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Sunday, November 3, 2019

NYSED Has No Subject Matter Jurisdiction To Address 3020-a decisions

Educators call me all the time with a question: should I appeal my 3020-a decision to the NY State Education Department Commissioner?

The answer is, "No". The Commissioner has no subject matter jurisdiction to rule on any 3020-a arbitrator's determination:

"To the extent petitioner seeks to challenge the merits of her suspension, which are now the subject of a pending §3020-a proceeding, petitioner’s claims must be dismissed for lack of subject matter jurisdiction.  I lack jurisdiction to review determinations made by hearing officers in §3020-a proceedings.  Education Law §3020-a was amended by Chapter 691 of the Laws of 1994 to divest the Commissioner of jurisdiction to review determinations of hearing officers, both final and non-final (Appeal of DeMarco, 48 Ed Dept Rep 252, Decision No. 15,850; Appeal of T.W., 47 id. 400, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720).  Therefore, I lack jurisdiction over both the merits of §3020-a charges and procedural objections related thereto (see Appeal of Lovinsky and Simpson, 57 Ed Dept Rep, Decision No. 17,422)."

At all times we objected to the transfer of Appeals to the NYS Supreme Court rather than the Commissioner, for the very basic fact that the Courts - the Judges - decide cases on political standing, not merit. Judges do not know education policy, and do not fine tune arbitrator decisions which are full of errors of fact and law unless pointed out by an excellent pro-Plaintiff/Petitioner representative with an excellent argument.

 This makes Appeals (75, 78) and lawsuits much more difficult to win, but still possible unless the Plaintiff/Petitioner happens to have Judge Shlomo Hagler in the NYS Supreme Court, Manhattan. He dismisses all Petition Article 75 appeals. We know, we have watched him insult all Petitioners who come before him for oral argument since 2013.

See:
Manhattan Supreme Court Judge Shlomo Hagler Sued By Board of Bialystoker Synagogue (2013)

The bottom line is to fight as is your right every lie, fake fact, newspaper lie that is published until your name is cleared.

