The Best Reviews of Class Warfare: Mike Winerip and Richard Rothstein

Steve Brill is getting a name out there - no, he's getting many names out, depending on whose review of his new book you read. Because this is my blog, I picked my two favorites out of the pack: Richard Rothstein and Mike Winerip. See below. Just dont buy the book.

Betsy Combier

Grading the Education Reformers: Steven Brill Gives Them Much Too Easy A Ride
by Richard Rothstein

August 28, 2011

Teachers Get Little Say in a Book About Them
By MICHAEL WINERIP, NY TIMES
LINK

Can an education reform movement that demeans and trivializes teachers succeed? It’s hard to imagine, but that is what is going on in parts of America today.

In Steven Brill’s new book celebrating the movement, “Class Warfare: Inside the Fight to Fix America’s Schools,” teachers are literally the least of it. Of the three million who work in traditional public schools, three are interviewed by Mr. Brill on the record; their insights take up six of the book’s 437 pages.

Nor do charter school teachers fare much better. At Harlem Success Academy 1, which produces top scores on state tests, Mr. Brill describes how teachers working around the clock continually burn out. Like kitchen appliances, they last a few years and then need to be replaced. One teacher describes being “overwhelmed, underappreciated and underpaid” and tells Mr. Brill, “There is no way I can do this beyond another year or two.”

Mr. Brill has little positive to say about teachers. Veterans “hanging on for 20 or 30 years caring only about their pensions and tenure protection are toxic.” While he admits that there are thousands of teachers who are skilled and highly motivated, “increasingly” there are those who put in an “8:15 a.m. to 3:15 p.m. workday with a civil-service mentality.” (How Mr. Brill could possibly know whether the number of these teachers is increasing is unclear, since he provides no statistics or attribution.)

Until this project, Mr. Brill, 61, had rarely written about education. Nor was he well acquainted with public schools — he graduated from Deerfield Academy in Massachusetts and sent his three children to private schools.

The book grew from his New Yorker article two years ago about rubber rooms, where the city’s most dysfunctional teachers spent idle days, collecting salaries while waiting months or years for their cases to be resolved. “I see a guy asleep with his head on a desk and alarm clock,” Mr. Brill recalled in an interview. “I see another guy, if he were in a room with my daughter, I’d call the police.”

There were 744 teachers in rubber rooms at the time. For some, that is understandable in a system of 77,000 teachers; to Mr. Brill, it was a prime example of a union more interested in protecting its members than in educating children.

Mr. Brill, a writer (“Teamsters,” 1978), lawyer (Yale ’75) and entrepreneur (founder of Court TV and the American Lawyer publication), knows that every story needs a villain or an evil force. In “Class Warfare,” the problem is not the poverty the children experience, the violence they see in their homes and neighborhoods or the lack of vocabulary that the sons and daughters of adults who did not finish high school often take with them to kindergarten.

The villains of Mr. Brill’s story are bad teachers coddled by unions.

With his legal training and business background, Mr. Brill is expert at chronicling the union’s failings. He documents the growth of the New York City teachers’ contract from 39 pages in 1962 to 200 today, along with work rules that can be used at every turn to obstruct principals from improving schools. He details the case of a Stuyvesant High School teacher who was so drunk that she passed out at her desk, only to have the union claim on its Web site that she was disciplined as part of a scheme to harm senior teachers.

He goes a lot easier on the reformers who have spent recent years pushing the expansion of charter schools and standardized tests. Mr. Brill identifies the millionaires and billionaires who attack the unions and steered the Democratic Party to their cause. There is Whitney Tilson, who parlayed $1 million of his parents’, relatives’ and own money to build a hedge fund that he told Mr. Brill was worth $50 million; Ravenel Boykin Curry IV, who works for the family’s money fund and has homes in Manhattan, East Hampton and the Dominican Republic; and David Einhorn, who at age 38 “was already one of Wall Street’s successful short sellers.”

The book is called “Class Warfare.” I expected Mr. Brill to explore why these men single out the union for blame when children fail. If a substantial part of the problem was poverty and not bad teachers, the question would be why people like them are allowed to make so much when others have so little. I hear this all the time from teachers, but when I asked Mr. Brill, he said, “I didn’t see it as the rich versus the union guys, although now that you say it, I can see how you could draw that line.”

Harlem Success 1 shares a building with a traditional public school, P.S. 149. Mr. Brill presents numbers that show the charter school is far superior: 86 percent of Harlem Success students were proficient in English in 2010, compared with 29 percent of P.S. 149’s. He notes that charters are criticized for having fewer children with learning challenges, but “none of the actual data supports this.”

Actually, it does. According to the city, in 2010 P.S. 149 had more children poor enough to receive free lunch (76 percent vs. 67 percent for the charter); more children for whom English was a second language (13 percent vs. 1.5 for the charter); and more children with disabilities (22 percent vs. 16).

And that is what so scares those of us who see traditional public schools as vital to democracy: that they will become repositories for the poorest, most troubled children.

Reviewers have criticized Mr. Brill for making what seems like a bizarre turnaround in the book’s final chapter. When I asked him about it, he said the two years spent reporting had changed him.

In the book’s first 420 pages, he bashes the union and its president, Randi Weingarten, is dismissive of veteran teachers and extols charters.

Three people seem to have altered that thinking. First, David Levin, a founder of the Knowledge Is Power Program, the biggest charter chain in the country, told him that charter schools would never be able to train near the number of quality teachers needed to populate all public schools.

Second, Jessica Reid, an assistant principal at Harlem Success who worked night and day to improve the lives of poor children, burned out right before Mr. Brill’s eyes and quit midyear.

And third, against the odds, he came to like Ms. Weingarten. “She really cares about this stuff,” he told me.

The book ultimately concludes that only the union can supply quality veteran teachers on the scale needed.

At a time when education is so polarized, Mr. Brill seems to have found some middle ground. He even suggested to Mayor Michael R. Bloomberg that he make Ms. Weingarten New York’s next chancellor to provide the balance necessary for real change.

On Page 426, the mayor responds. “It’s a really stupid idea,” Mr. Bloomberg said. “Never in a million years.”

Oneducation@nytimes.com

The Great Debate: Steve Brill v Teaching Matters

AUG 21, 2011 19:37 EDT

Steven Brill

The school reform deniers

EDUCATION | SCHOOL REFORM | TEACHERS

By Steven Brill All opinions expressed are his own.

Every year I tell students in a journalism seminar I teach about the junior reporter forThe American Lawyer – the magazine I founded and edited –who committed a classic error when he submitted a draft of a profile about some lawyer in the news who had made it big. Midway through the article, the young reporter described a showcase this lawyer had in his office that displayed a bunch of combat medals. The reporter declared, matter-of-factly, that our legal hero had won the medals for his heroics in Vietnam, which was relevant, he added, because the lawyer made his war record and his lock-n-load approach to his work part of his pitch to potential clients.

In the margin next to the statement about the lawyer having won the medals I wrote, “Who says?” When the reporter came to ask me what I had meant, I told him to check with the Pentagon about the supposed medals. Which the reporter did, and which caused a mini-scandal after we reported in our otherwise positive profile that our hero hadn’t won them.

The story has three points. First, that reporters should believe nothing told to them by a biased source, especially when what they are being told is a checkable fact. Second, that while opinions deserve balanced reporting of both sides’ views, facts are facts. They are knowable. The guy either got medals or he didn’t. Third, the best way to test facts that you think you know is to put them in front of the person with the greatest stake in refuting them. In this case when we confronted the lawyer with the Pentagon’s records that he had not won any medals, he produced no evidence to the contrary and, in fact, ultimately confessed his deception. Case closed.

I have thought about the lawyer who didn’t win the medals a lot in the two years since I parachuted into a giant story that I started out knowing little about: the battle raging across the country over education reform. After I had seen a reference to them in the New York Post, I showed up one morning in June 2009 at one of New York City’s “Rubber Rooms.” These were the places that housed hundreds of New York City teachers whom the Department of Education had accused of misconduct or incompetence, but who were protected by union tenure rules and, therefore, remained on the payroll for years pending the outcome of endless arbitration hearings, which typically resulted in them being returned to class by arbitrators whose $1,400-a-day contracts had to be approved every year by the teachers’ union.

