The Latest Scandal For Chancellor Carmen Farina: Renewal High School Plans Fail

The lack of strategic planning and intelligent guidance at the New York City Department of Education never ceases to amaze me, even after dealing with the agency since 1997.

We knew that Carmen Farina is not a leader and should not be Chancellor, but Bill de Blasio would not listen. He must not be re-elected.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

New Analysis Reveals Sinking College Readiness Rates at Nearly Half of de Blasio Administration’s Renewal High Schools

Latest Example of Unmet Promises of Mayor’s Signature Education Program

New York, NY – A new analysis of data from the New York City Department of Education and the New York State Education Department reveals that nearly half of the de Blasio administration’s Renewal high schools are failing to prepare their students for college. The report, released today by Families for Excellent Schools, finds that during the the 2015-2016 school year, college readiness rates dropped at 15 of the 34 high schools currently participating in the Mayor’s program. Additionally, Renewal high schools missed an average of 76% of graduation-related benchmarks for improvement.

Sinking college readiness rates are the latest example of Mayor de Blasio’s signature education initiative not living up to its promises. Public Advocate Leticia James and principal’s union president Ernie Logan delivered sharp critiques of School Renewal just two weeks ago, joining a growing group of parents and advocates frustrated with the program’s failure to produce real results for New York City’s highest-need children.

“Mayor de Blasio’s refusal to admit that his School Renewal program has failed is keeping thousands of kids off the path to higher education,” said Jeremiah Kittredge, CEO of Families for Excellent Schools. “With college readiness dropping at nearly half of Renewal high schools last year, it’s time for the Mayor to end this costly experiment and start supporting public schools that prepare students for college.

NYC Chancellor Carmen Farina and Mayor Bill de Blasio

In 2014, Mayor De Blasio promised “rapid improvement” at the city’s renewal schools – but 2016’s high school achievement data proved once again that this progress remains completely out of reach. Renewal high schools fell short of 76 percent of their graduation-related benchmarks and missed 71 percent of their achievement-related targets last year,[1] and this failure to improve outcomes in grades 9-12 had a devastating impact on student opportunities after high school. According to state and city education data, 15 of the city’s 34 renewal high schools experienced declines in college-readiness,[2] and the rate of graduates headed to four-year colleges fell at 41 percent of renewal high schools.[3]  

Renewal high school students cannot afford to continue waiting for improvement that shows no signs of materializing – and thousands have already voted with their feet in search of the educational opportunities they require to succeed after high school. Overall, renewal high school enrollment fell from 27,759 in 2014 to 20,536 in 2016 – a 26 percent plunge.[4] Among students who remained in renewal high schools, attendance data suggests that nearly half have given up on their failed schools: 44.45 percent of renewal high schoolers were chronically absent last year, more than twice the city’s average.[5]

To serve NYC’s children and protect their future, the Mayor must end the failed renewal school experiment and do everything in his power to give every child access to an excellent school.

• Renewal high schools met 24 of 102 graduation-related benchmarks last year – a success rate of just 24 percent
• Renewal high schools met 38 of 130 achievement-related benchmarks last year – a success rate of just 29 percent
• Seniors at 15 of the city’s 34 renewal high schools – or 44 percent of renewal high schools – experienced declines in college-readiness last year
• Among graduates who reported post-secondary plans, 41 percent of renewal high schools reported a decline in graduates who said they planned to attend four-year colleges
• The rate of renewal high-school completers who reported post-graduate plans and said they expected to attend four-year college was just 32 percent last year – barely half the city’s average of 60 percent