Decision No. 17,507
Appeal of JANE DOE,[1] from action of the Board of Education of the Elmont Union Free School District, regarding a personnel action.
Decision No. 17,507
(September 24, 2018)
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wold & Carone, LLP, attorneys for petitioner, Eric Broutman, Esq., of counsel
Colum P. Nugent, Esq., attorney for respondent
Elia, Commissioner.--Petitioner appeals from actions taken by the Board of Education of the Elmont Union Free School District (“respondent”) regarding her placement on administrative leave.  The appeal must be dismissed.
Petitioner is a tenured teacher employed by respondent.  On February 1, 2018, respondent’s superintendent suspended petitioner pending charges pursuant to Education Law §3020-a (“§3020-a”).  This appeal ensued.  Petitioner’s request for interim relief in the form of “an immediate stay of [her] suspension” and an order directing respondent to “allow [her] to return to teaching” was denied on May 29, 2018.
Petitioner argues that, after suspending her, respondent failed to initiate charges at the next regular board meeting.  Therefore, petitioner argues that her continued suspension violates her tenure rights.  Petitioner further argues that she did not engage in improper conduct and that any potential §3020-a charges would be without merit.  Petitioner seeks expungement of any mention of her suspension from her personnel file.
Respondent asserts that, on May 15, 2018, it voted to initiate charges against petitioner pursuant to Education Law §3020-a.  Respondent’s attorney asserts in an affirmation that petitioner will be reassigned to duties within the district during the pendency of the §3020-a proceeding.  Respondent argues that the petition must be dismissed because petitioner’s record contains no reference to her suspension that could be expunged.  Finally, respondent asserts that its suspension of petitioner was appropriate because it is “allowed a reasonable time” between suspension and the filing of §3020-a charges.
First, to the extent petitioner seeks expungement of the superintendent’s suspension from her record, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).
In addition to interim relief seeking an immediate stay of her suspension by the superintendent, which was denied on May 29, 2018, petitioner seeks “expungement of any mention” of the suspension beginning February 1, 2018 “until the present.”  Respondent indicates in its answer that no letter, memorandum or other written document referencing petitioner’s suspension was prepared and placed in petitioner’s personnel file.  In a reply, petitioner states that she is “encouraged ... [t]o the extent that it is true that there is no record of her suspension [or] reassignment ....”  Nevertheless, petitioner seeks an order “expunging any such reference if they [sic] exist.”  However, I accept respondent’s assertions in its verified answer and its attorney’s affirmation that there is no record of the suspension in petitioner’s personnel file and I decline to issue an order based on speculation that such a record might exist.  Therefore, to the extent petitioner seeks expungement of any record of the suspension from her personnel file, the appeal has been rendered moot.       In a reply affirmation, petitioner’s attorney acknowledges that respondent has the authority to suspend a tenured teacher such as petitioner once it has filed §3020-a charges, but argues that when it filed such charges on May 15, 2018 respondent took no action to suspend petitioner and that her continued suspension remains illegal.[2]  I note that Education Law §1711(2)(e), which outlines the powers of a superintendent in a union free school district such as respondent’s, gives the superintendent the power “to suspend ... [a] teacher or other employee until the next regular meeting of such board, when all facts relating to the case shall be submitted to such board for its consideration and action” (emphasis added).  A suspension by a superintendent that extends beyond the next regular meeting of the board of education would be ultra vires (see Appeal of Kavanaugh, 55 Ed Dept Rep, Decision No. 16,897; Appeals of Williams, 37 id. 643, Decision No. 13,947).
However, while petitioner’s attorney’s reply affirmation alleges that respondent board did not take action to suspend petitioner on May 15, 2018, petitioner has not provided any evidence, such as board minutes, to corroborate that allegation.  Moreover, on this record, I cannot determine whether respondent has taken any action on another date to suspend petitioner with pay until a final resolution of the §3020-a proceeding.  Under these circumstances, I decline to order petitioner’s reinstatement.  If petitioner believes she continues to be illegally suspended, her recourse is to bring another appeal in an appropriate forum in which both parties will have a full and fair opportunity to address the legality of respondent’s action in suspending petitioner after §3020-a charges were filed.
To the extent petitioner seeks to challenge the merits of her suspension, which are now the subject of a pending §3020-a proceeding, petitioner’s claims must be dismissed for lack of subject matter jurisdiction.  I lack jurisdiction to review determinations made by hearing officers in §3020-a proceedings.  Education Law §3020-a was amended by Chapter 691 of the Laws of 1994 to divest the Commissioner of jurisdiction to review determinations of hearing officers, both final and non-final (Appeal of DeMarco, 48 Ed Dept Rep 252, Decision No. 15,850; Appeal of T.W., 47 id. 400, Decision No. 15,735; Appeal of Fauvell, 47 id. 350, Decision No. 15,720).  Therefore, I lack jurisdiction over both the merits of §3020-a charges and procedural objections related thereto (see Appeal of Lovinsky and Simpson, 57 Ed Dept Rep, Decision No. 17,422).
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE


[1] Given the pendency of charges pursuant to Education Law §3020-a and the fact that it is unknown whether any eventual hearing will be public or private, petitioner is referred to herein as “Jane Doe” to preserve confidentiality (see Education Law §3020-a[3][c][i][C]; Hoffmann v. Dep’t of Educ. of City of New York, 22 Misc.3d 1105(A); aff’d on other grounds, Hoffmann v. Dep’t of Educ. of City of New York, 21 AD3d 493; lv to appeal den, Hoffmann v. Dep’t of Educ. of City of New York, 5 NY3d 716).
 
