Why The NYC DOE and UFT/NYSUT Cannot Say They Protect Tenure Rights

On December 8, 2016, I wrote and posted on this blog my comments on the Thomas Fordham Institute's article called

"Undue Process: Why Bad Teachers in 
Twenty-Five Diverse Districts Rarely Get Fired"

I thought it was time to update my thoughts, considering the number of fake facts inside the Department of Education about everything (i.e., two teachers in every ICT classroom, extensive accommodations for all children who have special needs, a nurse in every school, District 79 + vocational education is not racist, etc.).

The lie which I will continue to comment on is the statement that it is very hard to terminate a teacher. This is bulloney, at least in NYC 3020-a arbitration under the current so-called "rules" and procedures and determination of probable cause. The NYC DOE and the UFT/NYSUT have spent many years making roads around the law, rules, and regulations at both the State and Federal level so that anyone can be accused and found guilty of anything, very easily.

What I do and have done for all these years, is look at the charging process before a hearing or arbitration begins - as well as after. Education Law 3020-a has a specific process with details in Section (2)(a) for determining probable cause. The NY State legislature voted on this vote in Executive Session by the Panel For Educational Policy to determine probable cause in order to protect educators from easily being terminated simply because a principal or Superintendent wanted to get rid of this person. This is the tenure law protection. Mayor Mike Bloomberg and others in power at the start of his reign in 2002 didn't like this public policy. But rather than make a visible attempt to scrub this due process clause, which could backfire against them, Mike and his colleagues - including the Department of Education and the UFT - silently and in total secrecy (they thought) wrote the Department of Justice that they were taking the vote away from the PEP because Black and Brown parents and voters never voted in school board elections, anyway. I called Mr. Rich at the DOJ and wrote about my objections. I don't know how many other people did this.

I continue to object in the 3020-a hearings at the pre-hearing which by law must occur before any testimony is heard by witnesses. I say that if the process of charging an educator/employee does not have a valid, lawful determination of probable cause, then no arbitrator has subject matter jurisdiction to hear a case.

If a person is charged with a false event made up by someone with malice and then a hearing officer who does not have subject matter jurisdiction is able to make any ruling or decisions and can be "influenced" to overlook 'relevant' and material facts, witness testimony and evidence, in order to reach a pre-determined result.

In NYC the arbitrators are hired by the Department of Education and NYSUT, New York State United Teachers (lawyers who are on contract to provide free legal services to UFT members). Once hired for either an incompetency or a misconduct panel, an arbitrator is supposed to hear a case 5 days a month and is paid $1400/day. This is a lucrative deal, and the fix is in.

I argue for a change to the charging process, from allegation to pre-hearing conference, including permitting the UFT member to participate in the hiring of the arbitrator for his/her case.

Betsy Combier

betsy.combier@gmail.com
Editor, ADVOCATZ.com
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My post on this blog in 2016:

FAKE NEWS: Undue Process

The Thomas Fordham Institute likes fake news, commonly known for years as yellow journalism. I believe that reports like Undue Process are dangerous because the writing reflects anti-tenure political thinking that is based upon numbers. Its always about money. If an employee has tenure, then he/she has, most often than not, spent more years in the public school system than someone who has probationary status. This means that the tenured employee has a higher salary and a higher pension. That's what the anti-tenure policies are hoping to stop.

People are not numbers!!

I have to admit that I laughed when I saw the title and subtitle,
"Why Bad Teachers in Twenty-Five Diverse Districts Rarely Get Fired".

So whose "undue process" are the authors talking about? Are they saying that teachers do not have due process if twenty-five diverse districts can't fire those who are "bad"? Whose defining the word "bad", and what evidence do they have? If a principal doesn't like a teacher for some random - or, in too many cases, for a discriminatory reason that they are Black, women, Jewish or disabled - reason, this principal can observe this teacher and conclude out of thin air that he/she is "bad" or "ineffective" and put them in a 3020-a hearing for so-called "incompetency". This is a word defined solely on the subjective opinions of an administrator focused on terminating the targeted teacher, and the process almost always is successful. I would say that 95% of teachers or staff charged with "incompetency" are terminated, and I can say this because I have been participating in 3020-a arbitration as an advocate for an accused tenured employee for than 17 years.

If I believed that 3020-a arbitration is always a lost cause, I would not have spent all these years doing my best to win my clients the right to continue their employment. There is a formula for winning these hearings after charges of incompetency are served on the tenured educator. This formula involves investigating the backstory of all witnesses testifying for the Department, and finding whatever facts can be used to uncredibilize (my word - means "make not credible") his/her testimony.

Anyway, the title at least started me reading further, so I guess it made the point.

The danger is their writing spurs on policymakers who know that bad news travels far and sells widely. The public likes to hear what we as a society are doing, and how terrible tenured teachers are. Alarmingly, most of the time the people they are describing as "bad" are not bad at all.