Renewal High School Achievement Benchmarks

4-Year College Readiness Index: 2016

Renewal High School	4-Year College Readiness Index
	2015	2016	+/-
Academy of Urban Planning	19%	11%	-8%
Long Island City High School	23%	25%	2%
John Adams High School	20%	22%	2%
Richmond Hill High School	16%	22%	6%
August Martin High School	2%	7%	5%
Martin Van Buren High School	14%	18%	4%
Flushing High School	21%	18%	-3%
Pan American International High School	52%[6]	38%	-13%
Brooklyn Collegiate: A College Board School	18%	16%	-3%
Cypress Hills Collegiate Preparatory School	10%	11%	1%
Multicultural High School	3%	11%	8%
Brooklyn Generation School	17%	16%	-1%
Frederick Douglass Academy IV Secondary School	11%	11%	0%
Boys and Girls High School	10%	7%	-3%
Automotive High School	3%	4%	1%
Foundations Academy	5%	14%	8%
Juan Morel Campos Secondary School	7%	3%	-4%
Peace and Diversity Academy	3%	11%	7%
Monroe Academy for Visual Arts & Design	5%	6%	2%
DeWitt Clinton High School	19%	19%	0%
Fordham Leadership Academy for Business and Technology	6%	6%	0%
DreamYard Preparatory School	3%	10%	7%
Leadership Institute	4%	2%	-2%
Bronx High School of Business	19%	15%	-5%
Bronx Collegiate Academy	12%	14%	2%
Herbert H. Lehman High School	11%	21%	10%
Holcombe L. Rucker School of Community Research	27%	6%	-21%
Banana Kelly High School	17%	7%	-10%
Foreign Language Academy of Global Studies	2%	14%	12%
New Explorers High School	20%	6%	-15%
High School for Health Careers and Sciences	10%	8%	-2%
Coalition School for Social Change	4%	8%	4%
Wadleigh Secondary School for the Performing & Vis	7%	7%	0%
Henry Street School for International Studies	39%	5%	-34%

Post-Secondary Plans: 2016

Renewal High School	Graduates Reporting Post-Secondary Plans: Percentage Expecting to Attend 4-Year College
	2015	2016	+/-
ACADEMY OF URBAN PLANNING	32%	24%	-8%
AUGUST MARTIN HIGH SCHOOL	40%	54%	14%
AUTOMOTIVE HIGH SCHOOL	15%	33%	19%
BANANA KELLY HIGH SCHOOL	16%	49%	33%
BOYS AND GIRLS HIGH SCHOOL	0%	45%	45%
BRONX COLLELGIATE ACADEMY	29%	0%	-29%
BRONX HIGH SCHOOL OF BUSINESS	31%	35%	4%
BROOKLYN COLLEGIATE-A COLLEGE BOARD SCHOOL	61%	47%	-14%
BROOKLYN GENERATION SCHOOL	55%	0%	-55%
COALITION SCHOOL FOR SOCIAL CHANGE	0%	14%	14%
CYPRESS HILLS COLLEGIATE PREPARATORY SCHOOL	36%	54%	18%
DEWITT CLINTON HIGH SCHOOL	35%	1%	-34%
DREAMYARD PREPARATORY SCHOOL	16%	23%	7%
FLUSHING HIGH SCHOOL	41%	35%	-6%
FORDHAM LEADERSHIP ACADEMY FOR BUSINESS & TECHNOLOGY	13%	25%	12%
FOUNDATIONS ACADEMY	0%	31%	31%
FREDERICK DOUGLASS ACADEMY IV SECONDARY SCHOOL	13%	27%	14%
HENRY STREET SCHOOL FOR INTERNATIONAL STUDIES	32%	26%	-6%
HERBERT H LEHMAN HIGH SCHOOL	53%	54%	1%
HIGH SCHOOL FOR HEALTH CAREERS & SCIENCES	28%	23%	-5%
HOLCOMBE L RUCKER SCHOOL OF COMMUNITY RESEARCH	33%	32%	0%
JOHN ADAMS HIGH SCHOOL	29%	35%	6%
JUAN MOREL CAMPOS SECONDARY SCHOOL	25%	63%	38%
LEADERSHIP INSTITUTE	28%	38%	10%
LONG ISLAND CITY HIGH SCHOOL	36%	37%	1%
MARTIN VAN BUREN HIGH SCHOOL	30%	37%	7%
MONROE ACADEMY FOR VISUAL ARTS & DESIGN	0%	24%	24%
NEW EXPLORERS HIGH SCHOOL	51%	53%	2%
PAN AMERICAN INTERNATIONAL HIGH SCHOOL	11%	10%	-1%
PEACE AND DIVERSITY ACADEMY	68%	27%	-41%
RICHMOND HILL HIGH SCHOOL	26%	21%	-5%
WADLEIGH SECONDARY SCHOOL FOR THE PERFORMING  AND VISUAL ARTS	81%	46%	-35%
Renewal High School Total	30.06%	32.03%	2%

