The U.S. Supreme Court Says That Union Members Cannot Sue For Discrimination Claims

Is mandatory arbitration the proper forum for resolution of discrimination claims for union members?

Supreme Court limits right of union workers to sue for discrimination
By John Burton, World Socialist Website, 10 April 2009
LINK

In a reactionary, pro-business ruling that reverses decades of settled law, the Supreme Court ruled 5 to 4 last week that workers lose their right to file federal discrimination lawsuits under the 1964 Civil Rights Act whenever a union collective bargaining agreement includes a mandatory arbitration clause.

Mandatory arbitration means that a party agreeable to the company rather than a federal court and jury will decide a dispute, and can do so without making findings of fact or explaining reasons for the decision. There is no right to an appeal, even where the arbitrator disregards the applicable law. Such clauses have become ubiquitous, as businesses insist on compelling arbitration to keep from being hauled in front of juries and forced to defend their actions.

With last week’s Supreme Court decision, it is now the rule that contracts negotiated by union bureaucrats trump federal laws enacted to protect against workplace discrimination.

The plaintiffs in the case, 14 Penn Plaza, LLC v. Pyett, were security guards represented by Service Employees International Union (SEIU) Local 32BJ, which had a collective bargaining agreement with a consortium of New York City commercial landlords. The contract contained a provision to force workers to arbitrate their federal discrimination claims along with alleged violations of the contract itself, such as seniority provisions and work rules.

The SEIU bureaucracy made a deal with a new contractor to replace the plaintiff security guards in the high-rise adjacent to Penn Station with lower-paid workers, which resulted in a grievance claiming violations of federal age discrimination laws as well as seniority rights. At the arbitration hearing, the SEIU withdrew the age discrimination claims because of a “conflict of interest”—namely, that the reassignments were made possible by the union’s own deal with the new contractor.

The transferred security guards then filed age discrimination suits in federal court against the landlords.

The Supreme Court dismissed the security guards’ lawsuit in a decision authored by Associate Justice Clarence Thomas, (pictured at right) joined by the three other members of the extreme right-wing bloc, Chief Justice John Roberts and Associate Justices Samuel Alito and Antonin Scalia. “Swing” Justice Anthony Kennedy, who invariably votes in favor of business interests, provided the crucial fifth vote.

As usual, the right-wing majority proceeded by working backward from its desired political conclusion to fashion its legal reasoning, in the process brushing aside any legal precedent standing in the way.

Thomas brushed aside Alexander v. Gardner Denver Co., which federal courts had been following for 35 years. In that case, a black worker filed a racial discrimination claim after his termination for “just cause” was upheld in a mandatory arbitration. The Supreme Court in 1974 rejected the employer’s argument that the worker could not pursue claims for workplace discrimination in federal court.

Associate Justice Lewis Powell, an appointee of Richard Nixon writing for a unanimous court, explained, “Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations. On the other hand, the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to [anti-discrimination laws], whose broad language frequently can be given meaning only by reference to public law concepts.”

This means that certain issues under the contract, such as those concerning seniority, are appropriate for an arbitrator, who is being asked to determine rights under the collective bargaining agreement itself. Disputes involving core civil rights, such as freedom from discrimination in the workplace, however, should be left to judges and juries.

As of last week, that is no longer the law.

Since 1974, American unions have evolved into little more than appendages of the employers. Even 35 years ago, however, the Supreme Court in Alexander recognized that “harmony of interest between the union and the individual employee cannot always be presumed,” and “the union may subordinate the interests of an individual employee” to its own interests.

As did reactionary judges during the first part of the twentieth century when striking down minimum wage and maximum work-hour regulations, Thomas in his decision exalted supposed “arm’s length” contract principles over laws enacted to protect workers’ rights. “As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective bargaining agreement in return for other concessions from the employer. Courts generally may not interfere in this bargainedfor exchange,” Thomas wrote.

Thomas dismissed Alexander v. Gardner-Denver with the sophistry that the case stood only for the narrow principle that workers could not be forced to give up their right to be protected from discrimination in a collective bargaining agreement. According to Thomas, companies can still insist that workers give up their right to file lawsuits enforcing those rights.

Thomas’s argument flies in the face of the legal axiom that there can be no right without a meaningful remedy.

In a strongly worded dissent, Associate Justice John Paul Stevens, the senior member of the court’s liberal wing, denounced Thomas for his “subversion of precedent.” Associate Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer also dissented.

Labor Management Relations
The Supreme Court Opens the Door to Mandatory Arbitration of Discrimination Claims for Union Members
April 2009
By:
Gavin S. Appleby
Hans Tor Christensen
Jennifer L. Mora

On April 1, 2009, a divided U.S. Supreme Court upheld the ability of an employer and a labor organization, as the employees' exclusive representative for purposes of collective bargaining, to agree that employees can be required to arbitrate their statutory employment discrimination or retaliation claims in accordance with an express requirement to do so under the terms of a bargained-for collective agreement. While the decision in 14 Penn Plaza L.L.C. v. Pyett specifically addressed age discrimination claims arising under a federal statute, the Court's decision is significant in that it now provides an opportunity for employers with unionized workforces to require that union members' discrimination and other statutory employment claims be privately arbitrated, rather than litigated in federal court. To get to that result, however, the relevant provision in the collective bargaining agreement must constitute a clear and unmistakable waiver of the right to pursue such claims in court.

Justice Thomas, writing for the majority, held that where the union and the employer have clearly and unmistakably agreed that statutory employment discrimination claims must be processed through the grievance and arbitration procedure in the parties' collective bargaining agreement, an employee will be required to file a grievance and ultimately submit the claim to a private arbitrator. Further, that employee will in most instances be barred from filing the same claims as a lawsuit in federal or state court.1 While there remain a number of unanswered questions about the 14 Penn Plaza decision, the Supreme Court clearly continues to consider arbitration a legitimate, if not preferred, method of dispute resolution.

Arbitration and Labor-Management Relations

Collective bargaining agreements set forth the terms and conditions of employment for employees in a bargaining unit where the union is the exclusive bargaining representative of those employees. Until the Supreme Court's decision in 14 Penn Plaza, it had been generally accepted that the parties could not include in those terms and conditions of employment a requirement that employees submit statutory claims of employment discrimination under federal or state employment statutes, such as Title VII and the Age Discrimination in Employment Act (ADEA), to the grievance and arbitration provisions in the applicable collective bargaining agreement.

As background, the Supreme Court's 1974 decision in Alexander v. Gardner-Denver Co.,2strongly suggested that both the prospective waiver of statutory employment claims as well as the ability to require arbitration of such claims were prohibited. Gardner-Denver seemed somewhat at odds with the Supreme Court's subsequent decision in Gilmer v. Interstate/Johnson Lane Corp.,3 in which the Court held that "an individual employee who had agreed individually to waive his right to a federal forum could be compelled to arbitrate a federal age discrimination claim." In short, an individual employee was free to agree to compulsory arbitration of age discrimination claims under Gilmer, but a labor organization was apparently prohibited under Gardner-Denver from agreeing in collective bargaining to a similar provision on behalf of the members it represents. It is against this backdrop that the Supreme Court was presented in 14 Penn Plaza with the opportunity to harmonize Gardner-Denver and Gilmer.

Factual Background



The employees at issue in 14 Penn Plaza were members of Local 32BJ of the Service Employees International Union (SEIU), which had the exclusive authority to bargain for and represent those employees regarding "rates of pay, wages, hours of employment, or other conditions of employment." The employer in the case, 14 Penn Plaza L.L.C., owned and operated an office building and was a member of the Realty Advisory Board (RAB), a multi-employer bargaining association. The collective bargaining agreement between the SEIU and RAB required union members to submit their claims for employment discrimination to binding arbitration in accordance with the grievance and arbitration procedures set forth in the applicable collective bargaining agreement. Specifically, the agreement stated:

There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, ... or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures ... as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

14 Penn Plaza employed a variety of workers, including night watchmen. After a change in the existing subcontracting arrangement rendered the night watchmen's services unnecessary, the employees were reassigned to jobs as night porters and light-duty cleaners in other locations in the building. The employees claimed that this reassignment resulted in a loss of income and emotional distress.

The SEIU filed grievances on behalf of the employees claiming that the reassignments violated the collective bargaining agreement's prohibition against age discrimination and its seniority rules, and that the employer failed to equitably rotate overtime. Although the grievances ultimately proceeded to arbitration, the SEIU withdrew its claims of age discrimination, but it continued to arbitrate the seniority and overtime claims. In the meantime, the employees filed an administrative charge with the EEOC claiming that the reassignments violated the ADEA. The EEOC ultimately dismissed the employees' charge and provided them with a right-to-sue letter.

The employees then filed a lawsuit in federal district court alleging age discrimination under the ADEA and state law. The employer filed a motion to compel arbitration under the Federal Arbitration Act. However, the federal district court denied the motion and held that under existing precedent in the U.S. Court of Appeals for the Second Circuit, "even a clear and unmistakable union-negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforceable."

The Second Circuit Concludes that Agreements to Arbitrate Contained in Individual Arbitration Agreements and Collective Bargaining Agreements Should Be Treated Differently

The Second Circuit refused to compel arbitration of the employees' ADEA claims based on its belief that the Supreme Court's decision in Gardner-Denver prohibited the parties to a collective bargaining agreement from "waiv[ing] covered workers' rights to a judicial forum for causes of action created by Congress." Although the Second Circuit recognized the tension between the Supreme Court's holding in Gardner-Denver and its more recent decision in Gilmer, the court attempted to reconcile the two decisions. Comparing individual rights to waive claims and arbitration provisions in a collective bargaining agreement, the court concluded that labor agreement provisions "which purport to waive employees' rights to a federal forum with respect to statutory claims, are unenforceable." In short, the Second Circuit considered individual arbitration agreements to be different from the grievance and arbitration provisions set forth in a negotiated collective bargaining agreement.

