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Friday, February 13, 2015

Charters and Suspensions: Civil Rights Suspended

NYC Charter Schools Are Illegally Pushing Out "Difficult" Kids, Report Alleges

A children’s advocacy group has found that large numbers of NYC charter schools are violating state and federal law in their disciplinary practices, handing out excessive suspensions and expulsions—often without due process—to children as young as five.

Through Freedom of Information Law requests, Advocates for Children of New York (AFC) obtained the discipline policies of 155 out of the 183 total charter schools in NYC during the 2012-2013 school year and part of the 2013-2014 school year. Their report, "Civil Rights Suspended," examines how those policies fail to protect students and details some of the most egregious allegations of excessive discipline.

Of the 164 disciplinary policies from the 155 schools (some schools had multiple policies for different grade levels), the report found:

1) 107 policies allowed suspensions or expulsions for any behavior violation, no matter how minor;
2) 82 allowed suspensions or expulsions for students who were late, absent, or skipped class;
3) 133 did not include the right to written notice before a suspension took place;
4) 36 did not include the right to a hearing prior to a short-term suspension;
5) 25 did not include the right to a hearing prior to a long-term suspension;
6) 59 did not include the right to appeal a suspension or expulsion;
7) 36 did not include distinct procedures for suspending or expelling students with disabilities;
8) 52 did not include the right to alternative instruction during the full time of the suspension.

The first finding—that students are being suspended and expelled for behavior violations—is especially significant for students with disabilities, says Paulina Davis, Staff Attorney with the AFC's Charter Schools Initiative. “If you have ADHD and you can get an infraction for getting out of your seat without permission, or calling out in class, then you’re someone who is more likely to incur those types of infractions,” she explains.

City charter schools are not subject to the same disciplinary regulations as public schools under the Department of Education’s Discipline Code; instead, they are governed by the New York State Charter Schools Act and the state constitution. They must also comply with federal law, including IDEA (Individuals with Disabilities Education Act), and Goss v. Lopez, a decision which regulates due process requirements for suspensions. The AFC report alleges that findings two through seven violate state law, while findings four, five, and seven—those having to do with due process and disability protections—violate federal law.

The report describes a 10-year-old boy with ADHD who was suspended from his charter multiple times for those exact behaviors, missing over twenty days of school. Another boy with ADHD faced expulsion after throwing a bag of food on the floor and sweeping it up with a “bad attitude”—he had already been suspended three times. A five-year-old girl was suspended three times while her mother waited for her disability evaluation, then expelled for accumulating those three suspensions.

AFC has provided legal guidance or representation to over 100 parents in charter suspensions or expulsions in the past year and a half, they write in the report. But James Merriman, CEO of the New York City Charter School Center, says the incidents are isolated. In a statement issued to Gothamist, he writes:

“No one can disagree that those policies that do not fully meet applicable law should be amended. But it is tremendously unfair to suggest, as AFC does, that a handful of one-sided anecdotes compiled over a long time are any evidence that charter schools are wholesale violating civil rights laws. Based on AFC’s own evidence, only one tenth of one percent of students in charters have over the last 18 months lodged a complaint, a figure that strongly suggests that what problems there may be are extremely rare, isolated and the exception.”

In 2013, a report from the Daily News found that popular charter chain Success Academy was suspending students at much higher rates than public schools in the same neighborhoods. One Success Academy school in Harlem suspended 22% of its children during the 2010-11 school year, compared to a 3% suspension average for public elementary schools in the same district.

Donna Lieberman, Executive Director of the NYCLU, says the AFC report is "welcome, and shines a light on the structural problems in the charter schools with regard to accountability for fairness and equity in school discipline. The report confirms what we have been hearing for years now, and what the governor even alluded to in his state of the state message, the problem of schools that are engaged in pushing out difficult kids. He referred to it as 'preening.'"

Lieberman argues that the state education department "has an obligation to ensure that charter schools respect the right of children to go to school, and act in accordance with the common sense principals that, when you agree to educate a child, you can't throw them out just because they behave like a child."

Meanwhile, the city’s public schools await an overhaul to the Department of Education’s Discipline Code, which has been criticized repeatedly for disproportionately suspending black and Latino children. There were 53,000 suspensions in the 2013-2014 school year, 90% of which were given to black or Latino students. Students with disabilities are also suspended at extremely high rates by the DOE—of the 53,000 suspensions from 2013-2014, 36% of them were students with disabilities.

Molly Knefel is a freelance journalist and co-host of the political podcast Radio Dispatch.


