The Teacher Tenure Reform Issue: Why Evaluation Techniques Need To Be Changed

March 20, 2013

On the need for Teacher Tenure Reform

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11% of Schools Never Flunk Their Teachers

By LISA FLEISHER

Principals at more than one in 10 New York City public schools didn't flunk a single teacher for at least eight years, according to an analysis of city data by The Wall Street Journal.

Teachers at 142 of 1,269 schools that have been open for at least the past eight years were all marked "satisfactory" on the city's pass/fail system for reviewing job performance.

Testing New York City's Teachers

See the letter grades assigned by the Department of Education to the 142 New York City schools where no principals had given an F to a teacher in the last eight years.

The schools are in all five boroughs. They include highly sought-after schools, such as Millennium High School in Manhattan, the High School of American Studies in the Bronx, and the Children's School in Brooklyn. They also include schools that have received low marks from the city, such as Public School 39 Francis J. Murphy Jr. in Staten Island and Intermediate School 349 Math, Science & Tech in Brooklyn.

The city data didn't include charter schools, which have their own policies on evaluating teachers. The Department of Education released the information in response to a public-records request from the Journal.

The findings give ammunition to Department of Education officials who say the teacher-rating system should be changed. New York City is one of a handful of school districts statewide that hasn't adopted a new, more nuanced system of grading teachers. The city and its teachers union haven't been able to reach an agreement. Under the current system, teachers are either rated unsatisfactory or satisfactory. Annually, less than 3% of teachers citywide are marked "unsatisfactory."

The system is subjective, and principals have wide discretion on how to rate teachers. The education department, the teachers union, some academics and some advocacy groups have said the system doesn't give teachers meaningful feedback on their performance or differentiate among bad, mediocre and great educators.

The new evaluations required under state law would have four tiers: ineffective, developing, effective and highly effective. Up to 40% of a teacher's score would be based on increases in student test scores, and the rest on principal classroom visits or other measures.

It's difficult to say why principals at the 142 schools consistently gave teachers positive ratings, and that is one reason behind the failure of the current system, said David Weiner, a deputy chancellor in charge of the teaching labor force. "Principals have basically learned over time that the u/s system is not an effective system," he said. "Our current system is broken. We can't actually help teachers improve. We can't identify the teachers that we need to move out of the system that shouldn't be teaching."

The 142 schools were more likely than the typical city school to receive good grades on this year's progress reports, which mostly measure whether students are improving on state tests or are on track to graduate high school. About 71% received an A or a B, compared with about 63% of schools across the city. But about a dozen had received poor grades in at least one of the past few years. None of the schools got an F this year.

Mr. Weiner and others said the schools' principals genuinely could have thought their teachers were all good. Or principals at schools that received good grades by the city could have decided it wasn't worth the paperwork or hassle to give a teacher an unsatisfactory rating.

Some principals and former principals said they would give bad teachers a good rating in exchange for the teacher agreeing to leave the school. A Department of Education spokeswoman said that illustrated why the system needed to be changed.

"In this all-or-nothing, pass-fail system, it is quite possible that schools don't have anybody who merits an unsatisfactory rating, but there might be quite a few teachers who are in need of real improvement," said Sandi Jacobs, a vice president with the National Council on Teacher Quality, which supports new evaluation systems.

Michael Mulgrew, president of the United Federation of Teachers, said the current system doesn't have an effective way to help teachers improve throughout their careers.

Julie Platner for The Wall Street Journal

A teacher leads a class in Manhattan. Annually, less than 3% of teachers citywide are marked 'unsatisfactory.'

"I hope that those are all great teachers," he said when asked about the schools that hadn't given unsatisfactory ratings. "But more importantly…you got to go to the school and figure out if they're actually helping the teachers get better. And if they are, I say God bless them, they're doing a great job."

Elaine Schwartz, principal of the Center School on the Upper West Side of Manhattan, said she thought the current system was useless. Ms. Schwartz has run the well-regarded magnet middle school for more than 30 years. The school receives frequent As on city report cards, though Ms. Schwartz said she didn't put much stock in the grades.Her teaching staff has remained virtually unchanged for a decade. She said she couldn't recall when she last gave a teacher an unsatisfactory rating.

That doesn't mean she has a hands-off approach. The teachers meet weekly and talk often about improving. "They're confident enough to say, 'I did something wrong. I have to figure this out,'" she said. "You have to certainly be careful when you talk to people about what they're doing right or wrong, but you don't have to be neurotic about it."

New York is one of many states changing teacher evaluations. Tennessee, one of the first states to adopt a multi-tiered model similar to New York's, reported that in the system's first year, teachers often received a higher grade from principals who watched them in classrooms than on the portion determined by test scores.

Ms. Schwartz said she didn't know what to expect from the new system, which could be imposed on New York City by the State Education Department at the end of June if the city and the United Federation of Teachers can't reach an agreement. But she's not worried about her teachers. "They'll all be fine," she said.

