Join the GOOGLE +Rubber Room Community

Friday, July 17, 2015

Santiago v New York City Department of Education: Union Mishandling Grievance Does Not Merit Review




Santiago v New York City Dept. of Educ.
2015 NY Slip Op 05779
Decided on July 2, 2015
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on July 2, 2015 
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.

103976/12 15584 15583 

[*1] Justine Santiago, Plaintiff-Appellant, 

v

The New York City Department of Education, et al., Defendants-Respondents.

Law Office of Robert S. Powers, North Babylon (Robert S. Powers of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Fay Ng of counsel), for The New York City Department of Education and the City of New York, respondents.

Robin Roach, New York (Deena S. Mikhail of counsel), for District Council 37, respondent.

Orders, Supreme Court, New York County (Margaret A. Chan, J.), entered August 19, 2013, which granted defendants' motions to dismiss the complaint, unanimously affirmed, without costs.
The court correctly dismissed the complaint as against defendant New York City Department of Education (DOE), because plaintiff failed to exhaust the administrative remedies set forth in the collective bargaining agreement (see Matter of Plummer v Klepak, 48 NY2d 486, 489 [1979], cert denied 445 US 952 [1980]; Matter of Ray v New York City Dept. of Correction, 212 AD2d 387, 387 [1st Dept 1995], lv denied 85 NY2d 810 [1995]). Plaintiff was not excused from this requirement by simply alleging that the union had mishandled her grievance, because she could have instituted the grievance procedure herself, yet she failed to do so. This is not a case where the union had sole, exclusive authority over the grievance process (see Matter of Lewis v Klepak, 65 AD2d 637, 638 [3d Dept 1978], lv denied 46 NY2d 711 [1979]).
Defendant the City of New York is not a proper party to this action, as it cannot be held liable for the DOE's alleged wrongdoings (see Perez v City of New York, 41 AD3d 378, 379 [1st Dept 2007], lv denied 10 NY3d 708 [2008]).
Plaintiff's claim against the union was not brought within the applicable four-month statute of limitations (see CPLR 217[2][a]). The statute of limitations was not tolled under CPLR 205(a), because the initial federal action, which was dismissed for lack of subject matter jurisdiction, was itself untimely. Moreover, plaintiff was not entitled to the 30-day toll created by the application of Education Law § 3813(1) and CPLR 204(a), because the union is not an entity covered by Education Law § 3813(1).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 2, 2015
CLERK

Wednesday, July 15, 2015

Rafe Esquith's Mark Twain Comment Which Got Him Into Trouble

We are hearing a little more about how Rafe Esquith, a hugely popular teacher in Los Angeles, was charged with misconduct and placed into a rubber room, or "teacher jail".
Now we know how ridiculous LAUSD really is.
 Betsy Combier

Rafe Esquith
LINK
Just what was it that landed Rafe Esquith, a nationally-renowned teacher, in LA Unified’s “teacher jail”?
A line from Mark Twain, his lawyer said in a letter to the district.
Esquith’s lawyer, Ben Meiselas, told the district no parent had complained, nor had a student complained. LAUSD officials, ever more sensitive to classroom issues and protections of students since the Miramonte case, have not commented on all the allegations.
Yet now, Esquith finds himself in hot water, now facing questions that go well beyond why he found a passage in “The Adventures of Huckleberry Finn” so amusing.
It apparently started when a technology coordinator who was in his Hobart Elementary School classroom on March 19 thought that what he said may have been a bit too much for his fifth graders, according to a chronology of events in the letter. She told the principal, Jonathan Paek. When he confronted Esquith, the teacher said the quote should be taken in the literary context that it was made.

Esquith said he had been making a joke about LAUSD’s not funding the arts and sciences, according to Meiselas. Esquith told the students that if enough money wasn’t raised for their annual Shakespearean play, which Esquith was funding from his own pocket and from private donations, that “we will all have to play the role of the king in Huckeberry Finn.”
Then, he read the offending excerpt:
“The duke and the king worked hard all day, setting up a stage and curtain and row of candles for footlights. At last, when he’d built up everyone’s expectations high enough, he rolled up the curtain.
“The next minute the king came prancing out on all fours, naked. He was painted in rings and stripes all over in all sorts of colors and looked as splendid as a rainbow.
“And,… well, never mind the rest of his outfit—it was just as wild, but it was really funny. The people nearly died laughing. And when the king finished prancing around and capered off stage, they roared and clapped and raged and guffawed until he came back and did it all over again.”
Paek asked Esquith to sign a letter of apology to acknowledge that the statements might be viewed as “serious” and may have been made “others uncomfortable,” according to the letter. Before consulting with an attorney, Esquith signed the apology, which reads:
“I am deeply and sincerely sorry that any comment someone hear, or thought they heard, has anyone uncomfortable. I am a teacher who prides himself on professionalism. I dress immaculately for the job. Over a thousand teachers a year come to my class to seek my guidance about the profession of teaching. As a proud teacher, I am deeply saddened by this situation.”
Superintendent Ramon Cortines issued a statement June 19 that said the initial investigation against Esquith is expected to end in August.

