First Amendment Rights and the Case of Debbie Almontaser

Leadership, Law, and Policy
Another Blow to Civic Discourse: Almontaser v. NYC Board of Education
Posted By David Bloomfield On September 14, 2009
LINK

Earlier this month, U.S. District Court Judge Sidney H. Stein issued a decision in Almontaser v. New York City Board of Education 07 Civ. 10444, finding that a principal fired for statements leading to a misleading press report was not protected under the First Amendment.

The decision and the actions it protects are problematic on grounds of law and policy. First is the misapplication of precedent by the District Court, carried over from an earlier opinion and repeated by a Circuit Court ruling in the same case. Second, and perhaps more seriously, is the extent to which the Bloomberg administration continues to push a policy agenda squelching free expression.

Background

On August 5, 2007, New York Post reporter Chuck Bennett interviewed Debbie Almontaser, the interim acting principal of the Kahlil Gibran International Academy, a New York City public school which was due to open the following September. KGIA was the focus of intense public scrutiny for its emphasis on Arab language and culture. Also at issue was an allegation that Almontaser had ties to Arab Women Active in the Arts and Media which had created t-shirts stating “Intifada NYC.”

Asked about her affiliation with AWAAM and the t-shirts during the interview, which was organized and monitored by the New York City Department of Education’s press office, Almontaser denied any connection with the organization and explained she would never affiliate herself with an organization condoning violence. Further, she explained that the root of the word means “shaking off.”

The next day, the Post published Bennett’s story under the headline “City Principal is ‘Revolting.” with a picture of Almontaser captioned, “Furor: The Pro-violence shirt is being defended by Principal Debbie Almontaser.” The story also incorrectly added the phrase “and shaking off oppression” to Almontaser’s statement.

As a result of the ensuing controversy over Almontaser’s misattributed remarks and the paper’s incendiary language, the DOE forced her to resign the interim principal post and, when the permanent position of principal was advertised, quickly passed over her application. Almontaser then sued the DOE (technically, the New York City Board of Education) for retaliatory firing in violation of her First Amendment right to free speech.

Legal Mistake

The courts found that Almontaser lacked First Amendment protection because her remarks took place in the context of her public employment. While the facts above, as described by the District Court, clearly point to the interview as an official duty under the supervision of the DOE, Almontaser claimed that her misreported “intifada” remarks were disconnected from her statements about KGIA and her employment there.

Educators’ political statements on matters of general public interest have long been protected under the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education. But the District and Circuit courts relied on a more recent case, Garcetti v. Ceballos, which held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties.

However, the Almontaser courts failed to acknowledge Garcetti’s explicit exemption for statements related to academic matters. The majority stated, “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” at p. 13. That determination – clearly at issue but ignored in Almontaser — was reached by the Court because of Justice Souter’s clear statement in dissent:

“As for the importance of such speech to the individual, it stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools? . . . Indeed, the very idea of categorically separating the citizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s “object … to unite [m]y avocation and my vocation;” these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract. There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.” at 5, footnotes omitted.

Thus, a strong argument can be made that, despite the context of an official interview like that in Garcetti, Almontaser met that case’s exception by commenting as an educator on a matter of general public interest related to the academic focus of her school. Such a result is consistent with Garcetti and the high value the Constitution places on public discourse in a free society.

Problematic Policy

Even accepting the courts’ mistaken analysis, the firing of a principal for a controversial remark – and here, a remark she did not even make! – is dangerous public policy. By firing Almontaser, the Chancellor (and by extension, the Mayor he works for), has impoverished robust public debate, a core value of a free society.

This is nothing new. The Mayor has shown hostility to unruly voices before. His preventive detention of protestors at the Republican National Convention in 2004 was subsequently met by wholesale dismissal of police charges. He banned the wearing of campaign buttons by teachers, an action upheld in court.

But just because the Mayor can suppress speech, doesn’t mean he must suppress speech. The First Amendment exists to promote a marketplace of ideas and we are the losers when government limits access to unpopular thought.

In the Almontaser case, the Mayor’s famous espousal of principal autonomy is once again exposed as an empty promise that “You can do as you like as long as I like what you do.” Such a philosophy may lead to smooth operational control but the public sector and schools, especially, are the worse for it. Public institutions are fundamentally strengthened by American values of active civic discourse. The courts should pay heed the next time the city puts free expression to the test.

Fair Student Fudging In The New York City BOE Money Department

If something doesn't seem right, my mom used to tell me, then it's not.

What, may I ask, is the reason for the hiding of where all the federal stimulus money is going? Any voter thinking about the next four years may want to know that the next Mayor handles our financial resources wisely, and not SECRETLY????? I think that Mr. Domanico's editorial below is misleading. Of course everyone is favorable to "Fair Student Funding" if that is indeed what the financial picture is all about. But we New Yorkers know that the NYC BOE is expanding their public relations office and hiring people for positions at Tweed that may or may not be needed, while kids in public schools dont get anything that they need - like new buildings to lower class size, books, safe environments, art, music, dance, sports, etc. Oh, dont forget about all the no-bid contracts, more in number now than in any previous administration.

Have you tried to file a Freedom of Information request to find out where money goes after it enters the doors of 'Central Headquarters' of the NYC BOE? Good luck. Mr. Joseph Baranello, the "new" Central Records Access Officer (CRAO) for FOIL at the NYC BOE, seems to be as willing as former CRAO Christine Kicinski was in withholding information from the public.

So, when the NY POST announces that there is a $1 Billion waste at the NYC BOE, we are supposed to "trust" that the "Fair Student Funding" formula is working?

I dont. I think the public has the right to know what is going on here, and we are not swayed any more by fancy titles of "Fair" Student ....anything. Give us the statistics and facts, and let us decide.



Mayor Mike Bloomberg's next big test: He and Klein have to prevail on Fair Student Funding
BY Raymond Domanico, SPECIAL TO THE NEWS, October 12th 2009
LINK

Mayor Bloomberg and Schools Chancellor Joel Klein have passed the test of mayoral control. It was difficult, but the issue was simple: Who's in charge?

