New York Education Hearings Suddenly Are Cancelled Due To Ransomware Attack

Howard Friedman, NYC DOE General Counsel

The New York City Law Department and NYC Department of Education have many hearings going on at any one time: the 100 Gold (3rd floor) Manhattan Office of Legal Affairs (3020-a/3012/Time and Attendance) arbitration, 65 Court Street (Office of Appeals and Reviews, OAR) and 131 Livingston Street (Impartial Hearings) in Brooklyn. All hearings are recorded and the transcripts are given to each party, usually within two weeks of the date the testimony was heard. Ubiqus, a global company located at 61 Broadway in New York City, has been on contract to prepare the transcripts for more than ten years.

At least there were many hearings at any of these offices before they all shut down from March to October 2020 due to the coronavirus. The transcripts are the lifeblood of any hearing. Any party who appeals a decision or sues in State or Federal Court cannot use anything that is not on the record. When the pandemic hit NYC and hearings at 100 Gold Street in Manhattan were put on hold, I was wondering what would be the game plan.

The problem in NYC is that all hearings in 3020-a cases are held on the 3rd floor of 100 Gold, filled with city agencies, with usually long lines waiting to go through the security in the lobby. Also in the lobby are Section 8 tenants or people looking to obtain Section 8 housing. Social distancing would be practically impossible to manage. Also, the hearings all take place on the third floor, where each hearing room is small, with a conference table filling up most of the space. The windows do not open. There is only one room that is large enough to consider placing 4+ people in safely, but the windows do not open there either. 

In October, we heard that Zoom would be the platform used to allow us to do our cases. We resumed two of our current 5 3020-a cases, now heard by an arbitrator via zoom. I have posted the new Memorandum signed by the UFT and the DOE, below. The arbitrators, we were told, went through training with the Department of Education on how to conduct Zoom 3020-a cases, create breakout rooms, and have the hearings taped from start to finish by two Ubiqus transcriptionists, one in New York City, and the other upstate.

We had dates scheduled for witnesses in December, but suddenly all hearings were canceled. Why? Because on December 4, 2020, Ubiqus was hacked, and all their data held as ransomware.

A ransomware attack is a form of malware attack in which an attacker seizes the user’s data, folders, or entire device until a ‘ransom’ fee is paid. Ransomware attack exploits the open security vulnerabilities by infecting a PC or a network with a phishing attack, or malicious websites.

Ubiqus issued a statement on the cybersecurity incident at Ubiqus Group:

December 4th

The Ubiqus Group was hit by a ransomware-type cybersecurity incident in the morning on the 4th December 2020.
As a precautionary measure, we have shut down all our IT systems across all our operating sites.
Ubiqus is in close contact with the competent authorities as well as our clients and partners.
We are working on a technical recovery plan with key IT-partners and cybersecurity specialists.
We continue to assess and manage the situation to minimize the impact on our operations, clients, and partners from the current situation.

Update: December 11th

To ensure secure email exchanges with our clients, we have chosen to use an email service that is hosted on a professional platform with enhanced security measures.
This new inbox has been in operation since Tuesday 8 December 2020. It is secure and nothing has been retained from the previous version.
All emails received from Ubiqus from 8 December 2020 are completely secure: replying to them or opening attached files does not present any risk.

To investigate further, I called the NY State Education Department (NYSED) where I was told that a forensic cyberteam was investigating what happened and by whom, but since the beginning of December, no hearings have been held. This event has affected 3020-a hearings throughout New York State, not just NYC, and is very serious, as the transcripts hold people's lives and careers in their clutches. Transcripts don't clutch, of course, but anyone that speaks into the record and/or reads each transcript cover to cover as I do knows how important this record evidence is when an educator is charged.

We have no updates, but we have been told that no data already given has been lost, even though we do not have the transcripts. 

Gosh, I sure hope this is accurate information, that no data has been lost! The two cases we are doing right now have had the testimony of the Respondents and their witnesses, and we got really good stuff.

I'll let you know what the deal is. Hopefully soon.