Chronic Absenteeism: 2016

Renewal High School	Enrollment	Students Chronically Absent
Academy of Urban Planning	227	49%
Long Island City High School	2077	44%
John Adams High School	2386	43%
Richmond Hill High School	1950	38%
August Martin High School	459	51%
Martin Van Buren High School	1544	41%
Flushing High School	1812	39%
Pan American International High School	380	26%
Brooklyn Collegiate: A College Board School	307	40%
Cypress Hills Collegiate Preparatory School	232	42%
Multicultural High School	208	36%
Brooklyn Generation School	234	23%
Frederick Douglass Academy IV Secondary School	77	49%
Boys and Girls High School	383	43%
Automotive High School	372	60%
Foundations Academy	73	70%
Juan Morel Campos Secondary School	622	38%
Peace and Diversity Academy	125	73%
Monroe Academy for Visual Arts & Design	416	64%
DeWitt Clinton High School	1694	45%
Fordham Leadership Academy for Business and Techno	410	45%
DreamYard Preparatory School	294	43%
Leadership Institute	180	53%
Bronx High School of Business	309	46%
Bronx Collegiate Academy	395	45%
Herbert H. Lehman High School	1092	50%
Holcombe L. Rucker School of Community Research	193	52%
Banana Kelly High School	234	60%
Foreign Language Academy of Global Studies	105	51%
New Explorers High School	426	60%
High School for Health Careers and Sciences	526	39%
Coalition School for Social Change	232	53%
Wadleigh Secondary School for the Performing & Vis	377	59%
Henry Street School for International Studies	185	52%
All Renewal Schools	20,536	44.45%

[1] “Renewal and Receivership Benchmark Update 2015-16,” New York City Department of Education, accessed November 26, 2016.

[2] “2015-16 School Quality Reports,” New York City Department of Education, accessed November 29, 2016.

[3] “2015-16 Report Card Database,” New York State Education Department, accessed November 17, 2016.

[4] “Demographic Snapshots,” New York City Department of Education, accessed November 17, 2016.

[5] “2015-16 School Quality Reports,” New York City Department of Education, accessed November 29, 2016.

[6] According to DOE, this figure was transposed from the correct Index Value of 25 percent. Although the figure listed in the data is included here, the summary data has been revised to account for this discrepancy.

New York State Education Officials Change the Reporting of Violence In Schools

Here's what I believe: changing the number of categories and the definitions of violence doesn't touch what is really wrong with the procedures for reporting violence in schools.

Principals still will not want to expose themselves by submitting any reports on the students who misbehave, because reporting that you have bad students is bad for your buck, reputation in the neighborhood, sponsorships, and alot more.

On the other side of the coin, pinning a violent event committed by "bad" students, on a teacher instead, gives you many opportunities for acclaim by the media, parents and anti-tenure organizations.

See something wrong with this picture?

The solution is to take away from in-house personnel, including administrators, the right to rule on the reporting of violence, and give any staff member the right, with immunity, to report assaults, crimes and or damages to people or property to a special division of the police, who must investigate without interference from principals trying to coverup their mistakes and their "little angels" (sometimes gang members well known to the community).

