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Saturday, November 27, 2010

Unsealing A Criminal Court Record For 3020-a Hearing Is Not Allowed

Arbitrator Howard Edelman has ordered that a teacher brought to a 3020-a Hearing before him must submit the testimony given in a criminal proceeding for which the teacher was found not guilty and the record was sealed. Edelman stated that if the teacher did not produce the sealed record requested, that this teacher would not be allowed to testify at the 3020-a.

Mr. Edelman, how does your ruling comply with the decision below?

Betsy Combier


82 N.Y.2d 128, 623 N.E.2d 1154, 603 N.Y.S.2d 804 (1993).

October 14, 1993

1 No. 192 [1993 NY Int. 193]

Decided October 14, 1993


This opinion is uncorrected and subject to revision before publication in the New York Reports.

Frederick K. Reich, for Appellant.

Deborah R. Douglas, for Respondent.



The general rule established by Criminal Procedure Law 160.50 is that -- unless the court determines that the interests of justice require otherwise -- the record of a criminal action or proceeding upon termination in favor of the accused "shall be sealed and not made available to any person or public or private agency" (subd [1][c]). The statute specifies that the sealed records shall be made available upon request to the accused and to six enumerated categories of persons or public or private agencies (see, subd [1][d]). The question presented in this appeal is whether a board of education, a public agency not listed in CPL 160.50(1)(d), is entitled to obtain such sealed records for use in a hearing under Education Law § 3020-a on charges brought against a tenured teacher.

For reasons to be explained, we conclude that a board of education may not have access to sealed records for such purpose. It follows that in this case there was no legal basis for directing the unsealing of records pertaining to the unsuccessful prosecution of respondent for a misdemeanor charge of drug possession. There should, accordingly, be a reversal.


Respondent, a tenured music teacher, was arrested on May 12, 1990 on charges of misdemeanor possession of a controlled substance (Penal Law § 220.03). On April 15, 1991, a jury acquitted him of the charge. As required by CPL 160.50, the trial judge sealed the records pertaining to the arrest and prosecution. On May 29, 1991, the petitioner board of education commenced disciplinary proceedings against respondent pursuant to Education Law §§ 2590-j(7)(b) and 3020-a, charging him with the same misconduct as alleged in the unsuccessful criminal prosecution.

The board brought the instant application on January 21, 1992 in Supreme Court for an order unsealing the criminal court records as well as releasing the prosecutor's file and the physical evidence. Supreme Court granted the board's application, concluding that despite the lack of specific statutory power it had inherent discretionary power to unseal records "in extraordinary circumstances in the interests of fairness and justice", citing Matter of Dondi (63 NY2d 331, 338) and Matter of Hynes v Karassik (47 NY2d 659, 664-665). The court held that the board had "demonstrated a compelling need to unseal the records because it cannot obtain the information elsewhere and it needs the records to conduct the disciplinary proceeding". The Appellate Division affirmed unanimously on the authority of Matter of Dondi , noting that "without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline * * * cannot be accomplished." (188 AD2d 319). We granted leave to appeal.


Criminal Procedure Law 160.50 was enacted in 1976 in the same reform legislation that added a provision to the Human Rights Law (now Executive Law § 296[16]) making it an unlawful discriminatory practice for an employer, in connection with the employment of an individual, to inquire about or act adversely on any prior criminal accusation which had terminated in the employee's favor. The purpose in adding these provisions to the Criminal Procedure Law and the Human Rights Law was to ensure that the protections provided to exonerated accuseds be "consistent with the presumption of innocence, which simply means that no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law" (Governor's Approval Mem, 1976 McKinney's Session Laws of NY, at 2451). As we noted in ):

Indeed, the over-all scheme of the enactments demonstrates that the legislative objective was to remove any 'stigma' flowing from an accusation of criminal conduct terminated in favor of the accused, thereby affording protection (i.e., the presumption of innocence) to such accused in the pursuit of employment, education, professional licensing and insurance opportunities (see, People v Anderson , 97 Misc 2d 408) (id., at 716).

To effectuate this purpose, Criminal Procedure Law 160.50 employs language that is mandatory. Upon termination of a criminal action in favor of an accused, the section provides that the record of such action "shall be sealed" (160.50 [1]); that all photographs, palmprints and fingerprints "shall forthwith be returned to such person" (160.50[1][a]); that any agency which may have transmitted copies of such photographs, palmprints, or fingerprints to an agency of another jurisdiction "shall forthwith formally request [their return]" (160.50[1][b]); and that all official records and papers relating to the arrest or prosecution "on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency" (160.50[1][c]) [emphasis added].