A version of this article appeared March 19, 2013, on page A19 in the U.S. edition of The Wall Street Journal, with the headline: 11% of Schools Never Flunk Their Teachers.

Principals Made Accountable For Retaliation: The Case of Cheryl Farb (WON 2009)

Below is a case where a Dean sued her school, the Baldwin Middle School, and won (in 2009) on the grounds of retaliation, and the intentional infliction of emotional harm.

Betsy Combier

BMS principal found guilty of retaliation
By MIKE RUSSO
May 14, 2009

The jury did not find Brown guilty of sexual harassment or the alleged comments. It based the award to the former employee, Cheryl Farb, on what it described as intentional infliction of emotional distress by the principal. The jury ruled on May 7 that Brown had retaliated against Farb after she filed complaints against him, which ultimately led to her termination. Farb, 49, was hired as the middle school's first-ever dean of students in the summer of 2002 and, according to her attorney, Rick Ostrove, received two excellent reviews from Brown, to whom she directly reported. Soon after Farb's second review, Ostrove explained, Brown made a number of racially and often sexually charged comments, according to Farb. In October of 2003, Farb submitted a complaint to the district office. When Brown found out about the complaint, Ostrove explained, he launched "a campaign to besmirch" Farb. Ostrove said that Brown harassed her at work, making her life miserable. During one administrators meeting, Ostrove said, Brown and another administrator bet to see who could make Farb cry first, and then laughed hysterically when she did. "The principal went after her hard; he tortured her," said Ostrove. "These are the people who are in charge of our children. These are the people we've entrusted the care of our kids to, and this is what they're doing with their time." An emotional Farb told a small gathering of reporters at Ostrove's law office on May 8 that losing her job was one of the most difficult experiences of her life. She said she felt scared and lost, and suffered depression and anxiety so severe that she moved to Arizona, where she had attended college, to find a new job. Farb said she was upset that Brown is still the principal, but most of all, she said, she misses the children and the parents with whom she had formed close bonds. "Everything I did in that school ... everything I said," Farb said, fighting back tears, "every part of my being was for those children, and I never got to say goodbye." 
The jury also awarded $250,000 to Farb's husband, Harold Newman, citing a loss of consortium, which, Ostrove explained, can be awarded to a person whose spouse's emotional distress affects his or her ability to be an effective spouse. Ostrove said that the $5 million - $4 million of which will be charged to the district and $1 million is punitive damages against Brown - was only for emotional damages she suffered, and he intends to push for financial damages Farb claims after she was fired. Louis Silverman, an attorney representing the school district, said that the school board had investigated Farb's claims against Brown, and that in 2004, former Superintendent Dr. Kathy Weiss released a report stating that Farb's claims were unsubstantiated. Silverman added that he intends to fight for a reduction in the settlement. "What the jury was saying was there was no sexual harassment, there was no racial discrimination and there was no hostile work environment," Silverman said. "We are in the process of making a motion to set aside the verdict on a number of grounds." Baldwin Board of Education Vice President B.A. Schoen said that he could not discuss the matter in detail due to the ongoing litigation, but added that the board would likely take a look at the case in the near future. "The board hasn't gotten anything in writing about [the case] yet," Schoen said. "Any legal matters we discuss in executive session, and I'm sure we'll discuss this." Calls to Brown at the middle school were transferred to the district office, which released the following statement: "While the Baldwin Board of Education and Administration are taking this situation very
seriously, we ask you not allow some of the misinformation by the media to undermine your confidence in the district's leadership. When the district is convinced that allegations against the district or its employees are without merit, we mount a strong defense, and we are still in the
midst of just such a defense, which is why we have not been able to comment on this case.
"However, we must make clear that Principal James Brown was not found responsible for any sexual, gender, or race harassment of any kind. ... This case is not final, and the litigation is ongoing.
"Because one of the most significant responsibilities of the school board is to protect the
assets of the district, we retain independent council and are covered by insurance against these types of claims."
Cristina Schmohl, a district spokeswoman, said that because the district has insurance, any
money paid to Farb would not come out of the district budget.
Residents expressed differing views on the case. Guen Pieters, whose son attends Baldwin
Middle School, said she found Brown to be a very caring and proactive administrator. Pieters admitted that she had a perception of the school district as somewhat racially divided, but Brown had convinced her that wasn't the case.
She added that she believed the allegations were made because people had a problem with
Brown's race, and that some school officials felt they had been passed over when Brown became principal. "The issue here was not sexual harassment," said Pieters. "I think it was, 'How did this black man get this position?' But everybody loves him now. Everyone knows who he is and what kind of person he is. He's doing a great job for all the children."
But Nancy Gulfoyle, another parent, said she believes Brown is guilty of all the charges.
Gulfoyle said that Brown should have been fired six years ago when the allegations against
Brown first came up, and she is disappointed that he remains there today.
"I go around the neighborhood and all the people are saying how bad our schools are,"
Gulfoyle said. "I don't believe that. I graduated in 1979 and I still believe in our school system. But the parents have to step up and attend the meetings so we can change things."
Future hearings in the case have not yet been scheduled.
Comments about this story? MRusso@liherald.com or (516) 569-4000 ext. 283.

