York Fire Department Pension Fund, Index No. 11979/2006 (Sup. Ct. Kings County, Feb. 27, 2008). The hearing began on April 17, 2008, resumed in May, and after numerous unsuccessful attempts at settlement, was completed on Dec. 10, 2008.

Benefit Class Actions

In addition to litigating claims brought by individual pension members, Pensions Division attorneys defend class actions challenging the method of calculating benefits for entire groups of pension members. Two active state court cases illustrate the complexity of this type of litigation and magnitude of exposure.

In Nager v. The New York City Teachers' Retirement System, Index No. 119294/02 (Sup. Ct. N.Y. County), commenced in August 2002, the plaintiffs allege that the New York City Teachers' Retirement System improperly failed to include "per session" compensation in determining pension benefits for certain retired TRS members. Per session work is work, such as coaching, that is performed in addition to regular teaching responsibilities, and for which teachers receive additional compensation.

Following the certification of a class, the parties agreed to calculate pension adjustments, if any, based on an algorithm, for the class of over 50,000 retirees. While the substance of the agreement is for the most part resolved and expected to be implemented later this year, class counsel continue to seek attorneys' fees (approximately $30 million) based on a percentage of the total amount of pension adjustments expected to be made pursuant to the terms of the settlement. That request was rejected by the trial court and the Appellate Division. See Nager v. The New York City Teachers' Retirement System, 57 A.D.3d 389 (1st Dep't 2008).

In March of 2005, the president of the United Federation of Teachers and three retired teachers filed an Article 78 proceeding and an action seeking an order requiring that the New York City Teachers' Retirement System Board of Trustees correct an alleged miscalculation of the benefit formula applicable to members who retire under the 20 Year Pension Plan. Randi Weingarten v. Board of Trustees of the New York City Teachers' Retirement System, Index No. 103818-05 (Sup. Ct. N.Y. County) and Randi Weingarten v. Board of Trustees of the New York City Teachers' Retirement System, Index No. 103819-05 (Sup. Ct. N.Y. County).

The 20 Year Plan, codified in 1970, provides that members retiring after 20 years of service are entitled to a basic retirement allowance equal to 50 percent of their salary. Administrative Code §13-547. A settlement was reached in 2007, providing for payment of $160 million over a 10-year period, and could affect 30,000 retirees as well as 5,000 active members.


The Law Department regularly drafts pension legislation, an activity that calls on the skills and expertise of the Pensions Division.

Pensions Division attorneys are now actively involved in analyzing and drafting pension legislation proposals that would amend certain pension laws prospectively to make pensions less costly to the government over the long term.

For example, legislation that is currently under consideration would increase the length of time it would take employees to vest rights to their pensions, increase employee contributions, and would eliminate overtime in the salary figures used in calculating pensions for certain employees. It is estimated that enactment of these proposals would save the City hundreds of millions of dollars.

Recouping Financial Losses

Particularly timely are the efforts of Pensions Division attorneys, working with outside counsel, to recover losses of the city's pension funds due to corporate fraud.6 In the past two years, the Division has recovered almost $20 million for the funds in connection with securities fraud settlements.

The Private Securities Litigation Reform Act of 1995 requires a court to adopt the rebuttable presumption that "the most adequate plaintiff . . . is the person or group of persons that . . . has the largest financial interest in the relief sought by the class." 15 U.S.C. §78u-4(a)(3)(B)(iii). Accordingly, as one of the largest public pension systems in the country, the combined New York City pension systems frequently have been awarded lead plaintiff status in federal securities fraud class actions.

Most recently, the city's pension funds were awarded lead plaintiff status in two class actions arising out of the sub-prime mortgage debacle. On Nov. 28, 2007, the city's pension funds and the New York State Common Retirement System were appointed lead plaintiffs in litigation against Countrywide Financial Corporation, one of the nation's largest mortgage lenders. The city and state pension systems are both represented by outside counsel Labaton Sucharow.