The minute I saw these people sleeping, playing board games, chatting, or — in the case of a cheerful, $85,000 a year former middle school teacher — lounging in a beach chair she had brought from home, the story seemed obvious. As schools chancellor Joel Klein and his staff had argued, the Rubber Room was a symbol of a system gone haywire.

However, there seemed to be another side. The union had maintained that the Rubber Room teachers were victims, and New York’s public radio station, WNYC, had broadcast a report in which several of these Rubber Room teachers were interviewed complaining about how they were being persecuted for having complained about Klein’s misdeeds or misconduct.

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AUG 29, 2011

2:38 PM EDT

John Thompson On Steve Brill's New Book

We all are going to hear alot about Steve Brill's book in the future, and all views are important. Just dont buy the book.

Betsy Combier

Guest Post: The Facts Not Included in Steve Brill's Tell All

By John Thompson

Steve Brill’s Class Warfare is full of breathless accounts of the rich and powerful that are reminiscent of the biographies of Kitty Kelly. Ironically, the most valuable part of his Class Warfaremay be his accounts of dramatic decisions to undertake risky and revolutionary "reforms" based on minimal evidence and some strange assumptions.

According to Brill, "Identifying Effective Teaching Using Performance on the Job" by Tom Kane, Robert Gordon, and Douglas Staiger was used to convince Bill Gates and President Obama that "teacher quality," measured by standardized tests, must be the focus of reform. According to Brill, they argued that tests showed, "remarkable consistency among teachers," and that "obviously" this suggested that the person in front of the classroom was the key to closing the achievement gap. Gates was supposedly told that the "surprising" lack of volatility in the test scores of one district meant we could trust algorithms to drive the firing of teachers. If we believe Brill, because of the stability in the charts that Kane and Gordon presented to Gates, we should presume that 25% of teachers with the lowest test score growth should be fired.

Perhaps I should make no assumptions, and use my 90% low-income district to explain Urban Education 101 for reformers. In our six magnet and charter high schools, the attendance rates never drop below 95%, while our seven neighborhood schools struggle to reach an attendance rate of 80%. When you add in the far lower enrollment rates and the far higher suspension rates in the neighborhood schools, their students attend class at a rate that is 1/4th to 1/3rd less than their peers in selective schools (and far less than their previous three years in middle school.) It would take a superhuman effort for neighborhood school teachers, with kids who are five to six years behind grade level in reading, to meet growth targets that were not controlled for school selectivity.

By the way, those patterns are all stable. Should we thus assume that the teachers in the magnet schools are better than the teachers in neighborhood schools with deplorable scores?

Neither would anyone with firsthand knowledge of actual classrooms assume that a relative lack of test score volatility within schools justifies the "reformers’" extraordinary conclusions. I would assume that Kane, at least, would know that even when student assignment policies are stable, students are assigned differently to tested and non-tested classes. I wonder how he would address a stable pattern in my district where middle school "Science" classes are taught to the names, dates, facts, and figures of the benchmark tests, producing pass rates ranging from 70 to 73%. Then freshmen Biology students have a pass rate that fluctuates from 30% to 51% to 41% on tests designed to measure scientific thinking. Since the Biology teachers’ growth targets would be based on middle school tests, would Kane support the mass firing of those teachers for failure to meet targets generated from the results of different tests?

Recognizing that districts differ, let us take some more obvious examples of stable patterns from my school system. As 5th graders, the kids of Zip Code 73120 attend schools with poverty rates ranging from 23%, 50%, 69%, and 76%, with the special education populations ranging from 5.5% to 14%. The number of suspensions are 0, 14, 33, and 86. The pass rates for 5th grade Reading range from 81% to 95%.

Between 5th and 6th grade, the district's student population drops by nearly 1/5th as the numbers of special education and ELL students increase. In 73120, the decline is more remarkable as the majority of their students move to magnet, enterprise, and charter schools, including four that have gained national recognition. So, the 6th graders arrive at a school with 2,020 disciplinary actions, which lost its middle class students after the campus policeman was hospitalized in a riot, and where 1/4th of their class are on IEPs. Should the 6th grade teachers to be blamed for a Reading pass rate of 44%? Is it reasonable to expect those teachers to meet test score targets based on the three previous years of performance in very different types of classrooms, with incomparably different peer effects?

Similarly, a non-educator might be unaware that the challenges facing an Algebra II class are radically different to those of an Algebra I class next door. The demographic differences between the two math classes, however, are just as stark as the unbelievable differences between our 5th and 6th graders. My school was the lowest-ranked secondary school in Oklahoma, but the percentages of poor and at-risk juniors in Algebra II were not dramatically different to the percentages in many suburban schools. After all, 1/3rd or more of the freshmen Algebra I students drop out before reaching their 11th grade year. (By the way, 9^th grade is the year when the enrollment rate reaches rock bottom, with the average freshmen being in school for less than 2/3rds of a year, and when the truancy and suspension rates explode. Should we fire most, if not all inner city Algebra I teachers for not raising the performance of students who do not attend class?)

Worst of all, the Gates shop has given no indication that they have become aware of the difference between a student with a math or a reading disability, as opposed to a conduct disorder or serious emotional disturbances. Neither have they dealt with the effect of federal policies on how schools are allowed to handle those students, and the implication for schools where 35 to 40% of their students are on Individual Education Plans.

In other words, they do not have the background knowledge to comprehend the scenario described by Paul Tough where an inner city class of thirty kids, because it has 8 to 10 kids who have been traumatized to the point where their brain circuitry has been altered, degenerates into a culture of hitting and fighting. Otherwise, how could Kane and Gates assume that teachers with those sorts of classes would have a chance of hitting their growth targets?

Unless these theorists assumed that Seriously Emotionally Disturbed students are distributed evenly throughout our diverse nation's classrooms, they betrayed a basic misunderstanding of peer effects in urban schools. A class where a third of the students are well- behaved kids with cognitive differences, can not be compared to a class with a critical mass of children who have been victimized to the point where they can not control their behavior. And if the theorists have that level of ignorance, perhaps they also are unaware that schools facing an impossible load of the most difficult-to-educate students tend to turn certain classes into dumping grounds.

Brill’s Class Warfare included 19 pages of sources and endnotes, but there is no indication that he read any of the immense body of social science on teaching, learning, and schooling. According to Brill, Gates gave the go-ahead for his Measuring Effective Teaching effort after two hours of discussion. There was no indication that Gates was exposed to scholarship that contradicted the hypothesis that teacher quality must drive reform.

Had Gates been briefed on the way schools are organized, and the need for early education, a concentration on reading comprehension and socio-emotional skills before 3rd grade, the need for high-quality curriculum, and the promise of community schools that turn education into a team effort, I doubt this smart man would have assumed that there was only one way to fix urban schools.

If Gates, or for that matter, if President Obama (who later adopted the Gates agenda) had been provided a full and fair briefing by educators as well as economists, it would be no skin off Brill's nose. There are still plenty of Kitty Kelly-type books out there begging to be written by a person with Brill's confidence that he obviously knows all of the answers.

Dr. John Thompson was an award-winning historian, lobbyist, and guerilla-gardener who became an award-winning inner city teacher after crack and gangs hit his neighborhood. He blogs atthisweekineducation.com, and huffingtonpost.com, and is writing a book on 18 years of idealistic politics in the classroom and realistic politics outside.

Should Education Schools Have "Higher" Standards For Graduating New Teachers?

How education schools fail the nation

By MICHAEL A. WALSH, NY POST, August 25, 2011
LINK

Which college field of study has the lowest standards and the highest grades -- a magical Lake Wobegon world in which all the students are not just above average but way above average? If you guessed “teaching,” you’d be right.

That’s the conclusion of a new study from the conservative American Enterprise Institute for Public Policy Research, “Grade Inflation for Education Majors and Low Standards for Teachers.”

“Students who take education classes at universities receive significantly higher grades than students who take classes in every other academic discipline,” says the report. “The ... explanation is that the higher grades in education classes are the result of low grading standards.”

The study, authored by Corey Koedel, notes that education majors -- the future teachers of America, especially at the grade-school and high-school level -- routinely get top marks in the gut courses that ed majors generally take. And yet they consistently score lower on college entrance exams than students in other disciplines.

It’s an amazing disparity between ability and academic “achievement” that translates in the real world into high performance evaluations and failing schools, especially in urban areas.

What’s wrong with this picture? Nothing less than the future of the country.

Progressives like to defend their pet programs as “for the children,” but if anything ought to be for the children, it’s education. And yet secondary and high-school education in this country has too often become a sinecure of last resort for people who have no business teaching in the first place.

