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Friday, September 30, 2016

Terrell Williams, Charged With Trying To Find A Date By Asking His Students, Wins His Petition and Gets His Job Back At the DOE

Lisa Brogan

Arbitrator Lisa Brogan terminated Terrell Williams at his 3020-a. The New York State Supreme Court Judge affirmed this decision. The First Department disagreed.

Ms. Brogan, without question, did not look at all the circumstances surrounding Mr. Williams' charges. His lawyer at the 3020-a was NYSUT Attorney Antonio Cavallaro. But in the end, Terrell got a new decision, and will have a new arbitrator look at his evidence. Congratulations Terrell!!!

But why do people have to be put through years of extreme distress and thousands of dollars in legal fees to get the right answer?

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Teacher on the prowl for hot moms did nothing wrong: court

NY POST, September 28, 2016

A married Brooklyn teacher skipped Tinder and instead pestered his students to help him land dates with their sisters and moms — but that’s hardly anything to get hot and bothered about, a court ruled Tuesday.
Terrell Williams, an eighth-grade gym instructor with two kids, did “not violate any specific rule or regulation,” the appellate panel said in overturning his firing.
Williams was booted from PS/MS 282 in Park Slope in 2013 after five female students testified that he repeatedly approached them before volleyball practice and asked “whether they had older sisters, how old they were, what they looked like, and whether he could have their phone number,” according to court papers.
Williams also inquired about aunts and mothers and whether the female relatives had boyfriends, according to evidence presented at a city Department of Education hearing.
The questioning made the students feel “uncomfortable,’’ and one mother filed a complaint when Williams texted her daughter, according to court papers.
After he was canned from his $80,000-a-year job, Williams sued. He claimed that the preteen students were the ones who tried to set him up on dates.
He also claimed moms routinely asked him out for drinks.
He lost the case in 2014 before a judge in a lower court.
But in a split appellate decision, the majority found that Williams had an unblemished 13-year teaching record and his behavior did not warrant firing.
They recommended a lesser penalty.
Dissenting Judge Peter Tom disagreed, saying Williams “irreversibly abused his position as a teacher by transforming the high school where he teaches into a dating forum using his young ­female students to search out candidates for his illicit romantic escapades.”
Parents at PS/MS 282 were shocked Tuesday to hear of the court ruling. “I don’t feel like he should be allowed to teach again,” said Corey Settles.
Another mom, Natalie, who did not reveal her last name, agreed.
“He shouldn’t be allowed back. You shouldn’t ask students if they have attractive moms. It’s inappropriate,” said the mother of three.
But at least two of Williams’ former colleagues welcomed his return, saying on the condition of anonymity that the incidents were “blown out of proportion.”
Williams referred questions to his lawyer, who did not return messages seeking comment.
A city Law Department spokesman said, “We obviously agree with the dissenting opinion that this termination was justified.”
Additional reporting by Gabrielle Bass

Matter of Williams v City of New York
2016 NY Slip Op 06184
Decided on September 27, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 27, 2016 
Tom, J.P., Acosta, Richter, Manzanet-Daniels, Gesmer, JJ.

899 653954/13

[*1]In re Terrell Williams, Petitioner-Appellant, 


City of New York, et al., Respondents-Respondents.

