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Sunday, February 26, 2012

Mulgrew v BOE Teacher Data Reports Article 78 and Appellate Division First Department Decisions


87 A.D.3d 506 (2011)

928 N.Y.S.2d 701

2011 NY Slip Op 6328

MICHAEL MULGREW, as President of the United Federation of Teachers, Local 2, American Federation of Teachers, AFLCIO, on Behalf of ALL REPRESENTED EMPLOYEES IN THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Appellant,v.BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK et al., Respondents.DOW JONES & COMPANY, INC., et al., Intervenors-Respondents.

Nos. 5156, 113813/10

Appellate Division of the Supreme Court of New York, First Department.

Decided August 25, 2011.


Supreme Court improperly reviewed respondents' determination to release the requested reports under the "arbitrary and capricious" standard set forth in CPLR 7803 (3). The court should have determined whether respondents' determination "was affected by an error of law" (CPLR 7803 [3]). In any event, the matter need not be remanded since respondents properly determined that the requested reports should be released under FOIL (cf. Matter of Verizon N.Y., Inc. v Devita, 60 A.D.3d 956, 957 [2009]).
Public agency records, like the ones at issue here, are presumptively open for public inspection and copying, and the party seeking an exemption from disclosure has the burden of proving entitlement to the exemption (Public Officers Law § 89 [5] [e]; see Matter of Bahnken v New York City Fire Dept.,17 A.D.3d 228, 229 [2005], lv denied 6 N.Y.3d 701 [2005]). Petitioner, as the party claiming the exemption, failed to sustain that burden. Although the materials sought are, in fact, intra-agency materials under Public Officers Law § 87 (2) (g), they are nonetheless subject to disclosure as "statistical or factual tabulations or data" under section 87(2)(g)(i) (see Matter of New York 1 News v Office of President of Borough of Staten Is., 231 A.D.2d 524, 525 [1996]). "The mere fact that some of the data might be an estimate or a recommendation does not convert it into an expression of opinion" subject to a FOIL exemption (Matter of Polansky v Regan, 81 A.D.2d 102, 104 [1981]; see also Ingram v Axelrod, 90 A.D.2d 568 [1982]).
The requested reports also do not fall under the exemption for personal privacy set forth in Public Officers Law § 87 (2) (b). Although privacy interests are implicated by the type of information sought to be redacted, the release of the information does not fall within one of the six examples of an "unwarranted invasion of personal privacy" set forth in Public Officers Law § 89 (2) (b) (see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 N.Y.3d 477, 485 [2005]). Further, when balancing the privacy interests at stake against the public interest in disclosure of the information (see id.), we conclude that the
[ 87 A.D.3d 508 ]

requested reports should be disclosed. Indeed, the reports concern information of a type that is of compelling interest to the public, namely, the proficiency of public employees in the performance of their job duties (see Stern v Federal Bur. Investigation, 737 F.2d 84, 92 [1984]).
We have considered the parties' remaining contentions and find them unavailing.

31 Misc.3d 296 (2011)

MICHAEL MULGREW, as President of the United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO, on Behalf of ALL REPRESENTED EMPLOYEES IN THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, Petitioner,

Supreme Court, New York County.
Decided January 10, 2011.

297*297 Levin, Sullivan, Koch, Shulz LLP, New York City (David A. Shulz of counsel), for intervenors.
Michael A. Cardozo, Corporation Counsel, New York City (Jesse I. Levine and Mark Toews of counsel), for respondents.
Strook Strook & Lavan LLP, New York City (Charles G. Moerdler and Alan Klinger of counsel), for petitioner.