Susan Edelman at the NY POST posted this today:

Ransomware attack cripples NYC DOE’s teacher disciplinary system

Betsy Combier

betsy.combier@gmail.com

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Agreement Signed by NYSUT and NYC DOE General Counsel On How To Proceed With 3020-a Hearings During COVID-19 Danger

                          NYC DOE General Counsel Howard Friedman         

Memorandum of Agreement between the
Board of Education of the City School District of the City of New York and the United Federation of Teachers, Local 2, AFT, AFL-CIO

1. 3020-a Hearings:

a. Nothing in this Memorandum of Agreement (“MOA”) shall constitute a waiver or modification of any provision of any memorandum of agreement, collective bargaining agreement (and the documents incorporated therein by reference), letter, or other agreement between the Board of Education of the City School District of the City of New York (“DOE”) and the United Federation of Teachers, Local 2 (“UFT”), or past practice except as expressly set forth herein.

b. This MOA is intended to address the extraordinary conditions presented by the novel coronavirus pandemic and the risk of COVID-19. This MOA will sunset on June 30, 2021, unless both parties agree to extend, in writing, this MOA no later than May 1, 2021, or upon such time as school resume full in-person instruction, whichever is earlier. Notwithstanding the foregoing, either party may terminate this MOA for cause on 10 days’ notice, provided however that, prior to provision of such notice, the party seeking to terminate must have first raised the issue in question in consultation under Section 1(d) of this MOA and have escalated the issue to the General Counsel of the DOE and the General Counsel of the UFT. If no agreement is reached, the Chancellor and the UFT President will decide. For the purposes of this MOA “cause” is defined as either (a) an order issued by the Governor of New York in which all 3020-a hearings are held in abeyance; (b) an order or directive issued by the Chancellor pursuant to which schools are closed and staff are not working remotely, or (c) the Chancellor and UFT president agree that hearings cannot proceed in a manner consistent with this MOA and Education Law Section 3020-a.

c. The parties acknowledge that the situation regarding reopening offices is fluid and that New York City began Phase One reopening as described in Governor’s Executive Orders on June 8, 2020, and has proceeded and may proceed through reopening phases, or not, depending on a number of factors including the rate of new infections of the virus. The parties agree that as they transition back to holding hearings in person, there may be a need for one or more of the participants to appear remotely, resulting in a hybrid in-person/remote hearing. To the extent possible and permitted under all existing DOE safety rules as determined by the joint DOE/UFT Central Committee, the parties will proceed with in-person hearings. However, if in-person hearings are not possible then the parties will proceed remotely for the term of this MOA, whether with a hybrid model or completely remote.

d. The Director of the Administrative Trials Unit (“ATU”) and the Director of the Teacher Performance Unit (“TPU”) shall meet monthly with the UFT or the UFT’s designee to consult regarding the implementation of this MOA.

2. Remote Hearings (Process and Protocols)

a. The parties are committed to having these cases heard in an expeditious manner. The parties agree to conduct remote hearings according to the protocols set forth in this MOA so that all issues are fully and fairly litigated.

b. If a Respondent requests, the UFT will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If the UFT is unable to provide a Respondent with a location on a given hearing date, counsel for the Respondent will make every effort to provide the DOE with two (2) days’ notice and the DOE will make every effort to provide a private and secure location for Respondent to participate in the remote hearing with the appropriate computer equipment and abiding by all health and safety requirements. If UFT and the DOE are unable to provide a location to the Respondent, the hearing will be canceled, and the parties will split any cancellation fees. If a hearing is scheduled within 48 hours of the hearing date (e.g., as the result of a settlement of another matter), and the UFT is unable to provide Respondent with a location, the UFT will notify the DOE as soon as possible. Under these circumstances, should the DOE be unable to provide a private and secure location the parties agree to mutually reschedule the hearing date?

c. The parties agree to make every effort to pre-mark exhibits, identify witnesses, stipulate to undisputed facts, and minimize the issues of fact to be tried remotely.

d. Remote hearings for both ATU and TPU cases will resume and proceed in the order of their case queues/case assignments before their current hearing officers in a manner that is consistent with the Collective Bargaining Agreement. To the maximum extent possible the parties agree to ensure that the cases are managed timely.

e. In the event, a hearing is canceled or interrupted as a result of an individual party’s technical issues, including but not limited to the party’s failure to have the proper equipment, that party will bear the cost of any cancellation fees for the hearing date.

3. Platform:

a. The parties agree that all remote hearings will occur on a single platform: Zoom Pro.

b. The Hearing Officer (hereinafter “HO”) will be responsible for costs of using the Zoom Pro platform.