Teachers unions play a key role in this madness: Whenever the issue of “teacher quality” comes up, they push for more “certification” -- more degrees from the ed schools -- as the answer, rather than any sort of competency testing. And the unions would just as soon the certification came in meaningless areas -- that way it’s no threat to anyone’s job.

In fact, the theories of education have become far more important than the subjects themselves. The heck with reading, writing and arithmetic -- these days, it’s all about “strategies for learning.”

So it’s no wonder that American schoolkids have fallen far behind their international counterparts. Today a high-school diploma too often simply signifies four years spent under adult supervision in juvenile-detention centers for the largely nonviolent -- rather than any specific level of knowledge or attainment.

In turn, this has led to such futile barn-door closing as the No Child Left Behind act, which sought to set measurable standards of achievement through standardized tests. That brought us dumbed-down tests -- plus scandals like the Atlanta “erasure parties,” where teachers and administrators “improved” student test results. Investigators found misconduct in 44 of the 56 schools they examined, and at least 41 teachers implicated in the scandal have quit, among them 13 school principals.

The chances this scandal is confined to Atlanta? Slim or none.

The fact is that education in America has been turned on its head. It’s not about book learning any more. Instead, it’s about allowing teachers to stick another gold star of self-esteem on their resumes when their charges manage to conquer what would have been considered just a few decades ago the most rudimentary of exams.

It’s also about career advancement -- and, of course, getting more taxpayer dollars. And so as high schools have turned into grade schools, colleges -- especially state colleges -- have had to become very expensive remedial high schools.

This madness has to end. We must return to the days before education majors got a stranglehold on the schools, before the vicious cycle of bogus achievement leading to invincible ignorance. And it starts by hiring teachers who can teach subjects, not theories.

As Koedel notes, “Low grading standards in university education departments are part of a larger culture of low standards for educators, and they precede the low evaluation standards by which teachers are judged in K-12 schools.”

And for this we spend more than $600 billion on public primary and secondary education in America? There is a better way.

First Department Rules Against The UFT, Says Teachers' Scores Can Be Released

For second time, a court rules city can release teachers’ scores

by Philissa Cramer, Gotham Schools
LINK

The city can release teacher ratings data to news organizations, the state’s second-highest court ruled today in another serious blow to the union’s effort to keep individual teachers’ scores out of the press.

The release won’t happen right away while the legal fight continues, Department of Education officials said.

But the union is running out of chances to stop the ratings from being published. In December, a State Supreme Court judge ruled that the city could release Teacher Data Reports for at least 12,000 teachers who have them. After the Appellate Court ruling today, the union’s last hope is the state’s highest court, the Court of Appeals.

The union is already working on its appeal, UFT President Michael Mulgrew announced moments after the Appellate Court ruling.

Because the four judges on the Appellate Court ruled unanimously against the union, there’s no guarantee that the Court of Appeals will hear the case. Instead, the Appellate Court has to give permission. Within days, the union will ask the appellate court for permission to have the case heard in the Court of Appeals. If permission isn’t granted, the union can also ask the Court of Appeals itself. If the Court of Appeals declines to hear the case, then the Appellate Court’s decision would stand and the union would be out of options.

“We will await the court’s decision on [the UFT's] request to appeal before we release the data,” said Natalie Ravitz, a DOE spokeswoman.

The Teacher Data Reports are “value-added” evaluations, which grade teachers by comparing their students’ test scores to forecasted scores. They were created as an internal assessment, designed to help teachers gauge their own performance. But the city announced it would release the ratings publicly after several news organizations filed Freedom of Information Law requests for them. That announcement prompted the UFT lawsuit.

The Appellate Court judges ruled that making teachers’ ratings available is in the public interest. “The reports concern information of a type that is of a compelling interest to the public, namely, the proficiency of public employees in the performance of their duties,” the judges wrote.

But the union argues that the data reports’ wide margin of error means it would be irresponsible to publish them.

“Experts agree that an ‘accountability’ measure with a 58-point swing — like the DOE’s teacher data system – is worse than useless,” Mulgrew said in a statement. “Parents and teachers need credible, accurate assessments rather than guesswork.”

Teachers union loses suit to keep teacher ratings anonymous

by Anna Phillips, Gotham Schools, January 10, 2011
LINK

New York City’s teachers union lost its suit to block the city from releasing 12,000 teachers’ ratings and names that, for years, have been kept confidential.

State Supreme Court Justice Cynthia Kern ruled today to deny the United Federation of Teachers’ request that the city redact teachers’ names from the Teacher Data Reports. The reports measure a teacher’s effectiveness based on how good she is at improving her students’ test scores from the beginning of the year to the end.

Underpinning the union’s lawsuit was the claim that releasing teachers’ ratings with their names included constituted an unlawful invasion of privacy.

A spokesman for the union said that the union’s lawyers are reviewing the decision.

Kern’s ruling:

Teachers Cannot Be Evaluated Only By Student Scores - Union Wins

Teacher Tests Overhaul Goal Struck Down
By JACOB GERSHMAN, Wall Street Journal, AUGUST 25, 2011
LINK

New York's effort to overhaul its system for evaluating teachers suffered a setback on Wednesday when a state judge ruled that public-school educators can't be deemed ineffective based only on the performance of their students.

Siding with the state's teachers union, a state Supreme Court judge in Albany struck down a provision of new state regulations that give schools more leeway to fire teachers whose students persistently get poor marks on standardized tests and other assessments.

Justice Michael C. Lynch specifically rejected the section allowing schools to give teachers the lowest rating if they fail the student performance part of their evaluation, even if they score higher on other measures.

State officials said they would appeal. "That is the most disappointing aspect of this decision," said New York's education commissioner, John King Jr. "The notion that a teacher whose students show no academic growth or lose ground academically would be able to get a positive rating is highly problematic."

Under the new system approved last year, 40% of a teacher's review is based on student achievement. The rest is determined by other factors such as classroom observations.

Last June, New York State United Teachers sued the state Board of Regents, charging that the regulations violated state law. The union, a federation representing hundreds of thousands of teachers, contended that the regulations put too much emphasis on test scores, going beyond what lawmakers intended when they revised the evaluation system last year.

Justice Lynch agreed in part.

"Since multiple measures must be considered," he wrote, "the scoring ranges developed by the Commissioner must allow for the 60 point category to have meaningful impact in the composite score, even in an instance of poor student achievement."

The judge also ruled that only 20% of the evaluations can be based on a single, uniform assessment tracking a student's test scores year to year. The state wanted to push that percentage up to 40%. The judge said schools would have to come up with different ways of measuring student performance.

"This decision upholds the role of practitioners and the value of collective bargaining," the union president, Richard C. Iannuzzi, said in a statement.

The new regulations, parts of which still must be collectively bargained, are supposed to kick in for about 60% of the state's public teacher work force—whose contracts expired in July.

As part of New York's winning bid for about $700 million in federal grants, the state said it would launch the new system this school year, beginning with most math and English teachers in grades four through eight. Unless the state loses an appeal of Wednesday's decision, the regulations will still hold.

Write to Jacob Gershman at jacob.gershman@wsj.com

August 24, 2011
For State Teachers’ Union, a Victory on Evaluations
By SHARON OTTERMAN, NY TIMES
A judge ruled Wednesday that the New York State Board of Regents overreached in its interpretation of a new law on teacher evaluations, offering a victory to the state teachers’ union.

The decision, by Justice Michael C. Lynch of State Supreme Court in Albany, invalidated aspects of a recent Regents vote on teacher evaluations, and may further delay the introduction of the law, which is scheduled to go into effect for all fourth through eighth grade teachers, pending union approval, in the coming school year.

“We are extremely pleased with the outcome,” said Richard C. Iannuzzi, the president of the union, the New York State United Teachers.

In June, the union sued the Board of Regents, which sets state education policy, arguing that last-minute changes the Regents approved had increased the role of student test scores in teacher evaluations beyond what the 2010 law permitted.

In hs 16-page decision, Justice Lynch largely sided with the union, writing that the Regents had failed to give sufficient weight to the law’s collective bargaining requirements, and that it had not fully acknowledged the law’s stipulation that test scores alone cannot determine a teacher’s performance review. “The Regents is unquestionably invested with broad rule-making authority,” Justice Lynch wrote, “but such authority must be exercised subject to and in conformity with the law of the state.”