Order and judgment (one paper), Supreme Court, New York County (Frank P. Nervo, J.), entered August 12, 2014, denying the petition to vacate the part of the arbitration award that terminated petitioner's employment as a tenured school teacher, and dismissing the proceeding, reversed, on the law, without costs, the petition granted, and the matter remanded to respondents for imposition of a lesser penalty.
The evidence presented at the arbitration hearing establishes that petitioner, while an eighth-grade physical education teacher, initiated conversations with at least two of his female students asking them if they had older sisters, and, if so, how old they were, whether they had boyfriends, and whether they had photographs of them,[FN1] and accepted the phone number of one student's 23 year old sister. Petitioner also told a student that her mother had called him "handsome" while passing him on the street. One student testified that petitioner's conduct made her feel "uncomfortable," and another said that his conduct "aggravated" her. Of the 12 specifications with which he was charged, the Hearing Officer dismissed five, including charges that he had engaged in similar behaviors in the 2010-2011 school year, that he actually contacted the sister whose telephone number he received, and that he told the students, "[M]y wife said I can look but I can't touch."[FN2]
The Hearing Officer found petitioner to be insufficiently remorseful, that his actions revealed "moral failings," and that, although termination might be "too severe," it was the only penalty that could "jolt" petitioner into an understanding of the seriousness of his misconduct.
Based on all the circumstances of the case, including the lack of any prior allegations of misconduct against petitioner during 13 years of service and the fact that the misconduct does not violate any specific rule or regulation, we find the penalty of termination sufficiently disproportionate to the offenses to shock the conscience (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 569 [1st Dept 2008]).
Moreover, petitioner had never been warned or reprimanded regarding the conduct at issue, and, contrary to the conclusion of the Hearing Officer, there is no evidence that a warning or reprimand or other penalty short of termination would not have caused petitioner to cease the objectionable conduct immediately (see Matter of Polayes v City of New York, 118 AD3d 425 [*2][1st Dept 2014]).
While we share some of our dissenting colleague's concern regarding petitioner's behavior and his failure to express any deeper understanding of the inappropriate nature of his actions, we do not agree that the law supports petitioner's termination at this time. This is in part because we do not agree that petitioner's communication with his students, while inappropriate, can be fairly characterized as "romantic/sexual in nature," or as being for the purpose of "solicit[ing] female companions for his sexual gratification," as the dissent puts it. The Hearing Officer herself found only that petitioner made "inappropriate inquiries of his 8th grade female students regarding their female relatives, in furtherance of a personal agenda having nothing to do with school or his responsibilities as a teacher." She did not find that petitioner actually intended to, or did, have any "romantic/sexual" interactions with anyone. Rather, she concluded that petitioner's questions about the students' sisters "in sum and substance... amount[] to expressing an interest in meeting" their sisters, and she made clear that no one testified to his using "those precise words." There is no evidence that he made any sexual comments to his students.
In contrast, the teachers in each of the cases cited by the dissent engaged in conduct that constituted a violation of a specific law, rule or regulation, and that was far more outrageous than petitioner's in this case. In Matter of Villada v City of New York (126 AD3d 598 [1st Dept 2015]), Mr. Villada repeatedly sexually harassed a colleague, including by forcibly tongue kissing her. In Matter of Ajeleye v New York City Dept. Of Educ. (112 AD3d 425 [1st Dept 2013]), Mr. Ajeleye was found guilty of verbal abuse of students, insubordination, neglect of duty, and unbecoming conduct (id.). The teacher in Matter of Binghamton City School Dist. (Peacock) was found to have committed insubordination, neglect of duty and conduct unbecoming a teacher because he had "engaged in an improper, intimate and clandestine relationship with a minor female student... [for which he] showed no remorse..., disobeyed administrative direction to cease his relationship with the student and not transport her in his car, and continued to contact her even after disciplinary charges were brought against him" (33 AD3d 1074, 1077 [3d Dept 2006], appeal dismissed 8 NY3d 840 [2007]). The teacher in Lackow (51 AD3d 563) discussed bestiality, necrophelia and his own ejaculations with students, and, while teaching class with a model of reproductive organs, told a student he should "enjoy" looking at a vagina (51 AD3d at 565). Moreover, Mr. Lackow had received at least three written warnings to stop such conduct. His termination was the result of his failure to do so (51 AD3d at 568-569). Similarly, the teacher in Matter of Rogers v Sherburne-Earlville Cent. School Dist. (17 AD3d 823, 824-825 [3d Dept 2005]) had received warnings before being terminated for falsifying time records, abusing leave time by, for example, using sick leave to go hunting, and taking excessive leave time. The dissent also cites Matter of Chaplin v New York City Dept. Of Educ. (48 AD3d 226 [1st Dept 2008]) for the proposition that even employees with good work histories are appropriately terminated for "[a]cts of moral turpitude" (id. at 227). That case does not discuss the specific behavior which triggered the employee's termination. However, in both Chaplin and the Court of Appeals case to which it cites, Matter of Kelly v Safir (96 NY2d 32 at 37, 39 [2001]), the petitioners' acts constituted crimes, which is certainly not the case here.
Here, petitioner showed very poor judgment, but he has not been shown to have violated any law, or even any rule or regulation of the Department of Education. Our decision today does not excuse petitioner's behavior, but directs a less serious punishment. Should it continue, termination may well be in order in the future.
All concur except Tom, J. who dissents
in a memorandum as follows:

TOM, J.P. (dissenting)
In this article 75 proceeding, petitioner seeks to vacate the arbitration award of a Hearing Officer, dated October 29, 2013, which terminated his employment as a tenured physical education and health teacher. Due to the egregious nature of the misconduct at issue, and the Hearing Officer's conclusion that petitioner did not display any remorse or an appreciation for the seriousness of his actions or the effect his actions had on the young female students, I would find that the penalty of termination was appropriate (see Matter of Villada v City of New York, 126 AD3d 598 [1st Dept 2015]; Lackow v Department of Educ. (or "Board") of City of N.Y, 51 AD3d 563 [1st Dept 2008]).
The evidence presented at the arbitration hearing establishes that petitioner, while an eighth-grade physical education teacher, repeatedly engaged in inappropriate conversations with his female students. Specifically, these conversations were romantic/sexual in nature and involved petitioner asking multiple female students in 7th and 8th grade about their older sisters and female relatives, including what their sisters, mothers and aunts looked like, whether they had boyfriends, and soliciting contact information and photographs for his own personal gratification and use. Five former female students testified at the hearing that during the downtime before physical education class started or during girls' volleyball practice in the mornings, petitioner asked on multiple occasions whether they had older sisters, how old they were, what they looked like, and whether he could have their phone number. Some of these conversations took place when the girls' volleyball team was formed for practice in the morning before school began. Although respondent was not one of the coaches for the volleyball team, he would arrive early to school to join the girls' practice. It was in these various settings that conversations which formed the basis of the charges against respondent took place. In one instance petitioner learned that the student had a 23-year-old sister, he asked more than once, and finally obtained the number. The students testified that petitioner's conduct made them feel "uncomfortable" and "aggravated." In addition, one of the student's mothers had come to the school upset and filed a complaint after learning petitioner had asked her daughter if she had any cute sisters and later was told by the student's older sister that petitioner had "texted" her phone. This was the testimony of one of the students.
These inappropriate conversations with different female students spanned the 2010-2011 and 2011-2012 school years, and, by petitioners's own admission, he had at least 20 such conversations in the 2011-2012 school year [FN3]. Petitioner also testified that he had engaged in these types of conversations several times before, including at another school.
According to petitioner, all of the inappropriate conversations were initiated by the students who would frequently talk about their female relatives and try to interest him by showing him pictures or offering phone numbers. He similarly claimed that parents would approach him directly and ask him to go out for a drink or "hang out." He claimed that his questions about student's sisters were made "jokingly," and that he would brush off students' entreaties about their female relatives by smiling and sometimes saying, "I love my wife." Petitioner also explained that he did not tell his students to stop these conversations - even though he thought the students were serious when they made the comments - because at his prior school, where the same situation had occurred, he told a student to stop and got a bad reaction from the student, who became angry at the suggestion that petitioner thought he was too good for her mother.
The Hearing Officer sustained the majority of the charges against petitioner and made clear that the case turned on the credibility of the witnesses. In particular, the Hearing Officer found petitioner's claims incredible and rejected his version of events while crediting the testimony of the students. The Hearing Officer did not believe that five eighth-grade students [*3]would conspire to lie under oath about their former teacher, and found no evidence to support such a conspiracy. In this regard, the Hearing Officer could not accept petitioner's claims that the students instigated these conversations or actively solicited their own family members into a relationship with a married man. Nor did she credit petitioner's testimony that during different years and at different schools eighth-grade students could not contain themselves in trying to bring petitioner into their families in a romantic way or that parents were throwing themselves at petitioner. The Hearing Officer also rejected any contention that these conversations were made entirely in jest.
In sustaining the various charges, the Hearing Officer stressed that the behavior at issue was not isolated and included numerous conversations with multiple female students at this school (and at a prior school) during which he discussed their relatives' phone numbers and viewed their photographs. She also remarked that petitioner had attempted to paint himself as a victim who could not "contain a constant onslaught of female attention, even when it involves his students."
The Hearing Officer ultimately found that termination was the appropriate penalty because petitioner did not understand the seriousness of his conduct, continued to deny wrongdoing and place blame on his young students, and "did not consider the
possibility, even in his version of this story, that the appropriate response is to address his students with discipline and/or moral teaching." The Hearing Officer went on to note that "[c]ontrary to his own misguided understanding, [petitioner]is a role model for his students, and he is expected to model appropriate behavior." Further, she did not believe a fine or suspension would make him understand the seriousness of his behavior or "right the moral judgment which is so horribly askew." Nor did she think a lesser penalty would be appropriate because she did not "believe such a penalty would be effective, . . . nor adequately address[] the harm done here."
Petitioner continues to minimize his conduct in this proceeding, referring to it as "harmless banter" and claiming it to be a "minor lapse in judgment" unlikely to recur despite his own admissions that he spoke to numerous students this way at two different schools over different years. In sum, he insists that his behavior had no "ill effects" on the students at issue.
Petitioner's continued failure to comprehend the nature and seriousness of his actions, blaming the young students for his misconduct and showing no remorse for his actions, supports the Hearing Officer's point and her conclusion that the penalty of termination was appropriate. Initially, petitioner's lack of prior disciplinary history was considered by the Hearing Officer and is no basis to reduce the penalty (see Matter of Ajeleye v New York City Dept. of Educ., 112 AD3d 425, 426 [1st Dept 2013]). In any event, the record shows petitioner received an unsatisfactory rating for the school year previous to those at issue, and the absence of prior charges does not necessarily prove his behavior was beyond reproach.
Nor is even worse behavior such as physical assault a prerequisite to termination (see e.g. Lackow, 51 AD3d at 569 [continuing in a pattern of conduct that was clearly irresponsible and inappropriate within the classroom setting]; Ajeleye, 112 AD3d at 425 [insubordination, neglect of duty, conduct unbecoming his position, and using language that constituted verbal abuse of his students]). Termination for offenses has been found appropriate where, as here, a teacher has displayed no remorse or an appreciation for the seriousness of his actions (see Villada, 126 AD3d at 599). Termination of a teacher who merely engaged in a pattern of excessive leave time usage has been upheld as not shocking to the conscience (Matter ofRogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823 [3d Dept 2005]). Moreover, we have held that "[a]cts of moral turpitude committed in the course of public employment are an appropriate ground for termination of even long-standing employees with good work histories" (Matter of Chaplin v New York City Dept. of Educ., 48 AD3d 226, 227 [1st Dept 2016 2008]).
The majority's efforts to distinguish the foregoing cases do not support a finding that the penalty in this case shocks the conscience. While the actions in those cases were egregious, they do not make petitioner's behavior appropriate or acceptable or somehow make him fit to remain a teacher. Further, the purpose of citing a case such as Lackow was not because the facts are identical but rather to demonstrate that neither physical abuse nor sexual assault are the standard required for a teacher to be terminated, and because the teacher in Lackow similarly "continued [*4]in a pattern of conduct that was clearly irresponsible and inappropriate within the classroom setting" which "reflect[ed] an inability to understand the necessary separation between a teacher and his students" (51 AD3d at 569).
