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Saturday, January 29, 2011

Report: Education Interrupted: The Growing Use of Suspensions in New York City’s Public Schools (2011)

From Betsy Combier:

More than six years ago a parent friend of mine asked me to help her son, a middle school hispanic boy with an Individualized Education Plan (IEP) for "emotional disturbance", who had been accused of something that he did not do and had been suspended. I agreed be the advocate and to do the suspension hearing at the New York City hearing office at the old Board of Education building, 110 Livingston Street, Brooklyn. What I saw and experienced that day changed my perception of public school education permanently.

First, the hearing officer told me that he would not admit the IEP into evidence, as this information would not impact his decision. A lengthy argument followed, as I know that often, the behavior of children with special needs are manifestations of their disability, and can influence their actions. Children should not be punished for having special needs. The Hearing Officer told me that he never looked nor considered IEPs, as these papers were not under his jurisdiction.

In NYC children and young adults are punished for having a disability. That is, kids are suspended any day of the week for acting up in the classroom or, sadly, for doing nothing at all, if they are black or hispanic and have an IEP. An IEP brings in money. Schools need money. Principals figured out many years ago that one way to make money is to take it by suspending a child whose parents are not able to fight back, put the child in a "save room" or suspension site, and take the money given the child. It's really very simple.

Second, the hearing officer started with the statement that the student would have to prove his innocence, as the principal had filed an electronic summary of the incident (on the Online Occurence Reporting System "OORS") and the investigation "proved" that the student "did it". Thus, the suspended child is guilty and must prove his or her innocence. This is impossible as the Klein/Bloomberg administration 'urges' Hearing Officers to find guilt if the student was in school the day of the occurrence. In some cases, the HO finds guilt even if the student wasnt there. I asked the H.O. why the Principal's folder was open in front of him, and requested that he recuse himself as he had read the alleged "facts" in the case before the hearing started. He refused.

I "won" the suspension hearing for my friend's son. I brought in all the laws, Chancellor's Regulations, statements of peers, etc that I had gathered, and kept the hearing open for four days. The Hearing officer was last seen leaving the hearing room wringing his hands and shaking. The last time I made an appearance at the NYC Suspension Hearing Office, now located on West 125th Street, all the Hearing Officers recused themselves. The suspended student went back to the school.

And, here's the punchline: in the six years that I have been providing advocacy at the suspension hearing offices in NYC I have never seen a white face.

Below is a thumbnail of the New York Civil Liberties Union report, and the complete Report in a PDF. First, read about how the NYC Board of Education knew all about their using suspensions as a way to get kids out of their schools:

Officials were given advance warning on special-ed suspensions, memo shows
Friday, January 28th 2011, 4:00 AM

City officials got advance warning that schools were overusing student suspensions as a disciplinary tool, an internal city Education Department memo shows.

Before suspensions hit their highest level in the last decade, the memo written by a staffer at a Bronx suspension site documented that special education students were too often punished with removal from their schools.

Roughly 40% of the students at Bronx sites were special education students, according to the memo, and 60% of those kids had a mental illness.

"Suspension is not the answer in these cases and is indeed detrimental to their growth," the memo from November 2008 concludes.

In 2008-09, kids were punished with nearly 74,000 suspensions - up from 44,000 in the 1999-2000 school year.

The memo documented a high number of suspensions in some small schools. Principals, teachers and other staffers in those schools offered several excuses for suspending so many special education students, the memo reports, including teachers' inexperience. But there were also more troubling explanations:

- "We're not set up to deal with this population. We don't have (12 students for one teacher) classes or enough guidance and support."

- "It's either teaching the (regular education students) or bothering with (the special education students) at the expense of the general ed."

The report calls for "additional support and services" for the children at small schools, the memo states.

A report issued Thursday by the New York Civil Liberties Union echoed the internal memo, finding that special education students were four times more likely than their general education peers to serve a suspension.

"This memo should have been a wakeup call to the Department of Education to get its act together," said NYCLU advocacy director Udi Ofer. "We hope that our report today will be the final alarm that triggers a response."

City Education Department spokeswoman Natalie Ravitz said she could not locate the memo yesterday and declined to comment further.

Report: Education Interrupted: The Growing Use of Suspensions in New York City’s Public Schools (2011)

The New York State Constitution guarantees a free public education to all children in New York. In addition, both international human rights bodies and U.S. courts have recognized that a free education is the cornerstone of success and social development for young people. In Brown v. Board of Education, the Supreme Court unequivocally stated, “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”

Unfortunately, growing reliance on exclusionary punishments such as suspensions effectively denies many children their right to an education. This is true nationwide, and also in New York City, where zero tolerance discipline is the norm. The New York Civil Liberties Union analyzed 10 years of discipline data from New York City schools, and found that:

* The total number of suspensions in New York City grew at an alarming rate over the last decade: One out of every 14 students was suspended in 2008-2009; in 1999-2000 it was one in 25. In 2008-2009, this added up to more than 73,000 suspensions.

* Students with disabilities are four times more likely to be suspended than students without disabilities.

*Black students, who comprise 33 percent of the student body, served 53 percent of suspensions over the past 10 years. Black students with disabilities represent more than 50 percent of suspended students with disabilities.

* Black students also served longer suspensions on average and were more likely to be suspended for subjective misconduct, like profanity and insubordination.

* Suspensions are becoming longer: More than 20 percent of suspensions lasted more than one week in 2008-2009, compared to 14 percent in 1999-2000. The average length of a long-term suspension is five weeks (25 school days).

* Between 2001 and 2010, the number of infractions listed in the schools’ Discipline Code increased by 49 percent. During that same period, the number of zero tolerance infractions, which mandate a suspension regardless of the individual facts of the incident, increased by 200 percent.

* Thirty percent of suspensions occur during March and June of each school year.

Thursday, January 27, 2011

Racism Spurs The Placing Of The Millenium Brooklyn School Into The John Jay Campus, says Activists

Brown v The Board of Education ended segregation in America's public schools, right?

Not in New York City. The way the New York City Board/Department of Education works is to spin information of   corruption, fraud, and misconduct in such a way as to leave the public with the impression that nothing is wrong. Let me tell you, as a parent advocate for 12 years, and a teacher advocate for eight years, I have seen segregation, discrimination, racial bias, and other such violations within most of the public schools located in high-poverty areas that I have visited. Anyone who says that this is not happening is not telling the truth.

Also, activists are becoming more and more angry at the way Joel Klein and Mayor Bloomberg have turned a deaf ear to their requests, as seen in the numerous protests around town:

Increasingly Vocal Parents, Teachers Protest Closings

Betsy Combier

Shortchanging NYC Students
Protesting the co-location of the "Millennium Brooklyn" charter
in John Jay High School (Grassroots Education Movement)

John Yanno, a teacher at John Jay High School, describes the struggle for scarce resources as the city plans for a "selective" high school in the very same building.

January 25, 2011

A GROUP of 150 teachers, students, parents and community members rallied outside the John Jay High School campus in Brooklyn before a January 11 public hearing on the New York City Department of Education's (DOE) plan to house a new "selective" college preparatory high school in the very same building.

The campus building currently houses three small schools--the Secondary School for Law (where I work), the Secondary School for Journalism and the Secondary School for Research.

Students attending school at John Jay are predominantly African American and Latino youth from impoverished Brooklyn neighborhoods, while the Park Slope neighborhood in which the school is located is affluent and predominantly white.

The decision to place yet another school, this one called Millennium Brooklyn, inside John Jay is in response to demands by the residents of the neighborhood who want a selective high school to send their children to. In other words, the school would set up a separate-and-unequal school in the John Jay campus building. This has led many to label the plan as "Apartheid Education."

Members of the Secondary School for Research's School Leadership Team blasted the New York City DOE at the public hearing, saying:

More than 60 years after the U.S. Supreme Court declared that separate was inherently unequal, and after hundreds of thousands fought against racism and for the integration of public schools, this country's public school system remains blatantly segregated--and is growing more so by the day.

The Department of Education's proposal to place the new Millennium Brooklyn in the John Jay campus reveals the racism and inequity in the New York City public schools. It also demands that we revive the inspiring struggles of past civil rights movements and take a stand against racism.

The opposition to the placement of Millennium Brooklyn is not because we don't want affluent Park Slope children to study at John Jay. In fact, our rallying cry has been "Integrate, don't segregate."

We are opposed to the placement of the new school because the NYC DOE has for years neglected the schools already in the building. For example, Millennium Brooklyn will receive about $35,000 more per year than the other three schools because new schools are guaranteed start-up money in order to purchase supplies and update classrooms.

When the three current schools in the building opened up about 10 years ago, we never received these funds. Additionally, students at the Millennium High School in Manhattan, which Millennium Brooklyn will be modeled on, receive higher per-student expenditure rates than the students in my school ($18,103 a year compared to $16,973 a year).

It's absurd that the NYC DOE is shortchanging the students who need it the most. "A lot of us don't feel that it is right that this school is coming in and getting a lot of funding when our school has been needing a lot of money, and we haven't been getting it from the Department of Education," said one student who attended the hearing.

OTHER REQUESTS to improve the school were also ignored. Jill Bloomberg, principal of the Secondary School for Research, spoke at the hearing about how, after the NYC DOE denied her request for funding to purchase a bell system for her school, she shelled out $5,000 of her own money to purchase one.

Requests to remove metal detectors and airport-like bag scanners from the building are another issue. The metal detectors, which students must walk through each morning, stigmatize our campus, dehumanize and criminalize our students, and make the school less appealing to prospective students, which has led to dwindling enrollment (cited by the NYC DOE as justification for placing Millennium Brooklyn in our building).

"Scanners only criminalize students," said one student at the hearing. "If you are treated like a criminal, you eventually act like one. Who would want to come to a school where children are treated like criminals?"

The metal detectors and the virtual police state seen in front of the school at dismissal send the misleading message that the kids in John Jay are criminals. "We are treated as interlopers at best, criminals at worst," said one student who described as a "racist ritual" the use of NYPD school safety agents to quickly ferry the non-white students off the Park Slope streets and into the subway at the end of the school day.

Students and teachers testified that they welcome all students, but that it was the NYC DOE's responsibility to adequately fund the three schools already in the building in order to make the schools more appealing to neighborhood families.

The building is infamous for its dilapidated condition. According to the testimony of Principal Bloomberg:

Water damage from a chronically leaky roof was so bad that some classroom walls crumbled. Door frames separated from the walls. In 2005-2006, when the roof of the building was belatedly replaced, nearly every classroom on the fourth floor was flooded. The science lab was so badly damaged that tiles floated in the water. To this day, the lab floor remains a patchwork of different-colored tiles.

Though the building received funds for wireless access throughout, most of our students' classrooms have only one electrical outlet, severely limiting the use of interactive whiteboards, LCD projectors and document readers. In our dingy student and faculty bathrooms, the plumbing is so old that the toilets fail with regularity.

Our drinking fountains function sporadically; what water we get is always lukewarm. Ancient radiators either heat rooms like blast furnaces or don't work at all. Whatever funding ever existed for classroom air conditioners never made it to our fourth floor. Of course, there's no place to plug them in if they ever do.

The John Jay community considers it a slap in the face that the NYC DOE has for years knowingly allowed our schools to exist in such a condition--only to make badly needed building-improvement funds contingent on the new school entering the building.

"This is not necessarily an attack on Millennium. Its about the fact that the John Jay Campus has been starved for resources for years," said Julie Cavanagh, a Brooklyn teacher and a member of Concerned Advocates for Public Education [1] and the Grassroots Education Movement [2].

Cavanagh attacked the NYC DOE's statement that "capital funds be provided to [the John Jay High School campus] school building if and only if the co-location of Millennium is approved."

"That, I'm sorry, is racism," she continued. "And it's shameful."

The chants at the rally outside the school and inside the auditorium during the hearing were an expression of anger at years of neglect--of both the building and the education of the students. The crowd chanted "Black, Latin, Asian, white, students of the world unite," "Whose school? Our school!" and "How do you spell 'racist?' D-O-E!"