Their next test is very different.

The mayor and chancellor must now preserve - and even strengthen - their Fair Student Funding formula in the face of a major challenge by the United Federation of Teachers and others.

The question of how money is allocated to schools is just as vital as the basic question of who is in charge.

In the past, before Fair Student Funding was implemented, the school system was happy to talk about the many needs of its students when it was seeking money. In fact, the old Board of Education and the corrupt local community school boards used the chronic failure of students and schools as a fund-raising device.

Once they got the money, though, the funding rarely found its way to the neediest students. Because the old formula linked funding to teachers' salaries, often schools with the greatest need received less money than schools with fewer problems and higher levels of performance. If a school served a large group of "high needs" students, it attracted teachers with less seniority and, therefore, lower salaries. At the same time, schools with fewer students with high needs but with more senior (and therefore better-paid) teachers were granted extra money to cover those salaries. When the system got more money in the old days, the rich got richer - the better schools with higher paid teachers received more money. The students and schools in the city's poorer neighborhoods received, proportionally, less.

Fair Student Funding attempts to reform this patently unfair system. Under this approach, money is allocated to schools based upon student needs. The money remains there to be used as that school sees fit. This system says that the students' needs are more important than making sure things stay convenient for teachers.

Why is the UFT so opposed to Fair Student Funding? The complaint heard most often is that Fair Student Funding is somehow responsible for the creation, or continued existence of, the so-called Absent Teacher Reserve pool - currently some 1,500 tenured teachers who have been released from their schools and who have not been picked up by other schools.

The reserve pool problem is a complicated one, and there have been many changes in a school system that has contributed to its existence. We do know that Fair Student Funding plays no role in putting teachers into the reserve pool. That happens when the Department of Education closes failing schools, or when certain programs are discontinued or when enrollment in a school declines, causing the school to cut its staff.

Many teachers go into the reserve pool temporarily and then are picked up by another school. Some stay in the pool for a year or more. That's when the problems arise. A previous round of negotiations with the teachers union led to the removal of a procedure whereby senior teachers who had been let go from their schools could "bump" junior teachers in other schools. Principals were given more discretion over whom they had to hire.

These factors are made worse by the fact that tenured teachers have ironclad job protection.

What critics are not focusing on are the ways that Fair Student Funding benefits schools with high-needs students. These schools are allowed to keep the money to which they are entitled; teachers' salaries are not an issue. If the school has lower- paid teachers, they can use any "excess" to buy other types of services or materials. They can even hire more teachers.

What's wrong with this? Nothing. The students in these schools are clearly in need. If they either can't entice senior teachers, or if they are happy with the junior teachers they have, why shouldn't they be allowed to use the money allocated for their particular students' needs for more books, supplies or additional staff? Why should the needs of their students be used to bring money to the school system so that teachers in other city schools can have higher salaries?

Not only must Bloomberg and Klein resist attempts to roll back Fair Student Funding, they must put the program in place quickly, removing any restrictions. They must also seek other ways to focus the resources of the system on those students most in need.

While more complicated and less dramatic than the mayoral control challenge, this test is more important. The mayor and chancellor need to prepare well, apply themselves to the material and pass.

Domanico is senior education adviser for Industrial Areas Foundation - Metro NY.



$1B ed. 'waste'
By SUSAN EDELMAN, October 11, 2009
LINK

The $1 billion in stimulus cash being spent in city schools this year has not created new jobs, and may be one of worst uses of funds aimed at jumpstarting the economy, experts say.

The Department of Education doled out $625 million this year to 1,475 schools, instructing that most of the money go for staffers that "would otherwise have been cut." The rest is helping pay the rising cost of fringe benefits and administrative costs.

No cash is going to build or repair schools.



Chancellor Joel Klein had threatened 14,000 teacher layoffs before the stimulus, but not one has gotten a pink slip.

Instead, the DOE now has 1,400 "excess" teachers getting paid without jobs to fill.

It's fiercely debated whether the DOE's gobbling up $2 billion in stimulus funds over two years -- 36 percent of the city's total share -- is boosting the economy or bloating a bureaucracy.

"In the short run, you cushion the recession," said Paul Wachtel, an economics professor at NYU's Stern School of Business.

Even if Klein's layoff threat was "a charade -- scaring the public to boost funding," he said, keeping more educators employed will keep them spending on goods and services in the marketplace.

But Nicole Gelinas, a fellow at the Manhattan Institute, said the $22 billion DOE budget -- up nearly 68 percent under Mayor Bloomberg -- is already too swollen.

"Most of this money is going for personnel with higher salaries and pension costs," she said, noting that 13,157 DOE staffers make six figures.

"The city's crumbling infrastructure is getting short shrift because powerful special interests like education unions squawk the loudest."

The DOE refused to release a report detailing how it has spent the stimulus funds so far. The report had to be filed with the feds by yesterday before a public posting on Oct. 30.

In divvying up the bucks, the DOE gave a total of $459 million for "fiscal stabilization," $334 million to Title I schools, where 40 percent of kids receive free or reduced-price lunches, and $157 million for special ed.

Doug Turetsky, of the Independent Budget Office, says the DOE faces a possible crisis in 2012, when the stimulus ends.

But the department isn't worrying about it yet.

"It's too early to tell," said spokeswoman Ann Forte. "We don't know if the economy will bounce back. Or maybe Congress will pass another stimulus bill."

susan.edelman@nypost.com

Schools Chancellor Joel Klein to lay off low-paid school aides, add high-priced consultants
Juan Gonzalez - News, Wednesday, September 16th 2009
LINK

Schools Chancellor Joel Klein will lay off hundreds of low-paid school aides next month - mostly in the city's poorest school districts - while ramping up his army of high-priced computer consultants.

On Monday, the city's education policy board approved a new four-year, $54 million computer contract with Future Technology Associates.

Before Monday, Florida-based FTA had a no-bid contract to supply 63 consultants to the Department of Education at an average annual cost of $250,000 apiece.

Under the new contract, FTA will supply up to 10 additional consultants this year at the same $250,000 average price tag.