The majority also notes that petitioner's misconduct does not violate any specific rule or regulation. However, the Education Law has a general prohibition on "conduct unbecoming a teacher" (see Denhoff v Mamaroneck Union Free School Dist, 29 Misc 3d 1207[A], 2010 NY Slip Op 51742[u] [Sup Ct, Westchester County 2010], affd 101 AD3d 997 [2d Dept 2012]; see also Matter of Douglas v New York City Bd./Dept. of Educ., 87 AD3d 856 [1st Dept 2011] [upholding penalty of termination where the petitioner was charged with conduct unbecoming a teacher]; Matter of Mazur [Genesee Val. BOCES], 34 AD3d 1240 [4th Dept 2006] [upholding penalty of termination where evidence, inter alia, supported the Hearing Officer's determination that the petitioner engaged in conduct that was unbecoming an administrator]). There is no question that the evidence in this case established that petitioner engaged in conduct that was unbecoming a teacher.
Matter of Polayes v City of New York (118 AD3d 425 [1st Dept 2014]) bears no relation to this case. In Polayes, the teacher engaged in one objectively innocuous conversation with a group of high school senior students during which he suggested one student was "the type to party with" or "you want to go to school to party" after that student expressed interest in attending a college that was widely reported to be a "party school." The students who testified were not offended by these comments. In contrast, petitioner, during the course of different school years and at different schools, engaged in numerous inappropriate romantic/sexual in nature conversations with multiple young female students during which he discussed his potential romantic interest and possibly to form an intimate relationship with his students' female relatives who he objectified.
The evidence in this case clearly showed that petitioner fails to understand the seriousness of his actions, that he was a role model for his students, and that his conduct undoubtedly had ill effects on his students and made him unworthy of a position of trust and authority over impressionable students. Rather than providing his students moral guidance about boundaries and appropriate conversations to have with teachers or modeling correct behavior for them, petitioner illustrated for them repeatedly that he finds it acceptable to discuss his potential romantic or sexual interest in any and all of their female relatives, to ogle over photographs of those relatives, and to view them as appropriate targets for conquest [FN4]. What, indeed, does this teach adolescent girls about their worth in the world? Petitioner's conduct is demeaning to women. It can only serve to reinforce a wrongheaded sense that their value is solely in their physical appearance and as objects of desire, that their older female relatives, and soon they, will be objects pursued even by those who are in positions of authority over them, who are tasked with molding them from children into adults. Moreover, the fact that petitioner, an authoritative figure and supposed role model, is openly a married man with children seeking out young female companions can give the wrong impression to the female students that spousal cheating is proper and acceptable.
Although he refuses to acknowledge his responsibility to his students, his duties included [*5]supplying a safe learning environment and fostering trust and respect in authority figures. Instead, by repeatedly engaging in inappropriate romantic/sexual conversations, petitioner horribly miseducated his young students about student-teacher boundaries, proper and decent behavior, good moral conduct and about how they should view themselves and their female relatives. Petitioner has irreversibly abused his position as a teacher by transforming the high school where he teaches into a dating forum using his young female students to search out candidates for his illicit romantic escapades. This behavior harmed his students, even if they did not fully realize it.
Accordingly, petitioner's conduct over years involving multiple students and schools, and his continued failure to show remorse or understanding of either his actions or responsibility as a teacher, demonstrates that he is not fit to be a teacher, and thus the penalty of termination does not shock the conscience.
Notably, in City School Dist. of the City of N.Y. v McGraham (17 NY3d 917 [2011]), the Court of Appeals cautioned that "[c]ourts will only intervene in the arbitration process in those cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator" (17 NY3d at 919 [internal quotation marks omitted]). Thus, as the Court emphasized, "That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty" (id. at 920). Here, too, that the majority might have issued a lesser penalty had they been in the position of the Hearing Officer, does not provide a basis for vacating the arbitral award.
Oddly, the majority does not agree with my characterization of petitioner's communications as "romantic/sexual in nature" or for being for the purpose of "soliciting female companions for his sexual gratification." Yet, the Hearing Officer specifically stated that the "conversations generally involved whether [petitioner] might have a romantic interest in some of the students' older female relatives." The testimony of multiple students included examples of petitioner asking them about what their relatives looked like, whether they were cute, whether those relatives were in a relationship, and whether he could see photographs of them and be given their phone numbers. Surely, petitioner was not seeking intellectual stimuli from these potentially young, "cute" companions. As succinctly stated by the Hearing Officer, a "test of common sense" can only lead to a conclusion that petitioner intended to form a romantic and possibly an intimate relationship with his young students' older siblings. As further stated by the Hearing Officer, "I am urged not to throw common sense out the window."
Petitioner's testimony also made clear that these were romantic conversations. His own testimony was that his students solicited his romantic interest in their relatives to, as the Hearing Officer put it, bring him "into their families in a romantic way" and that parents "threw themselves at him."
The Hearing Officer, whose credibility and factual findings are entitled to deference (see Matter of Berenhaus v Ward, 70 NY2d 436, 443 [1987]), ultimately determined that petitioner initiated conversations with students about their female relatives for "inappropriate, personal purposes." Given the foregoing testimony and findings it is astounding that the majority would conclude that petitioner's communications with his students were not found to be romantic/sexual in nature. What other purpose petitioner could have had in seeking photographs and phone numbers of students' young female relatives, while also querying if they were in a relationship, is truly a mystery.
The majority urges that "petitioner had never been warned or reprimanded regarding the conduct at issue" and that "a warning" could cause petitioner to cease the conduct. The majority's position is irrational in that a high school teacher should not even have to be warned not to use his students to solicit female companions for his sexual gratification. It is also wishful thinking that petitioner can right his moral shortcomings with a warning. The majority should recognize that petitioner has solicited female companions at work on multiple occasions at different school years and at different schools, and this is not an isolated incident. In any event, the disciplinary process does not require waiting until worse harm befalls a student at the hands of a teacher.
Further, the fact that petitioner had not received prior warnings about his behavior is no basis for vacating the penalty. Indeed, "no reasonable person concerned about education — could plausibly believe that the conduct in which [petitioner] was found to have engaged was not unbecoming of a teacher and subversive of the educational process" (Denhoff, 29 Misc 3d 1207[A], * 10). Stated another way, "It is incredible that any adult — let alone a teacher — would not know that the conduct is and was improper" (Nreu v New York City Dept. of Educ., 25 Misc 3d 1209[A] *5, 2009 NY Slip Op 2007[u] [Sup Ct, New York County 2009]).
Given New York's "explicit and compelling public policy to protect children from the harmful conduct of adults" (Matter of Binghamton City School Dist. (Peacock), 33 AD3d 1074, 1076 [3d Dept 2006], appeal dismissed 8 NY3d 840 [2007]), the Hearing Officer rationally concluded that petitioner, who was placed in a position of authority over children, betrayed that trust and his responsibility and posed a continued danger to those students because he failed to understand appropriate boundaries or his role in educating his students, that the evidence supported a finding that he would engage in similar behavior again and that termination was appropriate.
For these reasons, I would affirm Supreme Court's order denying the petition to vacate the arbitration award and dismissing the proceeding.