THE STRUGGLE at John Jay began last June when teachers from the schools in the building held a joint union meeting and agreed to continue to meet regularly after school on Fridays to discuss school issues.

Naming ourselves the John Jay Campus Community [3], we began reaching out to parents and held "Fight Back Friday" pickets outside the school on Friday mornings to protest budget cuts. While we never beat back the budget cuts, our early organizing made it possible to quickly organize against the most recent NYC DOE decision.

In addition to organizing teachers, students and parents from all three schools, the campus fight-back group held debates, informational pickets, began a blog, reached out to the community and held rallies in front of the school in the lead up to the public hearing. While we did not succeed in keeping Millennium out of our building (the Panel for Educational Policy voted in favor of the placement during its January 19 hearing), our organizing has helped make allies in the community and forced local politicians to take a stand.

Brad Lander, the city council member for the Park Slope neighborhood, has called on the NYC DOE to remove the metal detectors and scanners and to "provide equitable and adequate resource investments across schools by implementing long-overdue building-wide improvements, and making sure that investments tied to these changes serve all the schools equally."

Getting more funding and removing the metal detectors from the building would be important victories. They would improve the lives of the students of the John Jay Campus. Therefore, the fight for our school did not end with the panel's decision. We must continue the fight to make sure promises are fulfilled and to continue to press our demand that poor students and students of color stop being pushed to the margins.

Sunday, January 23, 2011

Randy Childs Comments On The Los Angeles "Stop Tenure" Decision

The discusssion below arises out of a judge's decision in California to stop the "first hired, first fired" policy. Dont think it can't happen here in New York City.

Betsy Combier

Social justice or an attack on LA teachers?


Randy Childs, a member of United Teachers Los Angeles, looks at how an effort to protect the civil rights of minority students is being used to attack the teachers' union.

October 28, 2010

IN THE last two years, tens of thousands of teachers in U.S. public schools have been laid off by school districts dealing with budget deficits caused by the current economic crisis. In an education system that has been woefully underfunded in times of boom and bust alike, every one of these layoffs is an outrage--most of all for the children whose futures are disrupted by the overcrowding and upheaval these layoffs cause in their schools.

It's even worse for schools in the poorest neighborhoods in America's deeply segregated cities. Schools that serve low-income children of color entered the economic crisis already bearing a disproportionate burden of overcrowding, underfunding and lack of institutional support. When the crisis hit, these same schools experienced the brunt of the teacher layoffs.

This disparity was the impetus for a lawsuit filed last year against the Los Angeles Unified School District (LAUSD) by public interest legal groups, including the ACLU and Public Counsel, on behalf of the students of Liechty Middle School near downtown LA and Gompers and Markham Middle Schools in Watts.

Due to their high numbers of newer teachers, in the spring of 2009, these schools saw somewhere between 45 percent and 60 percent of teachers receive Reduction In Force (RIF) notices--layoff notices that went out to more than 2,000 teachers citywide as the LAUSD attempted to deal with reductions in funding from the state by cutting jobs.

Added to the tremendously high teacher turnover these schools already experience every year, the RIFs forced Gompers, Liechty and Markham to open in the fall with new faces in dozens of classrooms. Many classes were supervised by a rotation of up to 10 different substitute teachers in the course of a semester.

"It really made people who wanted to stay at our school feel de-valued," explained Kirti Baranwal, who is in her eighth year as a teacher at Gompers and is the school's chapter chair (union representative) with United Teachers Los Angeles (UTLA). "We lost teachers who were in academic leadership positions, on policy-making councils, and who really cared about our students."

RIFs in education are distributed primarily on a basis of seniority--meaning newer teachers are usually the ones to be laid off, while more experienced teachers are likely to keep their jobs. Thus, the disparities in RIF notices between schools is a direct reflection of the fact that the poorest schools have far fewer highly experienced teachers than schools that serve middle-class children.

When a new round of budget cuts became imminent in 2010, another 33 percent of Markham teachers and 18 percent of Gompers teachers received RIFs. In this context of compounding layoffs, the plaintiffs in the lawsuit, known as Reed v. LAUSD, were successful in obtaining a temporary restraining order prohibiting the district from laying off any more teachers at the three schools in 2010.

This court order induced the parties to the lawsuit to enter negotiations that led to a tentative settlement, approved and announced by the LAUSD school board on October 5. The Reed settlement, though not yet approved by the judge, has been greeted by positive media attention, characterizing it as a landmark civil rights victory for impoverished schoolchildren.

Representative of this reaction is a Los Angeles Times article that reports, "In essence, the case establishes that having quality teachers in high poverty schools could be considered a constitutional right in California." Quoted in the same Times article, Stanford University education law professor William Koski raves, "We've established the fact that you can't do harm to poor kids."

Some of the provisions of the settlement do seem at first glance to provide welcome relief to schools like Gompers, Liechty and Markham. The deal proposes to form a list of 45 high-turnover schools (including the three plaintiff schools) that each year would be protected from any teacher RIFs. Supposedly to prevent this policy from merely pushing the lion's share of layoffs from these schools to another group of high-poverty, high-turnover schools, all other schools would have their RIF numbers capped at the district average.

UNFORTUNATELY, IF you take a closer look, you'll find the fingerprints of the corporate "school reform" movement all over the Reed settlement.

The deal includes measures that would force impacted schools to compete with each other for inclusion on the protected list of 45. This competition would be based upon "multiple measures of school-wide teacher performance" and "overall academic growth over time." Behind the rhetoric of "multiple measures," the real push going on in public education--from LAUSD to the Obama administration--is to base a wide range of school-site decisions on students' scores on standardized tests.

School Board member Yolie Flores was the driving force behind the "teacher performance" and "academic growth" provisions of the deal, and also gave a perfect example of their tortured logic, asking at a September board meeting, "What good is it to have a stable school if the teachers aren't effective?"

This begs three questions. One, doesn't working at an unstable and underfunded school make teachers less effective than they would otherwise be? Indeed, documents filed by the Reed plaintiffs prove this to be true, which is why the injunction happened in the first place.

Two, if this is a civil rights issue, then why should measures of "academic growth" be a factor in which schools get protected? Do children who show gains on standardized test scores have more constitutional rights than children who don't?

And three, just what evidence is there to suggest that self-styled "reformers" like Flores know the difference between effective teaching and a hole in the ground? As education historian Diane Ravitch notes, today's education reformers rarely if ever have anything substantive to say about the actual content of what children should be taught or how.

Flores attempted to get explicit language in the Reed settlement to use "value-added measures" to determine which high turnover schools would be protected from layoffs.

Mayor Antonio Villaraigosa, a key supporter of Flores and the "reform" majority on the LA school board, took the opportunity to demand that LAUSD use value-added measures to evaluate all of its schools and teachers. Villaraigosa's administration also has a hand in running several LAUSD schools, including Gompers and Markham, through its non-profit Partnership for LA Schools (PLAS). PLAS actively encouraged the Reed lawsuit and has had an ongoing role in the negotiations.

These politicians' heavy-handed advocacy for using value-added measures to drive the evaluation and even termination of teachers is strong evidence that they know little to nothing about what makes a good teacher. A great deal of educational research has shown that data from such measures is unstable, unreliable and unsupported by scientific methodology.

Studies have shown that if value-added measures declare me to be a great teacher this year, there's a 30 percent to 50 percent chance I will suddenly and inexplicably become "ineffective" next year or vice versa. Value-added measures are an attempt to graft an economic concept--the "value added" to a commodity by a direct producer--to the very different world of education. Under such a set-up, children are the commodity, and standardized test scores are their exchange values.

The rhetoric about teacher effectiveness is an attempt on the part of the capitalist class to divert attention away from their own systematic neglect of inner-city schools and onto their favorite scapegoats--teachers and our unions.

"It's not the perfect settlement," Flores told the Times after having to accept a compromise that avoids any direct references to value-added measures in the deal. "But for me, it begins to address one of the biggest structural problems we have in public education--this issue about seniority."

Union seniority rules, according to this logic, are the primary injustice hurting low-income children of color by forcing the system to lay off their disproportionately less experienced teachers in higher numbers.

However, blaming seniority ignores the question of how and why inner-city schools got such a disproportionate number of new teachers in the first place. It also ignores the even larger question of how a society that can afford to spend trillions of dollars on war, trillions more on corporate tax breaks, and even more trillions on bailouts for the bankers who wrecked the economy can turn around and lay off teachers because there supposedly isn't any money for our schools.

THE REED case is not the first lawsuit to "establish the fact that you can't do harm to poor kids." A 1986 lawsuit, Rodriguez v. LAUSD, specifically challenged the fact that inner-city schools tend to have far fewer veteran teachers than more affluent suburban schools.

This eventually led to the Rodriguez consent decree that required LAUSD to set aside funding for teacher training and mentoring at schools with higher numbers of new teachers, and to take affirmative measures toward an equalization of the ratios of new teachers and veteran teachers at all schools.

The disparities attacked by the Rodriguez settlement weren't only the result of blind neglect on the district's part--although the district's systematic neglect of inner-city schools is a well-established fact.

Sending new teachers to schools in disadvantaged neighborhoods had been a conscious LA school policy decades before UTLA and seniority protections came on the scene. In 1928, a district official argued for inexperienced teachers to be assigned to "the foreign, semi-foreign, or less convenient schools. After a few more years of satisfactory service, she may be placed in the more popular districts."

The Rodriguez settlement pushed back against this ugly history by requiring veteran-heavy schools to fill vacancies with new teachers, who would then benefit from mentoring from their more experienced colleagues. It also required the district to go out of its way to find experienced teachers to fill vacancies at schools with a higher proportion of new teachers--as well as spending extra money at these schools to help new teachers improve their craft.

After about a decade of implementation, the Rodriguez consent decree was working, and the staffing disparities among LAUSD schools were decreasing gradually but significantly. So, of course, Rodriguez was ended in 2006! The plaintiffs (including the ACLU) asked for a five-year extension of the consent decree, but the judge accepted LAUSD's promises to continue the progress made by voluntarily implementing the same policies. "We have outlived it," claimed district lawyer John Walsh.

However, once the consent decree was lifted, the district immediately stopped enforcing any Rodriguez-initiated policies, and the staffing disparities began to grow again.

Unfortunately, when Rodriguez expired, UTLA did not wage a serious fight for its continuation. Nonetheless, if the district were serious about addressing the needs of high turnover and hard-to-staff schools, it never would have sought the end of Rodriguez in the first place.

Because of the influence of LA Mayor Villaraigosa and school board member Flores, the Reed settlement proposes several "solutions" to the problem of hard-to-staff schools that are nothing more than union-busting in disguise. Hopefully, the lawyers for the plaintiffs in the case will come to their senses and move away from the worst aspects of the deal.

The problem is that district leaders and the mayor are only too happy to insert themselves into the discussion, wrap themselves hypocritically in the banner of children's rights, and point a long, accusing finger at the same union they've been attacking for years.

The weakness of the civil rights lawyers' position is in the narrow framework of trying to remedy the state's and the district's violations of student civil rights through changes in seniority rules and the RIF process alone--and their willingness to go along with Villaraigosa, Flores and others who want to use this as an opportunity to attack UTLA. Changing the criteria for how RIFs are handed out won't address the long-term disparities that made Gompers, Liechty and Markham so vulnerable to begin with.

Then, there's the question of why LAUSD is so determined to eliminate teachers' jobs. It has become increasingly clear that the district will have the necessary funds to prevent any teacher RIFs this year, if officials were to step up and act in the interests of students. More school site jobs could be saved by redirecting the millions of dollars that LAUSD currently spends on its bureaucratic local district offices and wasteful periodic assessments.