The lawsuit alleges, among other things, that the defendants made materially false and misleading statements regarding the nature of its lending standards and the quality of its loans; that Countrywide distorted the definitions of the terms "prime" and "sub prime" to mislead investors and the financial community with respect to the nature of its business; and that certain of Countrywide's financial statements were materially misleading in violation of generally accepted accounting principles.

The action further alleges that top management of the company reaped hundreds of millions of dollars in proceeds upon their sale of personally held Countrywide stock while in the possession of material nonpublic information. After disclosure of Countrywide's problems, the company's common stock dropped billions of dollars.

Late last year, the U.S. District Court for the Central District of California issued a favorable decision that largely rejected Countrywide's requests to dismiss the claims, thus allowing the lawsuit to proceed. In re Countrywide Financial Corporation Securities Litigation, Lead Case No. 07-CV-5295 MRP (MANx) (C.D. Cal.).

On Oct. 14, 2008, the city's pension funds were appointed lead plaintiffs in the class action securities litigation commenced against Wachovia Corporation. In this litigation, the city funds are represented by outside counsel Kirby & McInerney.

The complaint alleges that during the class period of May 8, 2006, through Sept. 29, 2008, Wachovia, one the nation's largest financial service providers, serving retail, brokerage and corporate customers, issued materially false and misleading statements regarding its business and financial results, and that as a result, the company's stock traded at artificially inflated prices. Class losses are estimated to be in the tens of billions of dollars.

Specifically, the amended complaint alleges that the company concealed the nature and magnitude of its exposure to sub prime mortgages and debt related to sub prime mortgages; misrepresented that the company maintained very conservative underwriting standards and had very conservative risk management policies and procedures; hid losses from certain risky mortgage products by disclosing them only after the properties had been foreclosed and sold at a loss; failed to disclose its exposure to subprime mortgage-backed securities such as collateralized debt obligations; and overstated its financial results in violation of generally accepted accounting principles by failing to timely write-down sub prime assets and failing to maintain adequate reserves for risky loans. In re Wachovia Equity Securities Litigation, Dkt. No. 08-6171 (RJS) (S.D.N.Y.).

Jeffrey D. Friedlander is first assistant corporation counsel of the City of New York. Inga Van Eysden, chief of the Pensions Division of the Law Department, assisted in the preparation of this article.


1. See NYC Admin. Code §§13-101, 13-201, 13-301, and 13-501; and BERS Rules and Regulations, adopted pursuant to NY Education Law §2575.

2. See "The Largest Plan Sponsors," Pensions & Investments, Jan. 26, 2009, at 16 (city combined funds ranked as seventh largest retirement plan in the country in terms of assets).

3. Specifically, the Constitution states that "membership in any pension or retirement system of the state or a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired." Art. 4 §7.

4. Administrative Code §13-254 (police officers); §13-171 (NYCERS); §13-356 and §13-357 (Fire); §13-553 (TRS); and §19 of the BERS Rules and Regulations.

5. See Chapter 468 of the Laws of 2002, as amended by Chapter 162 of the Laws of 2003

6. Counsel are chosen from a panel of nine law firms that were selected by the Law Department pursuant to a competitive procurement process.

Saturday, April 11, 2009

The U.S. Supreme Court Decision in 14 Penn Plaza LLC v. Pyett Enforces Arbitration For Discrimination Claims Made By Union Members

Now that the U.S. Supreme Court has made a law that prohibits union members from suing in Federal court to resolve discrimination claims, what's next? Will the right to unionize be similarly denied?

The U.S. Supreme Court Says That Union Members Cannot Sue For Discrimination Claims

Opinion analysis by Erica Goldberg


Justice Thomas’s majority opinion held that nothing in either the National Labor Relations Act, (picture above shows President Franklin Delano Roosevelt signing the Act as Secretary of Labor Francis Perkins looks on) which controls collective bargaining agreements made on behalf of union members, or the ADEA forbids unions from mandating arbitration to resolve statutory discrimination claims. The majority touted the importance of allowing parties to bargain contractually for exchanges of rights and responsibilities, and it noted that courts should generally not interfere in this process. According to the majority, “[t]he decision to fashion a [collective bargaining agreement] to require arbitration of employment-discrimination claims is no different from the many other decisions made by parties in designing grievance machinery.”