Footnote 1:The dissent claims that petitioner "ogle[d]" photographs of his student's sisters. However, there is no support in the record for this claim, and the Hearing Officer did not so find.

Footnote 2:The dissent claims that petitioner sent a text to the student's sister. However, there was no proof that he did so, as the hearing officer specifically found, and that specification was dismissed.

Footnote 3:Although the Hearing Officer dismissed the charges relating to the 2010-11 school year, she did not find the testimony relating to those charges to be unreliable and, in fact, took into account that the record supported that petitioner made certain comments in that school year.

Footnote 4:The majority notes that the Hearing Officer did not specifically determine whether petitioner "ogled" photographs of his students' female relatives. On the other hand, she did not determine he had not done so. In any event, one would be hard pressed to find a more appropriate word for petitioner repeatedly asking his students what their sisters, mothers and aunts looked like, and then soliciting and viewing their photographs for his own personal gratification. Indeed, when asked how many students had presented him with photographs, petitioner responded he would have to "sift through" the photographs he received. 

Sunday, September 25, 2016

Zero Tolerance Public School Discipline Negatively Affects African American Students

One of the most harmful policies put into the public school system is, I believe "zero tolerance" of .......

Whatever the zero tolerance is, it means that someone can use his/her own intolerance as a weapon.

For instance, lets say your child has problems with his/her hands, and needs a certain kind of scissor to cut paper. Let's say that a teacher tells the students that the class will be creating a mural and will be making shapes from colored paper. So you, as a mom who cares, sends your child with his/her special scissors and a note as to why you are doing this.

A school with a zero tolerance policy in place may suspend your child for bringing in a weapon. Another example is this:

For 9 years I offered parents my service as a representative for their children who were suspended and sent to a Suspension Hearing. At the West 125th street Suspension Hearing site in the 9 years I worked there volunteering to assist parents, guess how many white faces I saw? One besides mine - a first-year law school student taking on suspension hearings for extra credit. 95-98% of the kids, ranging from 1st grade through high school, were all Special Education children and African American or Hispanic.