Monday, July 13, 2015

Rafe Esquith and Attorney Mark Geragos Make History in LA as They Prepare A Class Action Against Teacher Jails

Hooray for Rafe!
Rafe Esquith

Los Angeles is about to be The Place, as the Gotcha Squad out there goes on trial.

This is an historic moment.

Here in New York the teachers all seem to be fighting each other, and keeping the Panel For Educational Policy (PEP) in their platform for power. This is, in our opinion at ADVOCATZ, an error so huge that we cannot support any group or individual who believes in an appointed school board and thus denies the general public a vote.

People - read the Mein Kampf of total control (i.e. "Mayoral control") of the public school system that has been held in high esteem by the UFT, Diane Ravitch, Bloomberg, de Blasio, Carmen Farnia, and all the other reformers out there. I have been personally vilified by such well-known persons as Norm Scott and Leonie Haimson for opposing the PEP. I'm so glad that their attacks have not disturbed my life and work. 

To us advocates for change at ADVOCATZ, anyone who tries to silence another person for saying something that they disagree with, is despicable.

 We at ADVOCATZ do not support the appointment of leaders who, by not being elected by the voting public, do not represent us. We need an elected school board, and gatekeepers who stop false claims before they squash a person and put them into a vortex of emotional instability.

We hope that Attorney Geragos and teacher Esquith will win this battle against the dark side.

Betsy Combier
President, ADVOCATZ
President, Theater Kids, Inc.
President, The E-Accountability Foundation
Editor, NYC Rubber Room Reporter, New York Court Corruption, National Public Voice, and
            Parentadvocates.org
Mark Geragos


High-profile attorney Mark Geragos has notified LAUSD that he intends to file a class action lawsuit about the so-called“teacher jails” that could involve hundreds–and potentially thousands–of past and present teachers.
Rafe Esquith
The required notice for the class action lawsuit was stamped and received by the school board on June 22, and 45 days from that date the suit will be filed, according to Ben Meiselas, an associate of Geragos & Geragos who is representing noted educator Rafe Esquith, who was taken from his classroom earlier this year and placed in teacher jail, pending an investigation on a variety of issues.
The letter, obtained by the LA School Report, deals mostly with the Esquith case, but it also gives notice of a class action complaint “on behalf of all teachers, during the applicable statue of limitations period, who have been denied procedural and substantive due process by LAUSD.”
The notice says: “It is anticipated the composition of the relevant class will be comprised of at least several thousand current and former LAUSD teachers who have similarly been deprived of due process, and have endured arbitrary process, undefined investigations, indefinite stays in teacher jail, and capricious classroom removals.”
The issue is an especially volatile one with LA Unified, which has been severely criticized over the years by the teachers union, UTLA, for what union officials say is a capricious and unfair discipline system. Tensions were especially acute during John Deasy‘s years as superintendent, making the elimination of teacher jail a prime rallying cry of Alex Caputo-Pearl‘s run for the union presidency last year and the union’s subsequent campaign for a new labor agreement with the district.
Under Ramon Cortines, who took over when Deasy resigned last year, both sides say progress has been made in expediting cases involving teachers in jail, reducing the number of teachers still kept out of their classrooms. It remains unclear what impact, if any, a class action lawsuit might have on the improving approach to resolving cases.
Since representing Esquith, Meiselas said the firm has collected 300 to 400 names of teachers reporting trouble with the LAUSD disciplinary procedure. In fact, at the same time he was discussing the case today with LA School Report, Meiselas said he received emails from teachers, asking for help.