And for pete's sake, get everyone covered by Workers' compensation. Stop principals from arbitrarily and randomly denying LODI (line-of-duty-injury).

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

New York Changes the Way It Keeps Tabs on 

School Violence

LINK

By ELIZABETH A. HARRISDEC. 13, 2016

PS 191 in Manhattan was on the state’s “persistently dangerous” list at the start of the 2015-16
 school year, but not in the current year

 New York State education officials voted Tuesday to change the way the state tracks school violence, hoping to improve a system that has been called confusing and inaccurate.

New York State education officials voted Tuesday to change the way the state tracks school violence, hoping to improve a system that has been called confusing and inaccurate.

But because the system will continue to rely on schools to report data, it may not offer a clearer picture of how dangerous the schools might be.

The old Violent and Disruptive Incident Reporting system, or Vadir, tracked offenses across 20 categories, including homicide, kidnapping, bomb threat and riot. Schools reported episodes based on guidelines from the state.

Many called the categories confusing, and said those who were reporting the data were not always adequately trained to determine if something was “criminal mischief,” for example, or to tease out the difference between “burglary” and “larceny.”

Under the new regulations, approved by the Board of Regents, the state’s highest educational authority, state officials have whittled the categories to nine and tried to clarify definitions so schools report episodes more accurately.

A Vadir score can be enormously consequential because if a school has a certain level of episodes two years in a row, it can be labeled “persistently dangerous,” a designation the federal government requires states to make, and one that means students who request a transfer must be offered a place at another school in their district.

“If the purpose of Vadir reporting is to identify the most persistently dangerous schools, then let’s get the most violent incidents being submitted, and not things like minor altercations,” said Renee Rider, an assistant commissioner at the New York State Education Department who oversees Vadir. While every episode should be investigated, she said, “sometimes what happens at the local level should stay there, and not necessarily be submitted to the state.”

In recent years, criticism of Vadir came from all sides, including the United States secretary of education, John B. King Jr., when he was education commissioner in New York. Mr. King said the system “rarely reflects the realities of school health and safety.”

A frequent complaint was that the persistently dangerous formula, which is the ratio of violent encounters to enrollment, puts small schools at a disadvantage. Five major episodes at a school with 100 students, for example, comes across as more problematic than five episodes at a school with 500 students. David Goldsmith, the president of the Community Education Council for District 13 in Brooklyn, said there had been small schools in his district on the persistently dangerous list that he thought did not belong there.

“When you’ve been in the school and know the culture of the school, and this school has been labeled persistently dangerous?” he said. “You think, ‘That’s crazy.’”

But some critics now wonder if the system has moved too far in the other direction. Among them is Families for Excellent Schools, a pro-charter-school group that is suing New York City for what it says are violent conditions in city schools. Jeremiah Kittredge, the chief executive of the organization said that by removing and collapsing categories, the state would give families less information about what’s going on in schools, not more. Ms. Rider of the State Education Department said New York would still make some of that information available in subcategories.

The changes do not remove what many see as the most fundamental problem: Vadir is based on self-reported information, and given that the reporting has consequences, school administrators might have an interest in keeping certain episodes to themselves.

Jonathan Burman, a spokesman for the State Education Department, did not address that issue directly but said in an email: “It is critical that everyone has a clear and consistent way to track and compare the level of safety in every school. The department’s goal is to ensure that the most accurate school safety data possible gets reported.”

Johanna Miller, the advocacy director at the New York Civil Liberties Union, was a member of a task force that worked on the new regulations. She said the group “worked a lot with the language of the categories so it matched up better with the language of school discipline, rather than what it was before, which was penal code language.”

For example, “assault with physical injury” and “assault with serious physical injury” will now become a single category, called “physical injury.” Categories like “reckless endangerment” will disappear.

“You don’t have to be a lawyer anymore to understand how to report things,” Ms. Miller said.