John B. King Jr., the state education commissioner, said the state planned to appeal.

We are disappointed,” he said, by the aspects of the decision “that undermine the rigor of the evaluation system.”

Heeding a call from Dr. King and Gov. Andrew M. Cuomo, the Board of Regents voted in May to permit districts to base 40 percent of a teacher’s annual review on students’ scores on state standardized tests. But the law specifies that 20 percent of the evaluation must be based on state tests, with an additional 20 percent based on other, locally developed student tests. The other 60 percent of the evaluation is based on subjective measures, including observation.

In a compromise that pleased both the union and the state, Justice Lynch ruled that districts could use state tests for both the local and state measure, if the local union chapter approved and the tests were used in more than one way.

But he invalidated a Regents decision that would have required any teacher who received a rating of “ineffective” on the test score component of his or her evaluation to get an “ineffective” rating over all — no matter how well that teacher scored on subjective measures.

The new law replaces the simple “satisfactory/unsatisfactory” scale that teachers have been judged against for decades with a four-tiered rating: ineffective, developing, effective or highly effective. It was passed in a compromise between state education officials and the teachers’ union in 2010, to help the state win a $700 million grant from the federal Race to the Top competition.

City Teachers Scramble For Jobs

City Teachers Scramble for New Positions

Tuesday, August 23, 2011 - 04:49 PM
By Beth Fertig, NYC News Blog
LINK

More than 1,900 city teachers let go by their principals because of budget cuts are still looking for new jobs this fall — and continue to receive salaries while they're assigned to work as subs and look for permanent positions within the school system.

Letting go of teachers for budget reasons has become an annual tradition in New York City, known as "excessing." This is the fifth consecutive year in which schools have had their budgets slashed. This year, individual schools lost an average of 2.4 percent of their city funds. Principals have responded by raising class sizes in order to let go of a teacher, or by moving librarians back to the classroom.

As many as 3,325 teachers were in the excess pool at its peak this summer, compared to 2,993 last summer — a figure that included more than 1,000 teachers who lost their jobs in previous years. But the total number of teachers still looking for work shrank to 1,940 by August 19, about the same number as this time last year.

It Could Have Been Worse

The teachers unions said it's not as bad as it feared.

"One potential reason could be that a larger-than-expected number of retirements and attrition could have created an unusual number of vacancies in schools," United Federation of Teachers spokesman Dick Riley said.

This allowed principals to pluck more teachers out of the excess pool, which is also called the Absent Teacher Reserve.

Mayor Michael Bloomberg has been lobbying to put a time limit on how long teachers can stay in the ATR pool if they don't find permanent jobs, because it costs the city about $100 million annually. As of August 19, 68 teachers have been in the ATR pool since 2006.

This year, as part of the deal to avoid any layoffs, the union agreed to give the Department of Education more flexibility in assigning teachers from the ATR pool to work as subs.

Other Positions Cut from Schools

The city expects to reassign 555 principals, assistant principals, guidance counselors, psychologists, social workers, attendance teachers and school secretaries to other positions because their principals couldn't afford to keep them on staff. There are no comparable figures for last year.

The city also has new estimates for how many non-teaching positions will be cut from schools this fall because the no-layoff pledge only applied to the teachers union.

It appears that a total of 777 positions were axed, including school aides, family workers, parent coordinators, health service aides, drivers and engineers.

Most of those come from District Council 37

Can Teachers Alone Overcome Poverty?

Can Teachers Alone Overcome Poverty? Steven Brill Thinks So

Steven Brill

Filed under: Education Policy,Poverty — millerlf @ 8:20 pm
By Dana Goldstein, The Nation – Wed, Aug 10, 2011
LINK

Steven Brill, the journalist and media entrepreneur, has come a long way since he helicoptered onto the education beat in 2009.

That’s when The New Yorker published Brill’s exposé of the New York City “rubber rooms,” where the Department of Education parked the one-twentieth of 1 percent of the city’s 80,000 public school teachers—about forty people—who had been accused of gross negligence and removed from the classroom. As they awaited the due process hearings guaranteed in their union contracts, rubber room teachers received full pay and benefits, sometimes for up to three years.

The article sparked outrage among readers, who were appalled that millions of tax dollars were spent annually paying the salaries and arbitrating the cases of teachers who came to work inebriated or practiced corporal punishment. Despite the fact that the Department of Education and the United Federation of Teachers shared responsibility for creating the clumsy and cumbersome arbitration process, Brill laid the blame solely at the union’s doorstep.

He followed up with his hyperbolically titled May 2010 New York Times Magazine feature “The Teachers’ Unions Last Stand,” which admired the Obama administration’s attempt to pressure states to tie teacher evaluation and pay to students’ standardized test scores. The article lavishly praised nonunionized charter schools while entirely blaming teachers unions for the achievement gap between poor and middle-class students.

Together, the two pieces had the kind of impact most journalists can only dream of. Rubber room teachers were reassigned to desk jobs, and their arbitrations were sped up. More significant, Brill’s framing of the education debate, borrowed from reformers like Joel Klein and Michelle Rhee—teachers unions vs. poor kids—infiltrated the popular consciousness more deeply than it had before, presaging the September 2010 release of the pro–charter school, anti–teachers union documentary Waiting for Superman. Brill began to appear on panels with key figures in the education debate, including American Federation of Teachers (AFT) president Randi Weingarten and Harlem Children’s Zone President and CEO Geoffrey Canada. And he embarked on an ambitious book project: a comprehensive history and analysis of the standards-and-accountability school reform movement called Class Warfare: Inside the Fight to Fix America’s Schools.

Not surprisingly, given Brill’s history of interest in only the most controversial school reform issues, the book is filled with misleading discussions of complex education research, most notably a total elision of the fact that “nonschool” factors—family income, nutrition, health, English-language proficiency and the like—affect children’s academic performance, no matter how great their teachers are. (More on this later.) Class Warfare is also studded with easy-to-check errors, such as the claim that Newark schools spend more per student than New York City schools because of a more cumbersome teachers’ contract. In fact, the New Jersey Supreme Court ruled in 1990 that the state must provide supplemental per-pupil funding to all high-poverty school districts, including Newark. As a result, New Jersey is considered a national leader in early childhood education, and Newark graduates more African-American boys from high school—75 percent—than any other major city.

But here’s the thing: by the closing chapters of his breezy, 478-page tome, Brill sounds far less like an uncritical fan of charter school expansion, Teach for America (TFA) and unionbusting and far more like, well, a guy who has spent several years immersed in one of the thorniest policy conversations in America, thinking about a problem—educational inequality—that defies finger-pointing and simple solutions.

Welcome to the beat, Brill!

One of Class Warfare’s stars, a charter school assistant principal named Jessica Reid, unexpectedly quits her job at Eva Moskowitz’s Harlem Success Academy in the middle of the school year; the charter chain’s rigorous demands pushed the 28-year-old Reid, a dedicated and charismatic educator, to the brink of a nervous breakdown and divorce. “This wasn’t a sustainable life, in terms of my health and my marriage,” she tells Brill, who concludes that he agrees (at least in part) with education historian and charter school critic Diane Ravitch. You can’t staff a national public school system of 3.2 million teachers, Ravitch tells Brill, with Ivy Leaguers willing to run themselves ragged for two years. Most of these folks won’t move on to jobs at traditional public schools, as the uncommonly committed Jessica Reid did, but will simply leave the classroom altogether and head to politics, business or law, where they’ll be paid more to do prestigious work, often with shorter, less pressure-filled hours.

One school principal has said that Randi Weingarten, of the teachers’ union,“would protect a dead body in the classroom.”

That’s the model of Teach for America, of course, another school reform organization with which Brill is somewhat frustrated by the end of his book. He comes to grasp the fundamental problem with TFA’s conception of the teacher pipeline: Let’s say the lowest-performing 10 percent of career teachers—320,000 people—are fired. How will we replace them? TFA will contribute only about 9,300 corps members to the nation’s schools in the coming school year; even if every graduate of a selective college entered teaching—and some would surely be terrible teachers—we’d still have a shortage. Education Secretary Arne Duncan was “actually making an important point,” Brill concedes, when he said, “You can’t fire your way to the top.”