The Supreme Court Holds that Employees May Be Compelled to Utilize the Grievance and Arbitration Machinery Set Forth in a Collective Bargaining Agreement

The Supreme Court overruled the Second Circuit's analysis. The Court started with the general proposition that an agreement between an employer and a union to submit employment-related discrimination claims to arbitration qualifies as a condition of employment and is "no different from the many other decisions made by the parties in designing grievance machinery." Although the individual employees involved in the case argued that the arbitration clause was outside the permissible scope of collective bargaining because it affected "employees' individual, non-economic statutory rights," the Court rejected this contention. It instead found that the law "generally favor[s] arbitration precisely because of the economics of dispute resolution" and that, as a general matter, courts "may not interfere in this bargained-for exchange." The Court then reasoned that the collective bargaining agreement's requirement that employees arbitrate these types of disputes "must be honored unless the ADEA itself removes this particular class of grievances from the [National Labor Relations Act's] broad sweep." The Court then held that the ADEA did not contain such a prohibition.

The holding in 14 Penn Plaza is consistent with Gilmer. Once parties to a contract agree that a particular dispute must be submitted to arbitration, an employee is bound to that agreement "unless Congress itself evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Finding that there was nothing in the language or legislative history of the ADEA that expressly precluded arbitration, the Court concluded in Gilmer that arbitrating disputes under the ADEA would not undermine the statute's "remedial and deterrent function."4

In 14 Penn Plaza, the Court specifically stated that its earlier interpretation of the ADEA in Gilmer, which involved an individual employment agreement, "fully applies in the collective-bargaining context." As Justice Thomas explained, "[n]othing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative."

Further, Justice Thomas opined that Gardner-Denver was decided at a time when arbitration was perceived as insufficient for a fair and reasoned determination of federal statutory claims. Over 20 years later, however, a wide range of federal claims are commonly arbitrated, and objections centered on the abilities of arbitrators, or the nature of arbitration itself, are no longer justified. Thus, the Court held that to the extent Gardner-Denver concluded that arbitrators are not capable of fairly deciding complex federal discrimination claims, that precedent has been overturned. Nevertheless, the Court explicitly left in place the holding from Gardener-Denver that the waiver of a federal statutory employment claim that is not clear and unmistakable, will not be enforced. Thus "a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law." A labor agreement that is not so clear would not require compulsory arbitration.

Implications, Opportunities, and Other Issues

Generally speaking, few existing collective bargaining agreements will meet the standard required for a court to hold that employees have waived their rights to a judicial forum. In 14 Penn Plaza, the collective bargaining agreement: (1) contained an express prohibition against discrimination based on protected characteristics under federal, state, and local laws; (2) specifically named the statutes at issue; and (3) explicitly stated, "[a]ll such claims shall be subject to the grievance and arbitration procedures . . . as the sole and exclusive remedy for violations." Such a provision is relatively unusual in today's labor agreements. While most labor agreements contain antidiscrimination provisions, those provisions are not typically worded as a waiver clause. Given the specific language in the labor agreement in 14 Penn Plaza, however, the Supreme Court concluded that the SEIU and the employees it represented had met the high "clear and unmistakable" standard originally set forth in Gardner-Denver.

Technically, the Court's decision in 14 Penn Plaza is limited to claims arising under the ADEA, but ultimately it may be applied to a broad range of federal, state, and local employment statutes, provided that the text and legislative history of the applicable statutes do not expressly exclude the claims covered by the statute from compulsory arbitration. As a result, during bargaining, employers may want to consider whether they can benefit from requiring bargaining unit employees to submit their discrimination claims to arbitration and, if so, the nature and types of claims that should be covered. This is especially true for employers in jurisdictions that have been confronted with the onslaught of wage and hour class action litigation. Depending upon other laws and how they have been interpreted, restricting these types of claims to arbitration could provide protection to employers who are concerned about possible class actions.

Of course, it goes without saying that a union may not be willing to consider expanding the areas that a collective bargaining agreement's grievance and arbitration procedure covers, and hard bargaining and/or concessions may be needed to obtain this expansion. In fact, while unions have traditionally sought "antidiscrimination" language in labor agreements as part of their duty to push for employee rights, if a waiver of a jury trial is now part of the process, unions may quickly back off such a strategy.

A further, serious concern was raised by the dissent in 14 Penn Plaza ‑ where the union acts as a gatekeeper to its members' statutory employment claims, it may fail to pursue valid claims, to the detriment of the employees. While those employees may file a subsequent claim against their union for unlawful discrimination or breach of the duty of fair representation, the success of such claims is limited as unions have a meaningful amount of discretion as to which cases they choose to arbitrate.

Recommendations and Practical Considerations

With the above analysis in mind, there are numerous points for employers to consider:

1. Employers should not immediately conclude that the best strategy is to require that claims of discrimination be processed through the contractual grievance and arbitration process. For some employers, that will be the best answer; but other employers may decide that choosing to fight discrimination claims in court is a better strategy.
2. Arguments in favor of binding arbitration are factors such as cost savings (arbitration is almost always cheaper than litigation), less delay and less risk of punitive damages. Particularly in states where damages are not capped and where juries are considered more pro-employee, labor arbitration may indeed be the better option.
3. Binding arbitration, however, is not necessarily the best method for resolving these types of statutory claims. Arbitrators can be as unpredictable as juries, and the favored arbitration remedy of reinstatement can be more costly in a real sense than damages. Further, unfavorable arbitration decisions are extremely difficult to overturn. Even an arbitrator's "manifest disregard for the law" may not be a valid ground for appealing an arbitrator's ruling. By comparison, federal and state courts provide for a significantly more robust system of appeal.
4. Another factor to consider is the potential for obtaining summary judgment in discrimination cases. Some federal courts are amenable to granting summary judgment motions in such cases absent relatively clear evidence of direct or indirect discrimination. In other jurisdictions, by comparison, summary judgment is difficult to obtain.
5. Following the advent of punitive damages and jury trial rights created by the Civil Rights Act of 1991, compulsory arbitration became more common. Some employers that went in that direction, however, subsequently moved away from binding arbitration. Others continue to find that compulsory arbitration is better for them than litigation. In short, employers should not necessarily view 14 Penn Plaza as a bandwagon on which to jump. They should instead confer with experienced labor counsel and make a determination as to which road to go down. That determination will include such diverse factors as the relationship between the employer and the union, the pool of available arbitrators and their willingness to uphold reasonable employer decisions, the ability of the same arbitrators to understand the difference between a claim of discrimination and "just cause" in a discharge case, the general demeanor of judges and juries in the jurisdiction in question, and, of course, cost and employee morale. Capable labor counsel can provide an analysis of all these factors and more.
6. Finally, if an employer does decide to negotiate with a union to require compulsory arbitration of employment statutory rights, it should confer with labor counsel to create language that will likely be upheld under 14 Penn Plaza. Some courts will undoubtedly seek to restrict the Supreme Court's decision, so crafting language will be an important task. As noted earlier, congressional action could also lead to future restrictions that would have to be considered.

1 While this change is certainly significant in the labor-relations context, it likely will not prevent the Equal Employment Opportunity Commission (EEOC) or any other federal or state agency from filing a lawsuit against the employer on behalf of the employee. However, as a practical matter, that is a fairly rare event.

2 415 U.S. 36 (1974).

3 500 U.S. 20 (1991).

4 The Arbitration Fairness Act (AFA), recently introduced in Congress, would prohibit the enforcement of mandatory agreements that require employees to submit their statutory employment claims to binding arbitration. Should the 14 Penn Plaza decision inspire greater interest in the AFA, Congress could legislatively overrule the Supreme Court's 14 Penn Plaza and Gilmer decisions. Littler's DC Employment Law Update blog is tracking this legislation and other labor and employment-related developments in Washington.

Gavin S. Appleby is a Shareholder in Littler Mendelson's Atlanta office. Hans Tor Christensen is Of Counsel in Littler Mendelson's Washington, D.C. office. Jennifer L. Mora is an Associate in Littler Mendelson's Portland office. If you would like further information, please contact your Littler attorney at 1.888.Littler, info@littler.com, Mr. Appleby at gappleby@littler.com, Mr. Christensen at tochristensen@littler.com, or Ms. Mora at jmora@littler.com.

ASAP is published by Littler Mendelson in order to review the latest developments in employment law. ASAP is designed to provide accurate and informative information and should not be considered legal advice.
© 2009 Littler Mendelson. All rights reserved.

Employment Arbitration

An estimated 15% to 25% of employers nationally have adopted mandatory employment arbitration procedures. This means that more than 30 million employees (1 out of every 4 non-union workers) must sign a clause in their employment contract that gives up their right to go to court and, instead, permits an arbitration firm (of the employer’s choosing) to resolve any future disputes they have with their employer. Binding mandatory arbitration clauses allow employers to effectively remove themselves from the enforcement of employment rights laws. This should alarm every worker in the U.S.

The use of mandatory arbitration of employment claims has risen rapidly since the early 1990s – after Congress made jury trials and money damages available under Title VII (in 1991), the passage of the Americans with Disabilities Act in 1992, and the number of discrimination charges filed skyrocketed. 1991 was also the year in which the Supreme Court upheld imposition of mandatory arbitration of an age discrimination claim.