Petitioner seeks an order directing respondents to redact and keep confidential the names of any teachers that appear in any teacher data reports (TDRs) released to the public. Various news organizations with pending Freedom of Information Law (FOIL) requests to release the TDRs with the teachers' names included now move to intervene in this proceeding (the Press Intervenors). For the reasons set forth below, the Press Intervenors' motion to intervene is granted without opposition and the petition to redact the teachers' names is denied.
As an initial matter, this court is not making a de novo determination as to whether the TDRs with the teachers' names should be released. This petition has been filed under CPLR article 78. The only question before this court is whether the decision by the Department of Education (DOE) to release the TDRs in a form that discloses teachers' names was arbitrary and capricious under the law. This court is not passing judgment on the wisdom of the decision of the DOE, whether from a policy perspective or from any perspective, or whether the DOE had discretion under the law to make a different decision, nor is this court making any determination as to the value, accuracy or reliability of the TDRs. This court is deciding the only issue before it: the purely legal issue under article 78 of whether the DOE's decision was without a rational basis, rendering it arbitrary and capricious.
The relevant facts are as follows. Beginning in the 2007-2008 school year, the DOE launched a pilot program in which a student's predicted improvement on state tests is compared with the student's actual improvement. The comparison is then used to determine that child's teacher's "value added"—it attributes the gain or loss in test scores to the child's teacher while controlling for other factors that influence student achievement such as poverty and English-language learner status. Beginning on August 16, 2010 and continuing through October 27, 2010, the Press Intervenors made nine separate requests under FOIL specifically requesting TDRs, including disclosure of teachers' names. Previous FOIL requests for the TDRs had not explicitly requested the teachers' names. The DOE had responded to those previous requests by redacting teachers' names and releasing the redacted TDRs only. Upon learning that the DOE had determined that it would comply with these most recent FOIL requests in a manner that would disclose the teachers' names 299*299 as requested, petitioner the United Federation of Teachers (the UFT) commenced the instant petition.
This court finds that the UFT has standing to bring this proceeding to challenge the DOE's determination to release the records even though it is not the entity which requested the records pursuant to FOIL. FOIL does not explicitly address the issue of whether the subject of records may challenge their disclosure and there is no case law directly on point. However, the parties do not cite any case in which such a party was prohibited from bringing a proceeding. In fact, several courts have permitted such cases to go forward while declining to explicitly rule on the issue. (See Matter of Anonymous v Board of Educ. for Mexico Cent. School Dist., 162 Misc 2d 300 [Sup Ct, Oswego County 1994]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562 [1986].) In Matter of Verizon N.Y., Inc. v Mills (24 Misc 3d 1230[A], 2007 NY Slip Op 52616[U] [Sup Ct, Westchester County 2007], mod 60 AD3d 958 [2d Dept 2009]), the court held that a party will have standing to challenge the release of records of which it is the subject if it can establish that the administrative action will have a "harmful effect" on it and that it is within the "zone of interest" to be protected by the statute. (See 24 Misc 3d 1230[A], 2007 NY Slip Op 52616[U], *2 [2007], citing Matter of Dairylea Coop. v Walkley, 38 NY2d 6 [1975].)
In the instant case, this court holds that the UFT has standing to bring this proceeding. The UFT has established that the administrative action will have a harmful effect on it and that it is within the zone of interest encompassed by the statute. FOIL is intended to promote disclosure by government but also to protect the interests of parties who would be harmed by such disclosure if the subject records fall into one of the exceptions enumerated under FOIL. (SeeDairylea, 38 NY2d 6.)
This court now turns to the substance of the UFT's petition. As discussed above, the only issue before the court in this article 78 proceeding is whether the DOE was "arbitrary and capricious" in determining that the unredacted TDRs would be released because the names of individual teachers did not fall into any exception under FOIL. The question of whether this court would have made a de novo determination to release the teachers' names is not before this court. Under article 78, this court may only determine whether the DOE's determination was "without sound basis in reason and . . . taken without regard to the facts." (Matter of Pell v Board of Educ. of Union 300*300 Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974].) Whether an agency's determination to release records was arbitrary and capricious must be viewed in light of the fact that the burden of proving that the requested material is exempt from disclosure falls on the agency seeking to withhold that material. (See Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562 [1986].)