Decertification of a Union

How To Decertify A Union

Labor Relations Institute
Decertification refers to the process where the National Labor Relations Board (NLRB) allows employees to call for a special election to get rid of the union as their “exclusive representative.” It is important to remember that your company cannot help or assist you with decertifying a union. You can reach out to other organizations to help. Feel free to contact us at 800-888-9115 FREE for a referral.
The objective of a decertification election is to terminate the union’s right to represent you and your fellow employees. This procedure provides you with full relief by taking away the union’s authority to act as your bargaining representative.  If you are a part of the employee union that is covered under a collective bargaining agreement (whether you are a union member or not) you can still sign a petition and participate in the vote for decertification.  Once the union is removed as your legal bargaining representative you no longer have to join the union or pay dues or fees to it.
View the video above to learn in detail how to decertify a union. Here is a quick outline of how to do it:
Step 1: Determine the proper filing period.  Under the “contract bar” rule a petition cannot be filed for a decertification election within the first three years of of a labor contract except during a 30-day “window period.”  The window period usually opens 90 days prior to the contract expiration and closes again 60 days before the contract expires. In healthcare settings the window period opens 120 days before the contract expires and closes 90 days before the contract expires. After the initial three years of a contract employees can file a decertification petition at any time.
Step 2: Employees need to draft a decertification petition (example draft below) for employee signatures.  If at least 30% of bargaining unit members sign a decertification petition, the National Labor Relations Board will have a secret ballot election.
Step 3: Employees can only perform decertification efforts during non-work times and in non-work areas.  Also, management cannot be involved in any way in this effort.
Step 4: If at least 50% or more of the employees vote against union representation then the company will be union free and employees will be able to deal directly with the company on issues related to pay, benefits and working conditions.
When your union hears about employees bid to get out of the union, they will not be happy.  However, there’s nothing they can do to prevent you from exercising your rights.  They may try to pressure or coerce you into changing your mind. Threats or coercion by union representatives are illegal and constitute an unfair labor practice.  If the union tries to coerce you or your coworkers in any way, you should immediately report this to the NLRB and, if you want, to the company.  It is the NLRB’s duty to prohibit such action on the part of unions and to insure that your right to seek an election will be protected.
The NLRB has ruled, and the courts have upheld, that a union may not discriminate against a member for taking action to have the union decertified.  An election is the legally accepted way to determine the desires of the employees in the unit on the subject of union representation.  The federal government will see that your right to an election will be protected and that the election will be conducted fairly.
In addition, nobody will reveal the names on the petition that is submitted to the NLRB and the decertification election is conducted by secret ballot so neither the union nor the employer will know how any individual voted unless they choose to make their vote known.
Decertification is different from deauthorization because it seeks to get rid of the union as bargaining representative completely, while deauthorization seeks to get rid of “forced unionism” in the contract even though the union remains in place). You can learn more about deauthorization here.
Sample of Decertification Petition:
Employee Petition for Union Decertification
The undersigned employees of [Company Name Here] presently represented by the [Union Name and Local Number Here] no longer wish to be represented by a union. We wish to have the National Labor Relations Board conduct an election since we believe that a majority of employees in our unit no longer wish to be represented by the above union.
Name (printed)         Signature          Department          Date          
You can have signatures on more than one piece of paper, but you should have the text at the top of EACH PAGE of the petition so it is clear that every person signed a petition clearly describing its purpose. Remember only to collect signatures during non-work time and in non-work areas and do not ask a member of management to help with your petition.
The first method is by petitioning the National Labor Relations Board to conduct a secret-ballot decertification election.  The second method is by instructing your employer to withdraw recognition of the union.

The following section will give the highlights of both, as well as step-by-step "how to" instructions so that you and your co-workers can determine which method would work best for you:
  • Employees must show 30% support (or interest) in having the NLRB conduct an election
  • Petition must be filed with the National Labor Relations Board
  • Union is notified of employee decertification attempt
  • Union will typically file Unfair Labor Practice (ULP) charges alleging employer assistance or interference
    • ULP charges generally have the effect of blocking the NLRB election while the NLRB investigates the union's allegations
    • Election may be blocked for months which gives union time to wear down employees
  • If NLRB determines an election is allowed, election is generally set 25-30 days following direction of election
  • NLRB conducts secret-ballot election
  • Outcome is determined by those employees who actually vote
 If union maintains 50% + 1 vote, union is still certified bargaining agent
For step-by-step instructions on how to decertify using the National Labor Relations Board election process, go here.
  • 50% + 1 of you and your co-workers must give your employer "objective evidence" that you are no longer interested in being represented by the union—usually in the form of a petition signed the majority of employees
  • Employer will generally notify the union of your desire for the employer to withdraw recognition
  • Union will typically file Unfair Labor Practice (ULP) charges alleging employer assistance or interference
  • Presuming the NLRB finds there has been no employer interference, the union will have become decertified
For step-by-step instructions on how to instruct your employer to withdraw recognition, go here.