Here’s how mandatory arbitration has affected Fonza Luke of Alabama:

Fonza Luke, a mother of four and a grandmother, started working as a licensed nurse practitioner for Baptist Health Systems (BHS) at its Medical Center in 1971. In November 1997, Fonza was told she must sign the new “Dispute Resolution Program,” which meant employees would have to go into arbitration if they had legal claims. Fonza did not want to forfeit her rights, so despite being told twice that she would be fired if she did not sign the agreement, she refused to sign it. Three years later, the hospital fired Fonza due to “insubordination” after almost 30 years of working for BHS with only the highest performance ratings. As a 59-year-old African-American woman, Fonza believed she was fired due to her race and age, so she filed claims with the U.S. Equal Employment Opportunity Commission and then in federal court. Even though she never signed anything, BHS asked the federal court to dismiss her case to arbitration. The federal court said that BHS could force her to arbitrate because she kept working in her job after they showed her its arbitration agreement. When she appealed the federal court’s decision, the appeals court ordered her into arbitration, where she lost completely. According to her lawyer, it was impossible for Fonza to get an arbitrator that was fair and unbiased, much less pro-employee. As a result, her claims of discrimination and retaliation were denied, and she got no relief whatsoever.

Illinois Appellate Court Says That An Employee of a Staffing Company Can Sue the Company’s Customer for Retaliatory Discharge

Borrowed Employee Has Retaliatory Discharge Claim

In a case of first impression, the Illinois Appellate Court determined that an employee of a staffing company could sue the company’s customer for retaliatory discharge.
Carrie Hester filed a complaint alleging that she had been assigned to work at Gilster-Mary Lee Corp. (“Gilster”) by her employer, Manpower, Inc. and that Gilster was her “de facto employer.”

Hester’s complaint included allegations that on September 13, 2006, under threat of subpoena, Hester gave testimony in the workers’ compensation case of another Gilster employee. The next day, Gilster informed Hester that it would not be using her services any longer and that if she wanted other employment she would have to return to Manpower, Inc.

Gilster filed a motion to dismiss Hester’s complaint, arguing that Hester’s actual employer was Manpower and that Gilster had not fired Hester. The trial court entered an order granting the motion to dismiss. Hester appealed.

The issue was whether there is a cause of action for retaliatory discharge for a borrowed employee whose employment with the borrowing employer is terminated for testifying in a coworkers’ worker’s compensation claim.

The rights and remedies of the Workers’ Compensation Act apply to borrowed employees. 820 ILCS 305/1(a)(4). A borrowing employer is primarily liable for payment of a borrowed employee’s workers’ compensation claim.
Additionally, borrowing employers can claim the protections of the Act. Nevertheless, Gilster argued that it should not be held accountable for terminating Hester’s employment.

According to the appellate court, the public policy considerations which led to recognition of an action for retaliatory discharge in Kelsay v. Motorola, Inc., 74 Ill.2d 172 (1978), apply equally to a claim by a borrowed employee against a borrowing employer. Therefore, an action for retaliatory discharge is available to a borrowed employee.

Gilster argued that Hester’s allegation that Manpower was her “employer” and Gilster was her “de facto employer” was an admission that defeated her claim. However, Hester alleged that Gilster set her daily hours, work schedule, hourly wage, job assignments, and her workplace, that no one from Manpower supervised her work in any way, and that she worked side-by-side with regular Gilster employees.

According to the court of appeals, the public policy of providing efficient and expeditious remedies for injured employees would be seriously undermined if borrowing employers such as Gilster were permitted to abuse their power by discharging their borrowed employees in retaliation for exercising their rights under the Act. When faced with that dilemma, many workers like Hester would simply choose not to exercise their rights in order to retain their employment.
Finally, the court had to decide whether Hester had alleged that her discharge was in retaliation for participation in a protected activity. The court found that Hester stated a cause of action for retaliatory discharge because there is a clear public policy favoring the prompt and efficient resolution of workers’ compensation cases.

The case was remanded for further proceedings. Hester v. Gilster-Mary Lee Corp., 386 Ill. App. 3d 1104, 326 Ill. Dec. 372, 899 N.E.2d 589, (5th Dist. 2008).

Mayoral Control: In The End, It Became a Voting Rights Issue

In New York City parents are furious with Mayor Michael Bloomberg and public school chancellor Joel Klein for destroying channels of communication to and from New York City's Board of Education elite. We are seeing the true rise of the public education-political-complex which resembles President Eisenhower's "military-industrial-complex" in many ways. Read the article below published in 2006.

Detroit Leaning
Mayor Villaraigosa has been touting a straightforward plan to take over the county's public schools,
By Ryder Palmere, City Beat
LINK

In recent weeks, Los Angeles Mayor Antonio Villaraigosa (pictured below) has a made a show of traveling to Chicago and New York to talk to mayors Richard Daley and Michael Bloomberg, respectively, about how to follow their lead and shift control of L.A.'s public schools to his office. In both instances, he talked to two powerful operators in classic, strong-mayor systems, where the mayor is able to appoint and manipulate the school board, and the city council, to achieve his ends.



The situation in L.A. may be much more complicated - even to the point of confusion. The City of L.A. has a relatively weak mayoral system, where the city council has significant budgetary and appointment power, and, from the plans presented thus far, it doesn't seem that Villaraigosa would end up with as much authority as his counterparts in Chicago or New York. They may not, then, be the most accurate comparisons for what might happen in Los Angeles.

Even in those cities, however, school advocates report that mayoral takeover has yielded mixed results. In New York City, the country's largest public school district, the jury is still out. Bloomberg claims that test scores across the district jumped instantly with his involvement - and then campaigned on the issue - but most school watchers say it's too early to make that claim. In Chicago, where Daly first grabbed control of the school system in 1995, takeover has given the mayor power to undertake dramatic, high-profile makeovers on inner-city schools, but overall test scores remain low and most school facilities remain in underfunded or even dilapidated condition.

To that end, it seems more pertinent (and perhaps more realistic) to look at a city whose mayoral powers, and takeover bid, were relatively weak. Like Detroit.

In 1998, Republican Michigan Governor John Engler sized up the city schools' plummeting test scores and rocketing dropout rates and asked then-Mayor Dennis Archer to take control. He and his Deputy Mayor Freman Hendrix were against the idea. Their concern was that it would create more division within the governing structure, amplifying the existing problems. But Republicans controlled the state legislature and pushed through the takeover, which took effect in March 1999.

Many legislators questioned the move from the outset. In early 1999, state Senator Burton Leland, a Detroit Democrat, was quoted as saying, "What gives this chamber and the governor the right to remove an elected body? The present school board was elected by a million people in Detroit, and you're going to throw them out?"

Hendrix saw the takeover as a recipe for disaster. After the structure was put in place, the first concern of those backing it was how to make it stick. "I remember saying 'You'll never make it permanent,'" he says. "The best thing that anybody can hope for is to run as fast ´´ as you can and make as many academic and capital improvements as you can. Because after five years, Detroit is going to vote, and when they do, they're going to vote to return to a fully-empowered school board."

That is what precisely happened. The mayor appointed a new board, which then selected Dr. Kenneth Burnley to serve as CEO of public schools and assume powers originally designated to the superintendent and the board. He then set budgets, made policy decisions, and negotiated contracts within the public school system. The mayor's appointed board thus had control of the CEO, but voters did not, and many were immediately at odds with the system. Lacking a forceful control of city council, the mayor was unable to take strong measures to rebuild infrastructure or change policy outside the school system to support the effort - and didn't have the money to do that, anyway. The best they could hope for was better financial management of the district.

Assuming Villaraigosa could find money and work his magic in the community, the Detroit system is still less compromised than that proposed by Villaraigosa on March 20. His plan would retain a greatly-weakened, but still elected, school board, and the mayor would appoint the superintendent and oversee budgets. This would pit the superintendent against the board, setting up a potential power struggle.

In Detroit, concerned parents immediately worried that the demand for a mayoral takeover didn't come from the families who would be directly affected. It came largely from the business community.

"Oftentimes," says Freman Hendrix, "kids and parents get lost in public school agendas. Nobody gives a shit about the kids. That ends up being the secondary concern. The priority is the vendors, the contractors, the politicians, the school teachers, and the unions. It's the people making money."

A study by the Michigan Educational Report, published by the nonpartisan research and policy group, Mackinac Center for Public Policy, identified that two of the primary problems spurring the takeover were: 1) rapidly declining enrollment and graduation rates, and 2) plummeting test scores. The December 15, 2005 report stated: "the test score gap between Detroit and the rest of the state has diminished, but remains large, and sought-after improvements in financial management have failed to materialize."

Even with two separate national studies to assess accurate graduation rate estimations (by the Manhattan and Urban Institutes), flawed and outright missing data made it impossible to determine the effectiveness of the takeover with any certainty.

Detroit Public Schools, prior to the takeover, reported an on-time graduation rate of 30 percent. The following year, they reported an astounding 88 percent. The Detroit Free Press reported that irregularities in district numbers were largely to blame for this giant leap. One cause of the rate increase was due to the fact that students who fail to graduate to the next grade are not included in the graduation rate calculation.

When the takeover began, student enrollment was at 179,103. By early 2005, it had dropped to an estimated 140,000, and is expected to decline another 10,000 in the current school year. According to the Michigan Education Report, reading scores went up from 36.3 percent to 57.4 percent during the takeover. Math scores, however, plummeted.

"In the first year of the takeover," says Tom Shull, senior editor for the Mackinac Center, "they did manage to get done the majority of the quick fixes. They did things like fix roofs that were leaking. It was the operational stuff that had been neglected."

According to a financial report released by MGT of America, Inc., a consulting firm, the district's fiscal discipline has deteriorated since 1999.

Quixotically, though, the district did get easier to manage. "It was easier to look through the books," says Shull. "It was easier to audit, easier to track the bond money, which was a big issue. We had a billion-dollar bond issue that essentially sat unspent for a number of years until the takeover."

Largely absent, however, was a definitive process that the appointed board would use to relieve the district of its problems. According to the Michigan Education Report, "even many of the bill's backers admitted that it was a speculative endeavor."