The new regulations will take effect in July.

One thing that will not change is the formula for determining whether a school is persistently dangerous. So to try to keep small schools from being unnecessarily branded with that label, Ms. Rider said, the department plans to review any school that is flagged but has fewer than 250 students.

Even before Tuesday’s vote, the state had taken action to reduce the number of schools on the persistently dangerous list. At the start of the 2015-16 school year, there were 32 schools on the list.

This year, there were five.

Ms. Rider said that last year, the department started working intensely to help manage student behavior at schools that had one year of data with a high number of episodes, putting them in danger of ending up on the list the next year.

Schools were also given more guidance on how to report disruptive behavior. Schools kept in regular contact with the state, Ms. Rider said, and some 70 sessions were offered last year to teachers, principals and district staff members on interventions, investigation and reporting.

Ms. Rider said schools were not instructed to report fewer episodes or to downgrade their severity to create a more flattering portrait. “That did not happen,” she said.

Ms. Rider said that changes in how educators at all levels thought about discipline and misbehavior had also played a role in reducing the number of episodes reported. Schools and districts around the state have been moving away from suspensions and toward practices like restorative justice, which encourages getting to the source of outbursts rather than just sending students out of the classroom.

She also said the state planned to expand this holistic view of student behavior on the measurement side as well. This year, the state is testing a new School Climate Index in seven schools. It will look at information like Vadir data, rates of absenteeism, and school surveys from parents, teachers and students.

 New York Education Dept. Is Sued Over Violence in Schools

By ELIZABETH A. HARRISAPRIL 7, 2016

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The mother of a New York City public school student, a plaintiff in a class-action lawsuit, spoke about her son’s mistreatment outside the Education Department’s headquarters on Thursday.

A group of public school families and a pro-charter advocacy group filed a lawsuit in Federal District Court this week alleging that the atmosphere at New York City public schools was depriving students of their right to receive an education free of violence, bullying and harassment.

The class-action suit, filed on Wednesday in New York’s Eastern District against the New York City Education Department and its chancellor, Carmen Fariña, claims that violence in schools is increasing, and that it is often underreported. The suit also says that school violence disproportionately affects certain groups of students, like those who are black, Hispanic, gay, bisexual or transgender.

The suit, which claims the Education Department has failed “to address and remediate in-school violence in New York City’s public schools,” was filed by 11 students and their families. They were joined by Families for Excellent Schools, a pro-charter advocacy group that has been a fierce and frequent critic of Mayor Bill de Blasio’s education policies.

The group’s chief executive, Jeremiah Kittredge, held a news conference on Thursday morning in front of the Education Department’s headquarters in Manhattan, to encourage other public school parents to join the suit.

The group’s picture of violence in the city’s schools directly counters Mr. de Blasio’s. In a statement, the mayor said he viewed “each incidence as obviously troubling,” but challenged the group’s facts, saying that “this year to date, the major crime in our schools is down 14.29 percent and other crimes down 6.77 percent.”

Mr. de Blasio’s figures are drawn from a database that is collected and reported by the New York Police Department.

Toya Holness, a spokeswoman for the Education Department, said those figures track any occurrence in which a member of the Police Department is involved, whether a uniformed officer or a school safety agent. If an episode is witnessed by a classroom teacher but does not reach the school safety agent, it is not included.

By that count, the total number of recorded episodes dropped slightly, to 6,875 in the 2014-15 school year from 6,950 the year before. During the same period, reports of “seven major felony crimes” fell to 614 from 654. In the 2000-1 school year, by contrast, there were 1,575 of those major crimes reported.

In claiming that schools are increasingly violent, Families for Excellent Schools relies on data from New York State. Those figures are collected by school administrators and might include classroom incidents that are not included in the Police Department’s numbers. This city data is then reported to the state, Ms. Holness said.

Based on that data, the complaint says the number of violent episodes rose 23 percent in the school year ending in June 2015 from the previous year.