4. Procedures:

a. Subject to paragraph 2(b), each party shall be responsible for ensuring their own equipment is properly functioning prior to the hearing date.

b. The HO shall ensure that the court reporter can access the hearing to make the transcript of the hearing.

c. The HO shall be the only “host” of the proceeding on the chosen platform and will ensure that each party has a confidential virtual break out room.

d. The HO as host will ensure that the following participants will have access to virtual breakout rooms and that additional breakout rooms are made available for other participants/parties as needed, including:

o Respondent and Counsel

o Counsel and Witness

o Counsel and Counsel

o Counsel and HO

e. A party shall be allowed to disconnect from the hearing to attend to administrative matters and the amount of time by a party spent off the record shall be in accordance with the CBA.

f. Counsel shall make every effort to minimize any delays attributable to inadequate familiarity with the chosen platform or inappropriate equipment.

g. The parties shall take all practicable steps to ensure the confidentiality of the proceeding. No person should have access to the live video and/or audio feed of the proceeding other than disclosed participants with a right to such access.

h. The SED official transcription service shall be the sole method of transcribing the proceeding. The SED official transcription company shall only access the audio recording feature of the platform and shall be prohibited from accessing the video recording feed of the platform.

i. No party, witness, or other participant in the hearing may record via audio or video, transcribe, or photograph the proceeding.

j. No party, witness, or other participant in the hearing shall use any chat feature of the chosen platform.

5. Exhibits:

a. Proposed exhibits in the format in which the exhibit will be entered shall be emailed, using a secure platform, to opposing counsel five (5) days in advance of the entry of the exhibit.

b. Counsel for the parties shall confer two (2) days prior to the hearing date to make best efforts to stipulate to the exhibit’s entry. If the parties agree to the entry of an exhibit, the exhibit shall be pre-marked. If the parties are unable to stipulate to the entry of the exhibit, the proposed exhibit shall also be pre-marked.

c. Prior to the hearing, counsel responsible for entering the exhibit shall email, using a secure platform, to the HO and opposing counsel, any exhibits which have been pre-marked and/or stipulated to. The provision to the HO of a pre-marked exhibit for which the parties have not agreed to entry shall be without prejudice to arguments or objections as to admissibility, weight, and/or relevance. Nothing herein prevents either party from introducing an exhibit or witness that was not pre-marked or identified.

6. Mediation:

a. The parties agree to mediate as many cases as possible or appropriate from ATU and TPU.

b. The mediations shall also be remote and shall be complete by December 21, 2020. A second round of mediation will take place in 2021. Once the first round of mediation has concluded, the DOE will make every effort to identify additional cases for mediation to begin in March 2021.

c. The arbitrators will be chosen by mutual selection of the parties.

9/22/20 

Beth Norton, NYSUT General Counsel 

 Howard Friedman, General Counsel, NYC DOE

NY POST January 3, 2021:

Do Employees Who Become Activists Have Job Protection?

In New York City, teachers, educators at all levels, and school staff members are angry, confused, demoralized, and unhappy with the policies currently put into place by the Mayor and the schools' Chancellor. All sides are grumbling.

I'm not referring to the COVID-19 pandemic 2020. This anger, frustration, and yes, despair, started about 16 years ago when the online rumor mill and mobbing became weaponized.  The internet allowed a single person the ability to alter and/or destroy another person's life and ability to get employment after a false report of misconduct was cited. Truth does not matter, computer skills and social media connections, do. I work in this area and have been documenting how this works with NYC teachers, school administrators, and Courts, both State and Federal.

The Society for Human Resource Management (SHRM) addresses this problem and also the question of what speech is actually protected in the workplace. See the post below.

Betsy Combier, betsy.combier@gmail.com
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When Employees Become Activists

By Cristina Rouvalis, SHRM, June 29, 2020

In recent months, a surge in activism has seen thousands standing up for causes such as Black Lives Matter or protesting COVID-19 government shutdowns. Are employees who participate risking their jobs each time they take to the streets or post politically charged comments on social media?

The answer varies depending on what they do and where they work. For example, it may not pose a problem for employees to protest off-hours. But employees who skip work to protest do risk termination. Many private employers have the right to fire employees "at will," but employment lawyers caution companies to tread carefully when disciplining employees for political activism outside of the office.

States including California, Colorado, Louisiana, and New York protect an employee's right to engage in political activity. But most states do not have such protections.

What employees say in the workplace and at protests could be a problem, as well.  "For private companies, you do not have a First Amendment right to free speech in your place of employment," said Aaron Holt, an employment lawyer with Cozen O'Connor in Houston. "So employers have wide latitude to limit speech that might be offensive to others or affect the company's reputation or value." (See "What Employee Speech Is Protected in the Workplace?" for more information.)