[2] While the Commissioner’s regulations do not contemplate submission of a reply affidavit or affirmation in lieu a reply, as petitioner has done, I have nevertheless accepted it for consideration in this appeal (see Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259).  The reply affidavit is in the nature of a reply, as it responds to respondent’s affirmative defenses.

Saturday, November 2, 2019

Dear Chancellor Carranza: How is the Implementation of Your "Culturally Responsive-Sustaining Education" Policy Coming Along?

New York City Schools Chancellor Richard Carranza, center, defends the policy of “culturally responsive-sustaining education” during a meeting Wednesday in lower Manhattan. PHOTO: CLAUDIO PAPAPIETRO FOR THE WALL STREET JOURNAL
What "Culturally Responsive Education" means is anyone's guess, but truthfully I am skeptical. I am mindful of the fact that any rule, policy or law is only as good as its' implementation.
 
We need to know who will implement the "culturally responsive-sustaining education", and what the consequences are for those who don't, won't, can't and didn't go along with it.
 
The UFT is on board, with workshops:

Culture Matters: Developing Strategies and Practices For The Culturally Responsive Classroom

Dates: November 21, 2019
Meets: Th from 4:00 PM to 6:00 PM
Location: UFT Manhattan
There are 3 openings remaining at this time.
 
If anyone gets information, email us at betsy@advocatz.com. Thanks!
We never went along with Mayoral control of the school system. We spoke at many meetings of the Panel For Educational Policy, the NYC school board "PEP", and told the appointed (not elected!) members exactly that. The PEP members routinely break the laws of NY State by voting on closing schools for no valid reason, not voting on the charges for tenured teachers brought to 3020-a, and other rules, laws and regulations. The PEP are appointed, and must follow the directives of their appointing individual and agency.

We all should be mindful of the foundation of mayoral control, which is a non-voting, non-powerful public (from Parentadvocates.org, 2007):

 Michael Cardozo's introduction to his submission which removes the constitutional rights of NYC citizens
Pages index -11
Pages 12-25
Pages 26-41
Pages 42-58
Pages 59-80

I guess we just gotta be watchful and hold people accountable for their actions.
 
You're welcome.
 
Betsy Combier, betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials
 
Panel votes on chancellor’s plan to create more diverse learning environment
Wall Street Journal,  