After a sealing order issues, CPL 160.50(1)(d) specifies a few instances when the sealed records may be released to specified categories of persons or agencies, viz., to a prosecutor in a criminal proceeding involving marijuana in which the accused has moved for adjournment in contemplation of dismissal (subpara [i]); to a law enforcement agency on a showing that justice requires such release (subpara [ii]); to an agency acting on an application made by the accused for a gun license (subpara [iii]); to the New York state division of parole, under certain conditions, when the accused is on parole (subpara [iv]); to a prospective employer in connection with an employment application of an accused for a position as a police officer or peace officer (subpara [v]); and to the probation department responsible for supervision of the accused when the arrest subject to the inquiry occurred while the accused was under such supervision (subpara [vi]).

These exceptions in CPL 160.50(1)(d) have been characterized as "narrowly defined" ( Matter of Hynes v Karassik , 47 NY2d 659, 663). Indeed, in Karassik , we construed the statute strictly and held that none of the exceptions could justify making sealed records available to assist a grievance committee in determining whether to bring professional disciplinary charges against a lawyer (id., at 663; see, Patterson, supra, at 714 [finding "no authorization in [CPL 160.50] for the use in a law enforcement agency's investigatory procedure of a photograph retained in violation thereof"]; Dondi , supra, at 338 [restating rule in Karassik that a grievance committee "has no standing under CPL 160.50 to seek an order to obtain records sealed pursuant to that provision as it does not constitute a 'law enforcement agency'"]; see also, Matter of Skyline Inn Corp. , 44 NY2d 695, 696 [refusing to make exception to the Human Rights Law provision (now Executive Law § 296 [15]) to permit State Liquor Authority to consider dismissed criminal charge against licensee seeking a renewal] and supra note).

Despite the statute's mandatory language, its evident intent to limit the exceptions to persons or groups having some association with law enforcement problems, and the legislative recognition of the importance of protecting individuals from having dismissed criminal charges considered in connection with their employment, the board would have us construe the statute as including an exception for teacher disciplinary proceedings. This we decline to do. Suffice it say that if the Legislature had intended to create such an exception - - one which, unlike the other exceptions, would have no law enforcement association -- it would have done so (see generally, McKinney's Cons Laws of NY, Book 1, Statutes § 240 "Expression of one thing as excluding others"). Moreover, such a holding would be contrary to our decisions (see, Patterson , supra, at 714; Dondi , supra, at 338; Karassik , supra, at 663).

The board argues alternatively that the unsealing order should be sustained, not as a proper exercise of power conferred by the statute, but as an exercise of "an inherent power to unseal records when justice demands, whether or not there is specific statutory authority" (Res. Br., at 15 [emphasis added]). The board relies on our suggestion in Karassik , supra, at 664-665, later endorsed in Dondi , "that in 'extraordinary circumstances' the Appellate Division may exercise its discretion, pursuant to inherent authority over records and its oversight and disciplinary power over attorneys and counselors at law, to permit the unsealing of criminal records" ( Dondi , supra, at 338).

But Dondi and Karassik do not support the board's argument. In Dondi , we based our conclusion that the Appellate Division had inherent power to obtain sealed records pertaining to attorneys on Judiciary Law § 90(2). This section specifically vests the Appellate Division with the responsibility for overseeing and disciplining attorneys. But the Appellate Division has been granted no comparable power as to teachers who are subject to disciplinary hearings not by the court system but by the boards of education under the Education Law (see, e.g., Education Law §§ 2590-j, 3020-a). Absent such a specific grant of power, a holding that the court has inherent authority to order the unsealing of records for use in a teacher disciplinary proceeding would frustrate a primary purpose of the 1976 amendments to the Criminal Procedure Law and the Human Rights Law (L 1976 c 877) -- protecting exonerated individuals from the unwarranted stigma that their employers or others could attach to dismissed criminal charges (see, Patterson, supra, at 714; Matter of Skyline Inn, supra, at 696; supra, note).