And one that apparently didn't yield many results. Finally, in a city with an elevated sense of voter empowerment born of the civil rights era, the people were pissed. On November 8, 2005, Detroit voters chose to quit the experiment on mayoral control and returned power to an elected school board, which resumed control in January.

"In the end, it became a voting rights issue," says David Adamany, who served as interim CEO before Dr. Burnley was appointed. "The voting rights issue usurped anything else in a largely African-American city." The residents of Detroit ultimately felt as though the takeover was something done to them, not for them. "The more people have a say in terms of what they think ought to happen, they'll be more cooperative and feel a part of things. Even though I involved a lot of people in Detroit, they felt it wasn't something for them."

Published: 04/13/2006

NYC COMPTROLLER THOMPSON EXPOSES “RUNAWAY CONTRACTS” AT THE DEPT. OF EDUCATION

Comptroller probe finds 1-in-5 contracts balloon past costs, including one that jumped by 6,700 percent



New York City Comptroller William C. Thompson, Jr. speaks to reporters on April 1, 2009 about his investigation exposing how the Department of Education has routinely let hundreds of contract costs balloon well past their expected costs. Standing with Thompson is Deputy Comptroller John Graham.

View letter
View Attachment 1
View Attachment 2
View testimony
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New York City Comptroller William C. Thompson, Jr. today charged that the Department of Education has routinely let hundreds of contract costs balloon well past their expected costs – including one that jumped by 6,700 percent.

“It’s simply a case of runaway contracts,” Thompson said. “It’s reprehensible that the Department of Education plays by its own rules and goes on some insane spending spree. And who pays? Taxpayers, parents, children, all of us.”



Thompson aimed his harsh criticism in a harshly worded letter to Schools Chancellor Joel Klein for not containing the swollen contract costs. Thompson then submitted testimony spelling out his fiery findings to the New York City Council Committees on Education and Contracts.

“The Department of Education continues to maintain a long-held and ill-considered opinion that its contracts and other purchases do not require the same stringent safeguards as those of other local and state agencies,” Thompson said. “As a result, taxpayer money continues to be squandered through an opaque process that does not take advantage of the competitive marketplace. This is unacceptable.”

What did Thompson find?

* One out of every five – or 20 percent – of the Department’s contracts that ended in the last two fiscal years inevitably cost well over the estimated amount by 25 percent or more.

* That rate already continues to climb. So far, in the current fiscal year, 27% of the Department’s requirement contracts have swollen costs topping 125% - and there’s still three months left until the fiscal year ends.

* One contract, with the Xerox Corporation, was supposed to cost at most $1 million – but the Department spent close to $68 million – a 6,759 percent jump in costs. Another, with Ideal Restaurant Supply, jumped from $15,000 to more than $852,000 – a 5,530 percent jump.

* During those two fiscal years combined, the Department issued 372 requirement contracts, originally estimated to cost $325,236,416 but which inevitably exceeded those estimates by 25% or more. The final tab wound up at more than $1 billion.

* Additionally, many recipients of the contracts - 127 of them – got the lucrative work without any competition because the Department didn’t put the work out to bid. Those 127 contracts were supposed to cost $195 million at most. But the Department spent $525 million on them.



“The Department’s purchases exceed contract amounts by such a large margin that it raises fundamental questions about the integrity of the Department’s entire contracting process,” Thompson said. “These actions display a clear pattern of mismanagement when it comes to expenditures, and the Chancellor and the Mayor must fix this situation and rein in these costs.”

The Comptroller over the last seven years has repeatedly exposed fiscal incompetence and a lack of accountability and transparency in budgeting and contracting at the Department of Education. Key among his concerns has been a disturbing pattern of so-called no-bid contracts, which are executed without competition.

“The Department must create and follow an open and formal procurement practice and demonstrate that it will spend the public’s money in an accountable manner,” Thompson said. “I call on the Department to take immediate action to ensure that the scarce public dollars entrusted to it are used prudently. Doing so will benefit not just our schoolchildren and our school system, but our city as well.”

ED. BIGS' $700M LESSON IN MATH
By YOAV GONEN, EDUCATION REPORTER, NY POST
LINK

April 2, 2009 --
Department of Education contracts for goods and services have exceeded their cost estimates by nearly $700 million over the past two years, City Comptroller Bill Thompson charged yesterday.

These included a single $1 million contract with Xerox to lease copiers that ended up costing the DOE nearly $68 million.

Similarly, a contract for cafeteria equipment ballooned from roughly $15,000 to $850,000, and a software deal jumped from $135,000 to $5.5 million by the time it was done, the mayoral candidate said.

"It's reprehensible that the Department of Education plays by its own rules and goes on some insane spending spree," said Thompson, one of many officials at a City Council hearing who ripped what he called the department's lack of transparency.

Thompson attributed the "runaway" costs to the fact that one of every five department contracts that concluded in fiscal years 2007 and 2008 overran its original estimate by at least 25 percent.

He said that so far this fiscal year that figure had inched upward to 27 percent, taking money away vital education services.

"DOE's failure to accurately determine its expenditures prevents it from negotiating the best prices for goods and services, and is contrary to sound business practices," he wrote in a letter to Schools Chancellor Joel Klein.

Education officials disputed the figures that Thompson provided for several of the contracts.

They said the Xerox contract was originally registered for $20 million in 2002 and that it was later extended twice -- for a total of $31 million.

Even when initial estimates were off, education officials insisted, the expenses were all within the DOE's budget.

"What [the overrun] shows is that there are a lot of contracts that people thought were providing good services and they used more of it," said DOE Chief Operating Office Photeine Anagnostopoulos.

City Council members also admonished education officials for their over-reliance on no-bid contracts, for not using more local minority- or women-owned businesses as vendors, and for not making all contract meetings public.

yoav.gonen@nypost.com

Thompson's testimony

April 5, 2009
Hon. William C. Thompson, Jr.
Comptroller of the City of New York
1 Centre Street
New York, NY 10007



Dear Comptroller Thompson:

I am writing in response to your April 1 letter regarding the Department of Education’s use of requirements contracts. Unfortunately, your office’s analysis is marred by distortions and misrepresentations. Based on the numbers in your materials, your office failed to conduct a careful reading of the contracts and to verify basic contract information—even citing as a “particularly stunning example” of DOE “mismanagement” a contract that was entered into while you were President of the Board of Education.

I direct you to the following examples of incorrect or misleading allegations in the contracts highlighted in your letter:

§ Xerox Corporation:

The figure you give for the contract’s original amount, $1 million, is incorrect. The Xerox contract was actually registered for $31 million. We originally registered the contract for $20 million in 2002, and later extended it twice, once by $10 million and a second time by $1 million. It appears that you cite the amount of this last extension as if it were the entire registration amount. The accurate estimate is still less than the amount actually expended, but as we explain below this fact in itself is neither problematic nor atypical in a requirements contract.

For the record, a review of the original Xerox contract documents shows that the original estimate was reached through a standard process. Procurement for the Xerox and T&G Industries contracts began before the start of mayoral control (the contracts went into effect on August 1, 2002). The Board of Education provided vendors bidding on this RFP (including T&G Industries) with a comprehensive inventory of the Department’s copy machines; the number and types of machines guided the unit pricing proposed by the vendors, ultimately resulting in a contract estimate.

§ T&G Industries:

The figure you give for the contract’s original amount, $1 million, was actually registered for $31 million. Like the Xerox contract, it was originally registered at $20 million and twice extended, once by $10 million and again by $1 million. It appears that, as with the Xerox contract, you cited the amount of the last extension as if it were the entire registration amount.

§ Hewlett-Packard:

The Hewlett-Packard contract is a state contract that provides Microsoft software licenses for schools and central offices. The state, not the DOE, selected the vendor and set the rates. In other words, the DOE estimate could not have had an effect on pricing. With regard to the estimate, it should be noted that we had little basis for estimating vendor expenditures when the contract began in 2005—this was the first time we procured software licenses centrally; previously, schools paid for them on their own. A replacement contract is with your office now and has a two-year estimate of $12 million, which is in line with the roughly $6 million annual expenditures against the former contract listed in your chart.

§ Meizner:

This contract with a software reseller was first competitively bid in June 1999—when you were President of the Board of Education and prior to this administration. With renewals, the contact lasted for 10 years. At the time the contract was initially estimated, it was the agency’s practice to provide estimates based on annual spending rather than on the full term of the contract. The $135,000 estimate that appears in your table represents the expected spend for one year; the actual estimate for the entire contract is 10 times that amount, or $1.35 million. It is also worth noting that when the Department negotiated the last renewal—for three years starting in 2007—we reached terms that ensured us a minimum 20% discount off publisher’s list prices.

§ Creative Media:

This contract was bid originally in 2002. At that time, as noted above, the agency’s practice was to provide estimates for annual rather than for the full-term contract amounts. The annual estimate was $589,000, which is the number that appears in your chart. We registered each renewal (provided for in the base contract) for additional amounts that your office appears to have missed. The sum of the subsequent renewals, i.e., the contract’s actual “original amount,” is about $3 million.

Your letter also raises questions about 127 “entities” that obtained contracts with the Department with “little or no competition” on which we spent $525 million. We examined the list you compiled and found that 85 percent of the expenditures listed went to state-approved providers of services to pre-school children with disabilities. As with contracts for Supplementary Education Services, which also appear on your list and about which you have criticized us in the past, we are required by law to contract with any state-approved provider. Because the state alone has the authority to review and approve programs and sites and to set rates, the Board of Education while you were Board President sensibly determined that the city did not need to perform its customary procurement process before contracting with any state-approved provider. We arrive at these contracts after the State Education Department sets tuition rates and vendors estimate costs for their services based on the size of the student register they are contracting to provide services for. This population has been growing, so it is not uncommon that registers have gone up during the five-year duration of these contracts.