Faced with these complexities, Brill comes up with a strange conclusion: Maybe New York City Mayor Mike Bloomberg should give Randi Weingarten control of the city schools in a “Nixon goes to China” move. If she were responsible for student achievement instead of teacher job security, Brill suggests, the labor leader would be forced to push union members harder to prioritize instructional excellence and embrace tenure reform.

But in fact, the sea change in union attitudes that Brill believes can only be achieved by this unlikely move has already taken place. The AFT and, more recently, the National Education Association have accepted the fundamental premise of tying teacher evaluation to student performance. The details need to be worked out in statehouses and school districts across the country—the most controversial issue, and rightly so, is the role that data from standardized tests will play. Nevertheless, the unions’ evolution into more student-achievement-focused organizations is, at this point, foreordained. In Colorado last year, the local AFT affiliate even supported legislation that requires student achievement data to account for 51 percent of a teachers’ evaluation score. Colorado teachers who receive a bad evaluation two years in a row will now lose their tenure protections.

All that said, it is truly ignorant to reduce school reform to a labor-management question. States with teacher collective bargaining routinely outperform right-to-work states academically, and teachers are unionized in most of the nations—such as Finland, Canada and France—whose kids kick our kids’ butts on international assessments.

School reform is just as much about the three Cs: curriculum (what knowledge and skills students actually learn); counseling (how we prepare young people, professionally and socially, for adult life); and civics (whether we teach students how to participate in American democracy).

Brill never mentions any of this. Class Warfare is built around the idea of children, particularly poor children, as test-score-producing machines, with little to no attention paid to other aspects of their personalities or lives. The book’s heroes are philanthropists, school administrators, policy wonks and politicians. We meet few students or parents.

Most pernicious is Brill’s repeated claim that the effects of poverty can be not only mitigated but completely beaten back by good teachers. “A snowballing network of education reformers across the country…were producing data about how teaching counted more than anything else,” Brill writes in the book’s opening pages. Later, he devotes a chapter to economists Thomas Kane and Douglas Staiger, whose work on value-added teacher evaluation has powerfully influenced Bill Gates’s education philanthropy. “It wasn’t that poverty or other factors didn’t affect student performance,” Brill summarizes. “Rather, it was that teacher effectiveness could overcome those disadvantages” (emphasis added).

In fact, the work of the many researchers Brill approvingly cites—including Kane, Staiger and Stanford’s Eric Hanushek—shows that while teaching is the most important in-school factor affecting student achievement, family and neighborhood characteristics matter more. The research consensus has been clear and unchanging for more than a decade: at most, teaching accounts for about 15 percent of student achievement outcomes, while socioeconomic factors account for about 60 percent.

It is tiring to make this point over and over again. The usual rebuttal is that determining exactly how much teachers matter is irrelevant, because they are one of the only levers in a poor child’s life over which school systems exert some control. This is true, and it’s a fine argument for focusing education policy efforts on sustainable teacher quality reforms, such as recruiting more academically talented young people into the profession, requiring new teachers to undergo significant apprenticeship periods working alongside master educators, and creating career ladders that reward excellent teachers who agree to stay in the classroom long-term and mentor their peers. This is what such high-performing nations as China and Finland do; they don’t, à la Teach for America, encourage 21-year-olds with five weeks of summer training to swoop into the classroom and swoop out again.

But because we know, without a doubt, that family poverty exerts a crushing influence over children’s lives, it is no small thing when standards-and-accountability education reformers repeat, ad nauseam, that poverty can be totally “overcome” by dedicated teachers. Of course, we all know people who grew up poor and went on to lead successful, financially remunerative lives. Many of them feel grateful to educators who eased their paths. But the fact remains that in the United States in 2011, beating the odds of poverty has become far less likely than ever, and teacher quality has less to do with it than does economic inequality—a dearth of good jobs, affordable housing, healthcare, childcare and higher education.

Advances in cognitive science have made it possible to pinpoint how these disadvantages hinder children academically. One-fifth of the middle schoolers in Providence, Rhode Island, for example, entered kindergarten in 2003 suffering from some level of lead poisoning, which disproportionately affects the poor and is associated with intellectual delays and behavioral problems such as ADHD. “It is now understood that there is no safe level of lead in the human body,” writes education researcher David Berliner, “and that lead at any level has an impact on IQ.”

Food insecurity is similarly correlated with cognitive delays, and rising in incidence across the country—more than 17 million American children consistently lack access to healthy, nutritious meals. Here’s how a team of Harvard School of Public Health researchers describe the relationship between hunger and student achievement:

When children attend school inadequately nourished, their bodies conserve the limited food energy that is available. Energy is first reserved for critical organ functions. If sufficient energy remains, it then is allocated for growth. The last priority is for social activity and learning. As a result, undernourished children become more apathetic and have impaired cognitive capacity. Letting schoolchildren go hungry means that the nation’s investments in public education are jeopardized by childhood malnutrition.

Acknowledging connections between the economy, poverty, health and brain function is not an attempt to “excuse” failing school bureaucracies and classroom teachers; rather, it is a necessary prerequisite for authentic school reform, which must be based on a realistic assessment of the whole child—not just a child’s test scores. Successful education reform efforts—such as the Harlem Children’s Zone, which provides “wraparound” social and health services alongside charter schools, or California’s Linked Learning schools, which connect teenagers to meaningful on-the-job training—are built on this more holistic understanding of the forces that shape a child’s life and determine her future.

Brill and the accountability crowd are correct to note that high-performing teachers are consistently able to raise the test scores of even the poorest children. Research shows that an improvement of one standard deviation in teacher quality leads to approximately two to four points of gain for a student on a 100-point test in reading or math. Five years of great teachers in a row, therefore, could raise a student’s test scores by ten to twenty points.

Whether this potential growth is incidental or transformative depends on where a student starts out: if he began at the twentieth percentile in reading, he’d still be failing; a jump from the seventieth percentile to the ninetieth could make him a candidate for selective colleges. Unfortunately, as Paul Tough demonstrated in a recent New York Times Magazine piece, at far too many “miracle” inner-city schools, the vast majority of students—despite impressive test-score growth—continue to score below proficiency in reading and math. These students may graduate from high school, but they are unprepared for college or work beyond the service sector.

Honest reformers are all too aware of this problem. As KIPP charter school co-founder Dave Levin tells Brill, “I’m still failing.” Indeed, only one-third of the KIPP network’s high school graduates are able to earn a bachelor’s degree within six years. This is a remarkable achievement in a country where only 30 percent of all young adults—regardless of family background—hold a college degree. It’s also a reminder of how very difficult it is to make huge leaps and bounds in closing the achievement gap. After all, a full 75 percent of the highest-income high school graduates are able to earn that BA by age 24.

Although Brill, by the end of Class Warfare, comes to recognize the limits of the education reform movement he so admires, he somehow maintains his commitment to the idea that teachers can completely overcome poverty. There’s a reason, I think, why this ideology is so attractive to many of the wealthy charter school founders and donors Brill profiles, from hedge funder Whitney Tilson to investment manager and banking heir Boykin Curry. If the United States could somehow guarantee poor people a fair shot at the American dream through shifting education policies alone, then perhaps we wouldn’t have to feel so damn bad about inequality—about low tax rates and loopholes that benefit the superrich and prevent us from expanding access to childcare and food stamps; about private primary and secondary schools that cost as much annually as an Ivy League college, and provide similar benefits; about moving to a different neighborhood, or to the suburbs, to avoid sending our children to school with kids who are not like them.

The fact of the matter, though, is that inequality does matter. Our society’s decision to deny the poor essential social services reaches children not only in their day-to-day lives but in their brains. In the face of this reality, educators put up a valiant fight, and some succeed. The deck is stacked against them.

American Institutes for Research Has Been Awarded a Contract to Aid NY State In Evaluating Teachers and Principals

Teachers, Principals To Be Evaluated
Morth Country Gazette, Saturday, 20 of August , 2011 at 6:27 pm
LINK

ALBANY – American Institutes for Research has been awarded a contract to develop methodologies and measures for the student growth component of the State’s new teacher and principal evaluation system.

The goal, according to the state Education Department, is to ensure New York has a state-of-the-art approach to developing fair and reliable assessments of educators’ contributions to their students’ growth in learning.

“The Race to the Top (RTTT) is in full swing,” State Education Commissioner John B. King, Jr. said. “If we don’t know how our educators are doing, they can’t get to where they need to be, and our students can’t get to where they should be. We need every tool possible to measure student progress and teacher effectiveness. Our students are counting on us to help them succeed.”