Moreover, finding such an "inherent power" basis for an unsealing order here would subvert the plain intendment of the statutory scheme -- to establish, in unequivocal mandatory language, a general proscription against releasing sealed records and materials, subject only to a few narrow exceptions. If there is to be an exception to the general rule proscribing the release of sealed records -- upon a showing of "extraordinary circumstances" ( Dondi , supra, at 338) of the type alleged here -- it should be created by the Legislature, not by the courts.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the application to unseal denied.


* L 1976, c 877; the amendment to the Human Rights Law was adopted as subdivision 14 to section 296 of the Executive Law and renumbered as subdivision 16 (L 1980, c 689). In pertinent part it provides that it shall be an unlawful discriminatory practice for "any person, agency, bureau, corporation or association * * * to make any inquiry about * * * or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual * * * [which was terminated in his favor] in connection with the licensing, employment or providing of credit or insurance to such individual" (see, Matter of Skyline Inn Corp. v New York State Liq. Auth. , 44 NY2d 695, 696 [holding that it was unlawful for the State Liquor Authority to consider a dismissed criminal charge against licensee in disapproving liquor license renewal applications]).

Order reversed, with costs, and application to unseal denied. Opinion by Judge Hancock. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

NY Daily News: Mayor Bloomberg Was "Pigheaded" When Naming Cathie Black As Chancellor

 Pigheaded Mayor Bloomberg made ill-informed choice when naming Cathie Black as schools chancellor
Adam Lisberg

Cathie Black and her husband, Tom Harvey

Mayor Bloomberg doesn't mind picking a fight. But after nine years in office, he should have learned to pick his battles.

He has famously tried - and failed - to build a West Side football stadium, charge tolls into lower Manhattan and turn the Kingsbridge Armory into a huge shopping center.

There was no shame in those losses, though. No matter what you thought of them, they were legitimate ideas with solid backing that deserved a hearing.

Trying to put a magazine executive in charge of the city schools is a different story.

Bloomberg may have been the only person in New York who didn't see a downside in naming Cathie Black to be schools chancellor.

"He was thinking about an out-of-the-box candidate who would carry on Joel Klein's legacy and be sort of a maverick," said consultant George Arzt, a longtime student of New York mayors.

"I'm sure in his mind he thinks that this is right for the city," Arzt said. "But there were no other candidates interviewed - and it showed."

Even Black's supporters knew a boarding-school mom with a corporate résumé would be a tough sell, no matter how strong a manager she is.

Bloomberg's inner circle could have told him that - had he bothered to tell them about Black before he made up his mind.

"He went into this by himself, and in fact it was revealed that the emperor had no clothes," said Baruch College political scientist Doug Muzzio.

The mayor's team could have quietly reached out to state Education Commissioner David Steiner to see how he would react, or to at least give him an early heads-up.

Instead, the aides who get paid to build support for his controversial ideas - like lifting the charter school cap or extending term limits - were playing defense from the start.

Public school parents understood the problem of a boss with no experience, and 62% of them told a Quinnipiac University poll they didn't want Black.

Bloomberg thinks he knows better - but six of eight experts on the state education commissioner's panel agreed with the parents.

Three years ago, the mayor said, "I have always joked that [the difference between] having the courage of your convictions and being pigheaded is in the results."

The results are in. As he looks to salvage Black's nomination, he should look in the mirror, too.

UFT Resolution In Support of the Black Appointment

UFT Resolution Calls for New Schools Chancellor Process
Billy Wharton, NY Eaminer

The United Federation of Teachers (UFT) is treading lightly in the debate over Mayor Michael Bloomberg’s appointment of Cathie Black as Schools Chancellor. While rank-and-file teachers are outraged at the move because of Black’s lack of qualifications and Bloomberg’s secretive process, the union has had a relatively low profile. Quite a contrast with educator Justin Wedes' petition effort, which has accumulated more than 10,000 signatures and asks New York State Education Commissioner David Steiner to veto Bloomberg’s waiver request for Black.

The following UFT memo maps out a path for the selection of Schools Chancellor in the future, but does not call for a more democratic process. The choice would still be made by an appointment, although the UFT process would require the appointee to present themselves publicly. However, in a city with so few directly elected officials, calling for and eventually creating a fully democratic procedure for selection would be a refreshing change.