A just settlement to the Reed lawsuit would require LAUSD to redirect this money to the classroom and to spend money from the recently passed federal education jobs bill immediately. A just settlement would also require LAUSD to take affirmative, Rodriguez-style measures to reduce the imbalance of teacher experience levels at different schools, and to improve the educational conditions at impoverished schools that suffer from high turnover rates.

Undoubtedly, a just settlement would have none of this garbage about putting schools in competition with each other or unreliable measures of "student growth" or "teacher effectiveness."

THE PROBLEM is that the actual proposed settlement of the Reed case allows union-bashers to use the issue of social justice to attack UTLA--namely, our seniority rights.

In fact, union seniority is an important measure of social justice in and of itself. It gives working people a measure of job security in a capitalist system that is constantly undermining the stability of workers' lives. It protects employees who speak truth to power from retaliation by their employers. It can create the basis by which hiring, layoffs, job assignments and other key aspects of the workplace are handled through an objective and predictable process, rather than the whims and favoritism of management.

In education, seniority for teachers means all of the above--and it also directly benefits students. Education studies consistently show that the average teacher is significantly less effective in their first couple of years teaching than they will become after several years of experience in the classroom. That's why its so important that teachers who make a long-term commitment to the classroom are protected by seniority--both teachers and students benefit.

Now, however, the union is faced with a dilemma. UTLA must continue to defend seniority as a foundation of union organization against Villaraigosa, Flores and others who want to use the settlement of the lawsuit to weaken us. Certainly, we don't want to see highly experienced colleagues laid off when the jobs of the newest teachers are saved because they happen to work at a high-turnover school.

But by the same token, no teacher with a conscience and a commitment to social justice wants to see some schools and communities devastated by layoffs year after year. UTLA has to balance the issue of our seniority rights with meeting the needs of some of our most at-risk students.

While we reject the cynical attempts of Flores and Villaraigosa to hide behind those kids while attacking us, we also have to squarely face the issues and take a stand for social justice. Teachers can and should take the lead in defending our kids from the impact of layoffs even as we stand up for our own rights.

However, the civil rights lawyers' solutions fail on both these counts. They seek to prevent RIFs at 45 schools only to push the pain of layoffs onto other beleaguered sites. This not only doesn't address the real problem, it will likely make the situation worse.

Couple the inadequacy of the major "remedy with the fact that the mayor and the school board are using this opportunity to marginalize the union and put forward a solution that benefits neither students nor their teachers, and it becomes clear that the settlement would be a disaster. We face an agreement that sanctions an attack on UTLA and seniority, and lets LAUSD and the state off the hook for policies that have done enormous harm to Black, Latino and poor students.

It's urgent that UTLA members debate these issues--and develop their own proposals that both defend our union and genuinely meet the needs of our students.

L.A. Unified is sued over teacher layoffs at 3 low-performing schools

Suit seeks to prevent further teacher cuts at the campuses, already hard hit by budget-related layoffs, saying the students are not being well served.

February 25, 2010
By Jason Song, L.A. Times

Concepciona Manuel-Flores couldn't answer many of the questions on a standardized English test in December, even though she says she's a straight-A student. "I had six or seven substitute teachers," the Markham Middle School seventh-grader said. "All we did in English was silent reading or the same assignments, over and over."

Concepciona is one of the plaintiffs in a class-action lawsuit filed Wednesday in Los Angeles County Superior Court on behalf of students at three of the city's worst-performing middle schools. The suit claims those students were denied their legal rights to an education and aims to prevent the Los Angeles Unified School District from laying off more teachers there.

The last round of L.A. Unified teacher firings affected thousands of instructors and led to chaotic conditions on some campuses, especially at Samuel Gompers, Edwin Markham and John H. Liechty middle schools, according to a complaint against the school district and the state filed by the American Civil Liberties Union, Public Counsel and Morrison & Foerster. Between half and three-quarters of the teachers at those campuses were laid off last year, according to the suit.

Citing state law, school districts typically dismiss teachers on the basis of seniority during budgetary shortfalls. Lawyers who filed the suit said California law allows districts to circumvent the seniority rule on the basis of need or if cuts disproportionately affect certain groups.

The suit would require the district to lay off teachers at those schools at the same or lower levels than at any other campus in the district. Even though low-performing schools often receive more funding than others, the suit also requested that district officials be barred from denying the schools financial resources to maintain a teaching staff.

The student body at the three schools is almost exclusively minority, and campuses in more affluent areas were not hit as hard by teacher layoffs.

L.A. Unified Supt. Ramon C. Cortines declined to comment on the suit but said he was opposed to teacher layoffs based solely on years of experience. The district is facing a $640-million shortfall, and Cortines warned that more dismissals could occur this year.

Iris Blige, Principal From Hell, Finally Held Accountable For Her Misconduct - To The Tune Of $7500

Yonev Gonen updates a story in the New York Post January 21, 2011 that hit the blogs (including this one) in 2009, and of course we are happy that he did the story....but Iris Blige only pays $7500??? Why is she allowed to keep a job?

Principal's blunt ax
By YOAV GONEN Education Reporter, NY POST, January 22, 2011

A Bronx principal who kept a so-called hit list of teachers she wanted swept out of the school instructed her subordinates to "get rid" of them by giving out unmerited bad ratings, a probe has found.

Even more shocking than Principal Iris Blige's apparent attempt to ruin the careers of nearly a dozen educators at Fordham HS of the Arts was the Department of Education's agreement to keep her in charge and levy just a $7,500 fine.

In a stipulation signed last month by Bronx high-school Superintendent Elena Papaliberios, Blige was even promised a "neutral letter of reference to any potential employer" should she decide to leave her post.

The two-year probe was conducted only after teachers lodged a host of complaints about Blige's wrongdoings, according to United Federation of Teachers officials.

"I think it's outrageous," said UFT President Michael Mulgrew. "If the price for ruining someone's career is $7,500, where's the accountability?"

Asked if Blige was getting off easy, a Department of Education spokeswoman referred a reporter to the signed stipulation -- which makes no mention of why a fine was deemed appropriate punishment.

Blige's lawyer, Stephen Hans, said he was "baffled" that the city had made a confidential stipulation public.

He suggested the light punishment was proof that the findings weren't solid.

"If they had the evidence on this case, they would have gone forward," Hans said. "She's faced with staff members ganging up on her."

The probe by the city's Office of Special Investigations included interviews with a half-dozen teachers -- and assistant principals who were asked to fudge the ratings -- who say Blige was unjustly gunning for staffers she didn't like.

One assistant principal, James O'Toole, made his boss' destructive directives sound like a hit job.

"Get rid of Mr. Herbert Drummond," O'Toole quotes Blige as saying about a teacher, according to the report.

Another assistant principal, Laurice Chambers-Blake, says Blige told her she wanted two teachers "out" by the end of the 2008 and 2009 school years.

Chambers-Blake said she was told "to start to write up the teachers" with negative reviews at the outset of the school year and to focus on another teacher's "weaknesses and deficiencies" rather than her positive skills.

Principal's Hit List

Directives from Principal Iris Blige to her subordinates on targeting teachers, according to an Office of Special Investigations report:

* “At the beginning of the school year, Ms. Blige directed [one subordinate] to “U” rate [unsatisfactorily] three teachers regardless of the outcome of his respective observations.”

* “[Another employee] stated that . . . Ms. Blige . . . told [her] that those teachers were to be ‘out’ by the end of the school year. Ms. Blige then instructed her ‘to start to write up the teachers.’ “

* “[Another subordinate] stated that Ms. Blige directed him to ‘Get rid of [teacher] Mr. Herbert Drummond.’ “

A year and a half earlier, Jim Callaghan did this story, and I posted it on my blog:

Bronx principal alleged to have teacher "hit list" still on job
by Jim Callaghan, NY Teacher, Apr 23, 2009 6:04 PM

The principal of Fordham HS for the Arts (Iris Blige, pictured at right) had a "hit list" of teachers - especially UFT chapter leaders - that she wanted removed from the school even if it meant using trumped-up charges, three Department of Education officials told the New York Teacher.

The Department of Education's Office of Special Investigations is probing Principal Iris Blige's allegedly false allegations against teachers.

According to staffers and students at the school, Blige belittles teachers and is prone to screaming attacks and general all-around bullying of staff and students. Her reign of terror has resulted in an astounding 70.5 percent turnover rate for teachers between September 2007 and September 2008.

"She has turned a fresh, budding school environment into a fractured community of turmoil and betrayal," said teacher Peter Healy, adding that Blige has ruled by "creating a fear-filled environment."

Blige has also accused an assistant principal, another teacher and a student of threatening her. The student and her parents denied the allegation, saying that Blige slammed a door shut on the student's hand.

The principal has never taught a class and in 1999 her guidance counselor license expired because she failed to meet state certification requirements. It was reinstated later.

One former AP at the school, Ahmed Edwards, said he wrote negative comments about one teacher, Fannie Davis, "under duress" because Blige said she wanted to "get" Davis so she could be sent to the rubber room, which is what happened.

Davis, who had an unblemished 35-year record, spent one year away from her students based on Blige's accusation, which was lodged the day after Davis grieved the fact that she was excessed in violation of the contract. Davis also said that Blige accused her of threatening her.

The DOE never formally charged Davis.

Another former AP, Osvaldo Mancebo, told the New York Teacher that Blige had a list of teachers who she wanted to rate Unsatisfactory even before any observations took place.

Another DOE official, who asked not to be named for fear of reprisals from Blige, said charges against one chapter leader were invented by Blige because she wanted to show teachers in the school what could happen to them if they "crossed" her.

"She treated chapter leaders like garbage," the official said. "She was paranoid. I heard her say many times that she would destroy the union."

The chapter leader, too, was released with no charges filed after spending two years in the rubber room.

Teachers say that Blige uses the rubber rooms as a way to punish them when they defy her "my way or the highway" management style. She has sent seven teachers to the rubber rooms.

Educators from across the Bronx rallied in support of their colleagues at Fordham HS. ABOVE: The school’s chapter leader Virginia Barden with Dante Cao from Astor College Academy.

Virginia Barden is another chapter leader targeted by Blige. She has received an Unsatisfactory rating after 30 years of teaching. According to the DOE official, the U-rating was pre-ordained as a way to harass Barden and to weaken the union.

"This is the price I am paying to bring justice for my colleagues. This is the least I can do for others," Barden said.

Linda Vinecour, a former guidance counselor at the school, said Blige - who she called "a star graduate of Bloomberg's principals' academy" - accused a student of forging a college application and asked the student if Vinecour had helped her with the forgery. Vinecour later resigned, telling Blige "your tactics are cruel and dishonest."

These incidents and other outrages led more than 400 educators, parents and students to protest Blige's actions at a rally outside the school on March 13. More than 30 UFT Bronx chapter leaders supported the rally, as did teachers from other schools.

Opening the rally, UFT Bronx High School District Representative Lynn Winderbaum said Blige's educational policy is "to ruin the lives and careers" of educators.

"She has lost nine out of 11 assistant principals and more than 100 teachers in five years," Winderbaum added.

As students and educators cheered wildly, Winderbaum said Blige is a "hostile and mean-spirited individual" who stifles dissent and "rules by terror."

UFT Bronx Borough Representative Jose Vargas said Blige should be given a desk job at Tweed or "sent to a finishing school where she can learn how to speak properly to people."

UFT Co-Staff Director LeRoy Barr told the crowd that the UFT will stand by the embattled teachers and said the union would not stop "until [Blige] modifies her behavior."

When not abusing educators, Blige turns her venom toward students. Upon hearing that seniors were planning to participate in the March rally, Blige threatened them at a College Night event, telling them she would withhold their diplomas, cancel their senior trip and not refund senior dues.

The also sent an assistant principal into classrooms to tell students the protest was illegal and that they would be arrested if they attended.

Students and teachers told the New York Teacher that on the Monday after the protest, students were pulled out of classrooms and asked for names of other students who attended the rally.