The validity of the state data has been widely criticized, not least by the federal education secretary, John B. King Jr., when he was New York State’s education commissioner, who said that it “rarely reflects the realities of school health and safety.” Critics have said that the state’s system does not differentiate enough between minor infractions and more serious complaints, and that because the data are not verified, it is difficult to know whether schools are accurately reporting violent situations. A task force is working to revise the system.

Nonetheless, the individual claims in the lawsuit were troubling. One student, a 9-year-old boy at a school in West Harlem, is said to have been grabbed by the ear by his math teacher, who “dragged him down the stairs and threw him onto a landing,” according to the complaint.

An 11-year-old girl at school in Chelsea was bullied and assaulted for years by another student, who then began to attack her 7-year-old sister. The Education Department “refuses to discipline or transfer” the bully, the suit said.

The suit asks the city be compelled to devise a plan to address issues of violence and harassment, and asks the court to appoint an independent monitor to oversee the Education Department’s efforts.

**FOR IMMEDIATE RELEASE** DECEMBER 14, 2016

Statement: Student Victimized by Arson at Brooklyn District School Shows Impact of State’s Vague New VADIR Rules

New York, NY – Families for Excellent Schools' CEO Jeremiah Kittredge released the following statement in response to a news report of a Brooklyn student who was hospitalized yesterday with third-degree burns after a fellow student lit her hair on fire.

Yesterday, the Board of Regents vote to approve 100.2(gg) of the Commissioner’s Regulations, Relating to the Uniform Violent and Disruptive Incident Reporting System (VADIR) -- which eliminated several serious incident categories and merged multiple severe incident types into categories shared with minor offenses, such as “assaults with serious physical injury” and “assaults with physical injury.”

Jeremiah Kittredge, CEO, Families for Excellent Schools:

“Yesterday’s horrifying assault speaks to the real-life impact of the state’s vague new VADIR rules. Under this weakened system of school violence tracking, an incident that sent a student to the hospital with third-degree burns will be categorized no differently than a minor scuffle resulting in less than a bruise.”

$33 million in back pay for SESIS work going to members

One of the biggest messes of the NYC DOE is SESIS, the online special education information system that had no privacy for the kids in the system. And no one, at the DOE, seemed to care.

As a parent advocate I had to deal with Committees on Special Education who threw around Individualized Education Plans (IEPs) as if they were schedules for staff for the coming semester. And I remember being in a school where the parent needed to see the IEP, and the Principal told us, "It's being written right now. Go to the office and you can see it when it is finished." I asked, and who is writing it?

Answer: "the family worker at the district office". I asked, was this person on the CSE?

No, he was hired to input data.

Scary.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Pact tackles SESIS ‘nightmare’

Paves way for DOE to bill Medicaid for speech therapy

BY DOROTHY CALLACI, December 1, 2016, New York Teacher

The Department of Education on Nov. 18 agreed to provide $33 million in back pay to thousands of UFT members who have spent many hours outside their regular workday since Jan. 1, 2013 logging student data onto the Department of Education’s Special Education Student Information System.

The DOE and the UFT will meet to determine exactly how the money will be divided. Once that decision is made, the DOE has 60 days to begin divvying up the $33 million lump sum that it agreed to allocate among SESIS users in compensation for time spent outside their regular work hours, excluding lunch. UFT members in all titles will be eligible for back pay based on the SESIS system’s own tracking of members’ time logged in to the system. The money will not be pensionable.

The SESIS settlement, which was part of a wider agreement on SESIS issues [see story below], puts an end to SESIS litigation that has dragged on for five years.

“This system created by the Bloomberg administration has been a huge burden on our members,” said UFT President Michael Mulgrew. “Finally, after five years, we are close close to a final resolution.”