“This one says, ‘I am a former teacher who was held for nine months in the teacher jail,’” he said, reading one.
Another email detailed the teacher’s detainment and said, “I’m one of the teachers who can address the adversarial and spiteful culture of the administration.”
Another that he read said: “I’ve been in teacher’s jail for 10 months. Please help me!”
Meiselas said he is amazed at how many teachers have contacted him about the unfairness of the teacher jail, which requires that teachers be taken out of a classroom immediately and forced to sit idly in a downtown office as an investigation proceeds.
“Sometimes the teachers don’t even know what they are charged with, and the process could take months or even years,” Meiselas said.
His defense of the popular and highly-respected fifth grade teacher Esquith led to many stories of other teachers in similar situations.
“It’s tragic, these are intelligent vibrant teachers with masters and doctorates who are under a McCarthy-like system,” Meiselas said. “They have not been provided notice of allegations and it has taken an unfair McCarthy-like tilt to any American jurisprudence.”
Meiselas said his office has noticed a pattern of allegations against teachers who are older than 50 and are usually in higher-end pay scales.
“We want to compel a systematic change at the school board and not have a system that is anti-teacher,” Meiselas said.
Geragos, who is normally a criminal defense attorney, will be taking up the lead in the class action case against LAUSD, Meiselas said.
The school district has another two weeks or so to respond, after which Meiselas said his office will file the class action lawsuit.
Esquith, a best selling author who has also received national awards and media attention for his work at Hobart Avenue Elementary School, was removed from the classroom in April in response to a complaint that he made a joke about nudity while referencing Mark Twain. The district’s investigation of his background revealed he has been accused of physically and sexually abusing a child four decades ago when he was a teenager working at a summer camp.


Via KCRW | By Saul Gonzalez

Earlier this week, Los Angeles Unified School District teachers rallied to protest what they call “teacher jail.” These are the places LAUSD instructors and other school staff are sent when they’re accused of some sort of classroom misconduct and are under investigation by school authorities and law enforcement. That inappropriate conduct can range from yelling at a student to sexual abuse.
Currently there are 260 people in LAUSD teacher jails, which are located at the district’s regional administrative offices. The jails don’t have bars, guards or alarms. They’re usually very ordinary office spaces, where teachers are sent to check in daily and sit in cubicles for hours at a time.
While in teacher jail, instructors are supposed to spend their time studying ways to be better teachers, such as reading educational journals and reviewing class coursework. However, the day-to-day reality can be very different. Often the instructors, who receive their full salaries while in teacher jail, read magazines and newspapers, play with their cell phones, gossip and knit. Little of it has to do with education.
Read — and listen to – the full story here.

Sunday, July 5, 2015

Joseph Cassano, Son of Retired FDNY Fire Commissioner Salvatore Cassano, Quietly Gets His Job Back After Racial and Sexual Slurs

This is a big story especially for all those teachers who have been terminated or whose lives have been decimated by 3020-a charges. They did not get a second chance .... or a first chance, for that matter.

Take L.B., for example. The principal was concerned when L.B. said that some money had been taken out of her purse on her desk, so called in the 2nd grade girl who had done this, with the teacher and the girl's parent. The girl started crying and the teacher gave a quick hug to calm her down, which the parent found entirely appropriate and was very grateful for. In fact, the mom wrote a letter to the teacher saying how wonderful she was to comfort her daughter.

Sooner than a blink, L.B. was charged with corporal punishment and put into a rubber room to await trial. She was terminated after 26+ years without any discipline.

I say yes to second chances whenever the circumstances merit this. Joe Cassano deserved a second chance at some job, but not at the FDNY, where he may have to help a jewish person or an Obama lover/African American.

But Mayor deBlasio is a "who you know counts, not what you know" Mayor just like Mike Bloomberg was.

Sad.

Betsy Combier

‘I like Jews about as much as Hitler': Son of former FDNY head rehired after resigning over racist tweets



VILE: Joseph Cassano (above with fire-commissioner dad Salvatore) is an EMT on the fast track to firefighter,
as revealed in yesterday’s Post—but he has filled Twitter with racist rants.

LINK
The son of a recently retired FDNY fire commissioner has quietly been rehired to become an EMT after resigning 16 months ago over a series of racist comments he posted to his Twitter account.
According to the New York Daily News, Joseph Cassano, 26, confirmed that will be rejoining the department when the next Emergency Medical Services Academy class begins on July 13.
Cassano resigned during his probationary period in 2013 when his father, Salvatore Cassano, was still the civilian administrator of the New York City Fire Department after being appointed by then-Mayor Michael Bloomberg.
 