King said the contract, awarded through a competitive bidding process and valued at approximately $2.7 million over 3 years, will be paid for from federal RTTT funds. The contract requires AIR to develop the state-provided measures of student growth for teacher and principal evaluations. The other components in New York State’s multiple-measure evaluation system include locally selected measures of student achievement and other measures of educator effectiveness.

King noted that a variety of student and classroom characteristics will be included in the state evaluation measures AIR will develop including, among others, past test scores, English Language Learners, disabilities, and poverty.

Under the terms of the contract, AIR will provide three specific services:

The design and production of growth and value-added measures covering teachers and principals with students in grades 4-8 taking the State English language arts (ELA) and/or mathematics assessments;

The design of value-added methodologies and measures covering teachers and principals with students taking other existing State assessments, or new assessments added during the contract period, that are identified by the State Education Department (SED) as part of the teacher and principal evaluation initiative;

The design and delivery of reports that effectively communicate student growth measures to parents/students, teachers, principals, schools, districts, Boards of Cooperative Educational Services (BOCES), Teacher and Principal Preparation programs, and SED.

Founded in 1946, AIR is one of the largest not-for-profit behavioral and social science research organizations in the world. AIR is a national leader in teaching and learning improvement, providing the research, assessment, evaluation, and technical assistance to ensure that all students—particularly those who face historical disadvantages—have access to high-quality, effective education.

The contract runs through the 2013-14 school year.

Toxic Chemicals Close Down Bronx New School

The people in charge at the NYC Department of Education are well-known for trying to hide what 'they; are doing. Who cares if the effect is harm to children, employees, parents, anyone? As long as their relatives and friends aren't harmed, or until they are," leave it alone".

No one does anything until the press embarrasses the DOE. That's what happened here.

Betsy Combier

Bronx New School closed because of years-old toxic chemicals that made students sick

BY Juan Gonzalez, DAILY NEWS STAFF WRITER
Friday, August 19th 2011, 4:00 AM
LINK
 
The air at a North Bronx school may have been contaminated by dangerous chemicals for as long as 20 years.


Officials closed the Bronx New School at 3200 Jerome Ave. after repeated air monitoring tests since January revealed unsafe levels of several toxic chemicals, especially trichloroethylene (TCE), which is a possible carcinogen.

At an emotional meeting before several hundred parents of the school last night Dennis Walcott announced that the new location will be at a former Catholic school, Saint Martin of Tours more than two miles away.

Walcott called this "a highly unusual situation" and promised to do everything possible to facilitate a transition to the new location. Several angry parents told Walcott that children have been complaining of headaches, nausea and other illnesses for years. A thorough investigation of possible health effects on teachers and students is called for, something that Walcott did not commit to do.

Still unanswered is why the contamination was not discovered sooner.

This week, I asked Walter Hang of Ithaca-based Toxics Targeting Inc., to do a quick hazardous waste profile of the school's site and the blocks around it.

Hang's firm compiles such information from scores of state and federal environmental monitoring agencies. It then issues site-specific reports for businesses and local governments that want to guard against potential dangers before buying a property.

Within 24 hours, Toxics Targeting produced for me a 241-page report on the Bronx New School, also known as Public School 51.

The two-story building was a factory and industrial warehouse for more than 70 years before the old Board of Education leased and renovated it back in 1991.

One of the building's previous occupants was Nessen Lamps Inc. In 1987, Hang found, Nessen reported to the state's Department of Environmental Conservation generating 130 gallons of "spent halogenated solvents used in degreasing." Solvents like TCE.

The previous year, Nessen reported generating 218 gallons of "halogenated solvents."

In other words, the very toxic chemical that school officials suddenly discovered at more than 10 times safety levels in the building's air had been used at that site back in the 1980s.

Nessen wasn't the only neighborhood company that reported using such solvents. So did a city water pumping station across the street, and the Transit Authority's Jerome Ave. train yard, which is less than 500 feet from the school.

If it only takes a few hours to identify these potential chemical dangers, why did it take education officials 20 years to even check the air?

The agency, after all, was paying top dollar to rent the building from its owners, the Rinzler Family Parnership.

Last year, the DOE paid $506,000 in rent for the 18,500 square-foot building. That works out to nearly $28 per square foot, an astonishing rate for a Bronx factory. Plus, the DOE paid for all renovations and utilities, and its lease absolved the landlord from paying any property taxes.

Bradley Rinzler, the firm's executive vice president, did not return calls for comment.

There's no excuse, given the site's industrial history, for the DOE's failure to even check the air until now.

jgonzalez@nydailynews.com

Boycott The "On Education" Forum Hosted By City Hall and Gotham Schools

We do not have to go to the "On Education" Breakfast hosted by City Hall Magazine and Gotham Schools. In fact, we need to boycott the breakfast. Do you really want to pay to hear a group of people talk among themselves about how wonderful the state of public school education is, and how much Mayor Michael Bloomberg has done to help our children?

If you really want to know what they are saying wait for the review on the Gotham Schools' blog.

Here is the email that I sent to J Freeman and Anthony Hawkins:

To:
jfreeman@manhattanmedia.com,

ahawkins@cityhallnews.com,
betsy.combier@gmail.com
date Thu, Aug 18, 2011 at 9:59 PM
subject Education Forum

I received an email to attend the Education Forum at Con Edison on August 25, 2011, and as a member of the press who writes about issues surrounding the disasters known as the New York City Department of Education, the Rubber Rooms, and the United Federation of Teachers (for whom I worked as staff for 3 years and I am writing a book on) I would have considered attending in order to write a scathing article about how no one on the Panel knows what they are talking about or would admit to same, I dont think I will take my valuable time to listen to the same rubbish that I have heard regurgitated over and over again since 2002.

Your arrogance that you would believe you can continue to stuff the false facts that the people on your panel cite down any informed parent, teacher, or informed citizen's throat now, after all the blogs and websites out there are touting the real facts, is astonishing.

Betsy Combier
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, NYC Public Voice

It has been a tumultuous summer in the education world, full of budget fights and labor showdowns. Heading into the new school year we are sitting down with a panel of leaders and influencers in the education field to better understand how the past year’s fights will play out in the school year ahead and how these events will impact education policy, city politics, teachers and parents for years to come.


MODERATED BY:

Andrew Hawkins
Managing Editor at City Hall News

Philissa Cramer
Managing Editor of GothamSchools.Org

THURSDAY
AUGUST 25, 2011
8:00 a.m.
Networking Breakfast

8:30 -10:00 a.m.
Panel Discussion Followed by Q&A

Location:
Con Edison Building
4 Irving Place (@14th Street)
New York, New York

TICKETS:
EARLY REGISTRATION:
$30 for individual tickets/
$250 table of 10

AFTER 8/24:
$40 for individual tickets /
$350 for a table of 10

PURCHASE TICKETS BELOW
*$20 ticket for government and non-profit employees

FOR MORE INFORMATION or sponsorship opportunities
call 646.442.1662 or email us here.

PANELISTS:

LEO CASEY
Vice President of Academic High Schools, UFT

SYDNEY MORRIS
Co-Founder of Educators 4 Excellence

EVA MOSKOWITZ
Former City Council Member & Founder/Chief Executive Officer of Success Charter Network

SHAEL POLAKOW-SURANSKY
Department of Education Deputy Chancellor & Chief Academic Officer

BILL THOMPSON
Former President of the NYC Board of Education & Former NYC Comptroller

MERRYL TISCH
Chancellor of the NY Board of Regents

JOSEPH P. VITERITTI
Thomas Hunter Professor of Public Policy at Hunter College

Terminated Probationary Teacher Has No Property Right in His Or Her Position

Kahn v New York City Dept. of Educ.


2010 NY Slip Op 09168 [79 AD3d 521]
December 14, 2010
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 16, 2011

Leslie Kahn, Respondent,
v
New York City Department of Education et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants. New York Civil Liberties Union Foundation, New York (Adriana C. PiÑon of counsel), for respondent. James R. Sandner, New York (Wendy M. Star of counsel), for New York State United Teachers, amicus curiae. Charity M. Guerra, Brooklyn, for Council of School Supervisors & Administrators, amicus curiae.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about September 8, 2009, which denied respondents' motion to dismiss the petition, unanimously reversed, on the law, without costs, and the motion granted.