In general, he said, most employers don't discipline employees for marching in peaceful protests outside of work hours. The exception is when it goes against the company's values. If someone is caught making racist remarks or otherwise violating the company's discrimination or conduct policies, the employer is within their rights to fire or discipline the employee for their off-duty conduct. Title VII of the Civil Rights Act prohibits workplace discrimination on the basis of race, color, religion, sex, or national origin. If the company has notice of discriminatory off-duty conduct of its employees and fails to address it, and another incident occurs in the future, the company could be held liable for tolerating a hostile work environment, he said. 

Betsy Carroll, an employment lawyer at Davis Wright Tremaine in Los Angeles, said in most states, employers can fire someone at will but not for an illegal reason. "Is there any way that taking action against someone for political reasons could be a proxy for something else—a protected class like race or national origin? You have to be mindful that someone is not perceiving that they are singled out," which could open the door to a discrimination suit.

The key is consistency. "If an employer doesn't have a problem with someone taking off work to go to a protest about the pandemic shutdown, but they do have a problem with someone going to a Black Lives Matter protest, that's a problem," Holt said. "Employers can't pick and choose who they want their policies to apply to."

Added Peter Shapiro, an employment lawyer at Lewis Brisbois Bisgaard & Smith in New York City, "If you only discipline the minority and you don't discipline the majority, you have a pretty good lawsuit on your hands. But it has to show adverse actions, such as being demoted, fired, or suspended." 

The more egregious the behavior, the better the case for the employer to step in, lawyers said. If an employer can prove a pattern of behavior, rather than just one offensive tweet, it will have a stronger case for taking disciplinary action.

But there are limits to how much employers can ask about political activity—especially in states with protections. "In California, employers may not ask about arrests that do not lead to a conviction, and so if someone gets arrested at a protest, most of the time, you wouldn't be able to ask about it," Carroll said. But discipline may be allowable if the individual was caught on camera being violent. (See "What to Do If an Employee Is Arrested During a Protest" for more information.)

Employees also have to make sure that their political activity doesn't interfere with job performance. If they skip work to march, they could be disciplined for absenteeism or failing to do their jobs, lawyers said. "You have to do it on your own time," Shapiro said.  

Aside from the legalities of disciplining an activist employee, companies also have to consider the public relations of shutting down an employee's political expression. Terminating an employee for his or her political position could result in an unhappy workforce and could lead to backlash in the community. 

While employees at private companies don't have many legal safeguards on free speech, those who work for public companies are protected by the First Amendment if the speech relates to a "matter of public concern." But even that right is not unfettered, Holt said. "There's a balance between the employers' right to maintain a disruption-free and productive workplace and the employees' rights to speak on matters of political, social, or other concern to the community."

Cristina Rouvalis is a freelance writer based in Pittsburgh.

What Employee Speech Is Protected in the Workplace?

By Lisa Nagele-Piazza, J.D., SHRM-SCPJuly 23, 2018

Employees don't have a constitutional right to free speech at work, but employers still need to be aware of federal and state laws that do protect workers' speech in certain situations.

The First Amendment guarantees citizens the protection of free speech from intrusion by the federal government, explained Grant Alexander, an attorney with Alston & Bird in Los Angeles. "The First Amendment does not apply to private actors, and employers are private actors."

Thus, government employees do have some First Amendment protections. "Employees working in the private sector often [don't understand] that the constitutional First Amendment right to free speech applies to government employees but not employees working for businesses," said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.

But that doesn't mean that businesses can curb all employee speech. For instance, private-sector employees have the right to engage in concerted activity under the National Labor Relations Act (NLRA). This applies to workers in both union and nonunion settings.

The NLRA protects employees' right to discuss the terms and conditions of their employment, said Steve Hernández, an attorney with Barnes & Thornburg in Los Angeles. For example, workers are protected if they discuss their wages with each other, decide they're not being paid enough and seek raises from their employer.

Employees also have the right to talk about possible unlawful conduct in the workplace. Under various federal laws, employees may complain about harassment, discrimination, workplace safety violations, and other issues. "However, employees don't have the freedom or right to express racist, sexist or other discriminatory comments where such comments constitute violations of these laws," Olmsted noted.

