Age Discrimination in the Schools: GRUBERG v. BD. OF ED. OF SEWANHAKA CENT. HIGH SCH.NO. CV 96-3042(ADS).

3 F.Supp.2d 280 (1998)

Lucille GRUBERG, Plaintiff,
v.
The BOARD OF EDUCATION OF THE SEWANHAKA CENTRAL HIGH SCHOOL DISTRICT, Defendant.

United States District Court, E.D. New York

April 27, 1998.

Rosen, Leff, Attorneys, Hempstead, NY, for Plaintiff by Robert M. Rosen, Delvis Melendez, of counsel.

Jaspan, Schlesinger, Silverman & Hoffman, L.L.P., Garden City, NY, for Defendant by Stanley A. Camhi, Carrie Preble, of counsel.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This matter arises from the claims of the plaintiff, Lucille Gruberg ("Gruberg" or "the plaintiff"), under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"), and New York State Executive Law §§ 296 and 297. Presently before the Court is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

I. BACKGROUND

At the time of the filing of the complaint, Gruberg was a seventy-three year old woman who had been employed by the defendant, the Board of Education of the Sewanhaka Central High School District (the "School District" or "the defendant"), as an English teacher in the Elmont Memorial High School ("High School") for more than twenty years, from September 1972 until June 1994. The plaintiff accurately characterizes her annual evaluations from the time she began her career through 1990 as "more than satisfactory" and often "exemplary." For example, her annual evaluation for the 1988-1989 school year included the following high praise:

Mrs. Lucille Gruberg is an experienced and knowledgeable teacher of English.... Mrs. Gruberg planned lessons that would not only cover the many facets of the English courses of study but would also stretch students' minds. For her English 12 and 12NR students, especially, Mrs. Gruberg continually searched for stimulating materials that would force these students to think about what they wanted out of life and how to respond to the challenges that life offered.Mrs. Gruberg is a caring teacher who tries to help students to reach their potential. She sets high standards for her classes and is completely in control of her students and her lesson. She respects her students, and they respect her.Mrs. Gruberg is always willing to try out new ideas and approaches to encourage her students to write with confidence and to write better.......Mrs. Gruberg is a responsible member of the English Department, performing her various duties effectively and conscientiously.This has been an excellent, productive year for Mrs. Gruberg.

(Plaintiff's Ex. B. Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment) (emphasis added).

In 1989, the year after she received such glowing accolades, there was a change in administration at the school. Diane Scricca became the Principal of Elmont Memorial High School and Robert Walsh became the Chair of the English Department. That same year, the plaintiff's annual evaluations suddenly plummeted. While the previous year's evaluations commended Gruberg's classroom management skills, Walsh's October 1990 evaluation criticized the teacher, suggesting that she needed to me more of "a strong classroom leader, firmly in control of the entire class at all times." (Defendant's Ex. E to Memorandum of Law in Support of Summary Judgment Motion). Walsh's evaluation of the plaintiff stated that "[s]everal times when questioning or helping a child, you so focused on that child that the remainder of the class was ignored and they became restless and went off task." He criticized her for such things as momentarily turning her back on the class to provide a tissue for a student, and for taking her eyes off the class when peering into the textbook for information, both of which purportedly lead to "lack of eye contact [which] causes problems." Despite these criticisms, Walsh concluded that Gruberg's lesson was "satisfactory" with the "aim of the lesson being accomplished." The plaintiff alleges that following her evaluation conference with Walsh, he told her that she "really ought to retire" and that "the job is getting to be too much for you and it will only get worse."

According to the plaintiff, things, indeed, got much worse for her. The teacher states that "at that point, Mr. Walsh and Ms. Scricca began to make my life impossible in order to force my retirement. I believe, without any doubt whatsoever, that they wanted me to retire because of my age." (Gruberg Aff., ¶ 11). Her evaluations went from glowing in 1989, the year before she began working for Scricca and Walsh, to "mixed," and finally, to "unsatisfactory." By the plaintiff's account, once Scricca and Walsh came into power, she could not obtain a satisfactory evaluation no matter how hard she tried or whatever she did. "My every move was watched, and every incident the administration thought was improper was documented, no matter how trivial. For example, I was reprimanded for not standing by the door before the bell rang, for allowing my students two minutes at the start of class to settle down, for letting students speak without raising their hands, and for not utilizing the chalk board correctly." (Gruberg Aff., ¶ 13). Her annual performance evaluation for the 1990-1991 school year, while overall satisfactory, noted a "weakness" in her classroom management. The plaintiff alleges that during the following school year, on February 28, 1992, Walsh approached her and said, "Why don't you retire while you still can with dignity?" At the end of the 1991-1992 school year, her annual evaluation was, for the first time in her career, rated "unsatisfactory." (Defendant's Exhibit L).

In June of 1992, as a consequence of the poor evaluation, Gruberg was placed under the Board of Education's Administration Regulation 4117.1 ["the Regulation"] for the next school year. A teacher placed on the Regulation is, in essence, on probation: a "remediation" plan is developed to address and improve those areas in which the teacher is deemed deficient, she is closely monitored by her supervisor, and more than the usual number of classroom observations are conducted to monitor her progress. The defendant explains that "if the remediation plan fails and the teacher's performance remains unsatisfactory, a decision has to be made as to what other action should be taken." If the teacher is not performing at a satisfactory level, one of the options is for the District to "charge" the teacher with incompetency under § 3020a of the New York Education Law, which provides that in order for a tenured teacher to be discharged for "incompetence," the teacher is entitled to notice of specific charges and hearing before a hearing officer. At such a hearing, the burden of proof is on the District to prove the charges, and the teacher is entitled to representation by counsel, to cross-examine witnesses, and to present witnesses in her own behalf. The hearing officer determines whether theteacher is "guilty" of the charges and what, if any, penalty should be imposed.