In general, your analysis mischaracterizes the Department’s requirements contracting process. Requirements contracts are structured on a per unit price basis, meaning that schools and departments only pay for the units they purchase at the unit price fixed in the contract. In some of the examples your office listed, schools decided they wanted to purchase more services and goods than we originally estimated. These expenditures are not examples of cost overruns and do not add costs to taxpayers; they simply reflect increased demand, which the schools pay for out of their budgets.

You make two further charges that I wish to respond to. First, you contend that the DOE fails to negotiate the best prices in cases where expenditures exceed estimates. In fact, we analyze and estimate the potential volume that could be associated with each contract and provide our best estimate to potential vendors. The estimates sometimes fall below actual expenditures, especially in times of dramatic budget changes; since 2002, the Department’s budget has increased by $8 billion. In the early years of such growth, it may be difficult to estimate the volume of potential purchases. There could be a few contracts—among the thousands the Department signs each year—where our best estimates proved to be low relative to the price we could have negotiated on a volume discount. But we are not aware of any suboptimal pricing, and you have not presented evidence to suggest otherwise. Additionally, given the size of our district and the competitive nature of our bidding process, we believe we already receive vendors’ lowest possible prices even on the contracts where a volume discount could have applied.

Finally, your suggestion that low estimates on contracts provide “an inaccurate picture” of our expenditures appears to misapprehend the way our budget works. The DOE does not use contract estimates, which are set in varying years, as indicators of planned expenditures. School budgets and the overall DOE budget are the comprehensive financial documents that provide a “picture” of planned expenditures for a given year. These budgets change each year depending on the amount of funding the Department receives from the city, state, and federal governments. No district, including New York City, continuously revises contract estimates based on year-to-year budget fluctuations. As budgets shift, schools and Department offices adjust spending against requirements contracts accordingly. To determine how much money the Department plans to spend on pre-kindergarten services for the current year, one should consult this year’s budget rather than the estimate made when the contract was signed, which could have been several years earlier.

These mischaracterizations and distortions add little to public understanding of DOE procurement issues. Our offices have worked closely together in the past. I hope that practice continues into the future, and that you will contact us to verify contract and purchasing information to ensure the public is properly informed.

Sincerely,

Joel I. Klein
Chancellor

Who did the math? Joel Klein and William Thompson can't figure out budget spat
BY KATHLEEN LUCADAMO, DAILY NEWS STAFF WRITER
Saturday, November 8th 2008,
LINK

It just doesn't add up.

City Controller William Thompson got into a war of addition with Schools Chancellor Joel Klein this week, accusing him of inflating figures on education budget savings.

But Klein's rebuttal letter - which charged the controller's findings are "riddled with errors" - contained a major miscalculation.

READ: THOMPSON'S LETTER TO KLEIN

"If someone uses 100,000 gallons of gas at a price of $3.50 and then cuts back to 900,000 gallons, that is a real savings even if the cost of gas goes up to $4," Klein wrote, figuring the price rises to $360,000, not $400,000.

The only problem is, by Klein's numbers, the price would actually go up to $3.6million.

"Perhaps we should rush a calculator over to the chancellor's office," quipped controller spokesman Jeff Simmons.

READ: KLEIN'S LETTER TO THOMPSON

Klein's office blamed the mistake on poor proofreading, admitting the figure should have been 90,000 gallons of gas instead of 900,000.

The two offices have had a longstanding feud over reported education savings. Thompson has called for the agency to open all its books.

His latest charge is the Education Department still can't demonstrate how it saved $250 million in bureaucratic bloat five years ago.

At best, the agency saved $140 million, Thompson says. The Independent Budget Office pegged the savings at $221 million.

Klein's office also claimed it trimmed $290 million off the administration last year, but the controller's review of those numbers finds only $160 million worth of savings.

"We are very concerned about this," said Deputy Chancellor Kathleen Grimm. "We are anxious to meet with his staff to rectify this."

The chancellor, who received the letter Thursday and faxed an immediate reply, said Thompson misunderstood the numbers and doesn't account for inflation. Thompson isn't buying it.

"Exaggerated claims undermine the department's credibility and the withdrawal of critical information - such as the cessation of school-based expenditure reports - limits transparency and accountability," Thompson said.

klucadamo@nydailynews.com

Of course we all remember the no-bid contracts' scandal:

The "No Bid" Mess Once Again Raises It's Ugly Head

and,

City Controller William Thompson steamed at overtime costs

The Harlem Success Academy Charter School Wants You

There seems to be a problem with the 'success' of the Harlem Success Academy Charter School. The staff is all leaving. See below for all the job openings, and the job descriptions. But parents want something better than the public school system (see pictures below of the overflowing auditorium for the charter lottery).





We know that an investigation was started in 2008 because of the rumor of $350,000 going to NEST+M from NY City Council when Eva Moskowitz was City Council Education Committee Chair, and the following september her son was accepted into the only k-12 gifted and talented citywide school in New York City. I wonder how that works....

What is it about Eva Moskowitz that attracts so many enemies?
by Elizabeth Green, Gotham Schools
LINK

Daily News columnist Juan Gonzalez, who has done some seriously good work in the past [1], this week took his pistol-like investigative skills to the skull of charter school operator and eternal politician Eva Moskowitz — first in a story on the erosion of parent voices in the city schools [2], and then in a story on Moskowitz’s salary [3]. Gonzalez challenges the salary, which he reports as $371,000 last year (Moskowitz says the real figure is $250,000 plus a $60,000 bonus), suggesting that she should give some of her pay back to her charter schools.

This is hardly the first criticism that’s been thrown at Moskowitz, who previously served as the chair of the City Council’s education committee and ran for borough president of Manhattan, losing to Scott Stringer after the teachers union campaigned against her. As Gonzalez reports, her critics include “educators, parents, the teachers’ union and Harlem political leaders.”

Why’s there so much hate for a woman who has decided to spend her days starting schools for poor and mostly black children in Harlem? There are now many charter school operators in this city. Why focus on Moskowitz? I asked around today and collected three different theories:

1) This theory is the one that’s implicit in Gonzalez’s report: She deserves the scrutiny because she’s not what she claims. She claims that her charter schools are unfairly underfunded by the state — but then she rakes in a big salary herself. She similarly claims to want to improve public education — but then she goes along with a Department of Education plan to move her charter school into an existing public school, effectively allowing the city to go over the heads of parents and, as Gonzalez put it in an another piece this week [2], “rezone a public school.” (Only about 30 families will be displaced.)

2) The second theory comes by way of a charter school official who asked not to be named because he hadn’t shared his thoughts with Moskowitz. He told me that Moskowitz suffers a style problem. Rather than approaching the district public schools with respect, Moskowitz makes a habit of dismissing their work as unacceptable.

“‘You’re trash,’ is what the message is. ‘You’re trash, and get out of the way, because we know what to do and you don’t,’” the official said. “No person can say that. I don’t think any person has that authority. Especially someone who hasn’t run a successful school for more than a few years.” He said the better method, practiced by several other city charter schools, is to develop relationships of respect and trust, to work together rather than to fight the old system. “Even the KIPP people,who have a much logner track record of success, they speak with a level of humility,” the official said.

3) The third theory is Moskowitz’s own. She acknowledges that she doesn’t work in the same style as other charter school leaders might — but she thinks that’s a good thing. Here’s how she put it to me:

We have to always be respectful of people because being nice is the right thing to do and important, but I think we have a moral obligation to identify schools that are not working for kids, and unfortunately there are a lot of them. If that’s disrespectful – if saying that a school is failing is offensive – I think that we can’t be politically correct and sacrifice children in the process.

The result is that she’s willing and eager to declare schools as failures, and to urge that they be replaced with something new. And the result of that is a powerful challenge to the status quo that she says can mean a high price for her. “Even at considerable personal and professional cost, I’ve never been afraid to raise the bar and to do what I think is right for children and teaching and learning,” she said. “And that’s incredibly threatening.”

Norm Scott's blog posted the following:

Wednesday, March 4, 2009
Eva Moskowitz is Not Running a Lean Organization
Reprinted from the comments section at Gotham Schools
LINK

1. Eva Moskowitz is not running a lean organization. The proportion of “back office” educrats to teachers in her “network” is far far higher than she would let you believe. The proportion of non-instructional people in her network is also far higher than in the DOE. There are PR people and personal assistants for Eva.

2. The people hired by Eva Moskowitz have very little experience in education, unless you count attending school as a student. Find out the background of her “Directors of Curriculum” etc. Virtually no teaching experience.

3. The Harlem Success network does not spend money wisely. All employees get laptops but there are no computers for the students to use. Yes, they may have SmartBoards in the classrooms, but there are no desktops or laptops for student use.

4. Despite their claim to “hire the best” turnover has been very high. The principal of HSA 1 was fired the week before the 3rd grade ELA test.

5. The network is focused on PR stunts rather than their students. The NY Times piece on their Snow Day schedule is indicative. PR trumps student and teacher safety.
Posted by Norm @ ed notes online at 8:08 PM

From the website of HSA:

"Academics, Overview
Our mission is to ensure that every Harlem Success scholar graduates from college. In addition to literacy and math, we teach art, science five days a week, chess, writing, geography, social studies, dance, soccer, and more. If a child loves being in school, they will love learning.
Course offerings

Literacy and Math: Success for All
For literacy and math, we use Success for All, a program designed at Johns Hopkins University, that has produced astounding results in 1300 schools nationwide. Success for All equips educators with the necessary tools to provide students with an outstanding education.

The Success for All literacy curriculum is a phonics-based program with an emphasis on children's literature. Every eight weeks, the students are tested and are placed into literacy groups by ability rather than age to ensure that all children progress at the level that's right for them. If a first grade student has mastered first grade level reading content, he or she will join a second grade literacy group. If a first grade student is struggling with the material, he or she will receive one-on-one tutoring from highly-skilled professionals.