Michael Mulgrew, UFT vice president and chief operating officer, praised the community for standing up to Blige. He pledged that the rally was not the end, adding that the message will be heard "from this sidewalk to Tweed where Klein sits."

Blige refused to be interviewed by the New York Teacher.

March 16, 2009

High teacher turnover draws hundreds to protest principal
by Philissa Cramer, Gotham Schools

Hundreds of Bronx teachers turned out on Friday to protest the high school principal they say is responsible for a 70 percent teacher turnover rate. In record time over the weekend, the Bronx division of the United Federation of Teachers produced a video about the event, which it coordinated.

Teachers charge that in the four years since Iris Blige has been principal of Fordham High School for the arts, a small school that opened in 2002, the school has run through nine assistant principals, four business managers, and more than 100 teachers. (This data point is in clear view on a protester’s poster in the video.) Blige replaced the founding principal, Sal Mazzola, who was removed after two years in charge because of poor performance, according to the school’s Insideschools review.

According to the school’s most recent state report card, more than a quarter of all teachers left the school after the 2005-2006 school year, and the previous year the school lost more than half of all relatively new teachers. The UFT says turnover has only accelerated since then, with more than 70 percent of teachers leaving during the 2007-2008 school year.

Related Story:

Beloved teacher arrested
by Jim Callaghan, NY Teacher, Apr 23, 2009 11:55 AM

On Feb. 9, Iris Blige accused teacher Raqnel James, who is beloved by students and colleagues, of leaving a note in an office mailbox, threatening to kill her and her son. Seven uniformed officers and four detectives showed up at the school. One detective told James and Chapter Leader Virginia Barden there was a video of James leaving the letter in an assistant principal’s mailbox.

In fact, no videotape of the incident has surfaced. Indeed, according to UFT officials, there is no video camera in the room where the mailboxes are located. The next day, James was sent to a rubber room.

On April 13, two months after the alleged murder threat letter was turned over to detectives, James was arrested on a misdemeanor charge. From the beginning, she appeared to be the only suspect.

According to both James and Barden, one detective offered James a “safety transfer” to another school if she confessed to the crime. James found the offer strange since she was being questioned about a murder threat against a school principal which, if carried out, could put students, parents and teachers in harm’s way. Barden said that more than 50 staffers had access to the mailboxes which are in the same room as time cards. No other UFT members were interviewed, Barden added.

[Blige has also accused others of threatening her. See accompanying story.]

Some supporters of James insist that the real reason that Blige told police that James wrote the letter was because of a landlord-tenant dispute involving a consultant hired by Blige to whom James had rented an apartment.

The timing of the murder threat accusation was not lost on James, because this is the time of the year when principals are asked to sign off on work visas for teachers. James’ work visa expires on Aug. 3 and she is in the process of renewing it.

DOE regulations state that teachers who are in the rubber room on an allegation of wrongdoing, not a conviction, will have their green card applications withdrawn, which means James, who is entitled to a presumption of innocence, faces the risk of being deported to Jamaica.

Virginia Barden is another chapter leader targeted by Blige. She has received an Unsatisfactory rating after 30 years of teaching. According to the DOE official, the U-rating was pre-ordained as a way to harass Barden and to weaken the union.

"This is the price I am paying to bring justice for my colleagues. This is the least I can do for others," Barden said.

Linda Vinecour, a former guidance counselor at the school, said Blige - who she called "a star graduate of Bloomberg's principals' academy" - accused a student of forging a college application and asked the student if Vinecour had helped her with the forgery. Vinecour later resigned, telling Blige "your tactics are cruel and dishonest."

These incidents and other outrages led more than 400 educators, parents and students to protest Blige's actions at a rally outside the school on March 13. More than 30 UFT Bronx chapter leaders supported the rally, as did teachers from other schools.

Opening the rally, UFT Bronx High School District Representative Lynn Winderbaum said Blige's educational policy is "to ruin the lives and careers" of educators.

"She has lost nine out of 11 assistant principals and more than 100 teachers in five years," Winderbaum added.

As students and educators cheered wildly, Winderbaum said Blige is a "hostile and mean-spirited individual" who stifles dissent and "rules by terror."

UFT Bronx Borough Representative Jose Vargas said Blige should be given a desk job at Tweed or "sent to a finishing school where she can learn how to speak properly to people."

UFT Co-Staff Director LeRoy Barr told the crowd that the UFT will stand by the embattled teachers and said the union would not stop "until [Blige] modifies her behavior."

When not abusing educators, Blige turns her venom toward students. Upon hearing that seniors were planning to participate in the March rally, Blige threatened them at a College Night event, telling them she would withhold their diplomas, cancel their senior trip and not refund senior dues.

She also sent an assistant principal into classrooms to tell students the protest was illegal and that they would be arrested if they attended.

Students and teachers told the New York Teacher that on the Monday after the protest, students were pulled out of classrooms and asked for names of other students who attended the rally.

Michael Mulgrew, UFT vice president and chief operating officer, praised the community for standing up to Blige. He pledged that the rally was not the end, adding that the message will be heard "from this sidewalk to Tweed where Klein sits."

Blige refused to be interviewed by the New York Teacher.

Saturday, January 22, 2011

California Judge Overhauls How Teachers Are Laid Off

Is this a sign of what might be in New York City's future?

LA judge limits seniority-based teacher layoffs
By: CHRISTINA HOAG, AP, January 21, 2011

A judge on Friday approved a sweeping overhaul of how teachers are laid off in what education reformers hail as a landmark decision to keep more effective instructors in the classroom, but unions denounce as a step toward dismantling tenure policies.

The decision was the outcome of a lawsuit brought by the American Civil Liberties Union of Southern California in February, charging that inner-city students' right to a quality education was being violated by a last-hired, first-fired layoff policy.

"This is a historic decision for the state of California," said John Deasy, deputy superintendent of Los Angeles Unified School District. "The court stood and lifted up the voice of youth. That voice was loud and clear."

The ruling by Superior Court Judge William Highberger approved a settlement between the ACLU, the state and LAUSD in which the district agreed to shield 45 of its lowest performing schools from layoffs and to ensure that the redistribution of those layoffs will not be sent to a school that will experience greater than the district average of layoffs for that year.

It also calls for an incentive plan to attract and retain teachers and principals at the struggling schools.

"This settlement is about giving our most disadvantaged children a fighting chance at their schools," said Mark Rosenbaum, ACLU-SC chief counsel.

Teachers union United Teachers Los Angeles will appeal the ruling because it is unfair to pass on layoffs to teachers who have earned their jobs and skills, said Vice President Julie Washington.

"What it is really saying is that experience in teaching has no value," she said. "We feel that this remedy, if allowed to go through, will actually exacerbate the problem."

The union was supported by state Superintendent of Public Instruction Tom Torlakson, who filed a brief opposing the settlement on Friday noting it "could have far reaching, unintended consequences throughout the state."

The agreement could harm the instruction quality at the 45 schools because it maintains inexperienced teachers there instead of seeking ways to bring more experienced "arguably more effective teachers," said Torlakson, who was elected last year with the endorsement of the statewide union California Teachers Association.

Mayor Antonio Villaraigosa, a long-standing proponent of school reform, said he was confident that Highberger's decision would stand and called on the union to collaborate on reform initiatives.

No one is saying seniority shouldn't be a factor," he said at a news conference. "But in what successful system, when isn't performance taken into account at all? This isn't a radical notion."

The lawsuit was filed on behalf of students at three troubled middle schools in south and central Los Angeles, which have traditionally had high turnover of teachers and administrators.

Because of that turnover, a large portion of their staffs are recent graduates who expressed a desire to work in urban schools. However, layoffs over the past two years meant that the untenured teachers were the first to receive pink slips.

More than half of the teaching staffs at Edwin Markham, John H. Liechty and Samuel Gompers middle schools lost their jobs. At Liechty, 72 percent of the teachers received layoff notices; at Markham, the layoffs included almost the entire English department along with every 8th grade history teacher.

Students were taught by a revolving-door succession of substitutes who served as little more than babysitters, the lawsuit said. One substitute gave each student a C because she simply didn't know what grade to give them, the suit said.

In contrast, schools in more affluent areas of the district, where staffing is traditionally much more stable, lost far fewer teachers.

"Students fighting for their education, that's what it was all about," said Nick Melvoin, a teacher laid off from Markham Middle School last year. "This sends a message far outside the city that these kids matter."

The case came down to socioeconomic equality, said Michelle Fine, a social psychologist at City University of New York, during a three-day hearing on the settlement that took place this week.

"We have policies that have distributed pain and burden in a way that low-income schools have for generations paid a price," she said.

But Washington said the settlement does not attack the root causes of high turnover at these schools, including creating safe, clean working conditions so teachers don't leave. "My members have been screaming and hollering about this full issue for many years," she said.

Thursday, January 20, 2011

Cathie Black Is Booed In Brooklyn's PEP Meeting

We are now seeing a war that may cloud the real issue of getting public schools to give children a good - no, excellent - education.

Parents, teachers and others who are furious at Mayor Bloomberg's lack of concern for whatever anyone says, are acting out their frustration by booing Cathie Black wherever she appears. I agree with the frustration but what we, the opposition to Black, must try to do is act politically correct in our opposition. I mean, when a newspaper publishes a story about parents booing Black, be vigilant of the facts and watch if the article belittles the protesters more than what/who they are protesting. We dont want to look (the media is built on 'spin', remember) "worse" than Cathie, do we?

Mike Bloomberg is a person who never admits he made a mistake. He sweayed out Joel Klein and fired him when he had the 'right' timing to do so, even though, sources tell me, he couldn't stand Klein for years. Bloomberg will not ask Cathie Black to step down from her new position as the pretend Chancellor (I have not seen her contract yet). So, Cathie Black should realize how diverting her leadership is, and resign on her own.

I'm not saying that the crowd that booed Cathie Black at the January 18 2011 Panel For Educational Policy meeting was in error, I just hope that the protest against her continued employment at the helm of the New York City Board of Education stays focused and is effective. It looks easy to do, as Ms. Black had to read from a script at the PEP meeting and cannot speak out on her own.

Norm Scott speaks about Black's appointment at PEP

Julie Cavanagh on the placement of Millenium in Brooklyn

Coalition For Public Education

As I wrote earlier, Black should resign.

Schools Chancellor Met With Jeers At First Public Hearing

By: Lindsey Christ, NY1

Schools Chancellor Cathie Black received anything but a warm reception Wednesday at the first public hearing of her career in Brooklyn.

At times, the couple hundred members of the public at Brooklyn Technical High School booed Black when she began to speak at a hearing of the Panel for Educational Policy. Her microphone malfunctioned, but the audience quickly filled the silence.

This was despite the opening remarks of PEP Chairman Tino Hernandez, who lectured to the audience, "We have to have a public discourse that's civil and is conducted with decorum and I believe that we as New Yorkers can do that." Subsequently, he kept asking the crowd to show "some civility and decorum."

The meeting was the last chance for the public to speak to panel members about the 25 proposed school closures. One group of public speakers at one point sang during their turn to speak, "This little school of mine, I'm not gonna let it close."

Black also commented on how the city decides which teachers to keep -- a topic that was discussed during Mayor Michael Bloomberg's State of the City address earlier in the day.

"As we face enormous budget challenges and the harsh possibility of teacher layoffs, there is no way that we can afford to lose our brightest teachers," said Black. "We need to change the 'last in, first out' policy, so that we are keeping our best teachers above all, regardless how long they have been in the system."
Eighty members of the public signed up to speak, each getting two minutes at the microphone. There was a full agenda before the panel, but the majority of the comments had to do with a proposal to move a new selective high school, to be called Brooklyn Millennium, into the John Jay Campus.

Three high schools already share that campus and many teachers, students and administrators said they fear the primarily black and Hispanic students would be pushed aside by the new school.

After the public comments, the panel members discussed the issues and asked Department of Education officials questions for almost an hour. It was an unusually lengthy debate for a panel known for having very little discussion before voting.