While still in the defendant's employ, the plaintiff filed age discrimination charges with the New York State Division of Human Rights. On August 4, 1992, following a hearing at which the defendant was represented by counsel and the plaintiff proceeded pro se, the State Division rendered a probable cause determination stating that the purported legitimate business reasons provided by the School District for her treatment were pre-textual, and that she was discriminated against based on her age.

When the plaintiff returned to work at the beginning of the 1992-1993 school year, she continued to teach under the remediation plan. However, in the plaintiff's words, from then on, Walsh and Scricca constantly "demoralized, belittled, intimidated and [eventually] coerced me into resigning. They did this by singling me out and subjecting me to a standard of review unequal [to] that of any other teacher similarly situated in the District. The[y] engaged in a deliberate and punitive course of conduct designed to force me to resign because of my age.... I worked under constant unwarranted criticism and the threats of an incompetency hearing. I was plagued with numerous requests to retire." (Gruberg Aff., ¶ 31). The plaintiff contends, the defendants "created working conditions for me that were so intolerable that I was forced to tender my resignation in April 1994, effective in June 1994." (Gruberg Aff., ¶ 29).

According to the plaintiff, the defendant's treatment of her was part of a broader discriminatory pattern and practice of ousting older teachers by placing them on the District's Administrative Regulation 4117.1, for purposes of eventually replacing them with younger teachers who are paid less. The plaintiff has named ten other teachers in the district who also were subjected to the Regulation, four of whom also resigned, allegedly as a consequence of being placed on the Regulation and being subjected to treatment similar to that described by Gruberg.

II. DISCUSSION

A. SUMMARY JUDGMENT: THE STANDARD

A district court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion.See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Vann v. City of New York, 72 F.3d 1040 (2d Cir.1995).

Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment.Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable.Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The District Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.1994).

Finally, the Court of Appeals has warned that trial courts must be especially cautious about granting summary judgment in discrimination cases, because in such cases the employer's intent is ordinarily at issue. See, e.g., Gallo, 22 F.3d at 1224. Since it is rare to find in an employer's records direct proof that a personnel decision was made for a discriminatory reason, whatever other relevant depositions, affidavits and materials are before the district court must be carefully scrutinized for circumstantial evidence that could support an inference of discrimination. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994).

It is within this framework that the Court addresses the grounds for the present motion for summary judgment.

B. ADEA: THE STANDARDS

The ADEA provides, in relevant part, that it is "unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). At trial, it is the plaintiff's burden to prove employment discrimination on the basis of age. Gallo, 22 F.3d at 1224. The Court notes that age discrimination claims brought under the New York State Human Rights Law, N.Y.Exec. Law §§ 290-301, are governed by the same standards as those brought under the ADEA. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 467 (2d Cir.1997); Spence v. Maryland Casualty Co., 995 F.2d 1147, 1158 (2d Cir.1993).

A plaintiff asserting an age discrimination claim must meet an initial burden of presenting evidence sufficient to establish a prima facie case of the alleged violation of ADEA. St. Mary's Honor Center v. Hicks,509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47, 125 L.Ed.2d 407 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir.1995). Once the plaintiff establishes a prima facie case, the burden shifts to the employer to rebut it through the introduction of evidence of non-discriminatory reasons that support a finding that unlawful discrimination was not the cause of the discharge. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2746-47; Cronin, 46 F.3d at 203. The plaintiff retains the "ultimate burden of persuasion" and the burden of proof to demonstrate that the challenged employment action was the result of intentional age discrimination. Hicks, 509 U.S. at 511, 113 S.Ct. at 2749; Cronin, 46 F.3d at 203. Since, in this case, the plaintiff resigned, she also has the burden of proving a "constructive discharge."

A prima facie case of discharge resulting from age discrimination is established if the plaintiff shows, through direct or circumstantial evidence, that: (1) she was within the protected age group; (2) she was qualified for the position; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination. Cronin, 46 F.3d at 204. To defeat a defendant's motion for summary judgment, the plaintiff need only show that there is a material issue of fact as to whether (1) the employer's asserted reason for discharge is false or unworthy of belief; and (2) it is more likely than not that an unlawful basis of discharge was the true reason. Chertkova v. Connecticut General Life Insurance Co.,92 F.3d 81, 92 (2d Cir.1996).

The parties agree that the plaintiff was within the protected age group. Instead, the disputed issues in this case center on whether: (1) the plaintiff can establish that she was "discharged"; (2) the "discharge" occurred under circumstances giving rise to an inference of age discrimination; and (3) the defendant had legitimate, non-discriminatory reasons for the employment actions taken.

I. CONSTRUCTIVE DISCHARGE

The plaintiff contends that she has satisfied the "discharge" element of her employment discrimination claim by proffering evidence that she was "constructively discharged." Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. See Pena v. Brattleboro Retreat,702 F.2d 322, 325 (2d Cir.1983). Working conditions are intolerable if they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Lopez, 831 F.2d at 1188 (quoting Israel Alicea Rosado v. Ramon Garcia Santiago, 562 F.2d 114, 119 [1st Cir.1977]).

In the Court's view, Gruberg has presented evidence sufficient to raise a material triable issue on the question of constructive discharge. The "plaintiff's proof allows the inference that she was treated arbitrarily and severely criticized despite her strongperformance. A fact finder could infer, from the facts set forth in the affidavits and deposition testimony, that plaintiff was among the most competent employees in the [school].... [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [an incompetency hearing and repeated demands that she retire], that she was compelled to leave.... Viewed as a whole, the facts in the case at hand, if proven, would permit a finder of fact to conclude that [Gruberg] was forced to resign." Chertkova v. Connecticut General Life Insurance Co., 92 F.3d at 92.