For some parents, Chancellor Richard Carranza’s push for more curriculum honoring diverse students’ experiences is a welcome step toward inclusion.
For others, his policy marks another example of how his intense focus on race, class and equity can distract from the urgent need to teach basic math, reading and science.
The city’s Panel for Educational Policy, a group of mostly mayoral appointees, voted unanimously to approve the chancellor’s call for schools to embrace his formal definition of “culturally responsive” education. Ten members voted yes, two weren’t present and one seat is vacant.
Mr. Carranza has argued forcefully for desegregating schools and fighting bias. The vote comes after months of conflict about admissions to eight specialized public high schools. The chancellor is lobbying Albany lawmakers to scrap the entrance test to better integrate them. Defenders of the test say the chancellor’s rhetoric has pitted parents from different backgrounds against each other.
Opponents of the New York City Department of Education's policy of “culturally responsive-sustaining education” at the Wednesday meeting. PHOTO: CLAUDIO PAPAPIETRO FOR THE WALL STREET JOURNAL
About 100 parents showed up at a meeting that was at times raucous on Wednesday in Chinatown, with supporters waving signs saying “My culture matters” and “CRSE 4 NYC.” Critics of the chancellor, including many Asian parents, held signs saying “Fire Carranza.” At one point, the crowd burst into competing chants.
Chinese parents were upset and insulted to find there was a Spanish translator but no Chinese translator, which they said showed the department didn’t care about their voices. The department scrambled to find one, delaying the meeting by two hours. A spokeswoman said the agency was investigating what happened and will ensure it doesn’t happen again.
The one-page definition of “culturally responsive” education says students’ varied perspectives—whether tied to nationality, religion, race or other backgrounds—should be seen as essential assets. It also requires schools to “foster critical consciousness about historical and contemporary forms of bias and oppression.”
Schools should “identify and interrupt policies and practices that center historically advantaged social/cultural groups and lead to predictable outcomes of success or failure for historically marginalized students,” it says.
Some parents and teachers applaud this effort, saying students learn critical thinking by exploring biases and reading diverse authors who may not be traditional, mainstream choices. But others express concern about the chancellor’s priorities for a sprawling system for 1.1 million students, where most children can’t read or do math on grade level.
“The ideas that undergird this proposal are sometimes offered in lieu of academic solutions and helping kids do better in core subjects,” said Maud Maron, president of the Community Education Council for District 2 in Manhattan, who is running for City Council. “Of course you should see books that reflect your family of origin, race and gender, but that doesn’t help you learn to read if nobody is helping you learn to read.”
A report from the NYC Coalition for Educational Justice, which advocates for culturally responsive education, found that while 67% of the city’s public-school students are black or Latino, about 84% of authors of commonly used books in elementary schools are white.
Robert Osborne, parent from Manhattan at the meeting, said his son is mixed-race and it was “important for him to read books about people who look and sound like him. To not hear that means he only hears from the dominant culture.”
Some parents said the department had allowed them too little time to scrutinize a proposal that seemed vague and they needed to see more research on the impact of this approach.
“There must be solid scientific evidence of positive outcomes,” said Yiatin Chu, a parent. “We should not make our 1.1 million children into lab rats.”
For decades, schools nationwide have sought to get students excited about learning through lessons that reflect their own lives. Even so, families and teachers have long been unclear on exactly what culturally responsive education means.
Department of Education officials say it means high expectations for all, and making schoolwork relatable, such as explaining velocity to city children through examples of subways rather than sailboats. They note the new definition reflects guidance released by the state last year.
“Research shows that when students see themselves and their peers reflected in the books they read and the lessons they learn, academic outcomes improve,” said Linda Chen, the city’s chief academic officer, by email.
Comments filed with the city expressed a range of concerns, according to a Department of Education summary. One commenter said the policy “should name the role of ‘whiteness’ in the system of inequities.” Another said defining students by race is “divisive and inappropriately political.” Another said that practices likely to flow from the policy would be biased against white and Asian students.
Some teachers say they have long sought to provide culturally responsive education, and Wednesday’s step validates their efforts.
To Ife Damon, a high-school teacher in Staten Island, the strategy means letting students’ interests drive their work so they become more engaged. Her students have chosen research projects on police brutality, the opioid crisis and LGBTQ rights. When they studied literary devices, they analyzed lyrics in their favorite rap songs. Ms. Damon said she would be comfortable if students left high school without exposure to Shakespeare.
“Is it that we want students to analyze information or is it that we want them to know a particular piece of writing?” she asked. “I’m not married to content, I’m married to students.”
Christopher Emdin, an associate professor of science at Teachers College, Columbia University, started a competition for low-income students to write and perform rap songs about science. “Once they’re motivated and excited, magical things happen,” he said. “They want to study more.”
Write to Leslie Brody at leslie.brody@wsj.com
Corrections & Amplifications
An earlier version of this article misspelled the name of Yiatin Chu, a New York City parent. (Aug. 1, 2019)

Mabel Muñiz-Sarduy (left) will begin her new role as Queens North Executive Superintendent on Nov. 4, while Seiw Kong (right) will take on the role of Acting district superintendent.
Exclusive: Department of Education selects new Queens North superintendent
Larry Pendergast
    By Max Parrott, mparrott@schnepsmedia.com, Friday, November 1, 2019 

    After Queens North Superintendent Larry Pendergast transitioned into a new role overseeing teaching and learning for the city’s entire school system, a southeastern Queens educator will move north to take over his former position.