Petitioner challenges the termination of her probationary employment as a social worker, and asserts due process claims pursuant to 42 USC § 1983. She began working for the Department of Education in February 2005 as a social worker, spending 2½ years at Williamsburg High School. In July 2007 she switched to Khalil Gibran International Academy, where respondent Salzberg, as Interim Acting Principal, gave her a rating of unsatisfactory in an evaluation on December 19, 2007. Two days later, the Superintendent wrote to petitioner, denying her a certification of completion of probation, and advising that her service would be terminated effective January 25, 2008, and that she was entitled to administrative review under the collective bargaining agreement.

Petitioner proceeded with an administrative appeal on January 3, 2008. Following an administrative hearing, the Department of Education, by letter dated May 9, reaffirmed the denial of petitioner's certification of completion of probation. On or about September 9, 2008, [*2]petitioner commenced this proceeding.

Petitioner's claims, which are equitable in nature, are not barred by her failure to file a notice of claim pursuant to Education Law § 3813 (1), which is only required when money damages are sought (Ruocco v Doyle, 38 AD2d 132 [1972]).

However, her claims are time-barred. A petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination (see CPLR 217 [1]; Matter of Andersen v Klein, 50 AD3d 296 [2008]; Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140 [2001]). The time to commence such a proceeding is not extended by the petitioner's pursuit of administrative remedies (Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], lv denied 14 NY3d 704 [2010]). Petitioner failed to commence this proceeding within four months of the effective date of her termination. Although the notice of termination was procedurally defective in that she was not given the requisite 60 days' prior notice of discontinuance, as required by Education Law § 2573 (1) (a), that defect does not invalidate the discontinuance or render the statute of limitations inapplicable; at best, it would have entitled petitioner to additional back pay, had she served a notice of claim and sought money damages (see Matter of Pascal v Board of Educ. of City School Dist. of City of N.Y., 100 AD2d 622, 624 [1984]).

Nor does petitioner have a valid claim for deprivation of civil rights under 42 USC § 1983. Such a claim requires an allegation that the proponent was deprived of a property or liberty interest without due process of law (see Ciambriello v County of Nassau, 292 F3d 307, 313 [2d Cir 2002]). A probationary teacher does not have a property right in his or her position (see Pinder v City of New York, 49 AD3d 280 [2008]; Donato v Plainview-Old Bethpage Cent. School Dist., 96 F3d 623, 629-630 [2d Cir 1996], cert denied 519 US 1150 [1997]). The process provided for in the collective bargaining agreement did not create such an interest (see Sealed v Sealed, 332 F3d 51, 56 [2d Cir 2003]). Moreover, petitioner was not deprived of a liberty interest by the "stigma" arising from allegations of poor work performance. To establish such a "stigma plus" claim, a petitioner must prove "some action by the [agency] imposing a tangible and material burden, and . . . [the] utterance of a false statement that damaged his reputation in connection with the burdensome action" (O'Connor v Pierson, 426 F3d 187, 195 [2d Cir 2005]). While Salzberg's accusations against petitioner may "go to the heart of [petitioner's] professional competence and damage her professional reputation to such an extent as to severely impede her ability to continue in the education field in a supervisory capacity" (Donato, 96 F3d at 633), [*3]petitioner's "stigma plus" claim is defeated by the availability of a post-termination administrative hearing (see Segal v City of New York, 459 F3d 207 [2d Cir 2006]). Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ

New York State Supreme Court Judge Paul Fineman Dismisses Steglich v Board of Education

Judge Fineman wants Plaintiffs to go to the NYS Commissioner first:
"It should be emphasized that this dismissal does not constitute any factual finding by this court as to the propriety of the planned co-location; rather, the action is dismissed because procedurally, the court finds that in light of Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]), the State Education Department Commissioner should be permitted to exercise his concurrent jurisdiction in the first instance. Upon a final determination by the Commissioner, any aggrieved party may, of course, exercise any right to judicial review it may have by statute."



Betsy Combier

Steglich v Board of Educ. of the City School Dist. of the City of N .Y.


2011 NY Slip Op 21282

Decided on August 12, 2011
Supreme Court, New York County
Feinman, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Lisa Steglich, individually and as parent and natural guardian of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian of OMAR BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural guardian to HARRY D. JORDAN, infant, KAVERY KAUL, individually and as parent and natural guardian of ASHOK KAUL, infant, RUBIN and GERALDINE LOPEZ, individually ans as parents and natural guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent and natural guardian of ALIYA CLUNIE, infant, Plaintiffs,

against

The Board of Education of the City School District of the City of New York a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor-Designate of theCity School District of the City of New York, Defendants. UPPER WEST SUCCESS ACADEMY CHARTER SCHOOL a/k/a SUCCESS ACADEMY CHARTER SCHOOL, MATTHEW MOREY, individually and as parent and natural guardian of THOMAS MOREY and CLAIRE MOREY, MARTIN AARES, individually and as parent and natural guardian of in- fant SABINE BALOU-AARES, GABRIEL BAEZ, individually and asparent and natural guardian of in- fant of CHRISTOPHER BAEZ, LISBETH DELOSSANTOS, individually and as parent and natural guardian of infant MIYAH MUZO, ELANA KILKENNY, individually and as parent and natural guardian of infant LIAM KILKENNY, ELISSA KLEIN, individually and as parent and natural guardian of infant AVA KLEIN, REBECCA KUHAR, individually and as parent and natural guardian of infant ROBERT MAXWELL KUHAR, LATISHA SINGLETARY, individually and as parent and natural guardian of in- fant RANIYA GARRETT-WELLS, MICHAEL SUCHANEK, individually and as parent and natural guardian of infants SALLY SUCHANEK and AMELIA SUCHANEK, and DAVID TURNOFF, individually and as parent and natural guardian of in- fant HUNTER KIM-TURNOFF, Intervenor-Defendants.

 107173/11

Plaintiffs
Phillips Nizer LLP
By: Jon Schuyler Brooks, Esq.
Marc Andrew Landis, Esq.
Elizabeth A. Adinolfi, Esq.
Paul A. Victor, Esq.
Chryssa V. Valletta, Esq.
666 Fifth Avenue
New York NY 10103
(212) 977-9700

Defendants
Michael A. Cardozo, Esq.
Corporation Counsel of the City of New York
By: Chlarens Orsland, Esq.
Emily Sweet, Esq.
100 Church Street
New York NY 10007
(212) 788-0904, 1171
Intervenor-Defendants
Arnold & Porter LLP
By: Stewart D. Aaron, Esq.
Emily A. Kim, Esq.
Mary Sylvester, Esq.
399 Park Avenue
New York NY 10022
(212) 715-1000

Paul G. Feinman, J.
Papers considered on plaintiffs' motion for partial summary judgment: PapersE-Filing Document No.
Notice of Motion for Partial Summary Judgment [FN1]84, 94 (Ret. for correction)
Memorandum of Law in Support of Plaintiffs' Motion85
Plaintiffs' Statement of Uncontested Facts86
Defendants' Responses to Plaintiffs' Statement of Uncontested Facts90
Rouhanifard Aff. in Opposition91
Defendants' Memorandum of Law in Opposition92
Defendants' Verified Answer & Rouhanifard Aff.97, 97-1
Intervenor-Defendants' Response to Plaintiffs' Statement of Uncontested Facts93
Kim Aff. in Opposition93-1 through 93-16
Intervenor-Defendants' Memorandum of Law in Opposition93-17, 95
Intervenor-Defendants' Verified Answer96
Reply Memorandum of Law in Support of Plaintiffs' Motion98
Appendix to Plaintiffs' Reply Memorandum99

Plaintiffs in this action are concerned parents of school-age children who attend one of the public schools currently located at the Brandeis Educational Campus (Brandeis Campus). Defendants are the Chancellor of the New York City public school system as well as the executive branch agency charged with overseeing educational policy for the City of New York. Intervenor-defendant Success Academy Charter School (Success Academy) is a charter school which is intended to serve kindergarten and elementary school children. In this lawsuit, plaintiffs seek, among other things, to prevent the co-location of Success Academy at the Brandeis Campus during the 2011-2012 school year. Brandeis Campus currently houses five public high schools.[FN2] The court previously denied plaintiffs' application for a temporary restraining order and motion [*2]for a preliminary injunction. The plaintiffs now seek partial summary judgment. Upon a search of the record, the court denies plaintiffs' motion and dismisses the action in its entirety.