The Court rejects the defendant's contention that the plaintiff's resignation does not constitute a "constructive discharge" as a matter of law (Defendant's Memorandum of Law, at 6). In support of this argument, the defendant cites Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir.1993), where the Court of Appeals held that a constructive discharge could not be established "simply through evidence that an employee [is] dissatisfied with the nature of his assignments," that he "feels that the quality of his work has been unfairly criticized," or that "the employee's working conditions [are] difficult or unpleasant." In the Court's opinion, the defendant's reliance on Stetson is misguided. As the Second Circuit subsequently clarified in Chertkova v. Connecticut General Life Ins. Co., 92 F.3d at 92,

"While the Court recognizes that a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge. ... here there is more than a disagreement over quality. Plaintiff's evidence suggests her supervisor[s] engaged in a pattern of baseless criticisms, [repeatedly demanded her retirement, and threatened to bring her up on incompetency charges, a precursor to her discharge.] ... [A] reasonable person in [Gruberg's] position might have inferred from the circumstances, including the onslaught of unfounded criticism coupled with the threat of [a] termination [hearing], that she was compelled to leave."

The Court finds that there are myriad triable issues of material fact with respect to the issue of constructive discharge. Accordingly, the defendant's motion for summary judgment as to that issue is denied.

II. THE DEFENDANT'S ASSERTED REASONS FOR THEIR EMPLOYMENT DECISIONS

The Court also concludes that this case is replete with genuine issues of material fact with respect to the defendant's asserted reasons for their employment decisions, and whether it is more likely than not that the defendant was motivated by the plaintiff's age. The Court begins with the plaintiff's age, a robust seventy-three. Additionally, in the Court's opinion, the plaintiff has presented substantial circumstantial evidence that the defendant sought to oust her due to her age. Just one year before Walsh and Scricca assumed power, she received a stellar annual review which commended her superior classroom management, innovative teaching style, and inspiring lectures. One year later, the same teacher was criticized for poor classroom control, and purported inability to capture her students' attention. In addition to this circumstantial proof, the plaintiff has alleged that Walsh and Scricca made various statements evidencing their improper motivation — remarks such as that she "really ought to retire" and that "the job is getting to be too much for you and it will only get worse." Such classic, key statements are thinly veiled references to the plaintiff's age — or so a jury reasonably could find. While the defendant asserts that the reason for the sudden, drastic change in the plaintiff's evaluation was due to Walsh's practice of conducting unannounced evaluations, in contrast to his predecessor's preference to forewarn teachers of any observations, this merely underscores the presence of material issues of fact as to the reasons for the defendant's employment decisions.

In addition, the plaintiff has raised the specter of a discriminatory pattern and practice of forcing out older teachers by placing them on the District's Administrative Regulation 4117.1, only to replace them with younger teachers who, interestingly, command less salaries. In fact, the plaintiff has named ten other teachers within the district who also were subjected to such treatment, four of whom resigned while on the Regulation remediation plan. Moreover, the plaintiff states that she was replaced with a teacher approximately twenty to thirty years her junior who was entitled to a much lower salary than the plaintiff earned. This latter assertion also raises a classic factual issue in an age discrimination case.

In sum, the Court concludes that this case is loaded with genuine issues of material fact. For this reason, and in view of the Second Circuit's directive that the plaintiff's burden of establishing a prima facie case in a discrimination suit is "de minimis," Chambers, 43 F.3d at 37, the defendant's motion for summary judgment is denied in all respects.

III. CONCLUSION

For the reasons stated above, it is hereby

ORDERED, that the defendants' motion for summary judgment is denied.

SO ORDERED.

CAPITAL NEWSPAPERS v. WHALEN and Freedom of Information (FOIL)

CAPITAL NEWSPAPERS v. WHALEN
69 N.Y.2d 246 (1987)

In the Matter of Capital Newspapers, Division of the Hearst Corporation, Appellant,
v.
Thomas M. Whalen, III, as Mayor of the City of Albany, et al., Respondents.

Court of Appeals of the State of New York.
Argued January 13, 1987.
Decided February 19, 1987.

Peter L. Danziger, Thomas F. Gleason and Mary O. Donohue for appellant.

Vincent J. McArdle, Jr., Corporation Counsel (W. Dennis Duggan of counsel), for respondents.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and BELLACOSA concur.

HANCOCK, JR., J.

We hold that under the Freedom of Information Law (FOIL) (Public Officers Law art 6) personal or unofficial documents which are intermingled with official government files and are being "kept" or "held" by a governmental entity are "records" maintained by an "agency" under Public Officers Law § 86 (3), (4). Such records are, therefore, subject to disclosure under FOIL absent a specific statutory exemption.

The term "record" for purposes of FOIL is broadly defined and includes "any information kept, held, filed, produced or reproduced by, with or for an agency * * * in any physical form whatsoever" (Public Officers Law § 86 [4]).1 The definition of "agency" is equally inclusive, encompassing "any * * * public corporation * * * or other governmental entity" (Public Officers Law § 86 [3]).2

At issue in this appeal by petitioner's newspaper is whether two categories of documents in custody of respondent City of Albany should be held to be "records" under FOIL: correspondence of a former Mayor of Albany, the late Erastus Corning, II, concerning matters of a personal nature and correspondence concerning the activities of the Albany County Democratic Committee. The narrow question of statutory construction presented arises from respondents' contention that although these papers are literally within the FOIL definitions as "record[s]" being "kept" or "held" by an "agency" (the City of Albany), they are, nonetheless, outside of the scope of FOIL because of the private nature of their contents. For reasons to be discussed, we disagree with respondents' contention and conclude that there should be a reversal.

I

Erastus Corning, II, was the Mayor of Albany from 1942 until his death in 1983. During his tenure, Mayor Corning collected and stored more than 900,000 pages of documents (the Corning papers) at his office in City Hall. Included among the documents were letters and documents pertaining to Corning's personal affairs and to his activities as Albany County Democratic Committee Chairman.

