Join the GOOGLE +Rubber Room Community

Saturday, March 14, 2015

3020-a Arbitration and Calling in Witnesses For Respondent's Defense

Calling witnesses to a 3020-a hearing for the defense of a Respondent is very important. My company, ADVOCATZ, protects a Respondent's right to have witnesses appear at his/her 3020-a, and protects the witness from retaliation as well.

For these reasons, I filed a lawsuit against ATU Attorney Michael Francis in August 2014.

My Company, ADVOCATZ, believes that 100% zealous advocacy gives the most probability for winning any case, and this necessitates calling in witnesses for our clients, the Respondents. We issue non-judicial subpoenas for any student and anyone who works for the Department in any capacity.

Arbitration is not a Court of record. You do not have to be a lawyer to work in arbitration, nor to represent/assist at arbitration in New York State. Several arbitrators on the NYC 3020-a Panel are not attorneys and at least one is not licensed to practice in New York State. 

Of course the Department of Education - and, I might add, NYSUT-  attorneys  often want a case to be as short as possible. That is, if they (NYSUT) cannot settle the case with the Respondent being "convinced", without any rational basis, to resign/go away, they may have the Respondent testify, but seldom do they 'allow' the Respondent to call in several witnesses.

ATRs brought to 3020-a arbitration are in serious trouble in this area. Unless you have the name and contact number of a student or a parent from each class you teach, how can you call a witness if, three or more weeks after you have left the school, you are charged with misconduct, corporal punishment, and/or verbal abuse?

I remember the case where the DOE called in a 7-year old to testify against her teacher, but this little girl loved the teacher, and refused to testify against her until after the DOE Attorney took her outside and "reminded" her that she MUST testify that they teacher touched the nose of the student and "hurt" her.

The very wise and terrific arbitrator Earl Pfeffer asked this little girl if she wanted to draw while she testified. She said yes.
Earl Pfeffer

Earl gave her a sheet from his yellow pad, and a red marker, and she started doodling while she was asked about what happened. When she finally said that the teacher had touched her nose, the questions stopped, and there were none from the Respondent. Then Earl asked the little girl if she would give him what she drew, and she handed the sheet back.

On the sheet, in big red letters, was written, "NO".

Earl dismissed all charges. He is a great arbitrator but is no longer working on the NYC Panel. The DOE attorney on that case, Julianne Newman, also no longer works at 49-51 Chambers Street. She was moved here:

Julianne Newman , Senior Field Counsel - Networks: 403, 405, 409, 410, District 75 schools
(212) 356-3738

Of course not all witnesses are as good as this little girl, however witnesses are important.

But people are scared that there will be retaliation, especially if they are still working within the DOE. This is a valid concern, even though the US Supreme Court has ruled that retaliation against a person who testifies for a public employee is prohibited:

US Supreme Court Rules That Public Worker Testimony Is Protected From Retaliation

Protection for witnesses is sometimes violated by the DOE Attorneys.

On or about June 4, 2013, NYC DOE Administrative Trials Unit (ATU) Attorney Michael Francis screamed at the Attorney throughout the hearing I was working with in a case for a Respondent accused of hugging a girl student in his class. He wanted, I believe, to intimidate everyone in the room. The Respondent called in 7 witnesses, all of whom felt strongly that he was innocent (I did too) and wanted to testify for him. 

After a particular witness finished, and left the hearing room, I noticed Mr. Francis get up quickly and also leave the room. I decided to see what this was about, so I left the hearing room as well, and saw Mr. Francis leave the hallway outside of the 7th floor hearing rooms. I followed him, and I saw him standing in the face of the witness who was waiting for the elevator. Mr. Francis was screaming very loudly, "You are going to be sorry for coming in today!", "you are going to regret this!". While Francis was screaming at the witness, I was standing behind him. When Francis finished, he turned around very quickly, almost pushing me to the ground, then walked quickly to the hearing room and told the Attorney to "get that bitch out of my face". The witnesses waiting to testify were terrified.
On August 13, 2014, after filing a Notice of Claim, I sued Francis in Manhattan Supreme Court for tortious interference, tampering with witnesses, and verbal abuse, holding Michael Francis accountable for his improper actions.

The only way to stop people from deliberately violating the rights of another person or group, it seems, is to hold the person doing the harm accountable for his/her actions. I wish people would do the right thing the first time!