Amazingly, the DOE issued pink slips in the past few days to 14 of its computer department employees. Average pay for those workers is a mere $65,000.

"Our workers are capable of doing those FTA jobs, so why is the city laying them off and paying three or four times more for outside consultants?" said one leader of District Council 37, the city employees union.

Even more startling is the DOE's plan to slash nearly 600 school aides by mid-October. The part-time aides - who typically perform hallway and cafeteria duty, transport sick children and do paperwork for the school lunch program - are paid an average of $17,500 a year, including fringe benefits.

The layoffs are supposed to be part of an across-the-board 5%budget cut for all schools. An analysis of the layoffs done by DC37 reveals a disproportionate impact on the city's poorest districts.

In District 6 in Washington Heights, 17% of the aides (45 of 263) received layoff notices, while in Staten Island's District 31, less than 1% (one of 271) did.

Likewise, Districts 1, 2, and 3 - which cover lower Manhattan, the upper East Side and the upper West Side - are losing 1% of their aides (four of 286), while District4 in East Harlem faces an astonishing cut of 22% (27 of 118).

In Brooklyn, District 15 in upscale Park Slope and Gowanus will lose 6% of its aides, while District 23 in Brownsville will lose 19%.

School officials could not confirm the union's numbers. They said spending details were left to local principals.

"All schools saw an equal percentage of their budgets cut," said Klein spokeswoman Melody Meyer.

"Each school determined how they would reduce spending," Meyer said, and the central office "did not dictate how schools would meet the cuts."

As for FTA, the Daily News previously reported 19 of the firm's employees are working with H-1B immigrant visas. FTA told the U.S. Labor Department it was paying those workers an average of $65,000 - about the same as city computer workers.

FTA's chief executive, Tamer Sevintuna, has declined to talk about his contract.

DOE sources said the agency was poised in the summer to approve a much larger $95 million five-year deal with the firm. School officials said then they were still negotiating the final number.

The agency requested bids for the new contract in January. Officials acknowledged last week FTA was the only bidder. They ended up reducing the contract to four years, and the cost to $54 million.

Why, you might ask, would no other consulting company in America bid on such a large computer contract?

School officials told the education policy panel Monday that other firms were "not interested in taking on the risk and costs" of a contract that was "largely the continuation of development work done over the past two years by another vendor."

Sources in the agency tell a different story. They say the bid specifications were geared from the start to discourage any other firm from competing with FTA.

Now that the contract has been approved, the DOE will have even more $250,000-a-year consultants. Klein will move forward with his school aide layoffs and claim with a straight face that he's cutting costs.

jgonzalez@nydailynews.com

Computer consultants for city schools earn bigger bucks than chancellor does
BY Meredith Kolodner, DAILY NEWS STAFF WRITER, September 8th 2009
LINK

The city Education Department is paying dozens of high-priced computer consultants more than $1,000 a day, even as budget cuts force schools to slash programs for at-risk students.

Several of the high-priced tech workers rake in more than any other city official - including Schools Chancellor Joel Klein.

"It's hard to imagine how a single consultant could be doing more work for the schools than what is expected by the chancellor," said Billy Easton, executive director of the Alliance for Quality Education. "We would like to see some of those dollars be prioritized for programs in schools."

More than $178 million worth of information technology contracts have been approved since 2006 - and that doesn't include the $95 million contract the Daily News reported was in the works last month.

The education budget was cut by $400 million this year. Schools on average took a 5% budget hit, forcing many to get rid of tutoring and after-school programs.

"What's important to know is that these contractors offer people with specialized expertise whom we find difficult or almost impossible to find on our own," said Education Department spokeswoman Margie Feinberg. "All of these contracts are competitively bid, so we know we are getting the market rate."

A News analysis of the contracts found that while most were competitively bid, many were fast-tracked, a process that is supposed to be reserved for quick hires to supplement ongoing projects.

Meanwhile, hundreds of New Yorkers who have passed basic and advanced computer tech tests are sitting on a list waiting to be hired.

Feinberg said that the Education Department was planning to hire some of them, but that they were not qualified to do the work of the high-priced consultants, who must develop software, not just maintain computer systems.

Many of the consultant contracts do not refer to software creation and some of the higher-skilled titles require software development skills.

The president of the union that represents the city's roughly 200 computer techs said that there were plenty of city employees qualified to do the work.

"They live in New York City," said Robert Ajaye, president of Local 2627 of District Council 37. "They have a stake here, and they're accountable. They can't just disappear if a job gets screwed up."

The highest skilled city IT jobs start at about $70,000 a year and max out at $125,000 after a decade of service.

"How many IT specialists would $300,000 allow the [Education Department] to hire directly and have full time for the school system?" said Susan Lerner, president of Common Cause New York. "After a while the privatization push chases its own tail. It doesn't add up."

mkolodner@nydailynews.com

RECENT COMMENTS FROM DAILY NEWS READERS
theuresamaven

2:39:31 PM
Sep 8, 2009

The way that the city handles its business always amazes me, particularly now that our mayor is such a hotshot businessman. The local government is the biggest landowner in the city, yet it rents space, and even manages to get evicted from those properties (the Franklin and Worth Street ACS offices, or the rental of Two Washington Street, for example). Wouldn't it save the city money to use an unused city school building to house one of its smaller agencies, or even better, renovate it and use the school for it's intended purpose, rather than build new ones. Generally, the city saves money on consultants by not giving them benefits, but at this rate it would be cheaper to simply hire these consultants, with benefits, at a much lower rate.
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kanaka5000notvote4bloomberg

7:25:25 PM
Sep 8, 2009

This scam at the board/dept. of ed has been going on for decades and has gotten worse under bloomberg, it should have improved since he's been charge for the last 5 years.None of the newly created systems has ever worked and has turned many of these consultants into millionaires on taxpayer money.bloomberg has made the school system worse and this is more evidence of that, there is no real reform going on in NYC schools just smoke and mirrors on a grander scale.Dump bloomberg.
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einnor111

8:25:45 PM
Sep 8, 2009

Let's pay alot to outside contractors while city employees that can do the same job at a third of the cost sit around. If Billionaireberg ran his LLP this way he'd be broke. The DOE is renting space for 191 million on a 30 year lease,who's minding the store.
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Pedro Gonzalez

9:30:23 AM
Sep 9, 2009

.........In many cases they are paid more because they are worth more than the employees and the management. They are non-unionized, like the employees, and they are not of the union mindset of go slow so you do not show your "brothers" up. I have been in business for many years and have witnessed this over and over. I ALWAYS hired non-union people on contracts because they were superior. The problem in the Public School System is (1) its public and therefore inferior, and (2) the Unions which make it so inferior. When will you people ever wake up and home school your kids and get them out of the Liberal Socialistic Communist Mind Control of Public Education????