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- Principals and school administrators hold positions of trust and responsibility in
our society. Last Wednesday, the U.S. District Court for the Eastern District of
New York found that Principal James Brown of Baldwin Middle School in
Baldwin, N.Y., violated that trust when he terminated Cheryl Farb, Dean of
Students, in retaliation for her filing a complaint for sexual harassment and
discrimination. Farb was represented by the firm Leeds Morelli & Brown.
Farb, et al. v. Baldwin Union Free School Dist., et al., 05 CV 0596 (JS)(ETB)

The jury found that the School District and Principal Brown retaliated against Farb for filing a harassment complaint against Brown. Following an eight-day trial, jurors awarded a total of $5.25 million to Cheryl Farb and her husband. The award included $4 million in emotional damages and $1 million in punitive damages awarded to Ms. Farb, as well as $250,000 for loss of consortium to Farb's husband. The Court has yet to determine Farb's damages for economic losses and is expected to award a substantial additional amount for those losses. The Court also ordered the School District to pay all of Farb's attorneys fees. Leeds Morelli managing attorney Jeffrey Brown stated, 'We are very proud of our trial team and inspired by the courage Ms. Farb demonstrated by standing up for the rights of children and women throughout the country.' Cheryl Farb worked at the Baldwin Middle School during the 2002/03 and 2003/04 school years until she was terminated. During her time at the school, she filed a complaint against the principal for making sexual and racial comments about both her and students at the school. The jury found that Principal Brown, in retaliation, exploited his position as Farb's direct supervisor by issuing her poor evaluations and fabricating reasons to take disciplinary action against her. 
The jury also found that Baldwin School District failed to properly train its employees about sexual harassment; failed to keep Farb's complaint confidential; and failed to oversee Principal Brown's supervision of Farb after she filed her complaint against him. Cheryl Farb stated, 'I am happy with the outcome of the trial and am glad that the jury was able to see that I was wronged. I hope this verdict sends a message that people should speak out when they see improprieties in their workplace and retaliation for speaking out will not be tolerated.' Speaking on the quality of their legal counsel in the case, Farb's husband, Harry Newman, said, 'As an attorney, I am thrilled and amazed at the quality of the work that Leeds Morelli & Brown has done for us. Our attorney, Rick Ostrove, is one of the finest trial attorneys I have ever seen in my life. His closing statement was definitely the best closing statement I have ever seen in my entire career.' 

BMS principal trial may go back to court

District can't challenge guilty verdicts, but aims to reduce settlements

Mike Russo

An appeal of a jury's conclusion that former Baldwin Middle School Principal James Brown inflicted emotional distress on a school dean and that the Baldwin School District retaliated against her was denied by a federal judge this month, but school officials were granted the right to a new trial in an effort to reduce the total of $5 million in damages.
"I think that this is reasonable solely on the issue of the amount of damages," said Rick Ostrove, an attorney representing Cheryl Farb, the former dean of students at the middle school, who was terminated in 2004 after she filed harassment complaints against Brown. But Ostrove defended the judge's decision to deny a new trial to challenge the guilty verdicts. "I think there was an overwhelming amount of evidence that [Farb] was retaliated against," he said, "and that Brown subjected her to infliction of emotional distress."

Last May, a federal jury found Brown guilty of intentional infliction of emotional distress, concluding that he made a series of inappropriate comments and created a hostile working environment for Farb, the middle school's first-ever dean of students. The jury determined that when Farb filed complaints with the Baldwin District Office beginning in December 2003, Brown's behavior continued.
Farb was terminated the following spring after the Board of Education found her claims to be "unsubstantiated," but the jury disagreed, finding the district guilty of retaliation. Farb was awarded a settlement of $4 million in emotional damages against the district and $1 million in punitive damages against Brown. Farb's husband, Harold, was awarded $250,000 for loss of consortium.
Harold Farb's award would not be at issue in a new trial, but a statute known as Title VII caps awards for compensatory damages — in this case, the district's retaliation — at $300,000. But because the judge ruled that Cheryl Farb's emotional distress could be attributed to both the district's retaliation and Brown's actions, Farb is entitled to $300,000 from each of them. 