Betsy Combier


Which Will It Be - Test-Based Teacher Evaluations or Common Core?

Will test-based teacher evaluations derail the Common Core?

     GREAT NECK, N.Y. — On Sept. 2, the day her principal shared each teacher’s annual

     evaluation, Sheri Lederman came home from work and announced to her husband that

     she was ready to quit.

Fourth grade math teacher Adelia Weatherspoon teaches her class Common Core math
at Higgins Middle School in McComb, Miss.
In the span of one year, Lederman’s score dropped 13 percentage points, suddenly demoting her from an effective teacher to an ineffective one. It was enough to make her head spin.
This marks Lederman’s 18th year in the classroom. She teaches fourth grade at the Elizabeth M. Baker Elementary School in Great Neck, a middle-class suburb about 20 miles from New York City.
Following a statewide ranking system put into place in 2012, for the first time 20 percent of her evaluation score was tied to local tests and 20 percent was based on whether students progressed on state tests administered every spring. The rest of the rating was based on classroom evaluations. Depending on the final percentage, teachers in New York receive ratings of highly effective, effective, developing or ineffective. Teachers who receive ineffective ratings for two consecutive years may face an expedited dismissal process.

The same year the new test-based evaluations went into effect, New York State launched the Common Core State Standards, which aim to deepen critical thinking and enhance problem-solving skills. And along with the new standards came much more difficult tests, which sent student test scores plummeting.

This was a problem for teachers now dependent on good scores to achieve a rating that didn’t also put their job in jeopardy.

Lederman was an early believer in the Common Core. With a doctorate in human development and educational psychology, she was drawn to the idea that students in different states would possess a similar knowledge base and skill set across an array of different subject areas. But the concurrent rollout of new standards on top of harder tests, not to mention the addition of a high-stakes teacher evaluation system, has more than soured her on the new standards.

Among educators, Lederman is hardly alone in her belief that that the one-two punch of Common Core and new test-based accountability systems is too much to handle and leaves teachers — and students — overwhelmed.

“There weren’t a lot of conversations happening between people working on teacher evaluations and the Common Core.” — Joe Williams, executive director of Democrats for Education Reform

At first Lederman was fine. Nearly 70 percent of Lederman’s fourth-grade students met or exceeded reading and math standards on the new Common Core tests, far above the state average. With a perfect score on her classroom observations and local district tests, she easily achieved an effective rating.

But this year, the state awarded her only 1 out of 20 possible points on the state test ranking, because a new class of students didn’t do significantly better than her group from the year before. Instead, they dropped two percentage points in reading and increased slightly in math. Her 18 students far surpassed state averages in both subjects (often by more than double), and she once again did well on the district scores, but not well enough to overcome the low score on the state portion of the evaluation.

So, Lederman did what any frustrated educator, armed with a litigator spouse, would do. In late October, she filed a lawsuit against the New York State Education Department. The lawsuit alleges that such metrics punish rather than reward excellence, with educators whose students outperform state averages unable to show sufficient progress from year to year. A hearing is scheduled for March 20.

Lederman’s lawsuit is one part of a major backlash that’s erupted in the last year against both teacher evaluations and the Common Core. The backlash has become mainstream, no longer relegated to teachers and administrators, and has fueled legislation and multiple lawsuits aimed at dialing back the new policies.
The Common Core was introduced in 2010, and more than 40 states had adopted it by the following year. At the same time, nearly 40 states have adopted laws linking teacher evaluations to student performance on standardized tests over the past four years. Essentially, two separate groups of reformers were plugging away at ideas to transform education — and they came barreling down the track at exactly the same time. Though New York was one of the earliest adopters of teacher evaluations tied to student test scores, other states are now launching new evaluation systems while also implementing new, harder state tests tied to the Common Core. Ultimately, the aim is to use performance reviews to decide tenure, promotion or termination.
 In New York and elsewhere, many educators cite a deeply flawed rollout of the two policies, with each inadvertently undermining the other. Now, even die-hard enthusiasts for the new reforms are wondering whether the clash of high-stakes evaluations tied to new, more difficult standards will ultimately derail both ideas.

Sandi Jacobs, the vice president and managing director of state policy at the National Council on Teacher Quality, a nonprofit that advocates tougher teacher standards, described it as the accidental convergence of efforts to solve “two really big issues in education” — standards woefully lacking in rigor along with a broken teacher evaluation system.