Mayor Bloomberg says 7,000 city employees will be laid off; Albany hasn't helped city budget enough
BY Adam Lisberg, DAILY NEWS CITY HALL BUREAU CHIEF, April 8th 2009, 3:00 PM
LINK

Mayor Bloomberg says 7,000 city employees will be laid off in the coming months because unions and Albany haven't done their share to trim New York's budget.
Smith for News

Mayor Bloomberg is threatening to lay off up to 7,000 city workers, saying municipal unions and state officials haven't done enough to help New York balance its budget.

Budget Director Mark Page told agency heads Wednesday to cut $350 million from their budgets, saying previous cuts of $3.1 billion starting July 1 weren't enough.

"This next step would most likely rely heavily on additional headcount reductions, whether through attrition, or, as is more likely, through layoffs," Page wrote them in a letter.

"It is expected that these savings could result in a reduction of as many as 7,000 positions citywide."

Bloomberg's press team refused to discuss the letter, which was released just after the mayor finished his only news conference of the day.

"While it's a letter addressed to the agency heads, it's a message being sent to the union leaders," said Charles Brecher of the Citizens Budget Commission, "and to a certain extent the state Legislature."

The mayor has asked municipal unions to pay for 10% of their health care costs and find additional health cost reductions to save $557 million, in order to avoid layoffs.

"This is a ploy to get more money from Albany, and he really deserves it," said Harry Nespoli, head of the Municipal Labor Committee, which negotiates for city unions.

"We're still at the table. He just made it more difficult to negotiate."

While Bloomberg's request for $350 million in savings won't plug the $1.6 billion gap in next year's budget, Nespoli said he would tell the city's 310,000 employees that the threat is real.

"I'm going to tell my workers there's a possibility of layoffs in the city of New York. I'm not going to lie to them," said Nespoli, who heads the sanitation workers' union.

"In this crazy world today, nobody can eliminate layoffs."

Bloomberg wants approval from Albany for more than $1 billion in new revenue, such as a quarter-point increase in the sales tax, a new 5-cent tax on plastic bags and reduced pension benefits for new city workers.

"Their plan counts on a fair amount of actions that are controlled by Albany, not City Hall, so there's a lot of risk in their plan," said Doug Turetsky of the Independent Budget Office. "There's certainly a risk to municipal jobs."

New York's four uniformed departments - police, fire, sanitation and corrections - are being ordered to slice their spending by just 0.5% in the latest round of cuts, apparently reflecting Bloomberg's determination to preserve public safety and order in the recession.

Most other agencies, though, are being told to take 4% cuts - raising the potential of layoffs.

The Department of Education is being ordered to trim its budget by a flat $100 million, a 1.4% cut.

Bloomberg threatened to lay off 14,000 teachers in January, but retracted the threat after the state budget funneled federal stimulus money into city schools.
Related Topics

RECENT COMMENTS FROM DAILY NEWS READERS
momof2boys

5:39:30 PM
Apr 8, 2009

bet those half those 7000 layoffs will be from the education sector. What i wanna know is..where in the blue blaze does bloomy think the rest of us common folk are gonna get he money to pay these new taxes when so many of us are out of work because of the recession?
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golfnutt63

The Baltimore Sun Falls Victim To The Brill/Klein Propaganda

OP/ED from Betsy Combier:

Here we go again. In July, the Bloomberg/Klein/media machine empowered Steven Brill, (a well-known pusher of "you must pay for your information" - see his new venture Journalism Online) to misinform the public on the subject of the worst teachers of NYC sitting in "rubber rooms." I believe that Brill's goal was to support Mike Bloomberg and Joel Klein in their battle to end tenure for teachers. I am referring, of course, to the Brill article published in the August 29, 2009 New Yorker magazine. This article is an extreme example of issue advertising and is not good journalism, in my opinion - this is an op/ed on my blog, after all.

Steven Brill actually did me a favor by writing about teachers who I know, and whose stories of how and why they were thrown into a rubber room I am familiar with. I wrote a response to his article - The NYC Teacher Re-Assignment Rooms, Called "Rubber Rooms", and The Ambush of 'The Gotcha Squad'. Mr. Goldberg and Mr. Brill are leading the public down a very dangerous path indeed, if we are to believe that all New York City rubber rooms are filled with lousy teachers, "dead wood", who harm children by being in a classroom. This is baloney. How does Steve Brill know that all the people stuffed into dingy rooms and trailers are the 'worst' teachers, and must be summarily fired as soon as a principal says "Get out of my school". It was only 70 years ago that people got off of cattle cars in various locations in Germany, and were told to go to the right or the left, as determined by a commandant given the power of god to say who lives or dies. We do not need to repeat history, we need to learn from it and learn about it.

The question that remains unanswered is, "what are the characteristics of a 'good' teacher?" Mr. Brill, can you answer that question? Or, when you looked at Lucienne Mohammed's file without her approval or knowledge and saw one "U" rating, and you neglected to mention in your article that Lucienne had filed special complaints and grievances against her Principal at PS 65, Ms. Daysi Garcia, (pictured at left) for harassment, you "knew" that Ms. Mohammad was lousy at her job of teaching?