In 2013, an arbitrator found the DOE in violation of the workday provision of the contract and ordered the DOE to compensate all SESIS users for time spent outside their regular work hours from September 2011, when the system was launched by the Bloomberg administration, through Dec. 30, 2012. That landmark ruling resulted in the payment of more than $40 million to 30,000 UFT members for work done outside the workday through Dec. 31, 2012.

Extending the problem for years to come, the DOE ignored the arbitrator’s order to negotiate with the UFT a process that would enable members to get their SESIS work done. Instead, in February 2013, the DOE issued a memo prohibiting staff from working outside their regular workday on SESIS and unilaterally determined the additional time that certain titles would be allowed to have to do SESIS work. Many members continued to do work outside regular hours in violation of the ban since the time allocated proved insufficient.

The case landed back before the arbitrator.

In the 2014 contract, the DOE agreed that speech teachers in single-session schools could do SESIS work during the 155 minutes allocated each week for professional development, parent engagement and other professional developmentProfessional Work. But many speech teachers were not able to complete their SESIS work in that time frame either.

To date, the arbitrator had convened 20 hearings, featuring testimony from more than a dozen UFT witnesses, including many rank-and-file SESIS users. Yet, the arbitration case remained far from complete. The $33 million payment, coupled with required fixes to SESIS itself, settles the arbitration.

Erica Bolt Wins Her Appeal in the First Department

Matter of Bolt v New York City Dept. of Educ.

2016 NY Slip Op 08158

Decided on December 6, 2016

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 December 6, 2016 
Sweeny, J.P., Acosta, Andrias, Manzanet-Daniels, Webber, JJ.

2088 653285/14 

[*1]In re Ericka Bolt, Petitioner-Respondent,

v

The New York City Department of Education, Respondent-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Melanie West of counsel), for appellant.

Law Offices of Richard J. Washington, P.C., New York (Richard J. Washington of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Joan M. Kenny, J.), entered April 28, 2015, which granted the petition to vacate an arbitrator's opinion and award, dated October 15, 2014, terminating petitioner's employment with respondent based on her misconduct, and denied respondent's cross motion to dismiss the petition, unanimously modified, on the law, to confirm the Arbitrator's determination that petitioner is guilty as charged in Specifications 2 and 3(a), (b), (c) and (d), and to remand the matter to respondent for imposition of a lesser penalty, and otherwise affirmed, without costs.

Notwithstanding the existence of conflicting testimony, the Arbitrator's findings of misconduct on Specifications 2, 3(a), (b), (c) and (d) are supported by adequate evidence and are not irrational (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567-568 [1st Dept 2008]). However, while we confirm the Arbitrator's finding, based on the testimony of three students, that petitioner "directly or indirectly," assisted several students on a standardized English Language Arts exam, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]).

"[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved" (Pell, 34 NY2d at 234).

While petitioner's behavior in suggesting to several students that some of their answers might be wrong demonstrated a lapse in judgment, petitioner did not provide the students with the correct answers and there is no evidence that the incident was anything but a one-time [*2]mistake (see Matter of Diefenthaler v Klein, 27 AD3d 347, 349 [1st Dept 2006] ["we find it shocking to the conscience that these long-standing and well-regarded employees have been terminated for such an isolated error of judgment"]). Prior to her termination in October 2014, petitioner, a tenured teacher who had worked for respondent since 2003, had an unblemished record and, as the OSI investigator testified, was considered to be a good teacher (see Matter of Solis v Department of Educ. of City of N.Y., 30 AD3d 532, 532 [2d Dept 2006] [termination disproportionate "(i)n light of, among other things, the petitioner's otherwise unblemished 12-year record as a teacher"]). Moreover, the record is devoid of evidence that would suggest petitioner could not remedy her behavior.