See? We must throw out zero tolerance and examine the circumstances of each incident.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Study Finds That School Zero-Tolerance Discipline Policies Do More Harm Than Good

A new study by F. Chris Curran, an assistant professor of public policy at the University of Maryland Baltimore County, finds that zero-tolerance public school disciplinary policies may produce racial disparities in school suspensions and expulsions which could hinder the academic success rates of African American students. Furthermore, the study finds that these policies have had little effect on improving school safety.
Dr. Curran writes in the article that “the study showed that state laws requiring schools to have zero tolerance policies increased suspension rates for all students. Second, suspension rates increased at a higher rate for African-American students, potentially contributing to racial disparities in discipline. Finally, principals reported few decreases in problem behaviors in schools, suggesting that the laws did not improve the safety and order of schools.”
The suggests that state zero tolerance laws may be resulting in more students, particularly students of color, being excluded from the learning environment while failing to improve the school setting for those students who remain. “Principals report few decreases in problem behaviors such as fighting, drug use, or disrespect as a result of these laws,” says Dr. Curran.
The study, “Estimating the Effect of State Zero Tolerance Laws on Exclusionary Discipline, Racial Discipline Gaps, and Student Behavior,” was published on the website of the journal Educational Evaluation and Policy Analysis. It may be accessed here.

Friday, September 23, 2016

Class Action Lawsuit Claims a Constitutional Right to Literacy

In a Case with Blockbuster Potential, Detroit School Children Assert a Federal Constitutional Right to Literacy

, Justia VERDICT


Why this case is important, says the author:

 " The Complaint also lays out an ambitious legal theory, effectively asking the federal court to apply “heightened scrutiny” to what is going on in Detroit, and urging it not to apply the deference ordinarily given to state and local school officials concerning their administration of public education.  The Complaint identifies two related but distinct grounds for judicial skepticism. One is a familiar equal protection concern for disempowered groups—the Complaint describes the plaintiffs as a “discrete class,” almost all of whom are “low income children of color.”