The Baltimore Sun picked up on Brill's theme of how tenure harms the public by paying incompetent teachers to sit in rubber rooms doing nothing (see article below)...therefore, end tenure and these worthless educators can simply be fired outright, just like everyone else in the labor market. The end of tenure would be, therefore, the beginning of efficiency and streamlining public finance so that only "good" teachers would be paid and remain in our nation's public schools. Mr. Jonah Goldberg in the article below calls Steven Brill's "worst teachers" article a blockbuster, and then repeats the same misinformation. Sadly, read the Baltimore Sun anti-tenure propaganda:

Easiest fix for schools: Get rid of teacher tenure
Jonah Goldberg, The Baltimore Sun, September 10, 2009
LINK

Brandi Scheiner believes she is a political prisoner. Held against her will in what is euphemistically dubbed a "rubber room," Ms. Scheiner, 56, likens her two-year captivity to being imprisoned at Guantanamo Bay. Alas, it's unlikely the Red Cross will hear her case.

She's a New York City public school teacher who, like about 600 fellow NYC teachers, has been removed from the classroom; allegations against those removed range from incompetence to charges that include being drunk in the classroom or molesting students.

Ms. Scheiner, who makes more than $100,000 per year, nonetheless insists she is a prisoner of conscience forced to spend her workdays in the rubber room - at full pay - until the system can adjudicate her case. She cannot be fired, at least not without the school district spending gobs on legal fees, because she has tenure and her union, the United Federation of Teachers, would rather protect 1,000 lousy teachers than let one good teacher be fired unfairly.

So Ms. Scheiner and her rubber-roomies report for duty every school day and do nothing. They all get the usual vacations, including the entire summer off. This is all according to Steven Brill in a blockbuster article in the Aug. 31 New Yorker about New York City's efforts to reform the public school system.

Ms. Scheiner says that before New York Mayor Michael Bloomberg and schools chief Joel Klein came along, "everyone knew that an incompetent teacher would realize it and leave on their own."

That's not how the unions see it. A principal of a Queens public school told Mr. Brill that Randi Weingarten, president of the American Federation of Teachers, "would protect a dead body in the classroom. That's her job."

This is just a small illustration of a much larger mess. America's large school systems are a disaster.

Yes, this disaster has many authors. Schools are expected to fix larger social problems that are best dealt with by parents. Good teachers aren't paid nearly enough, and bad teachers are kept around, draining budgets. Education bureaucracies siphon off vast resources better spent on classrooms. For example, in 2007, the Washington, D.C., school district ranked third in overall spending among the 100 largest school districts in the nation (about $13,000 per student) but last in terms of money spent on teachers and instruction. More than half of every education dollar went to administrators. President Barack Obama might be a hypocritical liberal for sending his kids to private school, but he's a good parent for it.

But of all the myriad problems with public schools, the most identifiable and solvable is the ludicrous policy of tenure for teachers. University tenure is problematic enough, but at least there's a serious argument for giving professors the freedom to offer unpopular views. Tenure for kindergarten teachers is just crazy.

Tenure's defenders point to horror stories from half a century ago, as if getting rid of tenure would automatically subject teachers to political witch hunts and sexual discrimination. We now have civil rights laws and other employee protections.

Also, to listen to teachers unions, you'd think incompetent teachers are mythical creatures. No wonder that from 1990 to 1999, the Los Angeles Unified School District, the second largest in the country with 30,000 tenured teachers, fired exactly one teacher.

The best argument for giving K-12 teachers tenure is that lifetime job security is a form of compensation for low pay. No doubt that's true, putting aside the fact that $100,000 a year with ample vacation is not exactly chattel slavery. And while most teachers don't make that much (the national average is about half that), the good ones could certainly make more if the dead weight were cleared away and rigid, seniority-based formulas were replaced with merit pay.

Oh, and kids would get better teachers.

Democratic politicians, mostly at the local level, are responsible for letting the unions protect their members at the expense of children and in exchange for campaign donations and other political support. And, to be fair, many Democrats (including Education Secretary Arne Duncan) are aware of the problem. What remains to be seen is whether they can do what needs to be done.

Jonah Goldberg is a syndicated columnist. His e-mail is jonahscolumn@aol.com.

Here is another article from the same syndicate:

Opinion
Unions protecting many bad teachers
Opinion by Jonah GoldbergTribune Media Services
Tucson, Arizona, Published: 09.10.2009
LINK

Brandi Scheiner believes she is a political prisoner. Held against her will in what is euphemistically dubbed a "rubber room," Scheiner, 56, likens her two-year captivity to being imprisoned at Guantanamo Bay. Alas, it's unlikely the Red Cross will hear her case.
She's a New York City public school teacher who, like about 600 fellow NYC teachers, has been removed from the classroom for alleged incompetence or other charges that include being drunk in the classroom or molesting students.
Scheiner, who makes more than $100,000 per year, nonetheless insists she is a prisoner of conscience forced to spend her workdays in the rubber room — at full pay — until the system can adjudicate her case. She cannot be fired, at least not without the school district spending gobs on legal fees, because she has tenure and her union, the United Federation of Teachers, would rather protect 1,000 lousy teachers than let one good teacher be fired unfairly.
So Scheiner and her rubber-roomies report for duty every school day and do nothing. They all get the usual vacations, including the entire summer off.
This is all according to Steven Brill in a blockbuster article in the Aug. 31 New Yorker about New York City's efforts to reform the public school system. Brill adds: "Because two percent of her salary is added to her pension for each year of seniority, a three-year stay in the Rubber Room will cost not only three hundred thousand dollars in salary but at least six thousand dollars a year in additional lifetime pension benefits."
Ever the martyr, Scheiner says she's "entitled to every penny of it."
She says that before New York Mayor Michael Bloomberg and schools chief Joel Klein came along, "everyone knew that an incompetent teacher would realize it and leave on their own."
This is just a small illustration of a much larger mess.
Yes, this disaster has many authors. Schools are expected to fix larger social problems that are best dealt with by parents. Good teachers aren't paid nearly enough, and bad teachers are kept around, draining budgets. Education bureaucracies siphon off vast resources better spent on classrooms. For example, in 2007, the Washington, D.C., school district ranked third in overall spending among the 100 largest school districts in the nation (about $13,000 per student) but last in terms of money spent on teachers and instruction. More than half of every education dollar went to administrators.
President Obama might be a hypocritical liberal for sending his kids to private school, but he's a good parent for it.
Of all the myriad problems with public schools, the most identifiable and solvable is the ludicrous policy of tenure for teachers. University tenure is problematic enough, but at least there's a serious argument for giving professors the freedom to offer unpopular views. Tenure for kindergarten teachers is crazy.
Tenure's defenders point to horror stories from half a century ago, as if getting rid of tenure would automatically subject teachers to political witch hunts and sexual discrimination. We now have civil rights laws and other em-ployee protections.
Also, to listen to teachers unions, you'd think incompetent teachers are mythical creatures, less likely to be encountered than Bigfoot and unicorns. No wonder that from 1990 to 1999, the Los Angeles Unified School District, the second largest in the country with 30,000 tenured teachers, fired exactly one teacher.
The best argument for giving K-12 teachers tenure is that lifetime job security is a form of compensation for low pay. No doubt that's true, putting aside the fact that $100,000 a year with ample vacation is not exactly chattel slavery. And while most teachers don't make that much (the national average is about half that), the good ones could certainly make more if the dead weight were cleared away and rigid, seniority-based formulas were replaced with merit pay.