Justice Thomas then confronted the thorny relevant precedent. Over three decades ago in Alexander v. Gardner-Denver Co., the Court held that unions cannot contractually waive an individual employee’s substantive guarantees against workplace discrimination. More recently, in Gilmer v. Interstate/Johnson Lane Corp., the Court held that individual employees who waive their right to a federal forum on their own behalf may be compelled to arbitrate employment discrimination claims. As a result of these two rulings, the Second Circuit below in 14 Penn Plaza ruled that, while individuals may waive the right to a judicial forum for federal discrimination claims, the same provision in a collective bargaining agreement was unenforceable.

The Court overruled the Second Circuit’s decision by distinguishing Gardner-Denver, which in the majority’s view was narrower than depicted by either the Second Circuit or the dissents. In Gardner-Denver, the Court held that despite a collective bargaining agreement requiring arbitration of all grievances, the employee was entitled to a federal forum to resolve statutory discrimination claims. However, in that case, the collective bargaining agreement contractually prohibited certain types of employment discrimination and compelled arbitration for any disagreement between the company and its employees regarding the meaning and application of the contract. Because the collective bargaining agreement did not explicitly mandate arbitration of statutory discrimination claims, but compelled arbitration of the established contractual guarantees against discrimination, the majority interpreted Gardner-Denver as involving only the doctrine of election of remedies.

Justice Thomas then elaborated upon the language in Gardner-Denver condemning collective bargaining agreements that waive an employee’s federally guaranteed substantive rights. According to Justice Thomas, the substantive right at issue is the right to a workplace free of age discrimination, not the right to litigate the age discrimination claim in a federal forum. The majority explained that earlier decisions deriding the efficacy and fairness of arbitration in resolving federal claims have been since repudiated, and that arbitration is a perfectly acceptable, if not more efficient, forum for addressing grievances related to employment discrimination.

Justice Souter’s dissent, joined by Justices Stevens, Ginsburg, and Breyer, faulted the majority for evading Gardner-Denver by ignoring its much broader holding that federal forum rights cannot be waived in union-negotiated contracts. According to Justice Souter, the fact that the agreement in Gardner-Denver did not explicitly mention statutory claims was only one of many reasons for its holding. “One need only read Gardner-Denver itself to know that it was not at all so narrowly reasoned,” reprimanded Justice Souter. The dissent also noted that, although flawed in its reasoning and approach, the majority opinion may be quite limited because it did not address whether a waiver of a judicial forum is enforceable when the union can block arbitration of employment discrimination claims.

Justice Stevens wrote a separate dissent to stress that, although the Court’s recent decisions have retreated on its former suspicion of arbitration, a Court’s newly embraced policy favoring arbitration cannot substitute for a genuine reading of the statutes and the precedent.

Links and further information

The Question:
Is an arbitration clause contained in a collective bargaining agreement, freely negotiated by a union and an employer, which clearly and unmistakably waives the union members’ right to a judicial forum for their statutory discrimination claims, enforceable?

A provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.

14 Penn Plaza LLC v. Pyett (07-581)
A provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law
Decided April 1, 2009

Full Opinion

Respondents are members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. The Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment,” 29 U. S. C. §159(a), and engages in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multiemployer bargaining association for the New York City real-estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures.

Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and operates the New York City office building where respondents worked as night lobby watchmen and in other similar capacities. Respondents were directly employed by petitioner Temco Service Industries, Inc. (Temco), a maintenance service and cleaning contractor. After 14 Penn Plaza, with the Union’s consent, engaged a unionized security contractor affiliated with Temco to provide licensed security guards for the building, Temco reassigned respondents to jobs as porters and cleaners. Contending that these reassignments led to a loss in income, other damages, and were otherwise less desirable than their former positions, respondents asked the Union to file grievances alleging, among other things, that petitioners violated the CBA’s ban on workplace discrimination by reassigning respondents on the basis of their age in violation of Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. The Union requested arbitration under the CBA, but after the initial hearing, withdrew the age-discrimination claims on the ground that its consent to the new security contract precluded it from objecting to respondents’ reassignments as discriminatory. Respondents then filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their ADEA rights, and the EEOC issued each of them a right-to-sue notice. In the ensuing lawsuit, the District Court denied petitioners’ motion to compel arbitration of respondents’ age discrimination claims. The Second Circuit affirmed, holding that Alexander v. Gardner-Denver Co., 415 U. S. 36 , forbids enforcement of collective-bargaining provisions requiring arbitration of ADEA claims.

Held: A provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.

(a) Examination of the two federal statutes at issue here, the ADEA and the National Labor Relations Act (NLRA), yields a straightforward answer to the question presented. The Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including ADEA claims, would be resolved in arbitration. This freely negotiated contractual term easily qualifies as a “conditio[n] of employment” subject to mandatory bargaining under the NLRA, 29 U. S. C. §159(a). See, e.g., Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U. S. 190 . As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer, and courts generally may not interfere in this bargained-for exchange. See NLRB v. Magnavox Co., 415 U. S. 322 . Thus, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 . It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 . Pp. 6–10. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal. Pp. 6–10.

(b) The CBA’s arbitration provision is also fully enforceable under the Gardner-Denver line of cases. Respondents incorrectly interpret Gardner-Denver and its progeny as holding that an agreement to arbitrate ADEA claims provided for in a collective-bargaining agreement cannot waive an individual employee’s right to a judicial forum under federal antidiscrimination statutes.

(i) The facts underlying Gardner-Denver and its progeny reveal the narrow scope of the legal rule they engendered. Those cases “did not involve the issue of the enforceability of an agreement to arbitrate statutory claims,” but “the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims.” Gilmer, supra, at 35. Gardner-Denver does not control the outcome where, as here, the collective-bargaining agreement’s arbitration provision expressly covers both statutory and contractual discrimination claims.

(ii) Apart from their narrow holdings, the Gardner-Denver line of cases included broad dicta highly critical of using arbitration to vindicate statutory antidiscrimination rights. That skepticism, however, rested on a misconceived view of arbitration that this Court has since abandoned. First, contrary to Gardner-Denver’s erroneous assumption, 415 U. S., at 51, the decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance, see, e.g., Gilmer, supra, at 26. Second, Gardner-Denver’s mistaken suggestion that certain informal features of arbitration made it a forum “well suited to the resolution of contractual disputes,” but “a comparatively inappropriate forum for the final resolution of [employment] rights.” 415 U. S., at 56, has been corrected. See, e.g., Shearson/American Express Inc. v. McMahon, 482 U. S. 220 . Third, Gardner-Denver’s concern that, in arbitration, a union may subordinate an individual employee’s interests to the collective interests of all employees in the bargaining unit, 415 U. S., at 58, n. 19, cannot be relied on to introduce a qualification into the ADEA that is not found in its text. Until Congress amends the ADEA to meet the conflict-of-interest concern identified in the Gardner-Denver dicta, there is “no reason to color the lens through which the arbitration clause is read.” Mitsubishi, supra, at 628. In any event, the conflict-of-interest argument amounts to an unsustainable collateral attack on the NLRA, see Emporium Capwell Co. v. Western Addition Community Organization, 420 U. S. 50 , and Congress has accounted for the conflict in several ways: union members may bring a duty of fair representation claim against the union; a union can be subjected to direct liability under the ADEA if it discriminates on the basis of age; and union members may also file age-discrimination claims with the EEOC and the National Labor Relations Board.