Columns on this website that examine judicial rulings tend to focus on the very last stage of litigation—a U.S. Supreme Court decision. In the space below, however, I want to discuss a potentially significant case that is in its earliest stages. Last week, a class action lawsuit entitled Gary B. v. Snyder was filed in federal district court in Detroit on behalf of children who attend some of the most dilapidated and lowest-performing Detroit public schools. The defendants are the Governor and various other state officials, who plaintiffs allege are violating the constitutional rights of Detroit children by depriving students of their “fundamental right” to literacy under the Fourteenth Amendment’s due process and equal protection clauses.
The Snyder Complaint—crafted by a high-powered team of litigators that includes Mark Rosenbaum from Public Counsel, famed Supreme Court specialist Carter Phillips from the Sidley Austin law firm, as well as two prominent law school deans (one sitting and one former)—recites in heart-wrenching detail (its allegations span 129 pages) the physical, curricular, and human resource shortcomings of the schools attended by the plaintiffs. The Complaint also carefully documents the woeful underperformance of the students at these schools, as compared to other schools in the state and also to the state’s competency baselines established for various grade levels. It is hard to believe the conditions laid out in the Complaint exist in 21st Century America; at times the allegations seem more like the setting of a Dickens novel.
But the case is noteworthy not just for the factual light it might shed on Detroit school conditions and performance. The Complaint also lays out an ambitious legal theory, effectively asking the federal court to apply “heightened scrutiny” to what is going on in Detroit, and urging it not to apply the deference ordinarily given to state and local school officials concerning their administration of public education.  The Complaint identifies two related but distinct grounds for judicial skepticism. One is a familiar equal protection concern for disempowered groups—the Complaint describes the plaintiffs as a “discrete class,” almost all of whom are “low income children of color.”
Putting aside the racial and socioeconomic makeup of the victims, the Complaint also asserts that heightened judicial oversight is warranted because in the Fourteenth Amendment’s due process clause there is a “fundamental right of access to literacy,” which presupposes better facilities, better instructional materials, and better teacher training than exist in Detroit. In asserting a federal “fundamental right” to literacy under the so-called “substantive due process doctrine” of the Fourteenth Amendment, the lawsuit is path-breaking, and perhaps ultimately destined for the Supreme Court.
How likely is the lawsuit to succeed? That is hard to say. Certainly relevant is that the Supreme Court in 1973 (in the San Antonio Independent School District v. Rodriguez case) explicitly declined to find education to be a “fundamental” right or interest that would justify heightened scrutiny in the context of a challenge to Texas laws that resulted in differential financing and administration of public education within the state. But perhaps equally important is how the Court in Rodriguez did highlight the importance of education to the exercise of the constitutional rights of expression and political participation, and what the Court said in holding open the possibility that if a state deprived a student the opportunity for a “basic” minimal education essential for someone to operate in American democracy, heightened scrutiny might be appropriate. The Court explained, in language that has since been repeated by the Justices, that:
[w]hatever merit appellees’ argument might have if a State’s . . . system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where . . . no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.
In asserting that many Detroit public school children lack any realistic chance at literacy (defined in the Complaint in various ways but focused on the ability “to use language to engage with the world—to understand, analyze, synthesize, reflect and critique”), the Complaint seeks to locate the conditions in Detroit precisely within the contours of the question the Court held open inRodriguez. Indeed, the Complaint at various points links its concept of literacy directly to expressive and political rights (including military service), saying that literacy is essential not only to success in the workplace and higher education, but also (importantly) to “be[ing] an informed citizen capable of participating in democracy.”
This emphasis on political rights is relevant not just to the “fundamental rights” argument plaintiffs make; it also informs their claims of racial inequality under the equal protection clause. The Supreme Court ordinarily employs some form of strict scrutiny under equal protection for racial discrimination only when government explicitly classifies people on racial lines, or subjectively favors some races over others. A law that is neither overtly based on race nor motivated by a racially unequal mindset, but which has a “disparate impact” (or differential effect) along racial lines, is subject only to “rationality review,” under which courts defer a great deal to whatever a legislature has decided to do.
It is usually very hard to prove that racial favoritism lies behind facially neutral government actions that generate racially disparate impacts, but the one area where the Court has tended to infer impermissible intent from unequal racial effect is the political rights realm. In the voting rights and jury contexts, for example, the intent requirement of the Fourteenth and Fifteenth Amendments has been watered down such that the Court has been much more willing to accept a disparate impact theory than in other areas of equal protection law. To me, this makes some sense, insofar as the deference the Court generally affords the legislature with respect to laws that create disparate racial effects is itself implicitly premised on a fair and legitimate political process that is producing the laws to which deference is owed. But if certain racial groups are excluded in fact from political participation, then deference to the outcomes of the political process seems less warranted. For that reason, in the political rights realm, the Court has tended to care about whether traditionally disempowered groups are afforded actual—and not just hypothetical—inclusion in the political processes of voting and jury service (and perhaps also military service).
And the Court’s jurisprudence concerning racial fairness in education—from Brown v. Board of Education in 1954 (which struck down school segregation) through Grutter v. Bollinger in 2003 (which upheld the University of Michigan Law School’s race-based affirmative action program)—consistently links education to political participation. For example, in reaching its result, the Court’s majority opinion in Grutter stressed that access to law school determines opportunities not only for good jobs, but also for political power. For the Grutter Court, it was important that law schools are places that train political leaders—congresspersons, Senators, federal judges, and military top brass—in addition to corporate executives. And the Snyder Complaint seeks to build on that relationship between education and self-governance.
So the legal theories the Snyder plaintiffs assert are not foreclosed by Supreme Court precedent, and in some ways find support in it. Yet there are still major hurdles to clear. One, in connection with the fundamental rights tack, is explaining why literacy via education should be considered a fundamental right when other things that are, in practical terms, also essential to political participation and expression—such as housing and health care—are not. The Rodriguez Court was very mindful of not wanting to extend the list of unenumerated fundamental rights (which already includes things like voting, marriage, interstate travel, and procreative and sexual autonomy) in a way that pulls the Court down a slippery slope. So convincing the federal courts that education is distinctively valuable (perhaps more so than a minimum income, shelter, and healthcare) is an important and formidable task.
A related hurdle also identified by the Court in Rodriguez is that a fundamental right to a minimally adequate education is different than other fundamental rights the Court has already recognized, insofar as assertion of a right to a minimal education is an affirmative claim that government must extend support farther than it is currently doing, rather than an argument that government must simply refrain from interfering with private conduct. I think this argument was overstated in Rodriguez. Some of the areas in which the Court has talked about fundamental rights—such as interstate travel or access to contraception—may involve situations in which the courts are telling government simply to stop regulating or interfering with consensual private conduct. But when we call voting or marriage a fundamental right that triggers strict scrutiny, we may have strayed across the negative/affirmative rights line; elections and civil marriages don’t take place without the government affirmatively facilitating them. In any event, as the SnyderComplaint repeatedly points out, the State of Michigan (like other states) has made attendance in some kind of state-approved school compulsory, so the State is already interfering with private choices in this realm, and in ways that allegedly make it nigh impossible for Detroit children to attain literacy.
But the affirmative/negative rights line does implicitly bring up probably the biggest hurdle for the plaintiffsthe practical and logistical concerns about appropriate remedies that might disincline federal courts to get deeply involved in decisions about school facilities, curricula, teacher training, and the like. Most of the other settings in which the Court has recognized a fundamental right do not involve the remedial complexity the Snyder case implicates. And as the Court cautioned in Rodriguez, at a time when the federal judiciary was in the midst of a mixed experience of federal judicial oversight over busing, pupil reassignment, and other aspects of the federal judicial effort to eliminate the vestiges of racial school segregation:
We stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. . . . In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of ‘intractable economic, social, and even philosophical problems.’ The very complexity of the problems of financing and managing a . . . public school system suggests that ‘there will be more than one constitutionally permissible method of solving them,’ and that, within the limits of rationality, ‘the legislature’s efforts to tackle the problems’ should be entitled to respect.
At the end of the day, as daunting as these remedial obstacles are, the time may be ripe for the filing of a lawsuit like Snyder. As I noted in an earlier column, last year’s same-sex marriage case has breathed new life into the doctrine of substantive due process (as distinguished from equal protection) and has shown that the Court is willing to recognize new liberties that are not explicitly mentioned in the Constitution. Depending on the presidential and Senate elections, soon the Court may, for the first time since late spring of 1969 (before Neil Armstrong set foot on the moon), have a majority of Justices appointed by Democrat presidents. Moreover, the state law challenges to educational attainment that have been filed in many state courts have met with only limited success (in part because of state law barriers to justiciability). Add to all this the fact that the conditions and attainment in Detroit are so bad, and it is reasonable to conclude there is much to possibly gain and quite little to lose in taking a shot under the federal Constitution. Even as to the remedial complexity, federal courts have learned much over the last 40 years (since Rodriguez was decided) so that they may feel more confident about providing meaningful relief in ways that avoid some of the glitches they experienced during the first phase of desegregation. At a minimum, perhaps federal judges would be open to declaring a constitutional violation even if they feel unable to craft detailed remedies, in a way that will put more pressure on state legislative and executive authorities to do something big. Anything to increase political attention to these issues would be to the good.