Michelle Rhee

Democratic politicians, mostly at the local level, are responsible for letting the unions protect their members at the expense of children and in exchange for campaign donations and other political support. And, to be fair, many Democrats (including Education Secretary Arne Duncan, Klein in New York and D.C.'s Michelle Rhee) are aware of the problem. What remains to be seen is whether they can do what needs to be done.
Write to Jonah Goldberg at JonahsColumn@aol.com

If you read the comments of the article above, you can see that readers assume that Mr. Goldberg's premise is true: 'bad' teachers are put into "rubber rooms".

Comments on this Story
Unions protecting many bad teachers
Brandi Scheiner believes she is a political prisoner. Held against her will in what is euphemistically dubbed a "rubber room," Scheiner, 56, likens her two-year captivity to being imprisoned at Guantanamo Bay. Alas, it's unlikely the Red Cross will hear her case.
LINK

1. Comment by Mark S. (Mark S) — September 10,2009 @ 4:42AMRatings: -5 +25

Does Goldberg get paid to rehash articles from the (liberal) New Yorker? Pretty good if you can get paid for someone else's work.

Read the original article. It is truly appalling what the unions have accomplished in NYC. The amount of money spent on do-nothing and unsuccessful teachers is astounding.

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2. Comment by A c. (621ads) — September 10,2009 @ 4:57AM
Ratings: -9 +26

First, ELIMINATE TENURE then do like the construction unions do.

If you don't do a proper job or violate company rules you are FIRED with no appeal.

K.I.S.S.

Report this comment
3. Comment by Phillip D. (pdavid) — September 10,2009 @ 5:58AM
Ratings: -17 +18

The dynamic in public education is that superintendents last less than 7 years in a school district -- they all come in with some little marketing slogan, and everybody is sick of them a few years later. In each individual school building, same dynamic happens with principals. It's rare that one has what it takes to make it work for longer than a few years.

So, this dynamic puts the one steady factor in the whole equation - teachers- in a precarious situation. Teachers who have the balls to speak truth to power will get fired by insecure principals who have career goals in mind rather than what works best for kids and parents.

The teachers' unions help protect teachers from this sort of invidious treatment.

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4. Comment by Bob H. (Daedalus) — September 10,2009 @ 6:08AM
Ratings: -17 +24

Just remember that our President is bed with the unions. He wants Card Check, and all the fun and games that it will bring. He has changed the reporting laws so unions don't have to show how they spend union dues. Unions are nothing more than self serving blood sucking parasites.

Report this comment
5. Comment by Randi L. (RandiL4746) — September 10,2009 @ 6:22AM
Ratings: -17 +27

Unions have outlived their usefulness.

Report this comment
6. Comment by sandra f. (azrabbit) — September 10,2009 @ 6:46AM
Ratings: -15 +19

Public employee unions were once illegal, and should be again.

Report this comment
7. Comment by rob c. (chicagorufus) — September 10,2009 @ 6:52AM
Ratings: -3 +25

Keep the teachers unions, ditch the tenure. If you suck, you get fired, simple.

How does a crappy teacher make 100 G's???

Report this comment
8. Comment by Jeffrey H. (flibber) — September 10,2009 @ 6:57AM
Ratings: -9 +20

The function of unions is to protect its members, the public and the institution employing its members be damned. Union inefficiency has destroyed much of our industry and now seems to be firmly embedded in government where it can do the most harm.

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9. Comment by wit w. (Wit) — September 10,2009 @ 6:57AM
Ratings: -8 +20

Unions have always protected bad workers. By preventing competition between workers, the quality of the work force goes down. Then the ability of employers to compete with others is lost, reducing the quality of products. The ability of a country with unions to compete in a global economy is the next loss.

Doesn't anyone question why the standard of living in the U.S. continuously slips ?

Report this comment
10. Comment by Steve H. (1559) — September 10,2009 @ 7:35AM
Ratings: -2 +25

Having been trained as a union president, and having been in one of the local teachers' "associations" here in Tucson, what is being said in the article and previous comments is true.

Firing poor teachers is a nightmare for administrators, too. The documentation, remediation, attempts at additional training, observations, notification periods, and meetings all end up with a bad teacher being placed in a different school, with more difficult students. However, with those student populations, there is little parent concern.

Get rid of tenure and watch education improve as teachers compete for their jobs.

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11. Comment by John D. (Blkojo) — September 10,2009 @ 7:59AM
Ratings: -1 +18

"Education" will improve when the raw materials improve.

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12. Comment by Rat T. (rattwo) — September 10,2009 @ 9:06AM
Ratings: -2 +8

Unions wouldn't do that, would they? And why then, are they given credibility when it comes time for negotiations?