(c) Because respondents’ arguments that the CBA does not clearly and unmistakably require them to arbitrate their ADEA claims were not raised in the lower courts, they have been forfeited. Moreover, although a substantive waiver of federally protected civil rights will not be upheld, see, e.g., Mitsubishi, supra, at 637, and n. 19, this Court is not positioned to resolve in the first instance respondents’ claim that the CBA allows the Union to prevent them from effectively vindicating their federal statutory rights in the arbitral forum, given that this question would require resolution of contested factual allegations, was not fully briefed here or below, and is not fairly encompassed within the question presented. Resolution now would be particularly inappropriate in light of the Court’s hesitation to invalidate arbitration agreements based on speculation. See, e.g., Green Tree Financial Corp.-Ala. v. Randolph, 531 U. S. 79 .Pp. 23–25.

498 F. 3d 88, reversed and remanded.

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

Case below: Pyett v. Pennsylvania Building Company (2nd Cir 08/01/2007)
Official docket sheet
Certiorari granted: February 19, 2008.
Oral argument: December 1, 2008. Transcript The Solicitor General will participate in oral argument as amicus curiae supporting Respondents.

Question presented:

Is an arbitration clause contained in a collective bargaining agreement, freely negotiated by a union and an employer, which clearly and unmistakably waives the union members’ right to a judicial forum for their statutory discrimination claims, enforceable?

Certiorari Documents:

* Petition for Writ of Certiorari
* Brief of respondents in opposition
* Reply of petitioners

Briefs on the merits:

* Brief for Petitioner 14 Penn Plaza, LLC., and Temco Service Industries, Inc.
* Brief for Respondent Steven Pyett, Thomas O'Connell, and Michael Phillips
* Reply Brief for Petitioner 14 Penn Plaza, LLC., and Temco Service Industries, Inc.
* Brief for the Equal Employment Advisory Council in Support of Petitioner
* Brief for the National Academy of Arbitrators in Support of Respondent
* Brief for the Service Employees International Union, Local 32BJ in Support of Respondent
* Brief for the National Right to Work Legal Defense Foundation, Inc., in Support of Respondent
* Brief for the American Federation of Labor and Congress of Industrial Organizations and Change to Win in Support of Respondent
* Brief for the Lawyers’ Committee for Civil Rights Under Law, the American Association of People with Disabilities, the Asian American Justice Center, Legal Momentum, the Mexican American Legal Defense and Educational Fund, the National Partnership for Women & Families, and the National Women’s Law Center, in Support of Respondent
* Brief for the National Employment Lawyers Association, AARP, and American Association for Justice in Support of Respondent
* Brief for the United States as amicus curiae Supporting Respondents
* Brief of the Chamber of Commerce of the United States as Amicus Curiae in Support of Petitioners

Additional analysis:

* Cornell University Law School


* For Petitioners: Paul Salvatore; Proskauer Rose LLP; 1585 Broadway; New York, NY 10036; (212) 969-3000.
* For Respondent: Jeffrey L. Kreisberg; Kreisberg & Maitland LLP; 116 John Street, Suite 1120; New York, NY 10038; (212) 629-4970.

US - Oral argument on whether CBA waives employee's right to sue for violation of anti-discrimination statutes.

14 Penn Plaza LLC v. Pyett (oral argument 12/01/2008)
Decision below: Pyett v. Pennsylvania Building Company (2nd Cir 08/01/2007):
Details, briefs:

When employees sued claiming age discrimination, the employer filed a motion to compel them to take the case to arbitration. The employees were covered by a collective bargaining agreement which prohibited age discrimination and also said "All such claims shall be subject to the grievance and arbitration procedure [in the collective bargaining agreement] as the sole and exclusive remedy for violations." The trial court denied the motion to compel arbitration, and the 2nd Circuit affirmed.

The 2nd Circuit held that "arbitration provisions contained in a [collective bargaining agreement], which purport to waive employees' rights to a federal forum with respect to statutory claims, are unenforceable." The US Supreme Court is reviewing the 2nd Circuit judgment.

Glossary of Terms Commonly Used in Labor and Employment