In the end, 11 members voted in favor of the new high school moving into John Jay and two abstained.

Before the vote, DOE officials promised to monitor the situation closely, make several changes and follow up with the schools and panel members about the issues at John Jay.

"If I can speak for everyone collectively, we are hearing some very serious concerns," said Hernandez. "We want to be assured that Millennium, when we vote to approve to relocate it, that there's going to be an aggressive outreach strategy."

Black did not speak again after reading her prepared remarks. The five-hour meeting was likely a hint of what she will face in two weeks, when the panel holds two special meetings to consider proposals to close 25 schools for poor performance.

New Schools Chancellor Gets Booed In Brooklyn

New schools chancellor and former Hearst executive Cathie Black had to expect a tough crowd at her first Panel for Educational Policy meeting in Fort Greene last night. Brooklyn blogs have been roiling over plans to address funding issues at Park Slope's John Jay High School, which is attended mostly by minority students from outside the neighborhood, by cramming an "elite" school, modeled after Manhattan's prestigious, largely white Millennium High School, into the building. The proposal lead more than one resident to wonder if John Jay was about to go apartheid with funding going to a separate school that catered to white students rather than being invested in John Jay's existing mold-, asbestos-, and minority-filled classrooms. Despite pleas for civility (wait, are we still trying to do that?), the crowd jeered and booed Black as she tried to get through her four-minute prepared speech (Mayor Bloomberg's name elicited a few more). But it only got worse from there.

Before the panel even issued its vote — the measure to bring Millennium to John Jay passed with ten votes in favor and none opposed — parents waved condoms in the air to reference her ill-advised quip that birth control might be a handy overcrowding solution for Manhattan's schools. But the protests didn't just come from the parents.

In a rare example of a principal speaking out publicly against department policy, Jill Bloomberg, of Secondary School for Research, said that the placement of Millennium Brooklyn was an example of putting the interests of upper income white families above those of low-income families of color.

When she went a few seconds over her allotted time, the panel turned off the sound on Bloomberg's microphone. She finished her speech by shouting and led the crowd in a chant, "Integration, yes; segregation, no."

Even children were swept up in the furor. Addressing the notion that Millennium will help Park Slope parents whose kids are edged out of competitive Manhattan public schools at the expense of existing minority students, Kwaesi Laguer, an 11th grader on campus said, "You are saying that our school isn't good enough for Park Slope residents. Why don't you use the money to help make our schools better?"

Black began her speech with rare praise for the panel, which GothamSchools says "has been belittled as a rubber stamp to the mayor by some and as an opportunity for political theater by others." Impromptu theater, public chanting, comedy routines — no one can say she's not trying to keep things entertaining.

Teacher Marc Epstein Cites Praise of Joel Klein's Leadership As a "Snow Job"

My comment: "Brilliant perspective on the Joel Klein 'spin machine'*!"

Betsy Combier
*spin machine (n)

(Government, Politics & Diplomacy) an organization or group of people acting together to present news or information in a way that creates a particular desired impression

Collins English Dictionary – Complete and Unabridged © HarperCollins Publishers 1991, 1994, 1998, 2000, 2003

Joel Klein's snow job

By Valerie Strauss, Washington Post

This was written by Marc Epstein, a history teacher at Jamaica High School in Queens, N.Y., for the past 15 years, and a former dean of students. His articles on school violence, curriculum, and testing, have appeared in numerous magazines and newspapers and he blogs for the Huffington Post. Epstein earned a PhD in Japanese - American Diplomatic history.

By Marc Epstein

If you’ve been watching the news you can’t help but notice the tough time Mayor Michael Bloomberg had with the Christmas blizzard that hit New York City.

After days of telling angry New Yorkers’ to consider taking in a Broadway show and stop complaining, the mayor’s vaunted PR machine demonstrated that it was no substitute for a snowplow. Consequently, the mayor’s approval rating dropped from 55% to 37%. Bloomberg discovered the truism of the old TV commercial that used to end with “You can’t fool Mother Nature.”

The blizzard interrupted another “snow job” that was dumped on New York by Joel Klein before the real snowstorm hit.

In a series of interviews, a valedictory letter to his principals, a segment on the PBS News Hour, and a scrapbook full of clippings from the editorial pages of the New York press, Klein was variously described, and described himself, as America’s most significant educator, a radical, an innovator, and a transformational figure. For the past eight years he has claimed historic academic achievements for the nations’ largest school system that were reflected in higher test scores and record graduation rates!

So with all those seeming accomplishments his sudden departure remains something of a puzzle. His stated goals were to eliminate civil service seniority practices, teacher tenure, close “failing” schools, terminate teachers from closing schools, and expand privately managed funded schools. Klein enjoyed carte blanche from the mayor to pursue these policies and high praise from the president himself. So why end this quest now?

My guess is that it is because Klein’s and Bloomberg’s proud boasts of “historic” success dried up once The New York State Department of Education recalibrated the tests scores and New York City’s results fell like a lead balloon. Overnight, Klein’s claims of pedagogical wizardry evaporated. And with that admission, the New York City “Miracle” went up in smoke.

As a result of this legerdemain, a generation of school children will have passed through the system with marginal literacy skills, when the billions lavished on outside consultants and malfunctioning computer systems designed to track their meaningless “progress” were put in place.

We now know that New York City’s gains on the state tests were illusory. The proportion passing the state reading tests fell from 68.8% to 42.4%, and Klein’s beloved charter schools had pass rates no different from the regular public schools.

The inflated graduation rates have been exposed too. With the recent news that 75% of the high school graduates require remedial reading and math when they enter community college, the Klein Era diploma has been rendered meaningless. So ill prepared are these students that the percent who graduate from college is in the single digits.

Despite the collapse of the New York City scores, the pundits and the chattering classes continue to heap praise on Klein. In their complete indifference to facts, the media sound like a claque that talks only to one another. The truth is what they say it is, with hardly a word of dissent tolerated or printed on their Op-Ed pages or in their news reports.

Most of those celebrating the progress made in the schools know about as much about the inner workings of a New York City public school as they the do the interior of a Sea Wolf class nuclear submarine.

They have unquestionably bought Klein’s self-congratulatory narrative about public education, as well as his narrow-minded views about teachers and unions. This narrative, as airtight as the most intricate Ptolemaic treatise, posits that a sclerotic dysfunctional bureaucracy ran the school system, and its classrooms were filled with incompetent teachers. That accounted for the dismal graduation results prior to mayoral control.

The Klein "spin machine" managed to convince his boss, Mayor Michael Bloomberg, along with New York’s opinion makers, that only he was capable of rescuing public education from the clutches of entrenched union and political interests before it was too late.

He accomplished this feat by appealing to liberal, conservative, and libertarian interests that love the rhetoric for their own particular ideological reasons, and don’t want to be bothered with the details.

The reality is something else, but why bother hunting down a story when you can “do lunch” with Joel Klein at a restaurant that serves yogurt at $23 a cup and get the scoop from the Wizard himself?

The question a good reporter should be asking was how did Klein manage to pull the wool over eyes of so many? Was it Bloomberg’s vast media machine or the power of Bloomberg’s fortune shrewdly integrated with the power of the political office he holds?

In part he succeeded because the media was not interested in the details of education administration and were willing to buy the myths spun by a Bloomberg PR machine that would be the envy of most heads of state.

Fail to clear the snow, threaten to close firehouses, or reroute a subway line, and the public outcry is deafening. But restructure the largest bureaucracy in the state four times and the press scarcely manages a yawn.

For conservative/libertarians like Rupert Murdoch, the lure of charter’s, vouchers, coupled with an attack on the hated teacher’s union proved irresistible.

For those on the left, the promise of a Peace Corps-like army of Teach for America volunteers and Teaching Fellows joining hands to close the Achievement Gap, the “civil rights issue of our day,” combined with a kaleidoscope of educational “choice” for disenfranchised students, made Klein’s spiel seductive music to their ears.

Any failures that popped up were airily dismissed because Klein was fine-tuning the mechanism. All Klein had to say to stave off criticisms as one reorganization followed another was that he was bringing accountability to a system that had been unaccountable for decades. Editorial hosannas would follow, drowning out reports of chaos and bewilderment that leaked out from those working inside the system.

Whether or not any of the several reorganizations accomplished anything went largely unexplored. The increase in the annual education budget –from $12 billion to $23 billion—more than the entire economy of some nations—went unnoticed.

As the reorganizations were implemented the school system lurched from tight centralization to extreme decentralization, the lines of communication between schools and central administration became increasingly frayed. Outside evaluators from England would evaluate schools. The pedagogy emphasized bulletin boards, students working in groups with differentiated “footprints,” teachers acting as facilitators, and computer tracking of student progress.

In short, classroom “reforms” represented every combination of a pedagogical game of pick-up sticks one could ever conceive of. Klein left behind a school system in which academic gains have been meager, parents have been shut out, and graduation rates are meaningless. The annual budget has nearly doubled, low-scoring students are shuffled from school to school, discipline problems are hidden, teachers are demoralized, and principals are scared of every twitch in the data, as incompetents rule the administrative roost. What is there to celebrate?

Cathie Black, Shouldn't You Resign?

Comments leave chancellor Black and blue

Crain's NY Business
Schools Chancellor Cathie Black and Mayor Mike Bloomberg's announcement this week that they would devote funding to help students who flunked the recalibrated state tests was not sufficient to repair Black's image, according to experts in political communications and marketing. They said Black is in danger of being identified by two unscripted comments—her joking request for birth control to help reduce school overcrowding and a remark that budget cuts are “Sophie's choices,” a reference to a film where a mother must choose which of her children will die in a Nazi concentration camp.

“She needs a makeover,” said one consultant with experience in crisis management. “It's more than one quip that went flat. It suggests a nervousness and a lack of comfort in dealing with media scrutiny of this kind, and a bit of tone deafness for the electorate.”

The comments seemed to legitimize a criticism of Black that went beyond her lack of education credentials—namely, that she has “such a corporate mentality” and would struggle with public discourse, the expert said.

Another political consultant said, “She needs to positively distinguish herself with something, or she'll wind up on the discount rack very quickly.” Unlike her predecessor, Joel Klein, the lead prosecutor in the Microsoft anti-trust case, Black did not enter the job with her own brand because the general public was unfamiliar with her career in magazine publishing, the consultant said. Rather, she was introduced by the media as someone who is “under the Bloomberg marquee and throws good parties.”

“She was a public relations disaster from day one,” a third consultant said. “The only bright side of the birth control comment is that it distracts from the fact that she has no ties to the school system. However, it reinforces a perception that she is an out-of-touch dilettante.”

In a Crain's online poll this week asking if people had a right to be upset by Black's comments, 70% said yes.

The expected outrage over Cathie Black's comment on taking birth control to curb schools' overcrowding keeps the New York City media busy. This is good, because maybe she will take the high road and resign. Mr. Harvey (Cathie Black's husband), can't you convince her of this?

What bothers me soooo much about her appointment is that in addition to her not being an educator and not having a Masters Degree as the position requires, she seems to not really care that she is so wrong for the position. I dont see a social (and I dont mean "party") conscience.

However, she has Mike Bloomberg at her side, and the "arrogance of immunity" allows them to be as sarcastic as they want. We, the general public cannot allow this and must continue to hold her accountable for her actions.

Betsy Combier


Cathie Black and her husband Tom Harvey
Parents, educators and electeds respond to Cathie Black’s ‘birth control’ comment
by NAYABA ARINDE, Amsterdam News Editor,  January 20, 2011 12:05 AM EST

Parents, educators and elected officials gathered at the Department of Education HQ at the Tweed Building on Tuesday to denounce the birth control gaffe made by controversial Schools Chancellor Cathie Black.