Wednesday, September 21, 2016

Principal Leadership Is Key Factor in Teachers’ Satisfaction with Evaluation Systems

Good leadership leads to good everything else. This is not rocket science.

What is good leadership?
*Respect for all
*Immediate attention To wrong-doing/mistakes/data errors
*Resolving differences/misconduct fairly
*Never discriminating, lying, hurting someone, cheating
*Never deliberately abusing someone
* Putting a positive outlook first

Those are some of my picks.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Principal Leadership Is Key Factor in Teachers’ Satisfaction with Evaluation Systems

Posted by Jessica Bailey on July 21, 2016
As an educator, researcher, or someone interested in the field of education, have you ever wondered whether teachers are satisfied with their evaluation process? How they perceive their school’s professional climate? Are the two are related?
To further advance the research agenda of the Northeast Educator Effectiveness Research Alliance at REL Northeast & Islands, several core planning group members wanted to understand how new teacher evaluation systems are related to school professional climate. A 2015 REL Northeast & Islands study of eight New Hampshire districts found that elements of a strong school professional climate—such as principal leadership, teacher influence, and trust—are positively related to teacher support for a new evaluation system and that teacher influence, in particular, is related to the fidelity of implementation of the new system.
To further examine the relationship between teachers’ self-reported views of their school’s professional climate and their satisfaction with their formal evaluation process, REL researchers Natalie Lacireno-PaquetCandice Bocala, and I analyzed data from the National Center for Education Statistics 2011/12 Schools and Staffing Survey and the 2012/13 Teacher Follow-up Survey. These surveys include questionson two factors that are related to school climate: principal leadership and teacher influence over school policy and decision making.
The Institute of Education Sciences published our analysis in the May 2016 report “Relationship Between School Professional Climate and Teachers’ Satisfaction with the Evaluation Process.”
We found that:
  • Teachers’ perceptions of their principals’ leadership was associated with their satisfaction with the evaluation system and that, specifically, the more positively teachers rated their principals’ leadership, the more likely they were to report satisfaction with their evaluation process.
  • The rating that teachers received on their evaluation was also associated with their satisfaction with their evaluation process. Those rated satisfactory or higher were more likely to be satisfied than those rated at levels below satisfactory.
  • There was no association between teachers’ views of their influence in the school and their satisfaction with the evaluation system.
  • Teachers whose evaluation process included student test score outcomes were 2.5 times less likelyto be satisfied with that process than teachers whose evaluations did not include student test scores.
While state and district requirements continue to change during this transformative period of accountability reform, some form of educator evaluation is here to stay for the foreseeable future. Therefore, states and districts may want to consider how to increase teacher satisfaction with the evaluation process. To support this observation, we know from our research that teachers are more satisfied with the process when they have a principal who establishes a positive school professional climate and specifically emulates strong leadership. Further research is needed, however, to determine whether this relationship is causal. We also know from our research that teachers typically prefer not to have student test scores included in their evaluations, which is another topic worthy of further study.
Related media links:

Relationship Between School Professional Climate and Teachers’ Satisfaction with the Evaluation Process
Principal Investigator: Natalie Lacireno-Paquet


OverviewThis study, conducted in collaboration with the Northeast Educator Effectiveness Research Alliance, reports on the relationship between teachers’ perceptions of school professional climate and their satisfaction with their formal evaluation process using the responses of a nationally representative sample of teachers from the Schools and Staffing Surveys.
Specifically, the study used logistic regression analysis to examine whether teachers’ satisfaction with their evaluation was associated with two measures of school professional climate (principal leadership and teacher influence), teacher and school characteristics, and the inclusion of student test scores in the evaluation system.
The results indicate that teachers’ perceptions of their principals’ leadership was associated with their satisfaction with the evaluation system—the more positively teachers rated their principal’s leadership, the more likely they were to report satisfaction with their evaluation process. The rating teachers received on their evaluation was also associated with their satisfaction, with those rated satisfactory or higher more likely to be satisfied. Teachers whose evaluation process included student test score outcomes were less likely to be satisfied with that process than teachers whose evaluations did not include student test scores.
The findings reinforce current literature about the importance of the school principal in establishing positive school professional climate. The report recommends additional research related to the implementation of new educatorevaluation systems. 
View the full report.