Following Mayor Corning's death, some of his personal correspondence was turned over to his family. The rest of the documents were listed by title, given index numbers, packed in over 300 cartons and either stored "at Albany City Hall or transferred to the City and County Hall of Records". On August 27, 1984, a reporter for petitioner's Albany evening newspaper, The Knickerbocker News, was granted access to the Corning papers by respondent Thomas M. Whalen, III, Corning's successor as Mayor of Albany. The reporter copied several documents which became the subject of news stories and in some cases appeared verbatim in The Knickerbocker News. Subsequently, respondents advised petitioner that further access would be denied until they had reviewed the Corning papers and removed the personal documents — which, in their opinion; were not covered by FOIL — and such other documents as were within one of FOIL's specific exemptions. Respondents stated that access to Corning's personal letters and to correspondence relating to his Albany County DemocraticCommittee activities was being denied, not because of any claimed FOIL exemption but solely because those documents were not written or received by Corning in his capacity as Mayor. Access to the remaining Corning papers, respondents advised, would be allowed once the sorting process was completed and the personal letters and the Albany County Democratic Committee papers removed.

After the city's FOIL Appeals Officer denied petitioner's appeal of respondents' partial refusal of access (see, Public Officers Law § 89 [4] [a]), petitioner sought an advisory opinion from the State Committee on Open Government (see, Public Officers Law § 89 [1] [b] [ii]). The Committee's opinion in reply was that all of the Corning papers, unless specifically exempt, were accessible under FOIL because the papers were within FOIL's expansive definition of "record" and were "kept" by the city, an "agency" as defined in the statute.

In this proceeding to obtain its statutory remedy of court-ordered access (Public Officers Law § 89 [4] [b]), commenced by petitioner after receipt of the advisory opinion, it alleges that the Corning papers were "received, prepared, copied or stored * * * by employees of the City or County of Albany", that the "services, materials, equipment and personnel used in receiving, preparing, copying and storing the Corning papers were paid for or provided by the City or County of Albany", and that the papers are currently being stored at Albany City Hall or at the City or County Hall of Records. Petitioner subsequently amended its request for access by limiting it to documents "assembled" from January 1, 1980 until June 1, 1983. Special Term (126 Misc.2d 710, 713) granted petitioner's amended request but provided that respondents could "articulate particularized and specific justifications for withholding" specific documents under FOIL's enumerated exemptions (Public Officers Law § 87 [2]); any records claimed by respondents to be exempt were ordered to be furnished to the court for its in camera inspection.

On appeal to the Appellate Division, that court unanimously modified by striking the requirement of disclosure for papers of a personal nature and those relating to the Albany County Democratic Committee and it remitted the matter to Special Term for further proceedings. The Appellate Division held that the Legislature intended to subject to disclosure only those records which revealed the workings of government and that disclosure of private papers of a public officeholder would not further the purpose of FOIL. Moreover, because the paperswere originally "kept" by Corning in his individual capacity, the court reasoned that they were not being "kept" by an "agency" for purpose of the FOIL request, even though the papers had, in the interim, come under the city's custody. The appeal comes before us on a certified question: whether the Appellate Division erred as a matter of law, in modifying Special Term's judgment with respect to the disclosure of the papers relating solely to Mayor Corning's personal activities and those made or received in his capacity as Chairman of the Albany County Democratic Committee.3 The question should be answered in the affirmative, the order of the Appellate Division reversed, and that of Special Term reinstated.

II

It is fundamental that in interpreting a statute, a court should look first to the particular words in question, being guided by the accepted rule that statutory language is generally given its natural and most obvious meaning (see, Price v Price, 69 N.Y.2d 8, 15-17; McKinney's Cons Laws of NY, Book 1, Statutes § 94, p 232). Here, if the terms "record" and "agency" are given their natural and obvious meanings, the Corning papers would fall within such definitions. The term "record" is defined as "any information kept [or] held * * * by, with or for an agency * * * in any physical form whatsoever" (Public Officers Law § 86 [4]). Unquestionably the Corning papers constitute "information * * * in [some] physical form" stored, "kept [or] held" by the city, a "governmental entity" and, as such, an "agency" for purposes of FOIL (see, Public Officers Law § 86 [3]).4

Although the Corning papers thus come within the definition of "record", respondents maintain that they should, nevertheless, not be held to be within the scope of FOIL. They argue that the Legislature intended that only records dealing with the governmental decision-making process should be subject to disclosure under FOIL not papers outside this category such as private papers of governmental employees. It is quite true, as respondents urge, that we are not bound to accord a literal interpretation to a statutory definition if to do so would lead to an unreasonable result or defeat the general purpose and manifest policy intended to be promoted (see, Matter of Petterson v Daystrom Corp., 17 N.Y.2d 32, 38), and that in the interpretation of statutes the "legislative intent is the great and controlling principle" (People v Ryan, 274 N.Y. 149, 152). Here, however, we find nothing to suggest that the Legislature intended that the definitions of "record" and "agency" should be given anything other than their natural and obvious meanings. On the contrary, respondents' narrow construction would be inimical to the public policy underlying FOIL and would conflict with the legislative intent which is apparent in the language of the statute as a whole and in the detailed procedures established in FOIL for designating documents which should properly be exempt. Moreover, the construction, if given effect, could, as a practical matter, frustrate the very purpose of the legislation.

It is settled that FOIL is based on the overriding policy consideration that "the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government" (Matter of Fink v Lefkowitz, 47 N.Y.2d 567, 571). Indeed, in enacting FOIL the Legislature specifically declared: "that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article." (Public Officers Law § 84.) We have held, therefore, that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government (see, Matter of Washington Post Co. v New York State Ins. Dept., 61 N.Y.2d 557, 564, citingMatter of Fink v Lefkowitz, supra, at p 571). It is evident that the narrow construction respondents urge is contrary to these decisions and antagonistic to the important public policy underlying FOIL.

Nevertheless, respondents seek to read into the definitions of "record" and "agency" a requirement that, for documentsto be within FOIL's scope, their subject matter must evince some governmental purpose. There is, however, no language in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record". On the contrary, we held in Matter of Westchester Rockland Newspapers v Kimball (50 N.Y.2d 575, 581) that FOIL's scope is not to be limited based on "the purpose for which the document was produced or the function to which it relates". Such a limitation would be difficult to define, we explained, because of "the expanding boundaries of governmental activity" and because "in perception, if not in actuality, there is bound to be considerable crossover between governmental and nongovernmental activities, especially where both are carried on by the same person or persons" (id.).