Matter of Carangelo v Ambach (130 AD2d 898 [3d Dept 1987], lv denied 70 NY2d 609 [1987]), cited by the dissent, does not mandate a different result. In Carangelo, the teacher was found guilty of failing to properly safeguard his students' Regents examinations, failing to accurately grade them and altering answers. The evidence indicated that of 705 answers on 15 examinations, 79 were altered. The teacher admitted that it was apparent that the answers had been changed by someone other than the students and that he did nothing about it, and the District's expert opined that it was highly probable that the teacher made 76 of the 79 changes (id. at 899). In affirming the penalty of termination, the Third Department found that "[a]ltering the answers given on an examination, or even ignoring alterations obviously not made by the student, amounts to a serious breach of a teacher's obligations" (id. at 900). Here, petitioner pointed out to several students that certain answers on their exams might be wrong and suggested they take another look at them. She did not alter any of her student's answers or advise them what the correct answers were.

Nor does Matter of Carlan v Board of Educ. of Lawrence Union Free School Dist. (128 AD2d 706 [2d Dept 1987]), cited in the Arbitrator's report, mandate the penalty of termination. In Carlan, the petitioner was found "guilty of some 53 charges and

specifications concerning, inter alia, repeated and continuous neglect of duty, insubordination, failure to prepare and grade certain final examinations, and manipulation of students' test scores" (id. at 707).

All concur except Sweeny, J. who dissents in part in a memorandum as follows:

SWEENY, J. (dissenting in part)

I concur with the majority that there is no basis to overturn the factual findings reached by the Arbitrator.

I disagree that the matter should be remanded for imposition of a lesser penalty. The majority is in error to say the penalty of termination is so shocking to the conscience that it must be vacated.^[FN1]

The majority has accepted the Arbitrator's findings wherein he found credible the testimony of three separate students that petitioner assisted them and other students by pointing out a number of answers to be changed in a statewide English proficiency exam. Where I depart from the majority is their attempt to, for example, compare an employee neglecting to do carpentry work in a lavatory (Matter of Diefenthaler v Klein, 27 AD3d 347 [1st Dept 2006]) to a teacher who violated the integrity of a school examination.

In a case with a fact pattern similar to this, the Third Department found "petitioner's offense goes to the heart of one of the most integral aspects of the education process: integrity in conducting examinations" (Matter of Carangelo v Ambach 130 AD2d 898 [3d Dept 1987], lv denied 70 NY2d 609 [1987]).

The Arbitrator found, and the majority does not challenge, that petitioner "[c]ommitted insubordination by assisting students during the administration of the statewide exams when she was expressly directed not to do so." He further found

"that [petitioner] was the authority figure for these students, who were approximately ten years old at the time the incident occurred, and that she had the responsibility to set a good example for her students to emulate. [T]he message that her conduct conveyed to these young students, that cheating is permitted, was completely inappropriate and more than harmful. . . . [H]er actions demonstrated a lack of integrity and irrevocably comprised her ability to serve as a role model for students."

That petitioner had a previously unblemished record is not compelling, especially with the facts herein (see Russo v NYC Dept. of Educ., 25 NY3d 946 [2015]; Altsheler v Board. of Educ. of Great Neck Union Free School Dist. 62 NY2d 656 [1984]; Matter of Montanez v Department of Educ. of the City of N.Y., 110 AD3d 487 [1st Dept. 2013]).^[FN2]

Although the majority may feel a lesser penalty is more appropriate, as students and parents have the right to believe the testing process is fairly administered, it cannot be said that the penalty shocked one's sense of fairness (Pell at 234).

I would reverse the lower court and reinstate the arbitration decision along with the penalty of termination.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2016

CLERK

Footnotes

Footnote 1:I agree with the majority that the seminal cases such as Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County(34 NY2d 222 [1974]) clearly set out the heavy burden to vacate an arbitrator's penalty determination. I disagree to their application herein.

Footnote 2:The majority's reliance in Matter of Solis v Department of Educ. of City of N.Y. (30 AD3d 532 [2d Dept 2006]) is not helpful as the underlying act the teacher committed in that case was not explained.