Here is the text of the UFT resolution:

WHEREAS in order to lead New York City public schools and ensure that all students receive the quality education to which they are entitled, a chancellor should have a full and thorough understanding of teaching and learning, a solid grasp of education issues and concerns and practical experience as an educator to appreciate the impact of policy choices and administrative directives on the real world of schools and classrooms; and

WHEREAS in recognition of the value of educational knowledge and experience to the office, New York State education law requires that a chancellor possess (a) certification in educational leadership; (b) a Masters’ Degree; and (c) a minimum of three years of teaching experience; and

WHEREAS New York State education law further permits the State Education Commissioner to provide a waiver for a non-educator to be chancellor if that individual possesses other “exceptional qualifications;” and

WHEREAS the process by which a non-educator is granted a waiver to become chancellor must be deliberate, thorough and credible if that individual’s tenure in that office is to be considered legitimate by educators, parents, local communities and the general public; and

WHEREAS by conducting his selection process for the chancellor in secret, and withholding from the public the most basic information on that process, Mayor Bloomberg has thwarted the intent of mayoral control of New York City schools, and created a controversy which ill serves New York City public schools;

WHEREAS in response to the nomination of a non-educator for the office of chancellor, New York State Education Commission David Steiner has announced the formation of an independent panel, including educators, to evaluate the request for a waiver and make a non-binding recommendation to him; therefore be it

RESOLVED that the United Federation of Teachers (UFT) support the process established by State Education Commissioner David Steiner as a credible and fair procedure for deciding on the request for a waiver from the qualifications for chancellor of New York City public schools promulgated in state education law; and

BE IT FURTHER RESOLVED that the United Federation of Teachers support legislation to reform the process for the selection of the Chancellor, making it open and transparent, with the following features: (a) a nationwide search to attract the most qualified candidates, (b) a full and systematic vetting of the short list of the final candidates; and (c) a public process of engagement for the final candidates.

NY State Ed Commissioner Caves In To NYC Mayor Bloomberg And Says OK To Chancellor Cathie Black

In what may be the single most outrageous opposition to public demand seen in recent United States history, New York State Department of Education David Steiner says "yes" to the waiver for noneducator Cathie Black, at the insistence of NYC Mayor Mike Bloomberg.

Cathie Black in as schools chancellor; deputy named
By YOAV GONEN, NY POST, 7:19 PM, November 26, 2010

She's in.

City and state officials reached a deal today to allow Hearst Magazines chairwoman Cathie Black to become the city’s next schools chancellor, an official with knowledge of the agreement told The Post.

As part of the agreement, veteran educator Shael Polakow-Suransky will serve as her second-in-command as the city's first-ever chief academic officer.


The deal stemmed from an offer from State Education Commissioner David Steiner earlier this week that sought a middle-ground to either denying or approving a waiver for Black — a publishing executive who lacks the education credentials required of superintendents in New York.

Mayor Bloomberg made it clear he supported the arrangement by submitting a new waiver request letter for Black yesterday that included her intention to appoint Polakow-Suransky her "senior deputy chancellor and chief academic officer."

The letter says Polakow-Suransky would be directly supervised by Black, but with "the broadest scope for the exercise of independent initiative and judgment."

Polakow-Suransky is a longtime city educator who has worked as a middle school teacher, founder and principal of a high school as well as chief academic officer for a subset of schools.

"This is the product of extensive discussions between the state and the city to address the concerns the commisioner raised and the feel is that it substantially addresses those concerns," a senior State Education Department official told The Post.

But the deal may not quiet many of the critics of Black’s appointment, who have objected to a non-educator running the nation’s largest public schools system.

November 26, 2010
Deal for Deputy for Academics Clears Way for Schools Chief

Mayor Michael R. Bloomberg reached a deal Friday to save the tottering candidacy of Cathleen P. Black to be the next chancellor of New York City schools, agreeing to appoint a career educator who started as a classroom teacher to serve as her second in command.

As a result, the state education commissioner, David M. Steiner, has agreed to grant Ms. Black, a media executive, the exemption from the normal credentials required by state law for the position, according to a person with direct knowledge of the negotiations.

The move was a significant concession by Mr. Bloomberg, who has often resisted efforts from outside City Hall to meddle in his affairs.

The mayor’s hand was forced on Tuesday when Dr. Steiner questioned her readiness for the position. Ms. Black, the chairwoman of Hearst Magazines, has spent a lifetime in the media business, does not hold any advanced degrees and has had little exposure to public schools.