FOIL mandates the disclosure of agency records unless they are subject to a specific exemption. (See Public Officers Law § 87 [2] ["Each agency shall . . . make available for public inspection and copying all records, except" (emphasis added)].) While an agency must release records to which no exemption applies, it is within the agency's discretion whether to withhold records to which an exemption applies ("such agency may deny access to records or portion thereof that . . . [exceptions listed]") (Public Officers Law § 87 [2] [emphasis added].) The potentially relevant exceptions in this case include "inter-agency or intra-agency materials which are not: (i) statistical or factual tabulations of data" and items which, "if disclosed[,] would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section eighty-nine of this article." (Public Officers Law § 87 [2] [g] and [b].) The DOE determined that none of the relevant exceptions to disclosure under FOIL applied to the teachers' names on the TDRs and that, accordingly, the names would be released.
The DOE's determination that teachers' names were not subject to any of the aforementioned exemptions was not arbitrary and capricious. Regarding the exception for inter-agency or intra-agency materials that are not statistical or factual tabulations, the DOE could have rationally determined that, although the unredacted TDRs were intra-agency records, they are statistical tabulations of data which must be released. (Public Officers Law § 87 [2] [g] [i].) Such a determination is not arbitrary or capricious. The UFT's argument that the data reflected in the TDRs should not be released because the TDRs are so flawed and unreliable as to be subjective is without merit. The Court of Appeals has clearly held that there is no requirement that data be reliable for it to be disclosed. (See Matter of Gould v New York City Police Dept.,89 NY2d 267, 277 [1996].) In Gould, the Court held witness statements must be released under FOIL "insofar as [they] embod[y] a factual account of the witness's observations," regardless of whether the witness's account 301*301 was actually credible and/or correct. (Id.) As the Court explained, "[f]actual data . . . simply means objective information, in contrast to opinions, ideas[ ] or advice." (Id.) Therefore, the unredacted TDRs may be released regardless of whether and to what extent they may be unreliable or otherwise flawed.
The UFT's reliance on Matter of Elentuck v Green (202 AD2d 425 [2d Dept 1994]), in which the Court held that it was proper to withhold lesson observation reports, is misplaced. The Court there held that lesson observation reports are not statistical or factual data as they consist solely of advice, criticisms, evaluations and recommendations prepared by the school's assistant principal. In the present case, unlike in Elentuck, the determination by the DOE that the TDRs are statistical data has a rational basis. Unlike lesson observation reports, which are individual opinions of a teacher's lesson, the unredacted TDRs are a compilation of data regarding students' performance.
The DOE could have also rationally determined that releasing the teachers' names was not an "unwarranted invasion of personal privacy." FOIL permits withholding records if disclosure would constitute "an unwarranted invasion of personal privacy" under Public Officers Law § 89 (2). (Public Officers Law § 87 [2] [b].) Public Officers Law § 89 (2) (b) provides that "[a]n unwarranted invasion of personal privacy includes, but shall not be limited to" various categories of data illustrated by a list of six items including employment, medical and credit histories, information that would be used for solicitation or fund-raising purposes, information that would result in economic or personal hardship or simply personal information that is not relevant to the work of the agency. The statute specifically states that the list is not comprehensive. The Court of Appeals has held that the proper test to determine whether the release of records which do not fall into any of the listed categories constitute an "unwarranted" invasion of personal privacy is a balancing test in which the "privacy interests at stake" are balanced against the "public interest in disclosure of the information." (Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 485 [2005].) "[W]hat constitutes an unwarranted invasion of personal privacy is measured by what would be offensive to a reasonable [person] of ordinary sensibilities." (Matter of James, Hoyer, Newcomer, Smiljanich & Yanchunis, P.A. v State of New York, 27 Misc 3d 1223[A], 2010 NY Slip Op 50863[U], *13 [Sup Ct, NY County 2010], quoting Matter of Humane Socy. of U.S. v Fanslau, 54 AD3d 537, 538 [3d 302*302 Dept 2008];Physicians Comm. for Responsible Medicine v Hogan, 29 Misc 3d 1220[A], 2010 NY Slip Op 51908[U], *7 [Sup Ct, Albany County 2010] [quoting same].)