MathWings, the Success for All math curriculum uses hands-on materials to engage students and give them a strong math foundation. Students are assessed every three to four weeks to ensure that all students are given the support they need to master the content and move forward.

Monitoring Student Progress: Data and Ongoing Assessment
All students are tested when they walk into the building so we can identify their starting point, track their growth, and make academic interventions in real-time. Monitoring student progress is an ongoing activity in all Harlem Success classrooms.

Science
Harlem Success students take science five days a week, for an hour each day, beginning in kindergarten. In schools around the country, science has taken a back seat to literacy and math, subjects that many would consider a prerequisite for all other learning.



In Executive Director Eva Moskowitz's (she is pictured above) report for the City Council's Education Committee, "Lost in Space: Science Education in New York City Public Schools" she writes, "Long before they can read, children ask endless questions - Why is the sky blue? Where does snow come from? - that can and should be explored in science class. Children love to experiment, and they love to ask questions, but our schools have not capitalized on this natural curiosity."

Harlem Success' science curriculum capitalizes on this curiosity. The curriculum takes a hands-on, discovery approach to learning science. Children conduct experiments and are encouraged to observe and ask questions about the world around them. We don’t read about frogs, we dissect them.

Harlem Success encourages all students to think ahead. Chess teaches strategy and higher-order thinking. Harlem Success' chess instructor extraordinaire Carlos Sanchez began teaching chess in the year 2000 in New York City public schools and has helped more than 6000 students discover and learn the fun game of chess. Of his teaching skills, Mr. Sanchez says, "I feel that great sense of awe and inspiration knowing my students have a million questions for me because when I walk into a classroom. I AM ALSO READY TO LEARN!"

Visual Arts
While Harlem Success emphasizes rigorous academics and discipline, we also encourage creativity—and our art program is thriving. Arts education at Harlem Success gives all children the ability to express themselves, draw meaning from the world around them, develop their unique personalities, appreciate great works of art, and perhaps most important, enjoy school. Student art work is showcased throughout the hallways to instill pride and to create a welcoming school environment.

Geography and Social Studies
At Harlem Success we prepare children not just for success on tests, but for success in life. We teach geography and social studies to give children an understanding of the world around them.

Physical Education
All students engage in physical activity everyday. Students take dance, soccer and basketball to learn discipline and exercise their bodies. In addition to twice-weekly soccer instruction, Harlem Success scholars have intramural soccer games several weekends per year.



"Harlem Success Academy Charter Schools.
In August 2006, amidst great anticipation, Harlem Success Academy 1 opened its doors to 150 Kindergarten and 1st grade students from the Harlem community. Since then, Harlem Success Academy has expanded its reach to nearly 1000 students by launching 3 more schools in 2008 and advancing to 3rd grade in its flagship. All schools operated by Harlem Success seek to prepare and inspire urban students from low-income neighborhoods for college with an ambitious program that develops character and encourages critical thinking.

The program.
Harlem Success Academies invest in children early. From the moment our Kindergartners walk through our doors and enter our lively classrooms, they become scholars on the road to college graduation. Every moment in school is seized as an opportunity for learning: scholars are encouraged to follow the wise words of Dr. Seuss and "Go Beyond Z" in all aspects of their lives, and faculty is dedicated to doing whatever it takes to ensure academic success. Our student achievement outcomes attest to our belief in the idea that every child can succeed. After only 2.5 years in operation, our first school, Harlem Success Academy 1, has dramatically increased reading and math scores for our students. It has also produced an unparalleled school culture that served as a template for 3 new Harlem Success Academies launched in August 2008. We seek to reform public education in NYC by launching 30-40 high-performing Success Academies in low-income neighborhoods in 10 years.

Welcome to Harlem Success Academy Charter School's
Online Application Process

Join Our Team

To establish a complete pre-employment file, please complete the online application. Your application will be retained in active status for one school year. If your qualifications meet our needs, we will contact you for further information and a possible interview.

Please note: If you apply for any instructional position, you will be required to provide information in your application regarding your teaching experience including certification status and a lesson plan of your own design.



Choose an option below.

* View our open positions

Teacher quality is the single most important factor in a child’s education. For our founding faculty, we scouted teaching talent from around the country. We selected our 13 founding faculty members from an applicant pool of 1700.

At Harlem Success, we seek to unleash the full potential of our teachers. Our teachers are part of the brain trust that makes this school great. Harlem Success teachers are dedicated professionals who provide excellent instruction, design intelligent curriculum, analyze real-time student performance data, and work collaboratively to raise the bar for student achievement.

Harlem Success currently has positions open for teachers, instructional leadership, school management team, interns and volunteers."

28 positions open at the Harlem Success location. Staff turnover is very high, showing that all is not smooth sailing at the charter school.



Here is "The School Culture" webpage:

School Culture

Overview:
You can tell from the moment that you walk into a school whether the adults in the building care about kids, whether the kids love being in school, and whether everyone is focused on achieving a set of common goals. That is what we call school culture.

At Harlem Success, the teachers and staff care deeply about our students and work tirelessly to ensure their success. The hallways are safe, clean, quiet and filled with colorful student work.

College Graduation:
We all know, it takes a lot to get to college. For kindergartners, college may seem like a distant concept, and may have less meaning for them than the Way 2 Go! sticker they get for helping a classmate. How do we teach kindergartners to set college as a goal for themselves? We begin by referring to their class by the year they will graduate from college. They will forever remember that they are the college graduating class of 2022, 2023, and so on. We also refer to their classrooms by the college that their teacher went to.

Beyond Z:
Our kids know we have high expectations because we ask them to go “Beyond Z” everyday. In the timeless children’s book, On Beyond Zebra, Dr. Seuss urges his young readers to think what possibilities may lie beyond the letter “z” if you work hard enough, are creative enough, and are open to what might not immediately meet the eye. Each day, our scholars work hard to go “Beyond Z.”

A.C.T.I.O.N:
A Harlem Success Scholar goes “Beyond Z” if he or she acts in accordance with our core A.C.T.I.O.N values – Agency, Curiosity, to Try & Try, Integrity, Others and No Shortcuts. We teach our scholars to take responsibility for their own actions, to always ask questions, to work harder today than yesterday, to be honest and trustworthy, to be a nice and thoughtful member of their community and to never look for the easy way out.



Parent Involvement and “The Contract”:
If you ask a Harlem Success parent whether we have high expectations, and whether we place their children’s achievement at the very top of our list, we’re sure you’ll hear a resounding YES!

Harlem Success parents care deeply about their children’s success and go “Beyond Z” to achieve our common goals. Our parents and students sign “The Contract” and commit to coming to school everyday, on time, dressed in uniform, ready to learn. We are strict about attendance because to us, every minute of instruction counts. We continuously review our school schedule to be sure we are making the most efficient use of our time. We are strict about uniforms because we want all energies focused on student performance – not on who has the latest sneakers.



Former City Council member Eva Moskowitz makin' a bundle at nonprofit schools
Friday, February 27th 2009, 12:32 AM
LINK

Ex-Council member Eva Moskowitz made $371,000 for running four charter academies, more than Chancellor Joel Klein got for running 1,400 city schools. Costanza for News

Eva Moskowitz, the former City Council member who founded a small chain of nonprofit charter schools, is a passionate and abrasive champion of the charter school movement.

She's also making a bundle.

Moskowitz, who makes no secret of her desire to create 40 charter schools across the city and run for mayor some day, raked in $371,000 in salaries in the 2006-2007 school year from organizations connected to her four schools, tax records show.

Those schools, Harlem Success Academy 1, 2, 3 and 4, have an enrollment of about 1,000 pupils, from kindergarten to third grade.

The nonprofit organizations connected to the schools have yet to file more recent tax returns, but Moskowitz said in an interview late Thursday she received $310,000 last year - the 2007-2008 year - $250,000 in salary and $60,000 in a bonus.

That means Moskowitz, who is responsible for four schools, makes more than Chancellor Joel Klein, who gets $250,000 to run 1,400 schools.

In 2006-2007, she even surpassed John Ryan, the former chancellor of the State University of New York, who earned $340,000 to manage some 70 campuses with nearly 300,000 students.

Needless to say, she left your run-of-the-mill public school principal, with an average annual salary of $124,000, in the dust.

Tax records show in her first year of operation Moskowitz made $85,000 as executive director of Harlem Success Academy, the group that receives DOE money to operate the charter schools.

At the same time, she received $186,000 as chief executive officer of the Success Charter Network, a separate nonprofit that provides "management services" to her schools.

Finally, she received $100,000 as an "independent contractor" for Friends of Gotham Charter School, which provides support finances for Harlem Success.

All three organizations share an address and list as officers Joel Greenblatt and John Petry, the millionaire hedge fund managers who bankrolled the Success Charter Network.

Moskowitz said her unusually high pay for 2006-2007, included compensation for months of planning work from the previous year.

"Yes, I earn a good living," Moskowitz said. "I also have an enormous responsibility to try and design 40 schools that are immensely successful. If your child walks into my school, I treat them like my child."

Charter schools are free to use the money they raise from outside sources any way they see fit - even if that means huge salaries for the chief executive.

Given that Moskowitz routinely complains that the Department of Education has failed to provide a fair share of funding for her students, it's fair to ask why she's paying herself so much for educating so few. Charters get about 90% of what it costs to teach each child and raise funds for additional money.

Parents from Moskowitz's schools vehemently defend the Harlem Success Academy and say their kids are making phenomenal progress. That could very well be true, but the DOE has not posted independent test results for any of the Moskowitz schools.

Her critics, who include educators, parents, the teachers' union and Harlem political leaders, say she is a relentless self-promoter.