Apparently, Black, a mother of two, objects to fruitful loins in the inner city. Last Thursday night, speaking at a taskforce meeting about overcrowded classes at Assembly Speaker Sheldon Silver’s Downtown Manhattan office, Black quipped, “Could we just have some birth control for a while? It would really help us.”
To what appeared to be nervous laughter, Black compounded the faux pas by adding that concerned parents are faced with “many ‘Sophie’s choices,’” referencing a movie where a mother has to make a choice regarding handing one of her two children over to the Nazis.
“She made a joke,” declared staunch defenders like Mayor Michael Bloomberg, who aggressively ushered in the unqualified, waiver-requiring former chairwoman of Hearst Magazines into the position that heads the city’s 1,700 schools, with their 1.1 million public school students.
Running interference on Tuesday at her first press conference since the comment, Bloomberg answered 13 of 15 questions asked of his schools chancellor, and then butted in again when she was asked about her birth control remark.
“Let me say it for her. Yes, she made a joke,” Bloomberg insisted for the umpteenth time in the wake of this latest controversy. He had made the same defense after he was booed at the Rev. Al Sharpton’s Dr. Martin Luther King Day celebration at the National Action Network on Monday.
As Bloomberg and Black held Tuesday’s news conference at the Department of Education, regarding the city seeking $10 million to fund programs for students in need of additional tutoring, Bloomberg said, “She made a joke. Should she [have] made the joke? In retrospect, probably not.”

Council Member Jumaane Williams called Black’s comment “simply astounding. Given the history of government-sanctioned sterilization programs and medical experimentation on communities of color and the large numbers of students of color in the New York City school system, the statement shows an unacceptable level of insensitivity.”

While the Department of Education did not respond to an AmNews request for comment, they did issue a statement last week saying, “Chancellor Black takes the issue of overcrowding very seriously, which is why she was engaged in a discussion with lower Manhattan parents on the subject. She regrets if she left a different impression by making an off-handed joke in the course of that conversation.”

At a rally at the Tweed Building on Tuesday, Brooklyn Councilman Charles Barron wasn’t buying it, “Once again she has shown that her inexperience and the fact that she is unqualified does not bode well for the public school students of this city. Bloomberg should admit that his choice was the wrong choice, and Cathie Black should resign immediately. Her comments are blatantly ignorant and racist.”

Barron said, “Our children’s future is not to be played with. A child dies in ‘Sophie’s Choice.’ Those comments and references are no laughing matter.”

Council Member Leticia James said in a statement that “within a week of Cathie Black taking over for former Schools Chancellor Joel Klein, she has already shown her lack of experience in the field,” and called her statements “simply irresponsible.” She added, “By stating birth control is a ‘simple solution’ to overcrowding, it implies that the birth rate is the only contributor to the overcrowding in schools; not the lack of funding for public school education and the continual closure of schools, specifically in urban neighborhoods. Mass entry of students into the public school system from private and parochial schools, the extensive unemployment rate and poor economy over the past few years may also play a role in overcrowding. Other reasons could be an increase in population due to relocation from other states or countries, as well as new housing developments being built throughout the city.”

“Wealthy families are not concerned about overcrowding, so Cathy Black was obviously talking about people in the lower income bracket in a city where 85 percent of the students are Black or Latino—so she means us,” said Barron, who hosted two rallies protesting Black’s remarks. “She’s not telling rich white people to have fewer children. Are we about to hear about eugenicist William Shockley or former Education Secretary William Bennett, who said that the crime rate could be reduced by aborting ‘every Black baby in this country’? It is a slippery slope when you start talking about birth control and ‘Sophie’s Choice’ with reference to overcrowded classrooms, but ignore the real factors like funding, the lack of resources and the hijacking of public schools by charter schools, and treating New York City public schools like a for-profit business for Bloomberg and his cronies.”

“Like many New Yorkers, I cringed when I heard that Schools Chancellor Cathie Black offered a smug reply…in response to the genuine concern about the overcrowded classroom situation in our public schools,” said State Sen. Reverend Ruben Diaz. “Given her attitude, can we expect that Cathie Black will be holding parent-teacher meetings where she will advocate for parents to either stop having sex, or to embrace abortion and sterilization as a solution to school overcrowding?”


As the president of Hearst Magazines, Cathie Black oversees a long list of titles including Cosmopolitan, Esquire, Good Housekeeping, O, Redbook, and Town & Country.


A native of Chicago, Black moved to Manhattan after college, determined to land a job in publishing. When she was offered a sales assistant job with Condé Nast, she turned it down, taking a position at a travel magazine called Holiday instead because it paid $30 more a week. By 1972, Black had moved on to Gloria Steinem's Ms. magazine, where her success selling ads attracted the attention of Rupert Murdoch, who owned New York at the time. Murdoch lured her away from Ms. with the promise that he'd make her New York's publisher if she proved herself as associate publisher first. That she did—and in 1979 Black became the first ever female publisher of a weekly consumer magazine.

In 1983, Black left New York and took the job of president at USA Today, which had been founded a year earlier. She eventually moved up to publisher of the Gannett-owned paper and helped turn it into a household name during her eight-year tenure. Following a stint running industry trade group the Newspaper Association of America, she joined Hearst in 1995.

Of note

Dubbed "The First Lady of American Magazines" during Hearst's impressive growth spurt in the late 1990s, Black hasn't enjoyed quite as much success in recent years. The magazine industry is struggling and the ad market is challenged, and although she's had at least one big successful launch—Oprah's O—she's had more flops, including Lifetime, Shop Etc., and, perhaps most memorably, Tina Brown's Talk, produced in partnership with Harvey Weinstein and Bob Weinstein's Miramax.

Black has been busy bolstering the titles in the Hearst portfolio that are flagging, including the Joanna Coles-helmed Marie Claire and Harper's Bazaar, edited by Glenda Bailey. Black's also tried to curb costs—she cut out the $500,000 a year once spent on flowers, for example. But at least Hearst employees get to toil in nice new digs: At the end of 2006, they moved into a gleaming new office building in Midtown, a 46-story tower designed by Sir Norman Foster.

On the job

Until 2008, Black reported to Victor Ganzi, Hearst's CEO. (Ganzi has since resigned and was replaced by Frank Bennack as interim CEO.) In 2006, she tapped Ellen Levine to serve as Hearst's editorial director and help her oversee the 19 titles. Just a few of the editors who work under Black and Levine: Rosemary Ellis, the editor of Good Housekeeping; Esquire's David Granger; Glenda Bailey of Harper's Bazaar; and Pamela Fiori of Town & Country. One person Black no longer has to deal with is Atoosa Rubenstein, who left Seventeen in 2006 and was replaced by Ann Shoket.

In print

Her book Basic Black, a "memoir masquerading as a guide to career and life," was published in October 2007.


Black is married to Tom Harvey, a lawyer. They have two adopted children, Duffy and Alison, and live on Park Avenue. (Ex-Merrill Lynch CEO Stan O'Neal is a neighbor.) They have a retreat in Connecticut and also spend weekends at the exclusive Fire Island community Point O'Woods.

Monday, January 17, 2011

Why Aren't Principals and Assistant Principals Held Accountable For Their Actions Against Tenured Teachers?

Having sat in on open and public arbitration Hearings (pursuant to Section 3020-a) for more than seven years - and being invited by the Respondent UFT member to observe - I have a good understanding from an advocate of justice point of view (I am not an Attorney, but my dad was Assistant Attorney General for the State of New York for 35 years) of what is going on in the rooms at 51 Chambers Street, 6th Floor.

In my opinion, there is a free-for-all approach to "punishing" teachers/social workers/guidance counselors and/or all other tenured personnel who suddenly, and in many cases, inexplicably, find themselves about to be subjects of an arbitration process that resembles the "Gotcha Trial" more than a fair hearing. Arbitrators are deciding cases based upon how they "feel" about the respondent, and credibility cannot be appealed. More about that in my new series on Arbitrators and their performance reviews, done by me.

But what is very clear from my observations of the process of 3020-a, principals are getting away with whatever they want. And this is not fair.

My question is this: Why are Principals indemnified and given legal protection by the City of New York even when their actions are deliberately malicious, contrary to policy, and/or outside the scope of duties performed as part of their employment? Teachers can't get away with anything, even a touch on the shoulder. The discussion below is interesting for it's analysis of the issue of indemnification and payment of legal fees.

Matter of Richard Zampieron v Board of Educ. of the City School Dist. of the City of New York
2010 NY Slip Op 52338(U)
Decided on December 10, 2010
Supreme Court, New York County
Edmead, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

In the Matter of Richard Zampieron, Petitioner,


Board of Education of the City School District of the City of New York, JOEL I. KLEIN, as Chancellor of the City School District of the City of New York, and the CITY OF NEW YORK, Respondents


Petitioner's Counsel:
James R. Sandner
52 Broadway - 9th Floor
New York, NY 10004
(212) 533-6300

Respondents' Counsel:
Michael A. Cardozo
Corporation Counsel of the City of New York
100 Church Street
New York, NY 10007
(212) 788-0908

Carol R. Edmead, J.

In this Article 78 proceeding against the Board of Education of the City School District of the City of New York (the "DOE"), Joel I. Klein, as Chancellor of the City School District of the City of New York, and the City of New York (the "City") (collectively "respondents"), petitioner Richard Zampieron ("petitioner") seeks a judgment (1) declaring that respondents' denial of legal representation and indemnification of expenses he incurred in defense of a civil proceeding was arbitrary, capricious and contrary to law and an abuse of discretion; (2) directing that respondents provide him with legal representation in the civil proceeding pursuant to Education Law ("Edu. Law") §§ 2560 and 3028 and General Municipal Law ("GML") § 50-k; and (3) directing that [*2]respondents reimburse him attorneys' fees and defense costs pursuant to Edu. Law §§ 2560, 3023 and 3028 and GML § 50-k.[FN1]

Factual Background

Petitioner is a tenured physical education teacher assigned to Frederick Douglas Academy VII ("PS 514") in Brooklyn. According to petitioner, on January 20, 2009, he was overseeing a lunch period, when he went to a stairwell leading toward the lunch room to check on a commotion he heard. There he found a student, Molink McMichael ("McMichael"), blocking other students from exiting the stairwell. Petitioner repeatedly told McMichael to move his arm to allow the students to exit the stairwell, and McMichael refused. Petitioner then placed his hand on McMichael's hand to move it from the handrail. However, McMichael spun around petitioner, and held petitioner in a tight bear hug from behind. Petitioner managed to break free and shove McMichael away. When McMichael made another move toward petitioner, petitioner again shoved him away.

The record indicates that three days later, petitioner and his union representative met with the Assistant Principal Perry Rainey ("AP Rainey") in connection with his investigation of the incident.[FN2] After interviewing the parties involved and witnesses, AP Rainey concluded (in a report dated January 26, 2009), that what started out as "playing" led to McMichael wrapping his arms around petitioner. After McMichael let go of petitioner (at petitioner's request), McMichael began walking away toward the cafeteria. Petitioner is stated as having told AP Rainy that he pushed McMichael to "get some space" and the parties exchanged words. Based on the accounts of the remaining witnesses, petitioner pushed McMichael into the cafeteria door, causing McMichael to sustain a bruise to the corner of his left eye. To AP Rainey, petitioner was "embarrassed or upset that [McMichael] appeared to have gotten the upper hand when the two of them were tussling."

AP Rainey later advised petitioner (by letter dated January 28, 2009) of his conclusions and that he "violated Chancellor's Regulation A-420 which prohibits corporal punishment."

Thereafter, McMichael's mother commenced a personal injury action against petitioner, the City, and the DOE (the "underlying action"), and petitioner requested that respondents defend and indemnify him in the underlying action. By letter dated April 2, 2010, respondents denied his request, stating that a review was conducted pursuant to GML § 50-k and "[w]e have concluded after careful consideration that we are unable to represent you in this matter" (the "April 2, 2010 letter").

In support of his petition, petitioner argues that respondents violated Edu. Law §§ 2560 and 3028, and GML § 50-k in denying him legal representation.