Moreover, respondents' construction — permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL — would be inconsistent with the process set forth in the statute. In enacting FOIL, the Legislature devised a detailed system to insure that although FOIL's scope is broadly defined to include all governmental records, there is a means by which an agency may properly withhold from disclosure records found to be exempt (see, Public Officers Law § 87 [2]; § 89 [2], [3]). Thus, FOIL provides that a request for access may be denied by an agency in writing pursuant to Public Officers Law § 89 (3) to prevent an unwarranted invasion of privacy (see, Public Officers Law § 89 [2]) or for one of the other enumerated reasons for exemption (see, Public Officers Law § 87 [2]). A party seeking disclosure may challenge the agency's assertion of an exemption by appealing within the agency pursuant to Public Officers Law § 89 (4) (a). In the event that the denial of access is upheld on the internal appeal, the statute specifically authorizes a proceeding to obtain judicial review pursuant to CPLR article 78 (see, Public Officers Law § 89 [4] [b]).5 Respondents' construction, if followed, would allow an agency to bypass this statutory process. An agency could simply remove documents which, in its opinion, were not within the scope of FOIL, thereby obviating the need to articulate a specific exemption and avoiding review of its action. Thus, respondents' construction would render much of the statutory exemptionand review procedure ineffective; to adopt this construction would be contrary to the accepted principle that a statute should be interpreted so as to give effect to all of its provisions (see, McKinney's Cons Laws of NY, Book 1, Statutes § 98).

Finally, as a practical matter, the procedure permitting an unreviewable prescreening of documents — which respondents urge us to engraft on the statute — could be used by an uncooperative and obdurate public official or agency to block an entirely legitimate FOIL request. There would be no way to prevent a custodian of records from removing a public record from FOIL's reach by simply labeling it "purely private". Such a construction, which could thwart the entire objective of FOIL by creating an easy means of avoiding compliance, should be rejected (McKinney's Cons Laws of NY, Book 1, Statutes §§ 96, 143, 144, 145).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the question certified answered in the affirmative and the judgment of the Supreme Court reinstated.

Order reversed, etc.

FOOTNOTES
1. "Record" is defined as follows: "any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes" (Public Officers Law § 86 [4]).

2. "Agency" is defined as follows: "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature" (Public Officers Law § 86 [3]).
3. The certified question is: "Did this court err, as a matter of law, in modifying Special Term's judgment by reversing so much thereof as required disclosure of the papers of the late Erastus Corning, II, for the years 1980-1983 relating solely to his personal activities and those made or received in his capacity as Chairman of the Albany County Democratic Committee, remitting the matter to Special Term for further proceedings, and, as so modified, affirming the judgment?"

4. Respondents argue that the Corning papers are not "record[s]" because the papers were kept by ex-Mayor Corning in his individual capacity, not as an officeholder, and, therefore, an "agency" did not keep or hold the documents. Petitioner did not, however, request disclosure of the Corning papers while they were being "kept [or] held" by Corning. Rather, disclosure is sought from the City of Albany, which now has custody of the papers and is storing them. Therefore, the only questions properly before us are whether the City of Albany is an "agency" and whether the Corning papers are "record[s]" for purposes of FOIL.

5. FOIL also allows a party to receive an advisory opinion from the Committee on Open Government (see, Public Officers Law § 89 [1] [b]).

a. General or specific?

The statutory exemptions are specific in nature. N.Y. Pub. Off. Law § 87(2) (McKinney 1988). "FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government," Capital Newspapers Division of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 505 N.E.2d 932, 513 N.Y.S.2d 367 (1987) ("[t]he agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access"); Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993); Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); M. Farbman & Sons v. New York City, 62 N.Y.2d 75, 464 N.E.2d 437, 476 N.Y.S.2d 69 (1984); Fink v. Lefkowitz, 47 N.Y.2d 567, 393 N.E.2d 463, 419 N.Y.S.2d 467 (1979); Muniz v. Roth, 163 Misc.2d 293, 620 N.Y.S.2d 700 (Sup. Ct. 1994) (holding that merely asserting the exemption without particularity is insufficient); In Re W. Harlem Bus., 13 N.Y.3d 882, 921 N.E.2d 592, 893 N.Y.S.2d 825 (2010) (Empire State Business Corporation failed to meet its burden of sufficiently identifying a particular exemption when it submitted documents for in camera review because it failed to specify which documents fell under the inter/intra-agency exemption); In Re Carnevale, 68 A.D.3d 1290, 891 N.Y.S.2d 495 (3d Dep’t 2009) (holding that respondents categorical assumption that all law enforcement investigations will be harmed if witnesses names are available through a FOIL request failed to establish that witnesses statements to police fell under any particular exemption).

The FOIL exemptions must be read as having engrafted, as a matter of public policy, certain limitations on the disclosure of otherwise accessible records. Xerox v. Town of Webster, 65 N.Y.2d 131, 480 N.E.2d 74, 490 N.Y.S.2d 488 (1985) (denying access to intra-agency records under FOIL exemption notwithstanding general principles for access to public records under § 51 of General Municipal Law).

Once it is determined that the requested material falls within a FOIL exemption, no further policy analysis is required. Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992); Bellamy v. New York City Police Dept., 59 A.D.3d 353, 874 N.Y.S.2d 60 (1st Dep’t 2009) (holding that while age of requested record is a factor in determining an exemption, age alone is not a sufficient basis to find an exemption inapplicable).