Courts have repeatedly held that release of job performance related information, even negative information such as that involving misconduct, does not constitute an unwarranted invasion of privacy. (See e.g. Matter of Faulkner v Del Giacco, 139 Misc 2d 790 [Sup Ct, Albany County 1988] [authorizing release of the names of prison guards accused of inappropriate behavior];Farrell v Village Bd. of Trustees of Vil. of Johnson City, 83 Misc 2d 125 [Sup Ct, Broome County 1975] [authorizing disclosure of written reprimands of police officers, including names of the officers]; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562 [1986][authorizing release of report of sick days taken by individual police officer]; Matter ofAnonymous v Board of Educ. for Mexico Cent. School Dist., 162 Misc 2d 300 [1994][authorizing disclosure of settlement agreement between teacher and Board of Education resolving disciplinary charges]; Matter of Rainey v Levitt, 138 Misc 2d 962 [Sup Ct, NY County 1988] [authorizing disclosure of individuals' scores on civil service exam].) In contrast, courts have held that releasing personal information such as birth dates and personal contact information such as e-mail addresses of state employees would constitute such an unwarranted invasion of personal privacy. (See Matter of Hearst Corp. v State of New York, 24 Misc 3d 611, 627-628 [Sup Ct, Albany County 2009] [finding privacy interest in birth dates outweighs public interest in disclosure]; Physicians Comm., 2010 NY Slip Op 51908[U], *8 [finding privacy interest in personal contact data outweighs public interest in disclosure].)
In the instant case, the DOE could have reasonably determined that releasing the unredacted TDRs would not be an "unwarranted" invasion of privacy since the data at issue relates to the teachers' work and performance and is intimately related to their employment with a city agency and does not relate to their personal lives. (See e.g. Faulkner, 139 Misc 2d 790;Farrell, 83 Misc 2d 125; Anonymous, 162 Misc 2d 300.) In Faulkner, Farrell and Anonymous,the courts authorized release of information (reprimands, alleged misconduct, and a settlement of disciplinary charges, respectively) which would be potentially more damaging to the parties than simply poor job performance. (See Faulkner, 139 Misc 2d 790; Farrell, 83 Misc 2d 125;Anonymous, 162 Misc 2d 300.) The data at issue here is 303*303 more akin to that released in these cases than to the birth dates and personal contact information sought in Hearst Corp. (24 Misc 3d 611, 627-628) and Physicians Committee (2010 NY Slip Op 51980[U]). In addition, in this case, the DOE could have rationally determined that the public's interest in disclosure of the information outweighs the privacy interest of the teachers. The public has an interest in the job performance of public employees, particularly in the field of education. Educational issues, including the value of standardized testing and the search for a way to objectively evaluate teachers' job performance, have been of particular interest to policymakers and the public recently. This information is of interest to parents, students, taxpayers and the public generally. Although the teachers have an interest in these possibly flawed statistics remaining private, it was not arbitrary and capricious for the DOE to find that the privacy interest at issue is outweighed by the public's interest in disclosure.
Finally, the UFT's argument that the DOE assured teachers that the TDRs were confidential means that they cannot be disclosed under FOIL is without merit. The UFT relies on a letter dated October 1, 2008 from Chris Cerf, a Deputy Chancellor at the DOE, who wrote to then-UFT-president Randi Weingarten that "[i]n the event a FOIL request for [TDRs] is made, we will work with the UFT to craft the best legal arguments available to the effect that such documents fall within an exemption from disclosure." The UFT also cites information about the TDRs provided to teachers and principals, assuring teachers of their confidentiality and directing principals not to share the results with anyone other than the subject teacher. However, regardless of whether Mr. Cerf's letter constituted a binding agreement, "as a matter of public policy, the Board of Education cannot bargain away the public's right to access to public records." (Matter of LaRocca v Board of Educ. of Jericho Union Free School Dist., 220 AD2d 424, 427 [2d Dept 1995] [citation omitted]; see also Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565 [1984]; Anonymous, 162 Misc 2d at 303.) Accordingly, the DOE's assurances that the TDRs would remain confidential cannot shield them from disclosure.
For the aforementioned reasons, the UFT's petition seeking an order directing the DOE to redact teachers' names from the TDRs prior to release is denied.