A review of the younger Cassano’s Twitter account — now suspended by Twitter — revealed a slew of racist tweets including one that read: “I like Jews about as much as hitler #toofar? NOPE.”
Another tweet stated, ““Getting sick of picking up all these Obama lovers and taking them to the hospital because their Medicare pays for an ambulance and not a cab.”
 
Cassano claims he was “very ignorant and very immature” at the time he wrote the offensive tweets.
“I am very grateful to get an opportunity like this,” Cassano said in an interview with the Daily News. “I’ve apologized for those comments and I am still apologizing for them today.”
 
The Vulcan Society — a group made of up of African American firefighters in New York City — is not pleased with the rehire, with President Regina Wilson saying, “Everybody deserves a second chance, but he doesn’t deserve a second chance with the FDNY.”
 
“It’s a step backward for the department,” Wilson said.
 
A source at the FDNY said Cassano had to reapply and faced all of the  physical and psychological tests required to get back on the job.
“He realized he screwed up,” the source explained. “We’re giving him an opportunity and giving him a second chance.”
 

‘Fast-tracker’ son of FDNY Commish rants against blacks and Jews on Twitter

by Josh Saul, March 18, 2013, NY POST
LINK

The first-responder son of city Fire Commissioner Salvatore Cassano has unleashed a sickening slew of tweets that target everyone from Jews to blacks to the poor.
Joseph Cassano, 23 — who yesterday’s Post revealed is working as an FDNY EMT in an apparent bid to fast-track his promotion to firefighter — regularly uses the derogatory term “shwoog” when referring to black people, and once tweeted, “I like jews about as much as hitler.”
He even openly gripes about his job, calling it “the worst’’ and ripping the people he’s paid to serve.

UPDATE: EMT SON OF FDNY COMMISH RESIGNS

“Getting sick of picking up all these obama lovers and taking them to the hospital because their medicare pays for an ambulance and not a cab,” Joseph Cassano tweeted Feb. 3.
About a week earlier, the young EMT posted from his Twitter account, @jcassano15, “Gotta love people with the iPhone 5 and brand new Jordan’s whip out their benefits card #f–kobama #ipaidforyourstuff.”
In another tweet, he Cassano complained, “Got kicked in the shin by a drunk and had to carry a 275 pound guy down 5 flights of stairs . . . my job is the worst #yearandahalftogo.”
Before last November’s election, Joseph Cassano vowed to “move to Scotland” if Obama were re-elected.
On Martin Luther King Jr. Day, he posted, “MLK could go kick rocks for all I care, but thanks for the time and a half today.”
Joseph and two other scions of FDNY brass are among 100 new hires at the EMS — where about 40 percent of personnel are minorities.
EMS members get first crack at joining the FDNY as firefighters under new federal diversity rules that put them ahead of “open competitive” applicants to the Fire Academy.
Those rules were adopted after federal Judge Nicholas Garaufis found that the FDNY had for years discriminated against minorities.
As The Post exclusively reported yesterday, critics say the EMS gig allows Cassano and his well-connected co-workers a shortcut into the FDNY.
The young Cassano made it clear earlier this month that he wants to join the FDNY, tweeting, “I hate ems” and, “Everybody wanna be a firefighter, but don’t nobody wanna be a damn EMT.”
He has no love for the NYPD, either, tweeting in September: “U couldn’t pay me enough to be a cop, there’s absolutely no direction in that department and I’m very glad I’m going the other way.”
Early this morning, Joseph Cassano released a statement through an FDNY spokesman that said, “I regret posting some comments that were offensive, especially since I enjoy my job and treat every patient with great care and respect.”
Cassano’s commissioner father said today, “My son said he regrets those comments. I think we all regret it because that’s not my son.”
The boorish tweets started before Joseph was even hired by the city.
“News flash to half of the island,” Joseph, who lives at home with his parents on Staten Island, posted in August. “ur white! Stop talking like ur a shwoog.”
In November 2011, Joseph laid into rapper Flo Rida after the performer sampled the song “Levels,” by Tim Bergling, in his own tune “Good Feeling.”
“This dumb shwoogie Flo-rida should be shanked for what he did to levels,” he opined.
In January 2012, Joseph and a buddy traded tweets about Jews.
“I saw a sick jew walking on bloomingdale and thought of you,” Joseph posted to the pal, who uses the twitter name @breezyy.
In November 2011, the duo had an exchange after @breezyy posted a photo of a Hasidic Jew near a basketball court where kids were playing and wrote: “This no good Hebrewwww crepin on the kidssssss.”
Joseph replied, “I like jews about as much as hitler #toofar? NOPE.”
The FDNY progeny openly admits on Twitter that his remarks have gotten him in hot water in the past.
Last March, Joseph, who plays in a local baseball league, disclosed that he had been suspended for five games because of a Twitter post.
“1 game down 4 more to go,” he tweeted on March 16, 2012.
When one of his friends asked what he’d done, Cassano replied, “got suspended for a tweet #suspendedchild.”
Young Cassano also displays a vulgar attitude toward women.
“I love boob jobs . . . I wish every girl in America were forced to get one once they turn 18,” he wrote in November. He added, “I’ll vote in the presidential election when a candidates main purpose is to make breast enhancement surgery free to all who want it.”