Waiver or loss of exemption. Public disclosure of records may waive the cloak of confidentiality. McGraw-Edison Company v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct. 1986) (inadvertent disclosure does not waive an exemption); Moore v. Santucci, 151 A.D.2d 676, 543 N.Y.S.2d 103, (2d Dep't 1989) (investigative statements lose cloak of confidentiality once the statements have been used in open court); Gerbe v. Franklin Hospital Medical Center, N.Y.L.J., Sept. 6, 1991 (Sup. Ct., Nassau County, 1991) (granting access to investigation file where no promise of confidentiality and agency allowed counsel access to file). Improper or inadvertent disclosure may not waive confidentiality, Mitzner v. Sobol, 173 A.D.2d 1064, 570 N.Y.S.2d 402 (3d Dep't 1991) (unauthorized disclosure of a record does not operate as a waiver of the FOIL exemptions); New York 1 News v. President of the Borough of Staten Island, 631 N.Y.S.2d 479 (Supreme Court Kings County 1995) (FOIL exemption may be waived by voluntary disclosure of a significant part of the privileged communications or, alternatively, if a release creates even an unintended impression of the existence of underlying material); McGraw-Edison Company v. Williams, 133 Misc.2d 1053, 509 N.Y.S.2d 285 (Sup. Ct. 1986) (inadvertent disclosure does not waive an exemption); Miller v. New York State Dept. of Transp., 58 A.D.3d 981, 871 N.Y.S.2d 489 (3d Dep’t 2009) (inadvertent disclosure does not waive exemption).

Identifying the exemption. A governmental body seeking an exemption from the disclosure requirements of FOIL has the burden of proving that a record falls "squarely within the ambit of one of [the] statutory exemptions." Russo v. Nassau Community College, 81 N.Y.2d 690, 623 N.Y.S.2d 15, 603 N.E.2d 294 (1993) (quoting Fink v. Lefkowitz, 47 N.Y.2d 567, 571). N.Y. Pub. Off. Law. § 89(4)(b) (McKinney 1988). See Capital Newspapers Div. of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Washington Post v. Insurance Dep't, 61 N.Y.2d 557, 463 N.E.2d 604, 475 N.Y.S.2d 263 (1984); Doolan v. BOCES, 48 N.Y.2d 341, 398 N.E.2d 533, 422 N.Y.S.2d 927 (1979). See also Grune v. Alexanderson, 168 A.D.2d 496, 562 N.Y.S.2d 739, (2d Dep't 1990) (agency failed to identify with specificity those portions of records claimed to be exempt); Burton v. Slade, 166 A.D.2d 352, 561 N.Y.S.2d 637 (1st Dep't 1990) (abuse of discretion for agency to deny access without reviewing documents and stating with particularity reasons for denial).

Conclusory allegations are insufficient to meet the agency's burden of proof. Capital Newspapers Division of Hearst Corp. v. Burns, 67 N.Y.2d 562, 496 N.E.2d 665, 505 N.Y.S.2d 576 (1986); Dobranski v. Houper, 154 A.D.2d 736, 546 N.Y.S.2d 180 (3d Dep't 1989); Mooney v. State Police, 117 A.D.2d 445, 502 N.Y.S.2d 828 (3d Dep't 1986); Hopkins v. City of Buffalo, 107 A.D.2d 1028, 486 N.Y.S.2d 514 (4th Dep't 1985)

- See more at: http://www.rcfp.org/new-york-open-government-guide/ii-exemptions-and-other-legal-limitations/exemptions-open-records-s-1#sthash.0ZkJds25.dpuf

Jeff Kaufman on Social Media and the First Amendment

In depth: Are off-duty social network communications by teachers protected by the First Amendment?

Posted on December 7, 2013

Yes, but limited. It was inevitable. As our means of communication expanded and our ability to communicate with ever increasing numbers of recipients so have school officials and the Courts have had to deal with both the content and mode of communication. Additionally as the conduct sought to regulated stems from teacher off-duty behavior, school districts have increasing disciplined teachers for communications they have made far from the classroom.

FREE SPEECH

Teachers have historically been subject to strict rules about in school behavior and while Tinker’s protection has applied to teachers’ free speech rights, for the most part, out of school speech was treated much differently.

We first start with Pickering v. Board in 1968. Marvin Pickering, a teacher, wrote a letter to the local newspaper in which he criticized what he characterized as the Board of Education’s large allocation of funds to the high school’s athletic programs, and the Board and Superintendent’s failure to inform taxpayers why they wanted to raise taxes. The Supreme Court, with Justice Marshall writing for the majority, decided that Pickering had commented on a matter of public concern, but focused much of its analysis on the truth or falsity of Pickering’s communication. What exactly would constitute a true “matter of public concern” was incompletely defined. However, the Court made clear that in addition to the topic of Pickering’s speech, an important point in his favor was that his letter to the newspaper was not directed toward anyone with whom he came into daily working contact, nor did the content of the letter in any way impair Pickering’s close working relationship with his immediate supervisor. In addition, the Court also noted that Pickering’s letter did not cause controversy in the community.

The Pickering test was further defined in a subsequent decision, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle. Unlike Pickering, Doyle involved a teacher discharge for alleged protected speech.

Justice Rehnquist writing for the majority considered the facts surrounding the dismissal of Fred Doyle, an untenured teacher in the Mt. Healthy City School District. Stating that the issue of tenure becomes irrelevant when constitutional violations are alleged, and that in constitutional issues untenured teachers are protected to the same extent as tenured teachers,  the court nevertheless vacated the decisions of the lower courts that called for Doyle’s reinstatement and remanded the controversy.

Doyle had spoke about a new dress code for teachers on a local radio station. A month later the district superintendent recommended to the Board that Doyle not be rehired, and the Board concurred, noting Doyle’s “lack of tact in handling professional matters” and his report to the radio station, as well specifically mentioning an obscene gesture Doyle had made to two female students.

The Court refused to reverse the Board’s decision not to rehire Doyle. Stating that even if protected conduct played a “substantial’ or otherwise” part in a teacher’s dismissal, if the same decision would have been reached notwithstanding that conduct, the decision not to rehire was justified. If that were not the case, the majority reasoned, an employee’s act of engaging in protected conduct would prevent the employer from assessing his day–to–day professional conduct, and place the employee in a better position than he would have otherwise been.

In the Mt. Healthy decision the Court added a two–step process to the Pickering balancing test. First, if an employer dismisses or fails to rehire an employee because of his expressive conduct, the employee must show that constitutionally protected conduct was a substantial or motivating factor in the negative employment decision, and second, the burden then falls on the employer to show that it would have made the same decision even in the absence of the protected conduct.