I. Background and Arguments

The first attempt to halt this proposed co-location was made in response to a vote of the Panel for Educational Policy (PEP) made on February 2, 2011 (February PEP vote), approving the co-location. On April 8, 2011, plaintiffs brought an Article 78 proceeding against defendants challenging the co-location, entitled Steglich v Board of Education, Index No. 104300/11 (Steglich 1). Defendants opposed the challenge.

On June 1, 2011, defendants abandoned the original PEP vote, and provided, in the same month, a new notice of the proposed co-location, with a revised Educational Impact Statement (EIS), and revised Building Utilization Proposal (BUP). On June 27, 2011, after public hearings were duly held on the revised proposal, PEP again voted to approve the co-location (June PEP vote).

Following these revisions, and before the June PEP vote, plaintiffs commenced the present action. On June 30, 2011, plaintiffs filed an amended complaint, seeking to have the June PEP vote declared a nullity.[FN3]

Plaintiffs argue that (1) the Department of Education (DOE) lacked the authority to revise the EIS and BUP after the February PEP vote, in that the February PEP vote was a final determination of the issue on the administrative level; (2) the revised EIS and BUP are improper, because, under the Education Law (EL), they are untimely, having been brought less than six months before the start of the school year; (3) the revised EIS impermissibly includes a school not mentioned or addressed in the original EIS; and (4) defendants did not comply with EL notice requirements prior to the June PEP vote, by providing a notice of hearing in English only, and then, purportedly in an untimely manner, published the notice in Spanish. On this motion, plaintiffs seek partial summary judgment voiding the June PEP vote.

In response, defendants, and intervenor-defendants (all parents of school-age children who are slated to attend Success Academy, and who, as a result, support the co-location), argue that the Success Academy would be placed in an under-utilized space within Brandeis, and so cause no harm to the existing schools. For example, some of the rooms allocated to Success Academy are currently being used to store file cabinets and extra furniture. They maintain that this court lacks jurisdiction over plaintiffs' action and the present motion, because (1) the Commissioner of the State Education Department (SED) has exclusive, original jurisdiction over the issue; (2) plaintiffs have failed to exhaust their administrative remedies, in that they did not refer their grievance with the PEP vote to the Commissioner, in derogation of the EL; or (3) that the court should defer to the Commissioner as a matter of primary jurisdiction.

On the merits, defendants argue that (1) they had the right to revise the EIS and BUP after the February PEP vote; (2) the revised EIS and BUP were timely brought; (3) the revised EIS did not include a new school, as the Young Adult Borough Center (YABC) is a "program" not a "school"; and (4) defendants complied with all statutory notice requirements, in that the notice of hearing concerning the revised EIS and BUP was timely, despite the fact that a Spanish version appeared later than the original notice. [*3]

II. Discussion

In a recent decision of this court (Mulgrew v Board of Education, ___Misc 3d___, 2011 NY Slip Op 21252 [Sup Ct, NY County 2011]) (Mulgrew), this court found that it had concurrent jurisdiction with the Commissioner to address the validity of a PEP vote, despite language in EL §§ 2853 (3) (a-5) and 310, citing that a dispute under these sections "may" be directed to the Commissioner.

In a totally different lawsuit between the same parties, concerning class size, Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]) [Mulgrew 2), the Appellate Division, First Department, very recently released a decision which makes findings and reaches conclusions which necessarily require this court to reconsider its earlier interpretation of the EL provisions concerning the SED Commissioner's jurisdiction. This court's earlier analysis was conducted without benefit of controlling or persuasive appellate authority interpreting the relevant EL provisions.

In Mulgrew 2, the Appellate Division found that an action brought to decide a dispute involving Education Law § 211-d should have been brought before the Commissioner before it was brought before the court. The language of the statute was extremely specific as to this point, and so, the Court's determination is not surprising.

EL § 211-d, denominated the Contract for Excellence, is concerned with the allocation of funds to the goal of reducing class sizes in New York City. Reduction of class size was to be accomplished "through creation or construction of more classrooms and school buildings, placement of more than one teacher per classroom, or by other means (Education Law § 211-d [2] [b] [ii])." Mulgrew 2, 2011 NY Slip Op 06088, at *2. The statute provides that "the sole and exclusive remedy' for violation of this paragraph would be a petition to the State Education Department Commissioner, whose decision would be final and unreviewable.'" Id., citing EL § 211-d (2) (b) (ii).

Inasmuch as this is not the section of the EL at issue in the present case, were this all the Appellate Division had held, this court would have no more guidance as to how to proceed in this action than it did previously. However, the Court went on to determine that the plaintiffs in the Mulgrew 2 class size case had also failed to exhaust their administrative remedies in approaching the court in the first instance, even if EL § 211-d (2) (b) (ii) did not apply, because under EL § 310 (7), a statute which lists the issues which "may" be brought to the attention of the Commissioner, the matter was particularly within the expertise of the Commissioner. The Court reflected that EL § 310 (7) "does not provide for exclusive or original jurisdiction," but that, it would be "consistent with the statute's scheme to require those petitioner-organizations whose complaints do not fall under section 211-d (7) to exhaust their remedies under Education Law § 310 (7) before proceeding to court." Id. at *6.

The Court reasoned that:

the issue raised by petitioners is whether the Board of Education improperly utilized funds allocated for the particular purpose of reducing class size to make up for reductions from its other funding sources. Determination of this point falls squarely within the purview of the State Education Department, as it will require review and comparison of budgets, expenditures and funding allocations.

*4]Id.
In the present action, the court is faced with issues regarding how the Department of Education allocates its resources for the purpose of placing new schools within already existing schools, with emphasis on fairness of the allocations. Although, as this court previously found, and the Appellate Division clarifies, there is indeed concurrent jurisdiction over these issues, the determination in Mulgrew 2 appears to show a decided reluctance on the part of the higher Court to take on disputes of this nature. In other words, the Appellate Division's decision makes clear that, in the first instance, disputes of this nature should be heard by the executive branch agency with the relevant expertise, here the State Education Department Commissioner. In short, it appears that the issues raised by the co-location of Success Academy in the Brandeis Campus should be heard in the first instance by the Commissioner, and not by the court. If aggrieved by the Commissioner's final determination, the parties have appropriate remedies at that juncture to seek judicial review of his actions.

III. Conclusion

For the reasons explained above, plaintiffs' motion must be denied, and upon a search of the record pursuant to CPLR 3212(b), intervenor-defendants' informal request for summary judgment granted, and the action dismissed. It should be emphasized that this dismissal does not constitute any factual finding by this court as to the propriety of the planned co-location; rather, the action is dismissed because procedurally, the court finds that in light of Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]), the State Education Department Commissioner should be permitted to exercise his concurrent jurisdiction in the first instance. Upon a final determination by the Commissioner, any aggrieved party may, of course, exercise any right to judicial review it may have by statute.

Accordingly, it is

ORDERED that the Motion Support Office and the Clerk of Court are directed to accept the Notice of Motion e-filed as Document No. 84 as properly filed and to assign this motion an appropriate motion sequence number forthwith and to then file this decision and order as resolving said motion; and it is further

ORDERED that the motion for partial summary judgment brought by plaintiffs is denied; and it is further

ORDERED that, pursuant to CPLR 3212 (b), summary judgment dismissing the complaint is granted to defendants and intervenor-defendants; and it is further

ORDERED that the complaint is dismissed with costs and disbursements to be accorded to defendants and intervenor-defendants as taxed by the Clerk of the Court, upon presentation of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: August 12, 2011_______________________________________

J.S.C.
Footnotes

Footnote 1: Apparently the Motion Support Office has rejected the Notice of Motion. Because of time exigencies, and because all parties were desirous of a prompt resolution of the issues raised, the court agreed to hear oral argument on the motion on the papers filed before it left on vacation on July 21, 2011 notwithstanding the Motion Support Office's rejection of the Notice of Motion and the lack of a motion sequence number being assigned. Because all parties were fully heard on the motion and the court has had an opportunity to review all the enumerated papers, the Clerk of Court is directed to accept the Notice of Motion e-filed as Document No. 84 and to assign this motion an appropriate sequence number forthwith and accept this decision and order as resolving said motion.

Footnote 2:There is a dispute as to whether the Young Adult Borough Center, which is housed at Brandeis, is a "school" or a "program," as discussed infra.

Footnote 3:All parties agree that Steglich 1 has been abandoned as moot.