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13. Comment by chris b. (ctb) — September 10,2009 @ 11:03AM
Ratings: -8 +6

Teachers and Unions...just on the surface it looks and sounds wrong.
Catholic and private schools have no unions but provide the best educations for about 40% less overall cost.Now how about that as an example of educational success where less money, not more, provides a better outcome....go figure.
If teachers want kids and schools to succeed thay should quit the union today and forever and just watch the bubble rise.
Ever since the union took over in the sixties and seventies our public education system has fallen like a rock.

Bust it up ,and the sooner the better.

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14. Comment by Randy L. (Instigator) — September 10,2009 @ 11:09AM
Ratings: -7 +8

Unions used to help America. Now they are destroying it.
I wish I had a GED and a union job, I wouldn't have to train or progress or even work, the union will stick up for me and I'll even get regular raises, retirement and healthcare.
Unions have no place, anymore, in our country. Take it to China where you made our jobs go.

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15. Comment by Cicero V. (cicero) — September 10,2009 @ 12:25PM
Ratings: -1 +11

As a teacher and a member of TEA, I can say that I am ambivalent about unions. On the one hand, a union is a very good thing to have when dealing with a district like TUSD, which has a long history of duplicity and outright lying. On the other hand, I have seen teachers who need to find a new home kept in jobs for far too long.

This is changing though. With a new teacher evaluation system put in place with the full cooperation of the union, it is now much easier to remove incompetent teachers. Teachers who are found to be not meeting the agreed upon standards are put on a plan for improvement. Everything is documented: evaluations, observations, meetings, warnings, everything. If they cannot or will not improve, they are terminated. The union does not even enter into it because the moment a teacher is put on such a plan, the lawyers and the union are informed. Thus, if a teacher fails or refuses to improve, he/she does not have a leg to stand on because it is all documented.

I am last person who wants to see anyone lose their job needlessly or unfairly but this system makes sense. If you are doing your job, it is recorded so. If you are not, it is documented and you are given a chance to mend your ways. Seems fair to me. Perhaps this sort of thing should be implemented back east.

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16. Comment by Patricia R. (lucianvista) — September 10,2009 @ 12:26PM
Ratings: -1 +9

Private schools can kick a student out without much to go on, public school cannot. Comparing apples to oranges doesn't work.

Public schools have to educate those that they might not choose to have their, the same shouldn't be about teachers. If a teacher is substandard then they should be let go, not based on tenure.

I know the TUSD union pres, she was a substandard teacher. How can we then expect the union to encourage high quality teachers. Get rid of the union and put money back into the teacher's pockets.

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17. Comment by Rowan D. (RowD1) — September 10,2009 @ 1:41PM
Ratings: -6 +7

re: Unions have outlived their usefulness<<

So have corporations.

Report this comment
18. Comment by don c. (lonesom) — September 10,2009 @ 3:14PM
Ratings: -1 +3

#2 First, ELIMINATE TENURE then do like the construction unions do.

If you don't do a proper job or violate company rules you are FIRED with no appeal

What the construction industry has done is hire illegals which might work since they already speak spanish and we would not have to hire special teachers as spanish could be our first language without paying for extra teachers.

By the way how many benifits have the ones saying do away with unions willing to give up since you all benefit from the backs of union workers when you receive overtime, 5 day weeks, decent wages, retirement, paid holidays, health care, vacations, safe working conditions, and since the union has outlived its usefulness as some of you are saying how many of these benefits have outlived ther usefulness and which ones do you want to give up so the bankers and CEO's can have larger bonuses

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19. Comment by don c. (lonesom) — September 10,2009 @ 3:24PM
Ratings: -1 +5

#9 Unions have always protected bad workers. By preventing competition between workers, the quality of the work force goes down. Then the ability of employers to compete with others is lost, reducing the quality of products. The ability of a country with unions to compete in a global economy is the next loss.

Doesn't anyone question why the standard of living in the U.S. continuously slips ?

The unions are not the problem the union had pride in its members and skills until the liberals passed laws to stop the unions from thowing out the unskilled, and making them let everyone join regardless of ability to do the job stop politicians from passing stupid laws that protect certain groups and let each person get and keep thier job on ability not race, religion or nationality

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20. Comment by Tom B. (SBTB1) — September 10,2009 @ 3:36PM
Ratings: -3 +3

The unions destroyed the car industry and Detroit and they have done the same thing with our entire educational system. Now Obama wants to have complete unionization of the entire medical profession, including doctors. (Check out the Wall Street Journal editorial, Thursday,September 10th.) I wonder if hospitals will have rubber rooms for nurses and doctors?

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21. Comment by Mark S. (Mark S) — September 10,2009 @ 3:48PM
Ratings: -2 +1

20 Wall Street Journal editorial page is somewhere to the right of Fox News and Limbaugh. The news portion of that media outlet is outstanding, the editorial portion is extremist garbage.

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22. Comment by Rich K. (Rich907) — September 10,2009 @ 5:42PM
Ratings: -1 +3

Far be it from me to inject facts into this spin fest, but unions have a legal obligations to make sure all members of the bargaining unit...members and non-members alike...receive due process from their employers. This is part of federal labor law and has dated back to the 1930s.

The union will be sued by the employee if it does not insist that the employer prove the charges...incompetence, moral turpitude, criminal behavior, whatever...before a neutral third party.

If administrators cannot substantiate charges of incompetence and follow the due process rules, then that is on them. If TUSD...or any employer...wants to get rid of incompetent employees, then it needs to provide training to principals and other supervisors as to how to follow the due process and get it done.

In 39 years of teaching I worked with too many incompetent teachers who were allowed to continue failing students because the principals were every bit as incompetent as the teachers.

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23. Comment by SAM R. (SAM11) — September 10,2009 @ 6:49PM
Ratings: -1 +1

How long should it take to fire an incompetent teacher??? or any employee for that matter, even a principal. All employees should be given a chance to improve (unless it is outright criminal action) but just how long and how many chances should they get. The average time it takse to fire a tenured teacher is 2-3 years, and that is if you dont make any mistakes in paperwork and aviod technicalities. It should take less than 3 months. If you cant improve in that time, it is time to go. If you are truly a good teacher, you will get another job...if not you wont. The only profession I know of that takes any excessive period of time is a tenured teacher.