The controversy over Ms. Black, 66, had become a liability for Mr. Bloomberg, and a poll released on Tuesday showed that a majority of New Yorkers did not think Ms. Black was qualified to serve as chancellor.

After several days of talks with state officials, Mr. Bloomberg agreed to create the position of chief academic officer to oversee curriculum and testing at the city’s Department of Education. Under the deal, that job would go to Shael Polakow-Suransky, a former principal of a Bronx high school who is a top official at the city’s Department of Education.

But exactly how much authority Mr. Polakow-Suransky, 38, will wield is unclear. A job description prepared by the city said he would have “the broadest scope for the exercise of independent initiative and judgment” and listed 25 duties, including many that would normally fall to the head of a school system. But Mr. Polakow-Suransky will still report to Ms. Black, who is accustomed to setting the agenda in the rough-and-tumble world of corporate culture.

Ms. Black and Mr. Polakow-Suransky have met several times over the past week to discuss how they will divide authority.

Ms. Black is scheduled to take office Jan. 1 after the resignation of the current chancellor, Joel I. Klein. She will oversee the nation’s largest school system, with 1.1 million children, 135,000 employees and 1,600 schools.

Natalie Ravitz, a spokeswoman for the Department of Education, said on Friday, “As an experienced C.E.O., Ms. Black recognized the need to have a senior deputy with specific expertise in academic matters.”

Dr. Steiner, who declined to comment on Friday, is expected to announce his approval of a waiver on Monday. On Friday, Mr. Bloomberg submitted a letter making the case for Ms. Black and her new deputy. A mayoral spokesman declined to comment but did not dispute the details of the agreement. Mr. Polakow-Suransky did not respond to an e-mail seeking comment.

Merryl H. Tisch, the chancellor of the State Board of Regents, who played a central role in brokering the deal, also declined to comment. Referring to the position of chief academic officer earlier in the week, she said, “The issue for us is, ‘Can we create credibility around this position?’ ”

The deal reached Friday capped a week of frantic talks between the city and the state. Mr. Bloomberg, who was given control of city schools in 2002, has said that transforming the school system will define his legacy as mayor.

Mr. Bloomberg viewed Dr. Steiner’s challenge as a critical test of his authority over the school system. The mayor told people involved in the negotiations that a rejection of Ms. Black would undermine the model of mayoral control and set a dangerous precedent.

At one point while the negotiations were under way, Mr. Bloomberg said publicly that the law requiring the schools chancellor to hold education credentials was obsolete and should be abolished.

Mr. Bloomberg had initially believed he could build enough public pressure to force Dr. Steiner to approve Ms. Black, according to the person with knowledge of the negotiations. Business executives, former mayors and celebrities like Whoopi Goldberg flooded Dr. Steiner’s offices with messages in support of Ms. Black.

But Dr. Steiner remained skeptical, and he said on Tuesday he would consider her appointment only if Mr. Bloomberg installed an educator at her side.

The talks with the mayor about that possibility grew more serious after an eight-member panel advising Dr. Steiner on Ms. Black’s qualifications on Tuesday mustered only two votes unconditionally in support of her, unexpectedly throwing the selection process into disarray.

Mr. Bloomberg typically loathes intrusions into his management of the city. But throughout the negotiations for the waiver, he showed an unusual willingness to compromise to preserve Ms. Black’s candidacy. To the surprise of his own associates, he held his tongue in public, refusing to challenge Dr. Steiner and the panel that rebuked his choice for chancellor.

The reaction to the deal, and to Mr. Polakow-Suransky’s appointment, was mixed on Friday.

State Assemblyman Hakeem S. Jeffries, a Democrat who has helped coordinate the opposition to Ms. Black, said he would pursue a legal challenge, arguing that the appointment of a chief academic officer does not compensate for Ms. Black’s lack of educational experience.

Sol Stern, an education researcher at the Manhattan Institute, a conservative research group, said he thought that the deal was a victory for Mr. Bloomberg, and that Mr. Polakow-Suransky’s appointment would not be a serious check to Ms. Black’s authority. “He will be treated by the mayor and Black as a gofer,” Mr. Stern, a frequent critic of the mayor, wrote in an e-mail. “This is a farce.”