“How didn’t we see this coming and the problems it was going to cause with the federal government prioritizing these two issues all at once?” asked Jacobs. “There wasn’t enough concern about how these things were running down the path together until the tests became an issue.”

Two Separate Conversations

Joe Williams, the executive director of Democrats for Education Reform, an advocacy group that supports test-based evaluations and changes to current tenure laws, agrees that the concurrent rollout in New York has been nothing if not clunky.

He describes different factions of the reform world seizing upon opportunities that occurred at the same time, and ignoring what their counterparts were doing.

“There weren’t a lot of conversations happening between people working on teacher evaluations and the Common Core,” said Williams. “There were two separate conversations happening. One hand didn’t necessarily always know what the other hand was doing.”

Some supporters of the new standards have blamed the Obama administration for its ambitious and controversial initiatives to overhaul American public education. The administration’s competitive Race to the Top grants, part of the 2009 stimulus package, made billions of dollars available to states if they agreed to attempt multiple reforms at once, including creating test-based teacher evaluations and adopting “college-and-career ready” standards, which most states interpreted as the Common Core. The U.S. Department of Education followed up on Race to the Top with waivers it granted from No Child Left Behind regulations, which set similar guidelines for states to receive federal dollars.

Randi Weingarten, president of the American Federation of Teachers, which counts more than 800,000 teachers as active members, blames Race to the Top, and its “fixation on data and testing,” for squelching the enthusiasm that initially accompanied a new, more rigorous set of common standards. New York’s rollout was particularly egregious, Weingarten said, describing the rushed implementation as “profoundly disappointing,”   breeding distrust among teachers, parents and students.

“This does not create confidence in public education and a lot of people are saying let’s just throw the whole thing out,” said Weingarten, referring to the Common Core. “For those of us who believed in the potential of the standards, we’ve also lost a lot of credibility.”

Jacobs described new, harder tests connected to the standards as the “lightening rod,” which, when paired with the simultaneous rollout of test-based consequences for teachers, has incited not only inflammatory rhetoric, but subsequent pushback — with some states seeming to delay accountability efforts indefinitely.

“Not that I could have written the master road map to avoid it, but I do worry. We all should have been more thoughtful about the timing of these transitions,” said Jacobs. “Looking back, we could see that we were creating new tests at the same time we were beginning new evaluation systems.”

Phil Daro and Susan Pimentel both worked on the standards’ side of things. Daro co-authored the Common Core math standards. Pimentel was one of three writers of the Common Core literacy standards.

Daro sees too many changes coming all at once — with testing playing too dominant a role. “Right now, everything is being blamed on the Common Core,” said Daro. “There’s an ‘everything at once’ mentality, as if slowing down is bogging down.”

Pimentel, meanwhile, has been working to align materials and tests to new standards, while helping teachers make huge shifts. From Pimentel’s perspective, tying new assessments to teacher evaluations too soon risks alienating teachers from the standards themselves.

“We need to unhook assessments from teacher evaluations for a while. Teachers need time and support to acquaint themselves with the new standards before high-stakes consequences are applied,” said Pimentel. “Once assessments are fair, transparent and trusted, our advice would be to then begin to tie student assessments to teacher evaluations. Accountability for student results is a critical component of a high-functioning system of education.”

In late October, she met with assessment and curriculum representatives from 18 different states. Taken together, Pimentel observed widespread experimentation, with most states tweaking how much the assessment counts in a teacher’s annual evaluation, while others have delayed accountability measures for the foreseeable future. “The bottom line is that states are trying all kinds of different approaches — and some are simply waiting.”

Even those at the forefront of the push for the new teacher ratings and the Common Core have advocated a more gradual approach.

Earlier this summer, the Bill & Melinda Gates Foundation called for a two-year moratorium on states or districts basing personnel decisions on Common Core-aligned tests. And in August, Secretary of Education Arne Duncan urged states to delay using test results for an additional year when tabulating teacher ratings.

Despite a temporary reprieve, a recent study jointly commissioned by Scholastic, the education publisher, and the Gates foundation shows that, among teachers, support for the Common Core has started to wane. Among 1,600 teachers polled from around the country, the percentage of teachers who are enthusiastic about the Common Core has dropped — from 73 to 68 percent in the last year alone.