Social Media

Employers should be mindful of how social media and policies affecting the use of social media interact with employee rights, Alexander said. In certain states, employees have the right to engage in lawful conduct when they are off the clock, and that may impact how social media policies are crafted and implemented, he added.

[SHRM members-only toolkit: Managing and Leveraging Workplace Use of Social Media]

Employers must also be careful not to run afoul of the NLRA when disciplining employees for their social media activities, Hernández noted.

An employee's posts on social media platforms might be considered protected concerted activity if the employee is discussing working conditions and other labor relations matters. In recent years, the National Labor Relations Board (NLRB) and courts have found that social media posts might be protected even if they contain profanities or sound disloyal to the business.

Thus, employers should ensure that their social media policies and practices can't be reasonably perceived as restricting such discussions.

Now that the NLRB has a Republican majority, it has shifted a bit in its stance to a more employer-friendly position, Hernández noted. But employers still can't stop workers from discussing the terms and conditions of their employment, he said.

State Laws

State laws may also enhance workers' rights to discuss certain topics. State laws protecting lawful off-duty conduct vary, so employers should check the laws in their states to see what is covered.

Although private employers may regulate political speech in the workplace without violating the Constitution, some state laws specifically protect political expression. In California, employees cannot be discriminated against based upon their political affiliation or political activity, Alexander noted. However, the protection does not necessarily give employees a right to speech in the workplace, he added.

In Oregon, the Worker Freedom Act prohibits employers from forcing workers to attend political meetings and distribute political communications.

Most states have a presumption of at-will employment, which means either the employer or the worker can terminate the employment for any lawful reason, but employers should be mindful that employees still have certain rights in the workplace that cannot be curbed, Alexander said. 

NYC School Board, the Panel For Educational Policy, Approves $890 Million For New School Bus Entity Tied To Mayor's Donor Alex Lodde

 

Politics in education is bad for everyone except the politician and his political donor, who gets the benefits, of course.

The Panel For Educational Policy, the NYC school board, routinely and consistently plays politics with education dollars. They do this to please the politicians who appointed them. At every meeting we have attended, members of the PEP violated State and City laws, rules and regulations.

Since 2003 we at Parentadvocates have complained about mayoral control in New York. We have posted the foundation of this control, which in our minds is racist and autocratic. Here is my comment on the policy statement submitted to the Department of Justice by Mayor Mike Bloomberg's Attorney, Michael Cardozo:

In 2003, parents in the New York City school district were asked to look at the new PEP-CEC structure, and call Mr. Joseph Rich, Chief of the Voting Section, Civil Rights Division, Department of Justice, in Washington DC with any questions or concerns. We saw immediately that the new structure proposed by Bloomberg and Klein violated our 14th Amendment rights and prohibited us, parents, from having any say through voting on what happened in the district, so I called Mr. Rich. He told me, "I'll get back to you" when I asked him how my right to vote for the school board would be preserved. He never did return my call with an answer.

Here is the submission (broken into random sections) by Michael Cardozo, NYC Corporation Counsel, dated Oct. 31, 2003, that violates the Constitutional rights of citizens of New York City from June 30, 2003-4 until June 30, 2009, then renewed several times since. Once in power, an incumbent never wants to give it up:

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

What was shocking was that I was the only parent advocate speaking out against this abominable destruction of rights to democracy in NYC.

Mark Treyger

A few months ago I gave a statement to NYC Council Education Committee Chair Mark Treyger on the violation of Special Education Law and Special Education policies by the NYC Department of Education after seeing it first hand because I do Impartial Hearings and 3020-a arbitration for teachers. Never heard a peep from him, and when I saw him a few months later at the NY State hearing on Mayoral Control, I asked him about it. He told me that he had no idea what I was talking about. That's what I mean when I say parents and people concerned with the NYC DOE should have input into policy decisions. We don't.

At the meeting on Mayoral control, I should tell you that Michael Benedetto, Member of the NY State Assembly and in charge of this hearing, is a charlatan, in my opinion. While the hearing went on, Mr. Benedetto warned each speaker that under no circumstances should anyone criticize either the Mayor or the Chancellor.

Huh?

I ignored him, as I hope everyone will, moving forward. Mayoral control must end. Now. And I say to Mr. Benedetto, I'm saddened by your warnings of dire consequences if I criticize the Mayor and the Chancellor, but they must be held accountable for their actions. Thank you for understanding this point.

Read below about the PEP giving $890 million to the new NYC School Bus Umbrella Services, which will now take over Reliant Transportation.