Fallout over racist tweets by son of FDNY commissioner spreads to sister, a Staten Island teacher

Friday, July 3, 2015

National Public Voice: Carol Burris on the Sham Teacher Evaluation Using Student Test Data

Re-posted from National Public Voice:

Carol Burris on Using Test Scores and Common Core To Evaluate Teachers

Carol Burris
 

Principal’s last advice: Let’s move beyond the rhetoric and really question the Common Core

Value-added scores are a sham metric. They give top teachers negative scores!


Core Debate by Carol Burris, July 2, 2015

Dear Jayne,
I am writing this letter the day after my last graduation ceremony. The past week has been difficult—full of tearful goodbyes. Although I am certain that my decision to retire was the right one, leaving a school that I love so much has been very painful. But, as I said to the Class of 2015 in my address, quoting Winnie the Pooh—“how lucky I am to have something that makes saying goodbye so hard.”

Your last letter acknowledged our mutual concern about the evaluation of teachers by student test data. Even if it were a perfect measure, and it is far from perfect, the unintended consequences of using test scores in this manner would never be worth the price. Back in 1976, social scientist Donald Campbell predicted what would happen if standardized tests became high-stakes. He wrote, “When test scores become the goal of the teaching process, they both lose their value as indicators of educational status and distort the educational process in undesirable ways.” Certainly, that is a worry you and I share.

You asked what accountability system produces a bell curve in which teachers are measured against each other. It’s called the “VAM” — for value-added model — and each teacher receives a score that is generated by comparing the scores of his or her students with students across the state of Florida, who take the same test and have similar characteristics. That comparison then produces a “bell curve” because scores cluster around the average score, which is converted into the five Florida categories of teacher VAM performance. It may sound reasonable but it produces some inexplicable results where excellent teachers receive bad scores. This was the case of the 2014 Hillsborough Teacher of the Year, who was judged so bad by VAM, his score was negative! We use a similar process in New York, although growth scores are only generated for 3-8 tests.

Jayne, while we both disagree with using student test scores to evaluate teachers, I am wary when you suggest that “multiple measures” and “dashboards” are the solution. Would you be comfortable with test scores being 30% of a teacher’s evaluation? I would not. If using them as a metric comes at the cost of narrowing curriculum and teaching to the test, why would we want to include them at all?

I am not discounting the importance of using student achievement in assessing teacher quality and in helping teachers improve. Prior to the mandated use of scores, I used achievement results to help guide my observations, review teacher lesson plans and design professional development. I worry that vague terms like “multiple measures” lead non-educators to conclude that, if more than one test were used to produce VAM scores, or if you also included observations, using test data is sound practice.

Related: Blended learning emerges as a leading trend in education technology, report says

Now back to the Common Core. I am not sure what you mean when you say that I “personified” the standards and that I believe the Common Core is “the root of the problems we are facing in education.” The Common Core is but one part of a failed reform strategy. The Common Core, teacher evaluation using student tests scores, Common Core tests, the expansion of charter schools and other disruptive change strategies were pushed by the $4.35 billion competitive grant known as Race to the Top. All are presented as interconnected parts of a school improvement plan.

I do agree that other policies associated with the Common Core have negatively impacted the implementation of the standards. I also am (and have always been) a big believer in college and career readiness as our goal. Where we disagree is that I don’t believe that the Common Core standards, even without bad policy, will do the job.