Junk Science

Adam Urbanski doesn’t mince words. “I do not have confidence this can be fixed,” said Urbanski, now in his 34th year as the president of the Rochester Teachers Association in upstate New York. He sees the simultaneous rollout of new standards and test-based teacher evaluations as “poisoning the well.”

Last year, labeling the rankings “junk science,” the Rochester Teachers Association filed a lawsuit against the state, citing a discrepancy in how urban teachers were ranked versus their suburban counterparts. During the 2012-13 school year, only 2 percent of Rochester’s 3,400 teachers received highly effective ratings. One year later, that figure suddenly jumped to 46 percent. The lawsuit is now wending its way through the state court system.

“Unless you believe in miracles, I predict that next year, we’ll see another incredible swing,” said Urbanski. Now a retired teacher, he previously taught high school social studies. “Huge variations are part and parcel of unreliable systems. If it weren’t so sad, it would be laughable.”

Urbanski says the new metrics unfairly penalize teachers of disadvantaged students. Since the new evaluation system went into place two years ago, he’s witnessed an unprecedented number of voluntary resignations and early retirements. More concerning, he sees tenured teachers unwilling to work with student teachers for fear of disrupting their students’ test scores and Rochester-based private and charter schools using their exemption from the Common Core to recruit faculty and lure students.

When advising colleagues around the country, Urbanski describes New York as “an extreme example of how not to do it.” Though an early proponent of a common set of national standards, he has since reversed his position. “Sometimes it’s cheaper to just buy a new car than to fix a damaged one,” he said. “The Common Core should be scrapped. As soon as you fix one thing, something else pops up elsewhere that’s equally problematic.”

Joe Williams, however, cautions against reverting back to the old evaluation system. In New York, teachers previously received two ratings: satisfactory or unsatisfactory. “It wasn’t fair to teachers, especially to the really good teachers,” said Williams. “Less than 3 percent were ranked unsatisfactory.”

Though proficiency rates in reading and math have hovered around 30 percent, large swaths of teachers haven’t exactly received negative ratings since beginning the new evaluation system. Earlier this fall, 94 percent of teachers across New York State received highly effective or effective ratings. Meanwhile, in some districts, not a single teacher received an ineffective rating.

While some states have taken a more gradual approach, Lauren D’Amico, an elementary-school teacher in Arizona, has experienced the sudden jolt of the new system. Arizona adopted College and Career Ready Standards, a set of state-specific standards aligned to the Common Core in 2010, though local schools didn’t begin implementing them until the 2012-13 school year.

Two years ago, her district launched test-based evaluations. During the first year of implementation, test scores accounted for 25 percent. Last year, classroom observations comprised 50 percent of her annual evaluation, with 40 percent tied to state and local tests. An additional 10 percent relates to grade-level and school-wide growth as measured by similar tests.

For the 2012-13 school year, D’Amico was labeled developing. This past September, her score suddenly shot up two levels — to highly effective. Much like New York, Arizona rates its teachers using four categories: highly effective, effective, developing and ineffective.

“I’m scratching my head and wondering what kind of teacher I’m going to be this year,” said D’Amico, who is now in her eighth year in the classroom. “If I went from developing to highly effective, what could this year have in store for me? It’s a bogus system.” Besides test-based evaluations, her district has further ratcheted up the stakes by implementing a merit pay system. Final ratings now determine annual bonuses, which range between $1,000 and $5,000.

Meanwhile, following Arizona’s abrupt withdrawal in May from the Partnership for Assessment of Readiness for College and Careers (PARCC), one of two state-led groups that develop tests aligned to the Common Core, her students now face a brand-new end-of-year test — with half of her annual evaluation hinging on their performance. Four months into the school year, the Arizona Department of Education announced AzMERIT, a state-issued Common Core-aligned reading and math test, which it plans to unveil later this spring.

Following classroom observations, D’Amico used to come away with detailed feedback from her principal. Now, she receives a number from zero to five on a 26-point rubric. Among her colleagues, she can sense a precipitous drop in morale once observations begin.

“When you have everybody reduced to numbers, it doesn’t create a good atmosphere. It doesn’t help teachers teach and it doesn’t help children learn,” said D’Amico, who initially supported the Common Core. The concurrent launch of other reforms has since made it far less palatable. “Launching everything all at once, it just takes the wind out of everyone’s sails.”

This story was produced by The Hechinger Report, a nonprofit, independent news website focused on inequality and innovation in education. Read more about the Common Core.