Let's hold the PEP, the Mayor, and the Chancellor accountable for their actions. Then I will give the "A For Accountability Award" “™  to that person and/or Group. 

Betsy Combier, betsy.combier@gmail.com
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City approves controversial $890 million school bus deal

Selim Algar, NYPOST, December 15, 2020

The city’s Panel for Education Policy has waved through a controversial $890 million contract for school bus services to be run by a city-owned nonprofit that bailed out a politically-connected operator earlier this year.

City Hall formed NYC School Bus Umbrella Services, Inc. to take over Reliant Transportation and the 900 routes it oversees for kids with special needs.

The arrangement benefits Reliant co-owner Alex Lodde, who gave $100,000 to Mayor Bill de Blasio’s 2014 effort to push for a Democratic majority in the state Senate.

The five-year contract passed Monday night with eight members of the panel voted in favor and five abstaining — an unusually high number for the PEP.

Critics of the deal have highlighted the city’s potential exposure to Reliant’s pension obligations totaling about $142 million.

The Post reported Sunday that drivers will refuse to work for the nonprofit unless it guarantees payment of those liabilities in full.

“Either the nonprofit is on the hook, or we’ll go after Reliant — and we won’t wait five years,” Michael Cordiello, president of ATU Local 1181, which represents Reliant’s 2,000 bus drivers and attendants, told The Post Sunday.

The Department of Education has argued that the takeover will improve services for 10 percent of all student bus riders.

The city will continue to contract with private companies to serve the remaining 90 percent of kids that rely on school buses. 

Schools Chancellor Richard Carranza defended the arrangement Monday, contending that it gave the DOE more control over busing services.

“If I have to negotiate with third party vendors around our transportation it makes it difficult not for us but for our children and our families to be able to be transported,” he said.

Several members of city parent advisory councils questioned the deal’s price tag and questionable provenance at the meeting — especially amid severe coronavirus budget cuts to school programs.

Lucas Liu, of Community Education Council 3, noted that de Blasio and Carranza will no longer hold their current positions when the final bill lands on the city’s table.

In addition, the nonprofit will protect Reliant’s ownership from any liabilities stemming from a withdrawal from the pension plan, sources said.

A Department of Education contracts officer said Monday he doubted the city would end up on the hook for those costs.

But when pressed, Nicolas Storelli-Castro said there were protections in the contract that would allow the city to pay those sums over extended periods if need be.

The Mayor Sends Principals a Bill For Missing Students

 

Under Pressure: As Mayor Insists Schools Go Five Days a Week, NYC Principals Receive Notice That They Owe Money for Missing Students

The 74, December 13, 2020

New York City Principal Darlene Cameron was already stressed about a sudden edict from the mayor that elementary schools offer five-day-a-week in-person instruction, when she learned that her school on Manhattan’s Lower East Side owed the city about $145,000 in per-pupil funding reimbursements.

She had been juggling her finances at S.T.A.R. Academy, using the salary from an unexpected teacher retirement in September to cover additional COVID-19 costs. That money won’t last past March, she said, and now she’s likely in the red for September 2021.

“Because of that deficit, the DOE won’t give me new money for my next budget,” said Cameron, whose small school serves 280 students in grades pre-K-5.

Cameron isn’t alone. Mark Cannizzaro, president of the principals union, said that 60 percent of city schools suffered register, or enrollment, loss this year, as attendance numbers crashed during the pandemic.

“This is obviously an unusual year,” he said. “It’s not practical to hold schools accountable for this register loss because they’re not going to be able to sustain it and operate next year. We have a lot of schools now that have deficits that no one could have predicted, and they won’t be able to pay them back in any practical way, without severely affecting the education of their students come next September.”

On Dec. 2, school leaders started receiving emails containing their regularly scheduled updates about per-pupil funding reimbursements, the amount of money they either receive or owe the Department of Education, based on the difference between anticipated student attendance and the number of kids who actually showed up.

Denise Watson-Adin, principal of P.S. 32 in Brooklyn, informed families of the bad news over an early December Zoom call, where she was already fielding questions about the elementary schools offering five days a week.

“We owe [the DOE] hundreds of thousands of dollars — some [principals], $600,000, almost $700,000 that the DOE is saying we need to pay, or we’re going to start the year in a deficit,” she said. “How is that even possible? Schools won’t be able to open.”