The modified Pickering two step test went under close examination in Connick v. Myers where a 5-4 split upheld the involuntary transfer of an assistant district attorney’s dissemination of a questionnaire her supervisors found disruptive to not be a matter of public concern.

In another 5-4 decision the Supreme Court announced in Garcetti v. Ceballos that an Assistant District Attorney who wrote a memo to his supervisors that there were legal problems with a prosecution and then he testified on behalf of the defense faced retaliatory employment actions including reassignment and denial of promotion was denied redress after the lower court applied the matter of public concern and modified Pickering test.

The Garcetti court wrote, “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Online Speech

In the seven years since Garcetti lower courts have had to grapple with an increasing number off duty, online speech of public employees, especially teachers. In Spanierman v. Hughes  a Connecticut high school English teacher who posted a MySpace profile indicating he was “Mr. Spiderman” and communicated with students was ultimately terminated. Despite his claims of constitutionally protected speech the court upheld the School District’s decision finding that the teacher’s actions were potentially disruptive.

A middle school dean in San Diego posted an advertisement on Craigslist for “men seeking men” for sexual purposes. The ad showed photos of the dean and graphic descriptions of his sexual preferences. After the San Diego Unified School District dismissed him he won reinstatement through the California Commission on Professional Competence. His win was short-lived, however, when the District sought and won the right to dismiss him in Court. In San Diego Unified School Dist. v. Commission on Professional Competence the Court found that the pornographic nature of the ad interfered with his ability to serve as a role model in school.

Finally a 15 year unblemished record helped to prevent a Brooklyn elementary school teacher from being dismissed for posting derogatory comments about her students on Facebook shortly after a student drowned on a school trip. While the arbitrator dismissed the teacher from employment an appeal to both New York’s Supreme Court and the Appellate Division in Rubino v. City of New York resulted in the teacher being able to keep her job with a fine. The court, using the Pell standard, found that the teacher’s conduct did not warrant dismissal and that this was a single lapse of judgment.

It is unclear where this litigation is headed. Clearly some courts are willing to deal with the matter using free speech analysis while others will not. In either case there is little doubt that the increased amount and availability of social media will cause additional cases to be brought.

Zero Tolerance Doesn't Work

December 2, 2013

Belinda Hope, principal at the Pine Ridge Alternative
Center in Fort Lauderdale, Fla.

Seeing the Toll, Schools Revise Zero Tolerance

By LIZETTE ALVAREZ, NYTIMES

LINK

FORT LAUDERDALE, Fla. — Faced with mounting evidence that get-tough policies in schools are leading to arrest records, low academic achievement and high dropout rates that especially affect minority students, cities and school districts around the country are rethinking their approach to minor offenses.

Perhaps nowhere has the shift been more pronounced than in Broward County’s public schools. Two years ago, the school district achieved an ignominious Florida record: More students were arrested on school campuses here than in any other state district, the vast majority for misdemeanors like possessing marijuana or spraying graffiti.

The Florida district, the sixth largest in the nation, was far from an outlier. In the past two decades, schools around the country have seen suspensions, expulsions and arrests for minor nonviolent offenses climb together with the number of police officers stationed at schools. The policy, called zero tolerance, first grew out of the war on drugs in the 1990s and became more aggressive in the wake of school shootings like the one at Columbine High School in Colorado.

But in November, Broward veered in a different direction, joining other large school districts, including Los Angeles, Baltimore, Chicago and Denver, in backing away from the get-tough approach.

Rather than push children out of school, districts like Broward are now doing the opposite: choosing to keep lawbreaking students in school, away from trouble on the streets, and offering them counseling and other assistance aimed at changing behavior.

These alternative efforts are increasingly supported, sometimes even led, by state juvenile justice directors, judges and police officers.

In Broward, which had more than 1,000 arrests in the 2011 school year, the school district entered into a wide-ranging agreement last month with local law enforcement, the juvenile justice department and civil rights groups like the N.A.A.C.P. to overhaul its disciplinary policies and de-emphasize punishment.

Some states, prodded by parents and student groups, are similarly moving to change the laws; in 2009, Florida amended its laws to allow school administrators greater discretion in disciplining students.

“A knee-jerk reaction for minor offenses, suspending and expelling students, this is not the business we should be in,” said Robert W. Runcie, the Broward County Schools superintendent, who took the job in late 2011. “We are not accepting that we need to have hundreds of students getting arrested and getting records that impact their lifelong chances to get a job, go into the military, get financial aid.”

Nationwide, more than 70 percent of students involved in arrests or referrals to court are black or Hispanic, according to federal data.

“What you see is the beginning of a national trend here,” said Michael Thompson, the director of the Council of State Governments Justice Center. “Everybody recognizes right now that if we want to really find ways to close the achievement gap, we are really going to need to look at the huge number of kids being removed from school campuses who are not receiving any classroom time.”

Pressure to change has come from the Obama administration, too. Beginning in 2009, the Department of Justice and the Department of Education aggressively began to encourage schools to think twice before arresting and pushing children out of school. In some cases, as in Meridian, Miss., the federal government has sued to force change in schools.

Some view the shift as politically driven and worry that the pendulum may swing too far in the other direction. Ken Trump, a school security consultant, said that while existing policies are at times misused by school staffs and officers, the policies mostly work well, offering schools the right amount of discretion.

“It’s a political movement by civil rights organizations that have targeted school police,” Mr. Trump said. “If you politicize this on either side, it’s not going to help on the front lines.”

Supporters, though, emphasize the flexibility in these new policies and stress that they do not apply to students who commit felonies or pose a danger.

“We are not taking these tools out of the toolbox,” said Russell Skiba, a school psychology professor at Indiana University who promotes disciplinary changes. “We are saying these should be tools of last resort.”

In Broward County, the shift has shown immediate results, although it is too early to predict overall success. School-based arrests have dropped by 41 percent, and suspensions, which in 2011 added up to 87,000 out of 258,000 students, are down 66 percent from the same period in 2012, school data shows.