Reasonable doubt by Aaron Pallas


I’ve been relatively quiet in the ongoing debate about how best to evaluate teachers in New York City and across New York State. I’m not close to the negotiations and can claim no expertise on the political machinations outside of public view. At its heart, this seems to me a dispute over jurisdiction: Who has the legitimate authority to regulate the work of an occupation that seeks the status of a profession—but one that is in a labor-management relationship?
The laws of New York recognize the labor-management fault line, but they do little to guide a collective-bargaining process toward agreements in the many districts in which teacher-evaluation systems are contested. Each side brings a powerful public value to bear on the disagreement.
For the employers, it’s all about efficiency. It’s in the public interest, they argue, to recruit, retain and reward the best teachers, in order to maximize the collective achievement of students. A teacher-evaluation system that fails to identify those teachers who are effective, and those who are ineffective, can neither weed out consistent low-performers nor target those who might best benefit from intensive help. Rewarding high-performing teachers can, in the short run, help keep them in their classrooms, they claim, and, in the long run, can help expand the pool of talented individuals who enter the occupation.
For teachers, the key concern is fairness. Fairness is primarily a procedural issue: Teachers, and the unions that represent them, seek an evaluation process that is neither arbitrary nor capricious, relying on stable and valid criteria that they believe accurately characterize the quality of their work. In this view, an evaluation process is unfair to the extent that it can be manipulated by a building administrator or school district to yield a particular rating for a teacher’s performance. It is also unfair if random factors beyond a teacher’s control unduly influence the evaluation of his or her performance.
The values of efficiency and fairness collide head-on in New York’s Education Law §3012-c, passed as part of the state’s efforts to bolster its chances in the 2010 Race to the Top competition. The law requires annual professional performance reviews (APPRs) that sort teachers into four categories—“highly effective,” “effective,” “developing” and “ineffective”—based on multiple measures of effectiveness, including student growth on state and locally selected assessments and a teacher’s performance according to a teacher practice rubric.
The fundamental problem is that it’s hard to assess the efficiency or fairness of an evaluation system that doesn’t exist yet. There are too many unknowns to be able to judge, which is one of the arguments for piloting an evaluation system before bringing it to scale. The properties of the state tests that are to be used to assess teachers’ contributions to student learning are a moving target; the tests have been changing in recent years in response to concerns about their difficulty, predictability and coverage of state curricular standards. And in a couple of years, those standards and assessments will change, as New York and many other states phase in the Common Core standards and new assessments designed to measure mastery of them. The models to estimate a teacher’s position relative to other teachers in contributing to students’ test performance are imprecise at the level of the individual teacher, and different models yield different results for a given teacher. There’s been little to no discussion of how to incorporate this uncertainty into the single numerical score a teacher will receive.
The evaluation of teachers’ practices via classroom observations using New York State Education Department (NYSED)-approved rubrics, such as Charlotte Danielson’s Framework for Teaching or Robert Pianta’s Classroom Assessment Scoring System, is another unknown. There’s evidence that with proper training, observers can reliably rate teachers’ classroom practices, but the nature of the training is critical, and there is no evidence to date of New York City’s ability to prepare more than 1,500 principals, or the principals’ “designees,” to carry out multiple observations of many teachers, teaching many different school subjects, each year.
Amazingly, there is even uncertainty about whether the evaluations can or should be based solely on a teacher’s performance in a single year. The statute creating the new evaluation system in New York describes it as an “annual professional performance review.” But is this a professional performance review that occurs annually, or a review of annual professional performance—that is, a teacher’s performance in the most recent year? The guidance provided by the NYSED suggests that it has no idea. “For 2011-12, only one year of teacher or principal student growth percentile scores will factor into each educator’s evaluation,” the guidance states. “When more years of data are available, NYSED will consider whether each evaluation year should include more than one year of educator student growth results. Empirical and policy considerations will determine the decision.”
Well, that certainly clarifies matters. In other words, a “bad” year where a teacher is ranked relatively low compared to other teachers might reverberate, affecting his or her ranking in subsequent years. But a good observational rating in a given year seemingly will have no spillover effect into subsequent years. If, as has been true in Washington, D.C.’s IMPACT teacher-evaluation system, teachers generally score higher on observational ratings than on their value-added or growth-score rankings relative to other teachers, the carryover for value-added performance—but not observations of teachers’ professional practices—appears unfair. And in D.C., this evaluation system has resulted in the termination of hundreds of teachers based on one or two years of performance.
Teacher-evaluation systems have multiple purposes, which might include certifying teachers as competent or selecting some for particular forms of professional development to enhance their professional practice. For most of these purposes, it’s essential that those with a stake in the education system view these evaluation systems as legitimate—and the perceived efficiency and fairness of an evaluation system are central to such judgments. It’s not hard to see why a great many teachers, in New York City and across the state, have serious doubts about the fairness of New York State’s APPR process. And if future teachers do as well, the process could have the unintended consequence of reducing, rather than increasing, the pool of individuals willing to consider teaching as a vocation. This, coupled with the more than 1,300 principals across the state who have raised questions about the efficiency of the process, illuminates the challenges confronting the state as it seeks to implement the APPR system and avoid a scolding from U.S. Secretary of Education Arne Duncan.
William Blackstone, an 18th-century English legal scholar, wrote “better that ten guilty persons escape than that one innocent suffer.” Benjamin Franklin, one of the founders of our country, later upped the ante to 100 to one. The principle captures squarely the trade-off between the value of efficiency and the value of fairness. A legal system that lets the guilty go free is inefficient, as these offenders are free to continue to transgress against the common good. But to Franklin and others, that was still preferable to a legal system that did not provide adequate procedural protections for all, whether innocent or guilty, because such a system would be inconsistent with the principle of fairness so central to the American polity.
It’s important to note that Blackstone and Franklin were concerned with the workings of government; fairness in the private sector was not a central concern, and efficiency was taken for granted as a consequence of market forces. Civil servants, as agents and employees of the state, arguably are subject to a different set of rights and responsibilities than those working in the private sector, and teachers are one of the largest groups of such public servants. What’s an acceptable tradeoff between efficiency and fairness in the mix of teachers’ rights and responsibilities? It’s a lot easier to speculate about percentages in the abstract than to confront the possibility that you, or someone close to you, might be out of a job because of an untested teacher-evaluation system that cuts corners on fairness.