    Current Superintendent of New York City School District 28 Mabel Muñiz-Sarduy will begin her new role as Queens North Executive Superintendent beginning Monday, Nov. 4.

    “We thank Executive Superintendent Muñiz-Sarduy for her leadership in District 28 and look forward to the experience she will bring and the work she will do for the Queens North community in her new role as Executive Superintendent,” said First Deputy Chancellor Cheryl Watson Harris.

    Since becoming district superintendent in 2014, Muñiz-Sarduy has served schools across South Jamaica, Rego Park and Forest Hills with a student population of approximately 42,000 students.

    In this role, she increased student performance in ELA and Math, according to the DOE. She began her career as a teacher at P.S. 86 in Jamaica 30 years ago before working her way up to assistant principal and then principal.

    “I thank the District 28 students, teachers, principals, parents, and parent leaders for their partnership and look forward to hitting the ground running in my new role supporting all of our Queens North districts and schools,” said Muñiz-Sarduy.

    In her new role,she will use her experience to bridge the gap between district superintendents and the Queens North Borough Office, which perform tasks ranging from hiring and training staff to counseling and providing support for students with disabilities or those learning English.

    In Muñiz-Sarduy’s absence, Seiw Kong will take on the role of Acting district superintendent starting Monday. She has served as deputy superintendent for the last five years and has 22 years of experience, serving as a teacher, bilingual coordinator, assistant principal and principal within the DOE.

    The process to select a new, permanent superintendent will begin in the coming weeks, which will involve taking community input as Kong and Executive Superintendent Muñiz-Sarduy will begin meeting with district leaders and community stakeholders.
Former Chancellor Carmen Farina
by Aaron Short, NYPOST, October 23, 2014
Seven of the 15 new superintendents appointed by Schools Chancellor Carmen Fariña led schools that were rated below average.
Superintendents Maria Lopez, Mabel Muñiz-Sarduy, Leticia Rodriguez-Rosario, Danielle Giunta and Rafaela Espinal were principals at primary schools that received poor ratings on school progress report cards or whose students scored below city averages on state exams this year.
Muñiz-Sarduy, Lopez and Rodriguez-Rosario all led schools where students struggled on the state’s tough Common Core tests.
Ten percent of students passed math and only 7 percent passed reading at the Lopez-led IS 318 in The Bronx.
Only 24 percent of the kids at PS 86 in Brooklyn passed the math test and 21 percent passed the reading exam when Muñiz-Sarduy was in charge. And only 24 percent passed math and 19 percent reading at PS/IS 218 in The Bronx, which Rodriguez-Rosario ran until the summer of 2013.
Citywide, 38 percent of students passed the math test, and 29 percent reading, in 2014.
At the high school level, former School for International Studies principal Fred Walsh claimed he had no idea his assistant principal dismissed eighth-graders on the last day of school in June 2011 while marking them present.
Three months later, he explored hiring a public relations consultant to improve the Brooklyn school’s image.
His new job? Superintendent of high schools for five school districts.
Joining him is Michael Prayor, whose Brooklyn High School for Law and Technology prepared only 12 percent of its students for college and had a graduation rate of merely 49 percent in 2013.
Department of Education officials said the new superintendents led schools that achieved significantly better results than schools with similar populations in their districts.
The officials singled out Walsh as a star performer, saying his school’s graduation rate jumped from 48 percent to 70 percent under his leadership, while attendance soared to 90 percent.
The officials noted that Walsh’s school was in danger of closing before he took over.
Records show its graduation rate dropped to 45 percent in 2013.
Education reformers said the promotions would do little to improve struggling schools.
“Promoting principals, some of whom have overseen persistently failing schools themselves, does not come close to addressing the problem,” said Jenny Sedlis of StudentsFirstNY.
Fariña insisted the new hires would get the job done.
“Each superintendent has a proven track record and is committed to working tirelessly to improve the schools they support … I will hold them accountable,” she said.