Here is an example that we in New York are living through now. The Common Core algebra test was given in early June. New York students generally take algebra in eighth grade (accelerated students) or ninth grade. Some of our very best students were in tears as they struggled to complete it. Concerns went far beyond our district. Eric Cunningham is a veteran algebra teacher from upstate New York. He wrote an email to parents explaining how difficult the test was and how illogical the curve against which the tests were scored.

First, let’s look at the level of difficulty. Eric refers to question 24, a compound inequality problem which you can find here. Eric is correct when he says this topic was previously taught in New York’s Algebra 2/Trigonometry course, the third course in the high school sequence. Question 24 is now fair game on the Common Core algebra test, which is the first course in the high school sequence, because it tests the Common Core standard CED.A1, which you can find here.

Our students also had a lot of difficulty with question 18 which involved a quadratic equation. The solution included a fraction. My math teacher told me that not only was the topic previously taught in Algebra 2 Trigonometry, but that the inclusion of the fraction made the question inappropriate for even the Algebra 2 course. Could the question be considered an assessment of a Common Core standard? Yes, because there are Common Core math standards that require Algebra 1 students to solve quadratic equations by completing the square.

Related: With Common Core tests, a lot at stake for first-year principal

This level of detail is necessary to help readers understand the problem. We do our students a terrible disservice when we fail to recognize the inappropriateness of many of the standards and accept them in the name of “college readiness.”

The problems with the test go beyond these two questions. Let’s look at the college readiness score bands. It is not difficult to pass the test. For a score of 65%, students need to get 30 of the possible 86 points—which represents getting less than 35% of the exam correct. Given that most of the exam is multiple choice, a good guesser who can do the simpler questions will pass. To get to the Common Core “college readiness” passing (level 4) a student must get 65% of the test right. That “college readiness score” will be the new score needed to graduate high school in just a few years. On the surface, that sounds reasonable. But let’s look at the outcome.

Only 48% of Rockville Centre first-time test takers achieved that score. That excludes students who previously took and failed the test—if they were included the percentage would be lower still.

This year South Side High School had no dropouts and our four-year graduation rate was 98%. Should we conclude that only about half of the graduates of my high school are college-ready, and that in the future, only 48% should graduate based on the results of this test?

Related: Are new Common Core tests really better than the old multiple-choice tests?

Every other indicator contradicts that conclusion. Every year, over 70% of our graduates pass an International Baccalaureate exam in mathematics. When I checked last fall, 92% of our entire Class of 2012 was successfully enrolled in college two years after graduation. My summer survey of whether students were required to take remediation resulted in only a handful of students. All were either English language learners or students with disabilities.

So, Jayne, what should I believe? The Common Core test results, which say over half of our students are not prepared for college, or over a decade’s worth of evidence that tells me nearly all of them are? I understand that my school is well-resourced with only a 16% poverty rate. But surely the juxtaposition of Common Core scores with my school’s longstanding track record of producing college-ready students indicates that there is something wrong with the Common Core standards as measured by Common Core-aligned tests. It is time we move beyond the rhetoric and critically question the assumptions on which these reforms rest.

I thank you so much for your willingness to enter this dialogue with me. I have no doubt that you and I both deeply believe in school improvement and our responsibility to create well-educated, caring and thoughtful young adults. While we disagree on the value of the Common Core, my guess is that our core values are far more similar than different. Good luck to you, Jayne, and the very best to you and your wonderful school.

Carol

Wednesday, July 1, 2015

The Secret Tenure Tool - Jarema Credit.

Jarema credit.

When I speak to teachers who are this close [] to getting tenure and suddenly are being discontinued, no one seems to know about this.

Why? Is the UFT not telling anyone?

When you get a discontinuance because you do not have tenure, use all the arrows in your quiver. You have more than you think, so do your research.

Betsy Combier

You may receive credit to reduce your probationary time if you worked as a regular substitute in the same license area and same division (i.e., elementary, junior high, high school) in which you are subsequently approved. You can receive up to two years of Jarema Credit. Per diem days do not count toward Jarema Credit. See the application on the DOE’s website.
Teacher Probationary Period Shortened Based On Tenure As A Teaching Assistant (4/05)
April 7, 2005

On February 26, 2005, the New York State Commissioner of Education decided that a teacher who had previously acquired tenure as a teaching assistant was entitled to a shortened two-year probationary period as a teacher. Matter of Alexander (Decision No. 15,172, February 16, 2005).