They say she is not shy about packing public meetings with a parent group she has organized, and then demanding that other public schools give up their space to make way for her programs.

"We had one meeting in East Harlem last year where she bused in her [students'] parents, and the situation got ugly and tense as they kept demanding space in our school," said one East Harlem community leader.

This week, more than 500 parents from the Harlem Success Academy were bused to a hearing at Public School 241 in West Harlem, a school the DOE wants to phase out and turn over to Moskowitz.

"We're unwilling to accept failure," Moskowitz said. "PS 241 has failed for years on end, and it needs to change."

Parents who send their children to 241, along with the local Community Education Council, say the DOE is violating the law by eliminating a zoned public school and replacing it with a charter.

jgonzalez@nydailynews.com

November 4, 2008
Charter School Chief Keeps a Hand in Politics
By ELISSA GOOTMAN, NY TIMES

A recent 14-hour day in the life of Eva S. Moskowitz — former city councilwoman, someday mayoral aspirant, current chief of a fast-growing chain of Harlem charter schools — began with a metal bowl of nectarines. “Is it possible,” Ms. Moskowitz asked a cafeteria worker in the urgent tone familiar from her City Hall hearings, “to get the fruit on something lower?”

After ensuring that the smallest children could see one of their healthier breakfast options, Ms. Moskowitz, 44, moved on to weightier issues: advising a novice principal on how to approach a testy parent, figuring out who should replace a first-grade teacher who quit, arguing about the city’s methods for doling out space to charter schools. She zipped from school to school to cocktail party, all in four-inch patent-leather heels and juggling a latte, cellphone and the BlackBerry on which she routinely shoots pointed notes to city officials.

“It is the accumulation of the hundreds of minute decisions that is the difference between mediocrity and true excellence,” read a recent 14-paragraph Moskowitz message to a senior Education Department employee that began about scheduling difficulties but became broadly philosophical. “We at Harlem Success literally go for perfection.”



This is the woman (pictured at right) who, during four years of running the City Council Education Committee, agitated the bureaucracy and the teachers’ union alike with exhaustive hearings on the dearth of science classes, the restrictions of the union contract and, famously, the matter of why so many school bathrooms seemed perpetually to lack toilet paper. Now, with the zeal of a bureaucracy-busting superhero, Ms. Moskowitz has channeled her interests in matters mind-bending and minute into the Success Charter Network, which started in 2006 with Harlem Success Academy 1, added three more schools this summer and plans to expand to 40 over a decade.

“She could be looked at as a lightning rod or a zealous advocate,” said Assemblyman Keith L.T. Wright, a Democrat who represents Harlem.

“You can initiate, you can start, you can maintain a charter school and not be so controversial,” he added. “I think the jury is still out. If our kids are educated, the proof will be in the pudding, and educated kids speak for themselves.”

It is, indeed, too early to assess her success; the first school will face standardized tests for the first time this year (and therefore has not yet received a letter grade under the Bloomberg administration’s new accountability system). But the network has drawn unusual attention from parents, politicians and philanthropists.

This spring, the schools received 3,600 applications for 600 slots, and 5,000 people, including Gov. David A. Paterson and Schools Chancellor Joel I. Klein, attended the highly orchestrated admissions lottery, where parents wept tears of joy as their children’s names were drawn. Ms. Moskowitz and her board of directors have raised $9 million in private donations to support the growing network, though they plan to have each school survive on public dollars by its third year.

Crucial to the intrigue is Ms. Moskowitz herself, since those who make and critique education policy rarely trade in their gavels for daily work with real children in real schools where even the perfect plan can go awry — as it did the other day, when a kindergartner wet himself on the office floor just as a mayor from Rhode Island arrived for a tour.

Charters, which are publicly financed but independently operated, are rarely run by politicians, which is perhaps why Ms. Moskowitz sees her job as not just to create a model network of schools, but also to change city and state policy.

And Ms. Moskowitz — whose $250,000 salary, paid for with private money, matches the chancellor’s — is not just the chief executive, she is also a parent. Her son, a sweet-faced redhead, is a kindergartner at Harlem Success 3, one of the very few white students in a set of schools where virtually all children are black or Hispanic, and roughly three-quarters are poor.

Critics say Ms. Moskowitz, who openly discusses the possibility of running for mayor someday, is more politician than educator (although she taught history at Vanderbilt University in Nashville and the College of Staten Island before running for City Council in 1997), and accuse her of expanding the charter schools too quickly. Each school started with kindergarten and first grades, and each plans to add a grade every year through middle school; Ms. Moskowitz hopes to open three or four new schools in 2010.

With such rapid expansion, staffing is a critical challenge: As at most other city charters, Harlem Success teachers are not unionized, and work a longer school day and year than those at traditional public schools. Within the flagship school’s first few months, the assistant principal and two teachers were let go. Five of last year’s 20 primary classroom teachers did not return this year, and turnover has been high among the largely 20-something back-office staff.

“Between law school, not liking New York and the boyfriends, we could be out of business tomorrow,” Ms. Moskowitz said in frustration. Congratulating her staff on a smooth start of school, she also cautioned them: “Opening schools and running them at a high level are two very different things. And that’s really going to be the hard part.”

Attention to Details

A tour through Ms. Moskowitz’s schools is like a nostalgia trip through her Council Education Committee agendas. Hearings on the lack of science classes have translated into all Harlem Success students having science every day. Hearings on the lack of technology inspired EduTube, on which teachers post videos of model lessons.

Each school’s operations manager — one of several positions Ms. Moskowitz created to keep principals focused on teaching instead of paperwork — makes the rounds each morning to, among other things, make sure each bathroom has toilet paper, documenting those that do not with digital cameras.

These are also schools clearly run by a mother. Mindful of the time it takes to tie tiny shoelaces, Ms. Moskowitz mandates Velcro footwear. The fact that her son Culver barely spoke at age 3 but played chess by 4 is behind the school’s policy of teaching chess to every child.

She describes the Harlem Success educational philosophy as a mix of the liberal Bank Street College of Education approach and the traditional Catholic school model. In an age when kindergarten is increasingly academic, and many urban charter schools have taken a militaristic approach to learning, the Harlem Success kindergartens have dress-up corners, water-activity tables and Legos but also use the highly scripted Success for All reading curriculum and embrace standardized tests. Even kindergartners take TerraNova exams in literacy and math, in January and May.

Sheree Thomas, 36, plays the “Rocky” theme song before her third graders’ test-prep sessions: “They know he tried, they know he got beat down, and they know he triumphed,” she said.

Since the first school opened in 2006, the curriculum has been a work in progress. Officials are rethinking how their students are taught writing, and Ms. Moskowitz was clearly exasperated while recently reviewing responses to a practice test, in which third graders were asked to read a passage about a family’s berry-picking expedition, then predict what might happen next.

“Some one told there berries,” read one of the more inadequate answers — a testament to the learning that must still take place. Concerned that part of the problem was teachers’ and administrators’ low expectations, Ms. Moskowitz ordered a staff member to collect third-grade writing samples from the prestigious Brearley School.

Hardball, on a New Field

Even as she parades through school hallways instead of City Hall, Ms. Moskowitz still operates like a politician, and still plays hardball.

She has had particularly rocky relationships with some of the traditional public schools that house her charters. Last spring, she referred to the fight to house a Harlem Success school inside Public School 123 as a “Middle East war” (she later apologized). When P.S. 123 officials repeatedly refused to open three locked closets in a Harlem Success section of the building, Ms. Moskowitz hired a locksmith, an incident that has entered Harlem Success lore as “closetgate.”

In lobbying for her own needs and the broader charter school agenda downtown and in Albany, one of Ms. Moskowitz’s most powerful tools is Harlem Success parents, whom she helped organize into a group called Harlem Parents United. They showed up en masse last spring at public hearings regarding Harlem Success’s bids for space in public school buildings; the outpouring, and the result, was very different from what happened in the spring of 2006, when public outcry led the department to backtrack on its initial plans for placing Harlem Success 1.

Ms. Moskowitz’s relationship with Chancellor Klein, who spoke at a recent Harlem Success fund-raiser, has improved since the days when she derided the Education Department’s lack of transparency to the point of threatening subpoenas. But while the Bloomberg administration prides itself on running one of the nation’s most charter-friendly districts, Ms. Moskowitz continues to push. The day that began with the ill-placed fruit bowl, for instance, ended at a cocktail party, where Ms. Moskowitz grilled Michael Thomas Duffy, Mr. Klein’s top aide for charter schools, over the city’s formula for allocating space to charters.

Mr. Duffy, in an interview, conceded that conversations with Ms. Moskowitz can run “hot”; he recounted his early days in the job, when what he thought would be a 45-minute get-to-know-you turned into a two-hour meeting dominated by her frustration at not being able to obtain potential students’ contact information. “She dispensed with the niceties pretty quickly,” he said.

Nevertheless, Mr. Duffy described the Harlem Success lottery this spring as a “watershed event,” saying “it seemed to crystallize an understanding of the permanency of charter schools in the city, that there’s no going back.”

Winning Parents Over

There are now 78 charter schools in New York City, with 24,000 students, up from 17 schools with 3,200 students in 2002. A disproportionate number of the schools, 21, are in Harlem, a fact that has irked some and thrilled others. The Success Network was created by Joel Greenblatt and John Petry, business partners at Gotham Capital, a Manhattan hedge fund, who chose the location because, as Mr. Petry put it in an e-mail message, “many/most of the Harlem schools have underperformed for years, if not decades.”

Ms. Moskowitz grew up at 118th Street and Morningside Drive, then moved to the Upper East Side. After a failed bid for Manhattan borough president in 2005, she was hired to run Success and moved back to Harlem, buying a condominium within a 10-minute walk of three of the schools.