In his first cause of action, petitioner claims that as a tenured pedagogue for the DOE, he is entitled to legal representation and indemnification for legal fees pursuant to Edu. Law § 3028. Petitioner took disciplinary action against McMichael because of McMichael's failure to heed [*3]petitioner's requests, and petitioner imposed such discipline while in the discharge of his supervising duties as a teacher. Any disciplinary action petitioner took was within the scope of his employment and part of his duties as a teacher. The underlying action arose out of the disciplinary action petitioner took against McMichael. There is no exclusion or exception to respondents' obligation to defend and indemnify petitioner based on the specific conduct at issue. Thus, respondents' failure to comply with its obligations under Edu. Law § 3028 constitutes an abuse of discretion and is arbitrary and capricious.

In his second cause of action, petitioner claims that by refusing to provide for petitioner's defense in the underlying action, and by failing to set forth any reason for this refusal, respondents acted in an arbitrary and capricious manner, and violated GML § 50-K. GML § 50-K places an affirmative duty upon the City to defend and indemnify an employee while that employee was acting within the scope of his employment and not in violation of any rule or regulation at the time of the alleged incident. Respondents failed to demonstrate that petitioner was not acting within the scope of his employment and in the performance of his duties when the incident occurred, as required to properly refuse him legal representation. In the underlying action, it is alleged that petitioner was employed by respondents "at all times" referenced therein and that petitioner's actions, with respect to McMichael, occurred "during the course of [petitioner's] employment" with the DOE. Further, respondents failed to provide any factual basis for their denial as required, and such failure is arbitrary, capricious, and an abuse of discretion. Had respondents carefully considered the facts and circumstances of the underlying action, as claimed in the April 2, 2010 letter, respondents would have known that petitioner was acting within the scope of his employment and in the performance of his duties. The April 2, 2010 letter does not attribute respondents' denial to any violation of any rule or regulation at the time the alleged incident occurred. Even assuming that petitioner's actions violated a rule or regulation, the scope of employment has been interpreted by the First Department to include many actions which violate an employer's rule and regulations. It was foreseeable that in the course of petitioner's duties, he may have needed to take disciplinary action against a student, and the discipline of a student is a normal, customary part of a pedagogical employee's employment. Thus, respondents had no basis to determine that petitioner acted outside the scope of his employment at the time of the incident.

In his third cause of action, petitioner alleges that respondents' failure to indemnify him for any judgment or settlement violated GML § 50-K(3).

In opposition, respondents initially argue that Edu. Law § 3028 concerning generally the liability of "school district[s] for cost and attorneys' fees" is inapplicable. Edu. Law § 2560, concerning the liability of "board of education and community school boards in a city having a population of one million or more. . .," such as the City herein, provides legal representation subject to GML §50-k, which in turn, conditions such representation on a finding by the Corporation Counsel that no violation of a DOE rule or regulation occurred. Unlike section 3028 (which was not amended after 1977), section 2560 was amended in 1979 to incorporate GML § 50-k. Since the prior, general statute, Edu. Law § 3028, applicable to the State of New York, conflicts with the later specific statute, Edu. Law § 2560, applicable the City, the latter statute applies to the subject determination. Legislative history demonstrates that section 2560 was intended to supersede section 3028. Further, respondents argue, petitioner does not address [*4]section 2560.

Respondents argue that their determination pursuant to GML § 50-K and Edu. Law § 2560 was not arbitrary and capricious, but rationally based on Corporation Counsel's review of the April 2010 report. The April 2010 report found that petitioner violated Chancellor's Regulation A-420 prohibiting the use of corporal punishment by a teacher. Respondents point out that petitioner concedes that representation is unavailable where a City employee violates a rule or regulation, and fails to address the fact that he violated the above Regulation. Further, his physical altercation with and intentional actions against McMichael are distinguishable from the cases in which the teacher was found to be within the scope of employment. Nor should petitioner's conduct be construed as disciplinary action, since it arose after petitioner's tussle with McMichael. Also, petitioner is not entitled to representation under any of the sections he cited because his conduct did not amount to disciplinary action taken while in the discharge of his duties within the scope of his employment. The purpose of excluding representation of an employee who violated a rule or regulation is to avoid the conflict of interest that would result if both the City and the employee are named defendants in an action, and defendants take contrary positions on whether misconduct has occurred. In such instance, the Corporation Counsel, who owes its first allegiance to the City, cannot represent the employee if the employee's defense is contrary to the City's position. Here, the underlying action names petitioner, the City and DOE.

Nor is respondents' determination arbitrary or capricious for failure to state the basis for the denial. The standard in an Article 78 proceeding is whether the determination lacks a factual basis.

Respondents also argue that indemnification under GML § 50-K is unwarranted, since petitioner did not allege that he retained an attorney or incurred any legal expenses. Nor is there any statutory right to reimbursement of private legal fees where the Corporation Counsel declines representation; GML § 50-k only authorizes representation by Corporation Counsel. Any determination as to indemnification is also premature, in the absence of any judgment or settlement. Respondents also point out that the April 2010 letter does not make any reference to indemnification.

Petitioner is not entitled to be saved from financial loss under Edu. Law § 3023, since he does not make any arguments in his petition and memorandum of law under this statute.

In reply, petitioner argues that caselaw, including two trial court decisions,[FN3] hold that Edu. Law § 3028 applies to the DOE. None of the terms and provisions of Edu. Law § 3028 exclude its application to school districts in cities with populations of more than one million inhabitants. In addition, Edu. Law § 3028 is limited to actions arising solely out of disciplinary action taken against a student, and does not include an indemnification provision. A careful reading of GML § 50-k illustrates that GML § 50-k does not impair any rights under State or Federal law. Further, Edu. Law § 3028 is more specific in scope than Edu. Law § 2560, in that section 3028 does not provide indemnification, but only defense and defense costs, and only for an action arising from disciplinary action taken against a student; section 2560 does not contain any such limitation. Further, the recommendations and proposed amendments in the legislative history [*5]cited by respondents were never enacted. Thus, Edu. Law §2560 does not apply to respondents to the exclusion of Edu. Law § 3028.

Petitioner also argues that the two sections do not conflict with each other; 3028 applies to civil and criminal actions arising out of disciplinary action taken against a pupil whereas 2560 applies to civil actions arising from an employee's action in the scope of employment.

Petitioner maintains that he is entitled to representation even if his conduct violated the rules and regulations, since Edu. Law § 3028 does not exclude employees whose conduct may be in violation of the rules or regulations. Chancellor Regulation A-420 defines corporal punishment as "any act of physical force upon a pupil for the purpose of punishing that pupil." Therefore, in determining that petitioner violated Chancellor Regulation A-420, AP Rainey ultimately found that petitioner's act of physical force against McMichael was for the purpose of punishing him. Further, courts have interpreted the scope of employment broadly to include many actions, such as striking students, which violate an employer's rules.

Petitioner argues that he is entitled to be saved from financial loss under Edu. Law § 3023. Edu. Law § 3023 permits school district employees to seek defense and indemnification from financial loss arising from an act of the employee that resulted in another's bodily injury where the employee, such as petitioner herein, was acting within the scope of his or her employment.

And, if the Court finds that indemnification is premature, petitioner seeks leave to file a plenary action for indemnification upon the entry of judgment or settlement in the underlying action, pursuant to Edu. Law § 3023 and GML § 50-k.

In response, respondents contend that the two cases submitted by petitioner have little precedential value since (1) they are not published in the official reports, (2) respondents in those two cases did not argue, as they do here, that GML § 50-k applied, and (3) respondents are appealing the two decisions. Respondents contend that in Morel, they focused on whether petitioner therein had acted outside the scope of his employment, and not whether there was a conflict between Edu. Law § 2560 and Edu. Law § 3028 or whether Edu. Law § 2560 or Edu. Law § 3028 controlled. And, although respondents argued, in Sagal-Cotler, that Edu. Law § 2560 (and GML § 50-k) applied, they did not explain the purpose and background of such statutes. Petitioner mischaracterized respondents' arguments and the law, and fails to acknowledge that Edu. Law § 2560 only applies to DOE because the City of New York is the only city within the State of New York with a population of a million or more residents; thus, § 2560 is not a "general" statute.

In a sur-reply, petitioner argues that the cases cited by respondents support petitioner's position, and even if GML § 50-k controls, petitioner is still entitled to the relief sought. And, the two Supreme Court cases, which were directly on point, were provided as persuasive authority.


This court's review of DOE's determination consists of whether the determination was arbitrary and capricious or an abuse of discretion (Matter of Pell v Board of Ed., 34 NY2d 222, 356 NYS2d 833 [1974]; see Cummins v New York City Dept. of Educ., 26 Misc 3d 122, 907 NYS2d 99 [Sup Ct, New York County 2010]; In re Ronga, 23 Misc 3d 1103 [Sup Ct, New York County 2009]). An action is arbitrary and capricious, or an abuse of discretion, when the action [*6]is taken "without sound basis in reason and . . . without regard to the facts" (Pell at, 231). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion (Pell, at 231). The court's function is completed on finding that a rational basis supports an agency's determination (Howard v Wyman, 28 NY2d 434, 438 [1971]). Further, where the agency's interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion (Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 AD2d 72 [1st Dept 1985], affd 66 NY2d 1032 [1985]).

"Judicial review of the propriety of any administrative determination is limited to the grounds invoked by the agency in making its determination (Missionary Sisters of Sacred Heart, Ill. v New York State Div. of Housing and Community Renewal, 283 AD2d 284, 288, 724 NYS2d 742 [1st Dept 2001]; Gill v Hernandez, 22 Misc 3d 390, 865 NYS2d 843 [Sup Ct, New York County 2008]("A court reviewing an Article 78 proceeding must judge the propriety of an administrative action solely on the reasons cited by the administration") citing Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 758, 570 NYS2d 474 [1991]). Here, respondents denied petitioner's request for representation pursuant to GML § 50-k, and no other statutory basis was provided. There was no denial pursuant to Edu. Law § 3028, and there is no indication that petitioner requested that respondents reconsider his application for representation pursuant to Edu. Law § 3028 subsequent to his receipt of respondents' April 2, 2010 denial letter. Therefore, this Court's initial review is limited to whether respondents' "determination" to deny petitioner's request was affected by an error of law, or was arbitrary and capricious or an abuse of discretion pursuant to GML § 50-k.

In this regard, Edu. Law § 2560, entitled "Liability of board of education and community school boards in a city having a population of one million or more inhabitants," states the following, in pertinent part:

1. Notwithstanding any inconsistent provision of law, general, special or local, or the limitation contained in the provisions of any city charter, any duly appointed member of the board of education in a city having a population of one million or more, the members of each community school board in such city, the teaching or supervising staff, officer, or employee of such board and of each such community school board, member of a committee on special education or subcommittee thereof or authorized participant in the school volunteer program in such city shall be entitled to legal representation and indemnification pursuant to the provisions of, and subject to the conditions, procedures and limitations contained in [GML § 50-k] . . . .

Emphasis added).

GML § 50-k(2) provides, in relevant part:

. . . the city [of New York][FN4] shall provide for the defense of an employee of any agency in any civil action or proceeding . . . arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred. . . .


(Emphasis added).[FN5]

Petitioners' reliance on Edu. Law § 3028 is misplaced. To the extent Edu. Law § 3028 conflicts with GML § 50-k(2), GML § 50-k(2) must control.

Edu. Law § 3028 provides the following, in pertinent part:

Notwithstanding any inconsistent provision of any general, special or local law, or the limitations contained in the provisions of any city charter, each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney's fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee, or authorized participant in a school volunteer program in any civil or ciminal [sic] action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment or authorized volunteer duties.(Emphasis added).