Underscoring the high-stakes nature of Ms. Black’s fate, even the federal secretary of education, Arne Duncan, spoke to both Dr. Steiner and Mr. Bloomberg during the negotiations.

On Friday, Mr. Duncan praised the outcome. “Can anyone do this alone? Of course not,” he said. “This is a monumentally tough, complex organization.”

Michael Barbaro contributed reporting.

The Man With Credentials To Complement the New Boss’s
 FERNANDA SANTOS, NY TIMES, Published: November 26, 2010

But if his selection to be the department’s chief academic officer offers any hint of the direction of the city’s schools, one thing seems certain: Mr. Polakow-Suransky will continue the same kind of data-driven reform embraced by Joel I. Klein, whom Ms. Black is expected to succeed as the city’s schools chancellor.

As the system’s second-in-command, he will oversee teaching, learning and accountability, which is where much of his experience at the Education Department has been centered.

After James S. Liebman, the architect of the city’s test-score-based accountability methods, left the department last year, Mr. Polakow-Suransky took over, carrying on the system that tracks student performance in minute detail and the A-through-F report cards through which teacher bonuses are granted and failing schools are tagged for closing.

In an interview, Mr. Liebman called Mr. Polakow-Suransky “very much a systemic thinker and a very good manager and implementer of ideas,” but also someone who is aware of the way changes affect principals, teachers and students.

Aaron Pallas, a professor of education at Teachers College of Columbia University and a frequent critic of the accountability system, said that while Mr. Polakow-Suransky’s tenure as a teacher and a principal lend him credibility, his years as part of Mr. Klein’s inner circle “will leave other people skeptical that he can show independence.”

Mr. Polakow-Suransky, 38, spent six years teaching math in middle school and high school in Manhattan before becoming assistant principal at Bread and Roses Integrated Arts High School in Harlem. In 2001, he became founding principal of Bronx International High School, a dare-you-to-beat-the-odds school for poor immigrant students, which went on to receive some of the best scores among peer institutions in the city.

He was born in South Africa, where his parents were anti-apartheid activists who fled in 1973 and settled in Michigan. He is widowed — his wife died of breast cancer last year — and has no children.

His younger brother, Sasha, said that the struggles of the apartheid regime shaped their childhood and Mr. Polakow-Suransky’s years in public high school in Ann Arbor. He organized a survey about racism in the school district, then founded a group to fight racism through workshops for sixth and seventh graders.

“He has been very passionate about education and equality since those days,” Sasha Polakow-Suransky, an editor at Foreign Affairs, said in an interview.

Shael Polakow-Suransky has a bachelor’s degree in education and urban studies from Brown University and a master’s degree in educational leadership from Bank Street College of Education. In 2008, he was a fellow at the Broad Superintendents Academy, a training program founded by the philanthropist Eli Broad that has been a catalyst for the new wave of education reformists. He also has helped oversee the creation of a number of small high schools, another of Mr. Klein’s signature policies.

A version of this article appeared in print on November 27, 2010, on page A15 of the New York edition.

From Betsy Combier: Nat Hentoff got it right in 2003, I think:

For the Children—Klein Should Resign
Where Was the UFT? And the Principals’ Union?
by Nat Hentoff, tuesday, Sept. 9, 2003

In every child who is born, under no matter what circumstances, and of no matter what parents, the potentiality of the human race is born again. —James Agee, Let Us Now Praise Famous Men

Public education is each and every American's birthright. —Schools Chancellor Joel Klein, The NewsHour With Jim Lehrer, PBS, September 30, 2002

At a Stan Kenton record date years ago, I watched a trombonist who kept hitting clinkers on his solo. It went on for some 12 takes, and he never did get it right. That memory of invincible incompetence came to mind as I was reviewing the series of damagingly false notes Chancellor Joel Klein has hit since he took office heralding "Children First: A New Agenda for Public Education in New York City." Klein was the choice of our chronically self-satisfied mayor, who pledged when campaigning, and ever since, that his administration must be judged on what the public schools will be like when he comes up for re-election.

So much further harm has been done to this city's long-failing system by Bloomberg's crucial first mistake—bringing in Klein—that the chancellor should resign before more damage is done. But he is not likely to be gone until and unless there is a new mayor, and I expect that aspirants eyeing City Hall are keeping a detailed account of the Bloomberg-Klein team's serial record of misjudgments.