Under the new agreement, students caught for the first time committing any of 11 nonviolent misdemeanors are no longer arrested and sent to court. Rather, they attend counseling and perform community service.

Nor do students face suspension for minor infractions. Instead, they also attend a program called Promise for three days or more. Repeat offenders get several chances to change their behavior before more punitive measures kick in.

One recent afternoon, an 18-year-old senior sat in the cafeteria at the Pine Ridge Alternative Center, where students are sent in lieu of a suspension, and spoke with a psychology graduate student on a counseling team. The girl had been caught with a small amount of marijuana in her car on her high school campus, a misdemeanor that would have led to a suspension or arrest in the past. It was the first time she had gotten in trouble at school.

“I was freaking out,” she said. Her first fear was that she would be barred from prom. Here, though, she saw the larger picture and came to view the incident as “her second chance.”

She learned about bullying and drugs and alcohol. “It was a slap in the face,” she said. “I don’t even want to smoke anymore.”

Other students here learn to manage their anger, if that is their issue. Parents are involved in the process. And counselors have helped identify problems at home including abusive situations, something that administrators said underscores how invaluable the counseling component has been for the Promise program, said Belinda Hope, the principal at Pine Ridge.

Mr. Runcie and others said the more punitive measures tended to make a bad situation worse. Suspended and expelled children would be home alone or on the street, falling behind academically. Those arrested could be stigmatized by criminal records.

“The data showed an increase in the harshness of the disciplinary practices in schools — what was once a trip to the principal’s office is now a trip to the jail cell,” said Judith Browne Dianis, co-director of the Advancement Project, a civil-rights group involved in the effort.

Juvenile judges were among the first to express alarm over the jump in the number of students appearing in court on misdemeanors, an increase they said is tied to the proliferation of school police officers.

“We started to see the officers as a disciplinary tool,” said Judge Elijah H. Williams of Broward County Circuit Court, a juvenile judge who said he was “no flaming liberal” but saw the need for change. “Somebody writes graffiti in a stall, O.K., you’re under arrest. A person gets caught with a marijuana cigarette, you’re under arrest.”

What is The Future For Teachers Under De Blasio?

December 1, 2013

UFT President Mike Mulgrew

 

LINK

The New Mayor and the Teachers

By THE EDITORIAL BOARD,NYTIMES

Mayor-elect Bill de Blasio will take office facing the need to forge new labor agreements with the unions that represent nearly all of New York City’s 300,000 municipal workers. The largest of these, the United Federation of Teachers, is in a particularly sour mood. Representing 40 percent of the city’s work force, the union has been without a contract since 2009.

Mayor Michael Bloomberg proposed, starting in 2010, that all new union contracts get a three-year freeze in base pay, to be followed by two years of raises at 1.25 percent each. During his campaign, Mr. de Blasio said that a retroactive pay raise — dating back to the expiration of the last contract — would be possible only if offset by cost savings. That’s a good start. But any sort of raise will require concessions in exchange. He will need to press the union to loosen work rules that stifle innovation and favor senior teachers over younger ones who may in fact be more talented. The union must also let go of the unspoken presumption that every teacher is entitled to a job for life. Here are some key issues:

SENIORITY Seniority trumps everything and is treated as a proxy for excellence. Under current rules, a school that has an enrollment shortfall or budget problem and has to cut one of its five math teachers cuts the least senior teacher, period. In progressive systems like the one in Washington, D.C., which has made big gains on federal assessment tests, decisions about which teachers to cut are based on a combination of factors, including how they stack up on evaluations and whether they possess special skills. The goal is to keep the most talented teachers.

Similarly, the salary schedule in New York is calculated to reward longevity, requiring 22 years to get to the top level. Teachers are also rewarded for work toward advanced degrees, but this coursework does not necessarily have any bearing on how poorly or well they teach.

Meanwhile, younger teachers start out with relatively low salaries and are at risk of leaving the system for higher pay elsewhere. The scales should be rebalanced so that teachers who are judged highly effective under the new evaluation system can move up quickly in the pay scale. Highly effective teachers should be paid more for teaching in areas with shortages or in high-need schools that have difficulty attracting qualified staff.

INACTIVE TEACHERS In 2005, the union took a brave step when it agreed to abandon a rule that guaranteed senior teachers the right to claim a job in another school — even if the new school did not want them — by bumping less experienced teachers. The change gave principals more control over who works for them, without grave damage so far to senior teachers. Six of 10 teachers who are told their position has been eliminated find jobs in other schools relatively quickly, according to the city, while an additional 10 percent simply leave the system.

Teachers who do not find positions, however, are placed in a costly reserve pool. They work as substitutes and are paid full salaries at an annual cost, according to city data, of $144 million a year. Many of them do not even seek permanent jobs, the city says. Increasingly, school systems like those in Chicago and Washington, D.C., remove inactive teachers who do not find jobs in the system within a prescribed period, through layoffs, unpaid leaves, early retirement or buyouts. Similar arrangements should be worked out in New York City.

TEACHER DISCIPLINE One particularly disturbing provision in the old contract is that it allows teachers to be absent without notice for 20 days before they are fired. The provision is not often invoked, the union says, but its very existence sends the wrong message. Moreover, there should be a clear list of offenses that, if substantiated, lead to termination. Under current rules, official investigations that uncover serious abuses like sexual misconduct are subject to review by arbitrators who can veto terminations in favor of lesser penalties.

FLEXIBLE SCHEDULES The teachers’ union has been particularly hostile to the city’s thriving charter schools, which receive public financing, are exempt from some state rules and regulations, and, on average, are outperforming traditional schools. One of their advantages is that individual charter schools can set many of their own rules, scheduling longer school days and making more time for parent-teacher conferences. Traditional schools often follow a by-the-book approach that dictates the length of the day, frequency of meetings and so on. They should be pushed toward greater flexibility.

All in all, Mr. de Blasio has serious work ahead if the city’s school are to improve