You say it best when you discuss efficiency. Efficiency is the antithesis of effectiveness, and therefore, the teacher evaluation process is inherently flawed. As a teacher, my only hope is that the general public–whose hard earned money is funding public education–truly begins to understand the problems associated with mixing a business mentality with education.
[...] I’ve been relatively quiet in the ongoing debate about how best to evaluate teachers in New York City and across New York State. I’m not close to the negotiations and can claim no expertise on the political machinations outside of public view. At its heart, this seems to me a dispute over jurisdiction: Who has the legitimate authority to regulate the work of an occupation that seeks the status of a profession—but one that is in a labor-management relationship? The laws of New York recognize the labor-management fault line, but they do little to guide a collective-bargaining process toward agreements in the many districts in which teacher-evaluation systems are contested. Each side brings a powerful public value to bear on the disagreement.

In Bad Faith by Leo Casey

There is but one conclusion that can be drawn from the NYC Department of
Education’s last minute walk out of negotiations over a teacher evaluation
system for 33 schools placed in the Transformation and Restart models: 
 it was always Tweed’s intention to refuse to enter into an agreement
 for teacher evaluations.
Part of the evidence for this conclusion comes from the conduct of NYC DOE
officials during negotiations. Throughout the month of December, the UFT
made intensive efforts to bring these negotiations to a successful conclusion
 before the NYS Education Department’s deadline of December 31. Yet while
UFT officers and staff canceled vacation plans to work on a potential agreement,
key actors on the DOE side, such as the lawyer who writes up contractual
agreements, were outside of New York City on vacation as the clock ticked down.
To move the negotiations forward, two different UFT-DOE working committees
were established, with UFT officers and staff on each committee. The first committee
met often, did an extraordinary amount of work, established joint working groups to
prepare local assessments and reached agreement in principle on every important
issue before it. The second committee, which included two Deputy Chancellors on
the DOE side, was an entirely different story. Despite the looming deadline, the Deputy
 Chancellor leading their side had to be contacted three times before he responded
to a request to set up the first meeting of that committee. The DOE group would come
strolling into every meeting of the committee at least 30 minutes late. Shortly
after the first committee completed its work, the two Deputy Chancellors come
to their committee, announced that they would not agree with any system of appeals
 that was not essentially the same as the status quo, and walked out, declaring the
negotiations over despite statements from the UFT that they should continue.
President Mulgrew called Chancellor Walcott with an offer to submit this issue to binding arbitration, which was immediately turned down. Within a matter of minutes of the
walk out, Tweed release a prepared statement justifying its actions.
Equally telling was the issue over which Tweed broke up the negotiations: whether or
not there would be a meaningful system of appeals for end year ratings of ineffective.
The DOE has stonewalled UFT requests to provide numbers of appeals filed and sustained
under the current U rating appeals system, forcing us to file a Freedom of Information
request. The data that we do possess, coming from members who come to us to contest
their ratings, suggests a reason why these numbers are treated as ‘state secrets’ at Tweed:
of the last 2000 appeals on the UFT’s books, the DOE has sustained the teacher exactly
10 times. The rate at which Tweed’s hearing officers turn down appeals is thus 99.5%, a
figure that would be more appropriate for Stalinist show trials than a legitimate
due process procedure. That is the process that the DOE refuses to negotiate.
The U rating appeals of the NYC DOE were not always a kangaroo court. Prior to the
Bloomberg administration, a meaningful number of appeals led to the overturning of a unsatisfactory rating, a sign that hearing officers actually examined the facts
presented to them. But under Bloomberg, the hearing officers have been under
marching orders to turn down all appeals. It is this change, combined with the
burden of proof that the new state evaluation law places on a teacher receiving