She demands a lot from Harlem Success parents: They must read their children six books a week, year round, and attend multiple school events, from soccer tournaments to Family Reading Nights. If children are repeatedly late, the parents must join them to do penance at Saturday Academy.

Nefertiti Washington, 28, whose son is a kindergartner, said some parents walked out of a springtime information session when Ms. Moskowitz made her expectations clear by saying, “If you know you cannot commit to all that we ask of you this year, this is not the place for you.”

Ms. Washington and Katrina Young, 43, who swapped tales at a recent Family Reading Night on their sons’ rapid transformation into bookworms, said they welcomed the opportunity to be involved, and described the schools as a godsend. Ms. Washington recalled opening a book one evening, only to have her son demand, “Mommy, who is the illustrator?”

Ms. Moskowitz said she and her husband, a lawyer, thought hard about where to send their middle child to school; their older son is in fifth grade at a public gifted program, and their younger daughter is in a Jewish Community Center preschool.

The couple ruled out private school for financial and ideological reasons, she said, and were wary of traditional public schools because of their belief that the union contracts she railed against during her City Hall days allow mediocre teachers to remain in classrooms. In the end, they picked Harlem Success because she believes in what she is building.

“When I honestly assessed where the instruction was phenomenal,” she said, “it was at my own schools.”

Public School 123 space spat pits Eva Moskowitz against Harlem parents
BY ERIN EINHORN, DAILY NEWS STAFF WRITER, Tuesday, April 1st 2008, 4:00 AM
LINK

A former city councilwoman is gearing up for what she's calling a "Middle East war" over classroom space for her charter school.

"Dividing land ain't pretty," said Eva Moskowitz, the former chairwoman of the Council's Education Committee who now heads the Harlem Success Academy.

Like many of those running the publicly funded, privately run charters that have taken up residence in a portion of an existing public school, Moskowitz has her eye on classrooms in Public School 123 on W. 140th St. in Harlem for one of three new charters she plans to open in September.

And like many schools across the city that have faced the prospect of sharing their gyms, cafeterias, auditoriums and hallway space with a new school, the parents at PS 123 aren't having it.

"We have three lunch periods already, starting at 10:30 a.m.," said PS 123's PTA president, Antoinette Hargrove. "We've had so many improvements here. We don't want to see everything we've worked hard for going down the drain."

Hargrove is marshaling as much support as she can among parents at her school and community leaders in Harlem to block the charter, mirroring the kinds of protests that have often sprung up across the city when new schools are announced for existing buildings.

Though hundreds of new schools have settled into old buildings without incident - city officials say 280 new schools, including 45 charters, have been created since 2002, with as many as 70 more expected to open in September - there are loud, contentious fights at schools around the city every year.

What makes this battle different is Moskowitz and her plan to fight back.

She plans to bring "hundreds" of parents who support her charter to a meeting between PS 123 families and city officials scheduled for tonight.

"This time, there is another side," she said. "To me, the public policy issue here is that this is a public school building, a public resource. I would argue that it's owned by the citizens of New York and it's supposed to be used in the best interest of children."

School officials say PS 123 has only 581 students in a building designed for more than 1,000 kids, but Hargrove counters that the population fluctuates because of nearby shelters.

"They're not giving us extra funds for these shelter children," Hargrove said. "Instead, they're bringing in [charters]. ... Soon, there's going to be no more public schools."

eeinhorn@nydailynews.com

Bronx Mom Sues to Remove PCBs from Public Schools

Bronx mother Naomi Gonzalez sues city over PCBs in public school buildings
BY Bill Egbert, DAILY NEWS STAFF WRITER, Thursday, March 26th 2009, 4:00 AM
LINK

A year after a Daily News investigation revealed illegal contamination in public school buildings, a Bronx mother of two is suing the city to force a cleanup.

Naomi Gonzalez plans to file a notice of intent to sue today over what she says is the city's refusal to remove caulk contaminated with polychlorinated biphenyls (PCBs) from her children's school.

Emelina, 6, and Devin, 11, attend PS 178 in the Bronx, where lab tests commissioned by The News found PCB contamination was more than 2,000 times higher than the threshold for toxic waste.

"This is about the health of my children - our children," Gonzalez said. "My kids go to school every day in a building that could make it harder for them to learn and make them sick. I'm furious that the [city Education Department] knows this and has done nothing."

Tests of nine public school buildings last year revealed high levels of PCBs at six of them. The highest levels were found at Manhattan's PS 199, measured at 225,000 parts per million.

Anything with more than 50 ppm of PCBs is considered toxic waste under federal law.

Following The News' report last April, the Education Department scrubbed the contaminated schools, but never removed the caulking as required by law. The lawsuit by New York Lawyers for the Public Interest seeks to force the department to remove any caulk with PCB levels of 50 ppm or higher.

The schools tested by The News were built before PCBs were banned, when the caulking was commonly used in construction. More than 200 city school buildings are at risk of being contaminated.

Federal Environmental Protection Agency scientists briefed the agency's Children's Health Protection Advisory Committee this month on the dangers of leaving PCB caulking in schools.

The dust can lead to developmental problems, and public health experts say it can affect growing children at much smaller doses than previously thought.

Even though the city is technically liable for up to $1 million a week in fines, the EPA has not cracked down. Agency officials met with city officials about the problem last summer but did not reveal the outcome of the meeting.

The Education Department maintains PCB caulk poses no threat to students. The city declined to comment on the lawsuit.

wegbert@nydailynews.com

Bronx Mother to sue over toxic caulk in NYC schools
Formal notice charges Department of Education, School Construction Authority,
and Environmental Protection Agency with dangerous inaction on hazardous PCBs
FOR IMMEDIATE RELEASE
New York, NY, March 26, 2009 – Today at 5:30 p.m. at the headquarters of the NYC Department of Education (DOE) (52 Chambers Street), Naomi Gonzalez, a teacher’s aide, and New York Lawyers for the Public Interest (NYLPI) will announce the filing of a formal notice of intent to sue the DOE and the School Construction Authority (SCA). Ms. Gonzalez’s children Devin (11) and Emelina (6) and other NYC parents will also attend.
The suit will allege that PS 178, the school attended by Devin and Emelina, contains window caulking that is severely contaminated with poly-chlorinated biphenyls (PCBs) in violation of federal law. The DOE and SCA have misrepresented the risks associated with toxic caulk and to date they and the Environmental Protection Agency (EPA) have neglected to take action to rid the school of PCBs, forcing Ms. Gonzalez to file the notice of intent to sue.
“The Department of Education and the School Construction Authority have abdicated their responsibility to the parents and children of this city to provide a safe learning environment and to be clear and candid about the serious risks posed by PCB-contaminated caulk,” said Miranda Massie, senior staff attorney for the Environmental Justice program at New York Lawyers for the Public Interest. “We hope that with the new Administration and this notice, the EPA will end its dangerous passivity on this issue. If not, we will bring suit to enforce the law ourselves.”
A state-certified laboratory found that a caulk sample from PS 178 contained over 100,000 parts per million (ppm) PCBs – more than 2,000 times the 50 ppm limit above which the EPA has determined that PCBs categorically “present an unreasonable risk of injury to health within the United States.” A pending state bill would mandate PCB testing in NYC schools, and New York City parents and the City Council have called on the DOE and SCA to test the caulk in window frames, door frames and expansion joints of potentially contaminated city schools and to remove contaminated caulk. However, no action has been taken by either agency.
“This is about the health of my children, our children. My kids go to school every day in a building that could make it harder for them to learn and make them sick. I’m furious that the DOE knows this and has done nothing. I shouldn’t be afraid to send my children to school,” said Ms. Gonzalez, who lives with Devin, Emelina, and her husband in Co-op City.
“It is outrageous that schools in New York have not taken necessary precautions to prevent student exposure to PCBs,” said Assemblymember Linda B. Rosenthal (D/WF- Manhattan). "Despite repeated requests for comprehensive testing, DOE and DHMH have refused to address this issue at all potential contamination sites. My legislation will require school districts to investigate and report on the status of PCBs in schools constructed or renovated prior to 1977. It will also require schools to follow published protocols for addressing PCBs during school renovations. It is my sincere hope that this issue can be resolved quickly in order to protect children from further exposure to these dangerous toxins.”
PCBs are severely poisonous. They threaten the integrity of major body systems, including the immune system, the endocrine system, and the neurological system, and they are considered a probable human carcinogen. PCBs are developmental toxins that disproportionately affect children. PCBs in caulk volatilize into air and migrate into soil, brick, and mortar, exposing children and employees to significant health risks
PCBs were banned in 1978 by Congress in the Toxic Substances Control Act (TSCA). The law is to be enforced by the EPA, which promulgated regulations for the management and disposal of PCBs. .
Under the Bloomberg Administration there has been a centralization of power for making and implementing education policy. In 2002, changes in the school governance law gave the Mayor the authority to appoint all three Trustees of the SCA, including the School's Chancellor who serves as the SCA Chair, and the management of the Department of Education's Capital Program was consolidated under one agency, the SCA. Opponents of Mayoral Control allege that the consolidation of power has frozen out independent neighborhood voices like Naomi Gonzalez’s and stymied efforts of parents to provide feedback in their children’s school environment forcing them into the court system.

About New York Lawyers for the Public Interest
New York Lawyers for the Public Interest (NYLPI) is a nonprofit civil rights law firm that works with communities to advocate for social justice through community organizing, litigation, policy advocacy and public education. NYLPI’s Environmental Justice program works with communities currently and potentially impacted by environmental harms such as toxic sites, environmentally unsafe schools and other noxious facilities to address threats to their health and safety and advocate for positive development. NYLPI also has expertise in health justice, and disability rights as well as coordinating an expansive network of volunteers from New York’s top law firms and corporate legal departments to provide pro bono legal assistance to nonprofit organizations and individuals in need.
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