The judge also agreed that the $1 million award against Brown was excessive, and Ostrove said his client is prepared to accept a $500,000 settlement, though he will press on in court for an award for emotional damages, for which there is no cap.
Once the new trial is finished, Ostrove explained, Farb will also be compensated for financial damages — the result of the loss of her job, health benefits and pension as well as her medical treatment — and he suggested that the district take that into account as legal costs mount during the trial. Ostrove estimated those costs to be about $1.7 million at this point.
"[The district] should have settled this before it went to trial and before the judge's decision," he said. "I'm hoping that it's smart enough to settle it now."
Mary Jo O'Hagan, president of the Baldwin Board of Education, said, "Because the litigation is an ongoing process, we continue to be unable to comment on this case."
An attorney for the school district could not be reached.

Three To Sue District

June 3, 2004 | 3 views

Baldwin Middle School dean to sue

Alleges she was sexually harassed

By:Anthony Rifilato 

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   The dean, Cheryl Farb, said that she has been on administrative reassignment since May 14, and that the district has recommended to the Board of Education that she be terminated.
      Farb said that she is planning to file a lawsuit against the Baldwin School District, a process already in the works after she filed a notice of claim against the district in January and notified the New York State Division of Human Rights in April, claiming that she was sexually harassed, defamed and forced to work in a hostile work environment at the middle school between June 2003 and January 2004.
      Though Farb has yet to be terminated, administrators have been tight-lipped about the issue. "We really do not comment on any personnel matters in public," said Deputy Superintendent for Administration Lee Chapman.
      Farb has hired an attorney, Thomas Liotti, who most recently represented the coaches involved in the Mepham High School football sex-abuse scandal.
      Farb would not provide details of the alleged harassment, and said only that sexual comments and innuendo were directed at her in the workplace for months in addition to other inappropriate conduct which, she said, has severely impacted her life.
      "This is my career," said Farb. "But just because I'm afraid, it doesn't mean I'm going to keep silent."
      Farb, 44, came to the middle school in July 2002, one of two new deans who were hired at the school that year. Farb was well liked and seemed "down to earth," said one parent who wished to remain anonymous.
      During her first year, Farb said, things were great. She played a major role in building and re-organizing the dean's office, she said. She not only disciplined students, she said, but, ironically, also served as a student-to-student sexual harassment officer, handling complaints by students. Farb said her year-end evaluation in 2003 was solid.
      "I created an office," said Farb. "I walked into that building every day saying, 'I love this job.'"  

But shortly before June 2003, the workplace started to become extremely uncomfortable, she said, after inappropriate sexual comments were made. "That wasn't the first sense I had that something was off," Farb said. "I was feeling a lot of stress and tension that shouldn't have been."
      It came to a point, she said, where she dreaded going to work and became depressed, and the situation at work affected her personal life. But she was too scared to speak out on the issue initially, she said.
      "I'm trying to teach these kids all of this stuff," said Farb, referring to her role in assisting students with sexual-harassment complaints. "But here I am being a hypocrite."
      Instead of quitting, Farb said she decided to seek help. "I told her, if you're not going to quit, you need to report it," said her husband, Harold Newman, an attorney in Great Neck.
      When her situation worsened, said Farb, she went to her union for advice. She said she was told the union could not intervene.
      Farb said she then went to the district, where she filled out a complaint, and was told by Chapman that the district would investigate the matter. After she complained, said Farb, her work environment became worse. She began seeing a therapist and experienced anxiety, she said. "I kept trying to be professional," said Farb.
      While the district was investigating, said Farb, she hired Liotti, and filed a notice of complaint claiming not only sexual harassment, but also a hostile work environment, intentional infliction of emotional distress and violation of civil rights.
      About a month after the district began its investigation, Farb said she was told that her claims were unsubstantiated. Around the same time, she said, her mid-year evaluation in 2004 was poor.
      "People said things about me that weren't true," said Farb, though she wouldn't provide many details. 

       In May, Farb said, she was asked by the district to resign or else it would begin termination proceedings. Farb refused. "Why do I have to resign?" she said. "I didn't do anything wrong."
      On May 14, Farb said, she was told by the district to leave the middle school premises and also that she would be reassigned while the termination process began. She was told to pack her belongings and leave. "It was disgusting," said Farb. "I was told that I'm not permitted on school grounds."
      She explained that she was notified by School Superintendent Kathy Weiss in May that the district is recommending to the Board of Education that she be terminated, and that her status as an employee will be decided by the board at its June 9 meeting.
      School Board President James Scannell explained that the district and the Board of Education are legally prohibited from discussing individual personnel and legal matters.
      Farb said that she is writing an appeal to the board, and added that she will not settle the lawsuit once it is filed. "It's not a matter of winning or losing," she said. "It's getting the truth out there."
      While Farb's job status is still in limbo, she said she has received numerous calls from teachers, parents and students supporting her and asking when she'll return. "One student cried and asked, 'Where are you going?'" said Farb. "I told her I'm just going on vacation for a little while."