"[W]here two statutes cannot be harmonized the subsequent provision prevails over the pre-existing and irreconcilably conflicting provision" (Tyson v Roswell Park Cancer Institute Corp., 4 Misc 3d 556, 780 NYS2d 704 [N.Y.Ct.Cl. 2003] citing 708 McKinney's Cons. Laws of NY, Book 1, Statutes § 398), and a prior general statute ordinarily must yield to a later specific or special statute (Tyson, citing Erie County Water Authority v Kramer, 4 AD2d 545, 550, 167 NYS2d 557 [4th Dept 1957], affd. 5 NY2d 954, 184 NYS2d 833 [1959]; Dutchess County Dept. of Social Services ex rel. Day v Day, 96 NY2d 149, 726 NYS2d 54 [2001]; see also, Bluebird Partners, L.P. v First Fidelity Bank, N.A., 297 AD2d 223, 746 NYS2d 475 [1st Dept 2002]).

As between Education Law § 2560(1) and § 3028, section 2560(1) grants teachers in a city having a population of one million or more the right to defense (pursuant to the provisions of GML § 50-k), and section 3028, on the other hand, imposes a duty upon the "board of education" generally to provide a representation where an action arises out of disciplinary action taken by a teacher against a student while in the discharge of his or her duties within the scope of his employment.

It may be stated that a teacher employed by a board of education is entitled to representation pursuant to the terms of both Edu. Law § 2560 and Edu. Law § 3028. However, upon a closer reading, Edu. Law § 2560 applies specifically to employees of a board of education in cities having a population of more than one million residents (i.e., New York City), and expressly excludes, by reference to GML §50-k, employees who have violated a "rule or regulation of his agency" (see Inglis v Dundee Cent. School Dist. Bd. of Educ., 180 Misc 2d 156, 687 NYS2d 866 [Sup Ct, Yates County 1999] (stating that the "limitation imposed by the [*8]legislature under [GML] § 50-k(2), involving civil actions against employees of the City of New York" excludes representation if the employee violated a rule or regulation; Edu. Law § 3028 "does not provide that representation is excluded if [an] employee has violated a rule or regulation of the Education Department of the State of New York)).

Read together, it appears that a board of education has a duty to provide legal representation to a teacher where an action against the teacher arises out of disciplinary action taken by the teacher against a student while in the discharge of his or her duties within the scope of his employment, pursuant to 3028, unless, such teacher is a member of the board of education in a city having a population of one million or more pursuant to section 2560 and did not violate "any rule or regulation of his agency" pursuant to GML §50-k. Since Edu. Law 2560 and GML § 50-k) circumscribe the duty of a board of education to provide representation to a teacher in New York State, this Court finds that Edu. Law § 2560, is a specific statute, and thus, governs petitioner's right to legal representation by the respondents.

In Morel v City of New York, et al. (Solomon, J.), plaintiff, a tenured teacher, challenged the respondents' denial of legal representation also pursuant to GML § 50-k in an action in which plaintiff was accused of punching a student. Petitioner, like petitioner herein, sought relief from the Court pursuant to GML § 50-k and Edu. Law §§ 3028. The Supreme Court held that Edu. Law § 3028 was a specific statute, which "carved out an exception to GML 50-k(2) for claims arising a teacher's disciplinary actions. The Court held that Edu. Law § 3028 "is the controlling statute" and the "only ground upon which representation can be refused is scope of employment." (p. 4). Similarly, the Court in Matter of Deborah Sagal-Cotler (Huff, J), a paraprofessional requested legal representation in a matter resulting from an incident in which the paraprofessional struck a student in the face. Petitioner cited to § 3028, while respondents cited to § 2560. The Court held that Edu. Law § 3028 "is the more specific statute, because it provides specifically for situations involving disciplinary action in an education context." (p. 3), and proceeded to address the question of whether petitioner acted within the scope of her employment or duties during the alleged incident. While persuasive, this Court opines that the greater restrictions placed by Edu. Law § 2560, and by incorporation GML § 50-k, upon a New York State's teacher's right to legal representation render § 2560 more "specific" in nature, and thus controlling herein.

The case cited by petitioner, Timmerman v Board of Educ. of City School Dist. of City of New York (50 AD3d 592, 856 NYS2d 103 [1st Dept 2008]) is not controlling. The trial court decision (reversed on appeal), indicates that petitioner therein called the parents of three female students to report their disruptive behavior in the classroom. A few days later, the students reported to school officials "that petitioner had touched them inappropriately." The following day, petitioner was arrested and then arraigned on charges of, inter alia, sexual abuse in the first, second and third degrees. In response to petitioner's request for legal representation, respondent DOE stated that petitioner's "criminal proceeding does not fall within the scope of Education Law § 3028." In the ensuing Article 78 proceeding to compel representation, the trial court held that "the Board had a reasonable basis to determine that the proceeding against petitioner did not arise from disciplinary conduct. [O]n its face, the criminal action arose from allegations that petitioner inappropriately touched two of his students, not from allegations that petitioner called their parents or took any other disciplinary action against them. Thus, when approaching the [*9]question of reimbursement, the Board reasonably determined that the criminal proceeding fell outside the scope of Education Law § 3028. The behavior underlying the charges against petitioner could not be said to have been intended as disciplinary action or to have been undertaken while in the discharge of his duties within the scope of his employment." On appeal, however, the First Department reversed, stating "since the record shows that the criminal proceeding against petitioner clearly arose out of disciplinary actions that he took against pupils, respondents should reimburse petitioner for the attorneys' fees and expenses he incurred in defending himself." Unlike herein, the DOE denied representation pursuant to GML § 50-k, not Edu. Law § 3028, and neither the trial court nor the First Department addressed the issue of whether GML § 50-k applied.

Here, the Corporation Counsel has the statutory authority to determine whether or not the subject "act or omission ... occurred while the employee was acting within the scope of [his] public employment and in the discharge of [his] duties and was not in violation of any rule or regulation of [his] agency at the time the alleged act or omission occurred" (Perez v City of New York, 43 AD3d 712, 841 NYS2d 559 [1st Dept 2007] citing § 50-k[2]).

The Corporation Counsel's determination is amply supported by the record. AP Rainy's January 26, 2009 report, request for representation,[FN6] and subsequent letter to petitioner, indicates that petitioner violated Chancellor's Regulation A-420, which prohibits corporal punishment. Specifically, Chancellor's Regulation A-420 defines corporal punishment as follows:

(2) . . .corporal punishment means any act of physical force upon a pupil for the purpose of punishing that pupil, except as otherwise provided in paragraph (3) of this subdivision.

(3) In situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed, nothing contained in this section shall be construed to prohibit the use of reasonable physical force for the following purposes:

(I) to protect oneself from physical injury;

(ii) to protect another pupil or teacher or any person from physical injury;

(iii) to protect the property of the school, school district or others; or

(iv) to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school or school district functions, powers and duties, if that pupil has refused to comply with a request to refrain from further disruptive acts.

The April 2010 report recites that AP Rainy reviewed the accounts by McMichael, five witnesses, and petitioner. AP Rainy found that the witnesses were credible and consistent in several respects. Based on the investigation, AP Rainy found that McMichael was initially blocking the stairwell and petitioner asked McMichael to stop. The parties began to "tussle," perhaps playing at first; however, after McMichael wrapped himself around petitioner, petitioner asked McMichael to let him go, to which McMichael complied. Thereafter, when McMichael headed towards the cafeteria, petitioner pushed him into the door, causing McMichael's injuries. [*10]

Whether petitioner was acting within the scope of his employment and in the discharge of his duties at the time of the incident is not determinative. While petitioner arguably may have been excused from using physical force to stop McMichael from blocking the stairwell after McMichael allegedly refused to comply, even assuming, as petitioner alleges, that he shoved McMichael when McMichael "made another move towards" him (Petition, ¶16), the record also indicates that he shoved McMichael into the cafeteria door in order to "create space," and/or when McMichael was headed toward the cafeteria (see Cargill v Sobol, 165 AD2d 131, 565 NYS2d 902 [3d Dept 1991] (finding Commissioner's determination rational, where petitioner's "initial response seems justified and within the bounds of the board policy [relating to corporal punishment], it is his further action of pushing the student against the chalkboard that was both unnecessary and unjustified in light of the circumstances"; the Commissioner based his finding of guilt not on petitioner's action in grabbing the student, but on the additional aggressive act of "pushing" the student against the chalkboard)). Contrary to petitioner's contention, a finding of that his conduct violated the rules and regulations precludes him from representation by respondents. Therefore, since a factual basis exists to support the conclusion that petitioner violated a rule or regulation, the Corporation Counsel's determination was not arbitrary or capricious, or an abuse of discretion.

Nor can it be said that respondents' determination is arbitrary or capricious for failure to state the basis for the denial. The April 2010 letter refers to a review of the facts and circumstances of the matter, and petitioner was given a copy of AP Rainy's letter explaining the findings and conclusions he reached in his investigation, of which petitioner was also aware.

As to indemnification of legal fees incurred by petitioner, Edu. Law § 2560 provides for defense and indemnification, subject to the conditions and limitations of GML § 50-k. Since under GML § 50-k, qualified employees are entitled only to a defense by respondents, petitioner's application for indemnification of any legal fees expended for private counsel is unwarranted. Thus, even if petitioner's request is premature (see Mercurio v City of New York,

758 F 2d 862 [2d Cir 1985]), GML § does not provide for indemnification and/or reimbursement of petitioner's attorneys' fees, if any.

Nor is indemnification warranted pursuant to Edu. Law § 3023, which provides:

Notwithstanding any inconsistent provision of law, general, special or local, or the limitation contained in the provisions of any city charter, it shall be the duty of each board of education . . . in any school district having a population of less than one million . . . to save harmless and protect all teachers . . . from financial loss arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to any person, . . . provided such teacher . . . at the time of the accident or injury was acting in the discharge of his duties within the scope of his employment . . . .

First, petitioner raises arguments under this section for the first time in reply. Second, respondents' determination was not made pursuant to this section. Third, it appears that this section does not apply to the respondents herein, as the DOE does not qualify as a school district having a population of less than one million.

Consequently, petitioner's request for leave to file a plenary action for indemnification [*11]upon the entry of judgment or settlement in the underlying action, pursuant to Edu. Law § 3023 and GML § 50-k lacks merit, for the reasons stated above.


Based on the foregoing, it is hereby

ORDERED and ADJUDGED that petitioner's request for a judgment (1) declaring that respondents' denial of legal representation and indemnification of expenses he incurred in defense of a civil proceeding was arbitrary, capricious and contrary to law and an abuse of discretion; (2) directing that respondents provide him with legal representation in the civil proceeding pursuant to Education Law §§ 2560 and 3028 and General Municipal Law § 50-k; and (3) directing that respondents reimburse him attorney's fees and defense costs pursuant to Edu. Law §§ 2560, 3023, and 3028 and GML § 50-k, is denied, and the petitioner is dismissed; and it is further

ORDERED that respondents serve a copy of this order with notice of entry upon all petitioner within 20 days of entry.

This constitutes the decision and order of the Court.
Dated: December 10, 2010_________________________________

Hon. Carol Robinson Edmead, J.S.C.


Footnote 1: Petitioner sets forth no substantive arguments explaining how Edu. Law §§ 2560 and 3023 were violated, and only addresses Edu. Law § 3028 and GML § 50-k in his memorandum of law.

Footnote 2: The incident was reported to the Office of Special Investigations, and forwarded to the Principal for investigation.

Footnote 3: Petitioner submits Morel v City of New York, et al., (116668/2009) (Solomon, J.), and Matter of Deborah Sagal-Cotler (Index No. 104406/2010) (Huff, J).

Footnote 4: GML § 50-k(1)(b) defines "City" as "the city of New York."

Footnote 5: As to indemnification, GML § 50-k(3) provides, in pertinent part:
The city shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees . . ., or in the amount of any settlement of a claim . . . provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were substantiated; . . . . (Emphasis added).

Footnote 6: Petitioner's application for legal representation includes a section completed by Principal Tamika Matheson, in which she notes that petitioner violated "CRA-420" and was given a disciplinary letter in connection with the incident.