What the heck is the best definition of "bad"? It's an adjective and a subjective opinion of something or someone. I might believe that someone is "bad" if I see this person with my own eyes harm another person, animal, bird, or any living creature, for no reason. Otherwise, an investigation is called for that satisfies my standard of proof. We all have our own standard which we do not always acknowledge (see implicit bias), and sometimes this leads to prejudice when we have a lower standard of proof for someone or some group based upon general characteristics such as race, religion, gender, disability, nationality, etc. We must all watch for that. All individuals are unique and should be treated as such.

But getting to know someone who is charged with something is hard to do because, by the time the person is charged, there is little time to figure out what the real facts are. But you gotta do the research. Truly listening to someone tell you his/her life story, what happened in their career, who the bad guys are, etc., all involve first: interest; and second: time. Then you put a whole lot of caring into the mix.

Many are terminated at 3020-a simply because they are not defended adequately by their NYSUT or private lawyer or team (I am not a lawyer, but work on 3020-as as a paralegal, which is permitted in arbitration. Working with attorneys for most cases, I have won about 60 3020-a arbitrations, and 45 Article 75 appeals). I might as well say that I think the team I have assembled for doing 3020-a cases is the best, and my background information and closing arguments are untouchable by any private lawyer. This is my opinion and this is my blog, so live with it. We care.

Also, if you are disabled and/or do not speak English well, you can be terminated, unless you have proper defenses. Of course, the charges against your language and disability are covered up by other allegations, but you can dig up the real reason for being charged, and must do so, in my opinion. The whole scenario of one arbitrator judging you by seeing you in a small room for 1 - 10 days, or the length of the hearing, is absurd. The arbitrators are chosen by the UFT and the DOE but are not neutral. Some are more able to hear facts than others, but there is always an implicit bias.

Nonetheless, 3020-a is winnable if the defense is strong. And, the defenders must know what to do. Unfortunately, not many people are interested in spending 20-30 hours listening and researching a person's life in order to find solutions to problems that are disrupting that life. We do that.

There is a national goal right now to take away job protections for teachers, because if they continue to get tenure, supposedly, our children in public schools will continue to suffer.

Not.

In New York State, tenure is public policy.

Why? Because our state legislators know that children need stability. When a teacher is in a classroom, the first thing that must be established is some kind of trust. The children need to know that they are safe, and the person keeping them safe is their teacher. Children, especially in elementary grades, need to know that their teacher will be there when they arrive at school.

As noted by New York's Court of Appeals in Ricca v. Board of Ed. of the City Sch. Dist, 47 N.Y.2d 385, 418 N.Y.S.2d 345 (1979):

"The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles. ... Rather it is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure."

Public policy is also to give immunity to all judges in the Courts. Same as teacher tenure, except that for judges, there really is no way to get them removed for being "bad" unless some high-powered politician or prosecutor decides to do it.

When I write the closing argument for a 3020-a I always strenuously argue for public policy and tenure protections because each and every case is a mix of truth and lies created to end the career of a tenured person - an individual with a family, a house, a career. Bills. Mortgages. Medical needs.

That is why every case is unique and deserves to be studied and every memo, letter, email, piece of information should be integrated into the record. 3020-a arbitration is, in my 17-year experience, a war against the destruction of tenure rights. Despite my being involved in about 60 cases since 2003, every case is different and must be looked at as if all the parts are new. Every Respondent, or charged DOE employee, is different. No two people bring to the 3020-a the same case, because no two people are alike.

The general public loves hearing about how and when corrupt politicians get arrested for hurting the very same community members who put them into office. Public corruption is everywhere.

How does corruption and fraud in public office get to be so pervasive? One reason, of course, is that sheep people, or sheeple, believe the fake news that the politician spews out in order to win votes. My mom watched ABC News, and that was The Truth of the matter. I tried to convince her that truth may not be what she was seeing, but my efforts were in vain. Strange, because my dad was a fact person, he was Assistant Attorney General for the State of New York under Louis Lefkowitz, 20+ years.

Why people believe certain things and not others, or certain individuals and not others, is way beyond my pay grade. All I'm saying is that I do not believe anything until is see the facts first hand. I love the internet, but I sift facts out and it is time-consuming. This must be done, or find a source that you trust, and stay with it.

For all these reasons, Undue Process is fake news, but even the authors gave a crumb of truth, as seen in a NY POST article:
"It’s basically impossible to fire a New York City school teacher""While decrying needless bureaucratic delays that allow inept instructors to remain in front of students, Griffith stressed that the overwhelming number of city teachers are diligent and effective.

“We’re not talking about,” he said. “We’re not saying most teachers are ineffective. They very hard and are doing a good job on the whole. We’re talking about 2 to 4 percent who are demonstrably ineffective.”

Betsy Combier
betsy.combier@gmail.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