two ineffective ratings in a row, that has led the UFT to insist upon changes in the
current appeals process.
Appearing on his weekly radio show with John Gambling, Mayor Bloomberg 
 explained why he opposed the UFT’s position that teachers should have the
 right to appeal negative unsatisfactory and ineffective ratings to an independent
 hearing officer, rather than a DOE employee.[1] “The principals’ job is to decide
who’s good, who’s bad,” the mayor said. “It’s their judgment, that’s their job.”
Subjective ratings are simply the way things work with
bosses, and a mix of good and bad personnel decisions are “just part of
the real world.”
Before we take the mayor at his word, it is worth recalling what he was 
 saying about principal judgment on personnel matters nine months ago,
when tenure decisions were being made. Conveniently ignoring the fact that
 tenure decisions are made at the end of a three year probationary process that
involves the dismissal and voluntary resignation of ineffective novice teachers,
such that approximately only 1 in every 2 new teachers achieved tenure, Bloomberg
argued that the rate at which principals had been recommending tenure at the
end of probation over the past few years, in the 90% range, was unacceptably
 high. In school after school, principals were ordered by superintendents to
change positive recommendations for awarding tenure into deferrals. Clutching
as a trophy the decline of awards of tenure to 58%, Bloomberg crowed that “we’ve
 turned what had been a joke interpretation of the state law, to make it something
that you have to work hard, earn, and show that you are better than the average
bear” to get.
So why is a 90% rate of principals recommending tenure, at the end of probation
 “a joke,”  but a 99.5% rate of turning down U ratings appeal perfectly acceptable?
 Simply because the first is a positive evaluation of teachers, while the second is a
 negative evaluation. So long as principals are putting notches in Mayor Mike’s
belt for fired teachers, their judgment should be treated as next to infallible, but
when they offer positive evaluations, they will be overruled in a second. Nowhere
was this clearer than in a U rating appeal decision the UFT recently had
overturned in an Article 78 legal proceeding: on the record, the principal had
explicitly said, again and again, that she was not contesting the teacher’s appeal,
but the DOE hearing officer still upheld the unsatisfactory rating. It took a court
to do the obviously right thing.
The bottom line here is that Tweed’s vision of a good teacher evaluation process
 is not one in which decisions are made on the basis of sound educational judgment,
but one which delivers a requisite quota of dismissed teacher scalps. If you doubt it,
consider the misleading comments a Deputy Chancellor began to make over the
past summer, that 20% of all teachers had been rated ineffective in Tweed’s Talent
Management pilot that has been practicing observations using the Danielson Framework
for Teaching. For the last half year, at meeting after meeting, the UFT has been asking
the DOE for the study that supports these claims, all to no avail.[2] We have concluded
that the study has not been shared because it does not exist:
the DOE has simply decided that 20% is a good target for the numbers of ineffective
ratings, and so the claim continues to be made and to appear in DOE PowerPoint
At the end of the day, one conclusion is inescapable: Mayor Bloomberg decided
that he had no intention of negotiating in good faith with the UFT over the subject
of teacher evaluations.
The plan was always to blow up the negotiations required by law, with a strategy
of then trying to pressure Albany to change the teacher evaluation law and allow
the DOE to continue its kangaroo court U rating appeal process. From the beginning
of this process, he and his devotees at Tweed were acting in bad faith.
[1] In its public statements, the NYC DOE has claimed that the UFT wanted
an independent hearing officer for both ineffective and developing ratings.
This claim is, quite simply, a fabrication out of whole cloth. The UFT has asked
for the independent hearing officer only for the ineffective rating, as it alone can
lead to dismissal and the loss of livelihood.
[2] Where reputable, independent scholars have studied the use of Danielson
framework for lesson observations, such as the study of the framework’s introduction
 in Chicago public schools by the University of Chicago’s Consortium On Chicago
School Research, the rate of ineffective has varied from 3% to 6% annually.