Probationary Period Requirements

The Education Law generally provides for a three-year probationary period for teachers. That three-year period may be shortened as a result of service as a "regular substitute" immediately preceding the probationary appointment (so-called "Jarema Credit"). This credit may be applied to shorten the probationary period by up to two years. Also, Section 3012 of the Education Law provides for an automatic one-year reduction in the period if the teacher has acquired tenure in another district or another tenure area. This prior tenure exception of Section 3012 was at issue in Alexander.

The Facts In Alexander

In 1996, Lynda Alexander was tenured as a teaching assistant by the Ramapo Central School District. She continued to work in Ramapo until the spring of 2000, when she acquired a second teaching certificate in general special education. The following academic year, Ms. Alexander became a special education teacher for the South Orangetown Central School District. She was appointed to a three-year probationary period, effective September 1, 2001. At the time of her appointment, the South Orangetown board of education was aware of her previous tenure as a teaching assistant, but did not believe that it had any impact on her current appointment as a special education teacher.

Ms. Alexander did not oppose her three-year probationary term and continued to teach until February 2003, when she took a maternity leave. She returned to the District in September 2003, and continued as a special education teacher there until she was terminated on June 30, 2004. Ms. Alexander challenged her termination, arguing that she was entitled to a reduced probationary period as a result of her prior tenure as a teaching assistant, and that she had acquired tenure by estoppel as a result of the shortened probationary period.

The Commissioner's Holding

The Commissioner held that Section 3012(1)(a) of the Education Law requires school districts to give teachers who had been appointed on tenure in another school district, either as a teacher or a teaching assistant, a reduced probationary period of two years.

The Commissioner first noted the absence of any precedent on this question. The Commissioner noted that he was sympathetic to the District's arguments in support of its position that acquiring prior tenure as a teaching assistant should not reduce the probationary term for a teacher. The District had argued that the statute should be construed as being strictly limited to prior tenure as a "teacher" because a person holding prior tenure as a teaching assistant had never been evaluated as a teacher and had not "endured the rigors of the teacher tenure process." The District had further argued that the duties and responsibilities of teaching assistants are different from those of teachers, and that the requirements to obtain a certificate as a teaching assistant are much lower than the requirements to be a teacher.

Nevertheless, relying on a Court of Appeals decision involving the shortening of a teacher's probationary period based on prior tenure in a different teacher tenure area, the Commissioner held that Ms. Alexander was entitled to a reduced two-year probationary period. The Commissioner noted that if the Legislature had intended Section 3012 to exclude prior tenure as a teaching assistant, it could have done so. In the absence of such an exclusion, the Commissioner found that the statute, read literally, was applicable to previously tenured teaching assistants and required an automatic one-year reduction in the probationary period for any subsequent teaching appointments. Consequently, Ms. Alexander was found to have acquired tenure by estoppel due to the continuation of her teaching services beyond the two-year probationary period.

What Should School Districts Do?

In light of this decision, school districts should review the personnel files of all teachers who received probationary appointments in the last three years, to see if any of them received tenure as a teaching assistant, either in the same district or elsewhere in New York. Probationary teachers who have teaching assistant tenure should receive a decision on tenure after their second year of probation, even if their original probationary appointment stated that it was for three years. School districts must also keep in mind that probationary teachers who have teaching assistant tenure and who are also entitled to Jarema Credit should receive a decision on tenure after their first year of probation, regardless of the stated duration of their original probationary appointment. Individuals with prior teaching assistant tenure who have already served the requisite number of years as probationary teachers may have already achieved tenure by estoppel, but if a district is dissatisfied with the performance of any individuals in this situation, it should consult with labor counsel concerning what strategies may be available to keep the district's options open in case Alexander is reversed by the courts.

If you have any questions regarding the Commissioner's Alexander decision or need assistance evaluating the District's obligations to newly hired teachers, please contract:

In the Capital District, call 518-533-3000 or e-mail:
Nicholas J. D'Ambrosio ndambrosio@bsk.com




In Central New York, call 315-218-8000 or e-mail:
R. Daniel Bordoni dbordoni@bsk.com





On Long Island, call 516-267-6300 or e-mail:
Terry O'Neil toneil@bsk.com





In New York City, call 646-253-2300 or e-mail:
Louis P. DiLorenzo ldilorenzo@bsk.com




In Western New York, call 716-566-2800 or e mail:
Richard C. Heffern rheffern@bsk.com