Cannizzaro said that, for over a month, he’s been urging the DOE to change its register loss protocols this year to account for COVID-19. In a typical year, principals and district representatives are generally able to make accurate educated guesses about the number of students that will show up in classrooms, he explained. This year is different.

“The funding formula is not fair to begin with, but for a school that’s already behind the eight ball, and then had a registered loss that’s greater than expected, it’s just unfair,” he said.

The reasons students aren’t showing up are varied, he added. Some families moved out of the city; others enrolled their children in private or parochial schools. Principals also talked about the most vulnerable students, particularly those in temporary housing or without internet, falling off the grid.

Principals unable to pay back the deficits will carry them into the following school year. Having to repay per-pupil funding could do particular harm to schools needing money for student outreach, instructional materials, and mental health supports in the fall of 2021.

So far, the DOE hasn’t budged. Cannizzaro, meanwhile, is holding out hope that officials will reevaluate the process if the federal government delivers much-needed aid. “We might still be talking about this in May,” he said.

Three DOE spokespeople would neither explain why this year’s register loss protocols remain unchanged nor answer whether more federal funding could sway officials on the matter.

Principals interviewed by The 74 said the looming financial losses are the latest in a series of demoralizing updates dispatched by the DOE since the pandemic struck in March. Most often, school leaders said, they’re getting information from Twitter and Mayor Bill de Blasio’s press conferences, along with the rest of the public.

They added that the mayor’s Thanksgiving weekend announcement — and his recent statements doubling down on the feasibility of five-day-a-week in-person learning for the families that want it — revealed a disconnect between his take and the view that principals have on the ground. They described a collision course of tight budgets, unmet parental expectations, inadequate staffing, and, in some cases, insufficient space to accommodate students during the winter.

Cameron said children who opted for blended learning at S.T.A.R. Academy can come into school three days a week, although the majority of her families have selected remote learning. Many, she said, are people of color who are scared about how the virus has adversely impacted their communities.

If she did follow the mayor’s guidance, all of her careful planning would go out the window, Cameron said. “We wouldn’t be able to provide the small groups for our neediest students, who mostly are remote,” she explained. “A lot of our special education students are fully remote. A lot of our students who are considered Title I students or students in poverty are fully remote. If I now shift my entire staff to only focus on those students in-person, that means all of the kids who are remote will either be served by substitute teachers, or they’ll be in remote classes that go past the legal class size.”

Principals said it’s become increasingly difficult to get substitute teachers to teach in-person.

Left without other resources, some school leaders have turned to each other in text chat groups and over Zoom. Some older, more experienced principals are mentoring younger ones.

“It’s hard because you have to be the calm in this storm,” Watson-Adin said. “Even if you’re feeling frenzied or unsure, you can’t present that to your community … That takes a lot of emotional strength. No one’s talking about the mental health of principals … If you’re a brand new principal, and you’re scared for your job, you’re gonna try to make this work, regardless of if you can do it or not.”

Principals had to fill out an in-person instruction survey by Dec. 7, indicating whether they’d be able to offer five-day-a-week in-person learning for at least some of their families. District superintendents were given until Friday to fill out their own versions of the survey.

“Schools are swiftly but carefully moving students to 5-day a week programming based on in-person attendance, space assessments, and timelines that are least disruptive for kids, while prioritizing students with disabilities and other vulnerable populations,” DOE spokesman Nathaniel Styer said.

While school leaders said they have received pressure from higher-ups asking them to explain why they’re unable to offer full-time in-person instruction, many feel stranded.

“We all understand that students can benefit from five days,” Watson-Adin, told her parents. “Unfortunately, the mayor shouldn’t have said that we could because he knew we couldn’t do it. My colleagues are beyond themselves because they just knew as he was saying it that it wasn’t possible, and setting expectations for you as parents for something that can’t happen.”

Given the financial, staffing, and spatial constraints, most schools haven’t been able to live up to the mayor’s promise. According to the DOE, of the 850 3K, pre-K, elementary, and specialized District 75 schools that reopened for in-person instruction last week, 161 are offering it full time to at least some students. Across individual schools, the percentage of families choosing in-person learning ranges widely, according to Cannizzaro: from 10 percent all the way up to 75 percent.

Many principals have started to feel like they have to make their own calls, mayor’s statements aside.

“At this point, I don’t feel like being flexible anymore,” Cameron said. “I just feel like making the decisions that are best for my students and my school and my families.”

Betsy Combier, betsy.combier@gmail.com
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