I will not focus here on Klein's ingeniously confusing changes in the reading and math curricula. James Traub has already clearly and devastatingly illuminated how Klein's choices guarantee more dropouts by teachers as well as students in the Education Life supplement of the August 3 New York Times ("New York's New Approach"). See also the valuable Sol Stern's "Bloomberg and Klein Rush In," City Journal, spring 2003.

As for the Bloomberg-Klein enthusiasm for the all-gay high school, segregation ineluctably leads to further stigmatization. Thurgood Marshall knew that. Moreover, to relieve the school system of accountability for the bullying and other cruel harassment of gay, lesbian, bisexual, and transgender students—including the many who will be left behind and unprotected anyway in the city's schools—reveals how simplistically myopic the mayor and chancellor are.

Relentless pressure should be on the principals who don't stop this viciousness. When I was covering Frank Macchiarola during his chancellorship, I went with him when he became principal of a high school for some time so he could find out what was going on in the trenches. Put principals like Frank in the high schools now, and there'd be no need for an all-gay school. A principal who cannot end bigotry of any kind in a school should be removed.

But the chief indictment of Klein's chancellorship was displayed for all to see in the July 31 and August 1 New York Times front-page stories "To Cut Failure Rate, Schools Shed Students" and "High School Under Scrutiny for Giving Up on Its Students."

The ever vigilant Carl Campanile of the New York Post broke the pushout story last November 9. The Times should enter its pieces by Tamar Lewin and Jennifer Medina for a Pulitzer, and the Post should submit Campanile's reporting as well.

I hope there will be further and frequent team reporting in the Times on what Klein—as long as he's supposedly in charge—is going to do about this pernicious and pervasive "pushout" educational malpractice that can place so many youngsters in quicksand for the rest of their lives.

And this discarding of students is also a severe test of such civil rights organizations as the NAACP and the Urban League. They ought to be conducting their own investigations of the many thousands of students being pushed out of this city's public schools because their scores make the principals' and superintendents' records look bad. Is the Urban League protecting alumnus Dennis Walcott, now at Bloomberg's side? Great credit is due Advocates for Children of New York for filing a lawsuit on this betrayal of kids—and for calling attention to this and other malpractices in the system.

What the Times series reported in harrowing detail—including testimonies by pushouts—is that "growing numbers of students—most of them struggling academically—are being pushed out of New York City's school system and classified under bureaucratic categories that hide their failure to graduate." And "students [are being] shunted out at ever-younger ages."

I heard anecdotal evidence about the pushouts last October from Noreen Connell, executive director of the Educational Priorities Panel, but Klein was silent about this disastrous covert policy until the Times series forced his hand. Now he has told the Times (July 31) that he's going to do something about it because "you're never going to change the system unless you're brutally candid."

To be brutally candid, there is this report in the same issue of the Times: "On June 30 [Public Advocate Betsy Gotbaum] wrote to Mr. Klein to express 'strong concern' over the high school discharge tracking system recounting her office's request last September for a breakdown of high school discharges, which was forthcoming only after a nine-month delay—and then yielded what she said was inadequate information." (Emphasis added.) Gotbaum estimates 160,000 pushouts between 1998 and 2001.

How could Joel Klein not have known? He also didn't know about the Advocates for Children lawsuit filed in January? He didn't know that the pushouts and their parents were not being told that under New York state law, students have the right to remain in school until they are 21?

Klein, of course, is not the only one who must be held strictly accountable. Where were the United Federation of Teachers and its members, as well as the principals? Are they still targeting pushouts?

Parents and others concerned with the future of the city should get "Pushing Out At-Risk Students: An Analysis of High School Discharge Figures," a report by Gotbaum and Advocates for Children. Also, the court papers in the series of class-action lawsuits filed in the U.S. District Court, Eastern District of New York, by Advocates for Children of New York (151 West 30th Street, fifth floor, New York, NY 10001; 212-947-9779 begin_of_the_skype_highlighting 212-947-9779 end_of_the_skype_highlighting). They truly are advocates!

The Times should make the pushout series—with testimonies from some of the pushouts—available in pamphlet form, and, if possible, free. That'll more than make up for Jayson Blair.

On August 3, Daily News columnist E.R. Shipp reported that Mayor Bloomberg, speaking to educators in Queens, said: "The best is yet to come." He is his own blackout. To be continued, including a smoking gun the Times left out.