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24. Comment by Bruce B. (4262) — September 10,2009 @ 7:26PM
Ratings: -1 +2

I can care less on what goes on in NYC. This is a one sided story. Get a rope!

From Betsy
The news that I have for readers is this: Every teacher mentioned in Steven Brill's article should be in a classroom teaching the subject they are trained to teach because they are trained professionals and wonderful, caring individuals, but victimized by circumstances that have nothing to do with their value as competent teachers. They are all victims of the "rubberization" process that is powered by the Jack Welch theory of employment: improve performance by getting rid of 10% of your workforce every year.

When my four daughters went off to their respective public schools in New York City, and they were lucky enough to get a teacher who offered resources and respect for the learning process and for each of them as individuals, and taught them the subject matter in a way that enabled them to master tests in the subject, then I knew that they indeed had a "good" teacher, and this person needed to be protected from false claims made by Principals and administrators with an agenda that does not put my child - or any child, for that matter, first.

I have attended open and public 3020-a hearings for five years simply because I wanted to find out exactly what this process looked like. In my opinion, it is a mess, especially the hearings in which a teacher is accused of incompetence. I do not understand how anyone could believe that "competency" can be proven in a small room far away from children and a classroom. I have heard an arbitrator order that a teacher settle with the NYC BOE this way: "If you drop your New York State Supreme Court case against the NYC BOE, I will order you back to school as a full teacher, in the subject that you are certified to teach, with a clear record, no charges". When the teacher said "no", this arbitrator found guilt with the teacher taking 10 minutes too long to read a book in a class observed by the Principal (who the teacher had previously reported to investigators for violating No Child Left Behind legislation), and punished him with three months suspension without pay (@$25,000) and without medical coverage.

Please note that if the teacher had dropped his lawsuit, he would be exonerated/cleared of all charges, and immediately placed back into the classroom. His "incompetency" would have been 'cured'.

Makes you think that maybe teachers thrown into rubber rooms may not be guilty of anything after all, and it's all about money and politics, not education, learning, and children.

New H-1B VISA Reform: A Hugely Complex Problem

Monday, October 05, 2009 10:21 AM/EST
Analysts: Potential New H-1B Visa Clauses a Nuisance, No Game Changer
LINK

Republican Iowa Sen. Chuck Grassley is pushing for reform in the H-1B visa program and recently urged the U.S. Citizenship and Immigration Services (USCIS) to ask for evidence that workers coming over to the United States actually have employment.



Grassley recently wrote to the director of the USCIS: "Simply put, adjudicators should be asking companies up front for evidence that H-1B visa holders actually have a job awaiting them in the U.S., i.e., that workers are not coming in only to be 'benched' by employers."

Some business analysts in India do not see the current efforts to prove employment evidence as anything more than an "irritant," writes Amit Tripathi of DNA India.

Apurva Shah, a Mumbai-based IT sector analyst at broking firm Prabhudas Lilladher, said, "This is not going to impact companies significantly. This can at best be termed as another irritant, as a small portion of the onsite workforce remains in transition between projects." On an average about 5% of the onsite workforce of Indian IT service firms remains on bench.

"I have not heard about such a clause yet. But even otherwise, we hardly have about 5% of our people on bench onsite. That too cannot be called as bench strictly, as most of them are on leave or have finished one project and being inducted into another. And all of them are actually on salary. So there is hardly any impact of such a clause," said an Infosys executive who did not wish to be named. Analysts feel the IT industry has ways to work around the clause.

"Companies such as TCS, Infosys and others are setting up delivery and development centres in Mexico and Canada which are close to US. This helps firms save on costs as well as serve US customers from those locations, since people from Mexico and Canada do not need H-1B under the North American Free Trade Agreement (Nafta)," an analyst said.

Whether or not the USCIS will follow Grassley's lead on evidence gathering remains to be seen.

In 2007, an audit of a small percentage of H-1B visa companies found that there have been cases of fraud that included forged documentation, phantom businesses and phony job offers, and more. The Justice Department has been enforcing laws on the books after the audit, and has brought suit against a number of companies, including Vision Systems Group, Cognizant Technology, Patni Computer Systems and Computech.

In an effort to show that the USCIS takes fraud seriously, the organization began earlier this year making surprise audit visits to companies it suspects is operating under false pretenses.

At issue is whether the fraud is as widespread as Grassley and others believe. The H-1B visa program has had up to 65,000 participants with companies of all sizes, many of them household American firms including Microsoft, but also many of the largest Indian outsourcing companies like WiPro, Infosys and others.

H-1B Visa Companies Getting Unannounced Visits by Feds
By: Don E. Sears, e-week, 2009-08-17
LINK

If your company is using H-1B visa workers, you may get a surprise from the government. Piece of advice for your manager: It's voluntary, but the surprise could intimidate.

In an attempt to help root out fraud and other criminal activity, the U.S. Citizenship & Immigration Services agency is making surprise visits to companies with H-1B visa holders on the books.
After reports came out that there has been evidence shown of fraudulent use of temporary workers, bad documentation abusing the system and many visa holders not being paid prevailing wages, the Feds are showing up without notice and looking to see that everything is on the up and up.

From a CIO article on the subject (edited):

Recently, the USCIS has begun making "surprise visits" to the U.S. work sites of companies that sponsor H-1B and L-1 visa holders, including some large U.S.-based financial services companies, says Elizabeth Espin Stern, a partner in the Washington, D.C. office of law firm Baker and McKenzie. USCIS assessors come with a checklist of questions designed to confirm the identity of the employer who petitioned for the visa and the visa beneficiary and to verify that both are in compliance with the terms and conditions of the visa...

The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program. A study conducted last year by the Office of Fraud Detection and National Security estimated that 21 percent of H-1B visa petitions violate H-1B program rules. The offenses range from technical violations to outright fraud. The most common violation was not paying a prevailing wage to the H-1B beneficiary.

Resource Library:

The USCIS overseas the H-1B and L-1 visa programs. One question that some attorneys wonder, however, whether surprise visits, random audits and other fraud detection tactics are in the jurisdiction of this agency? From the same article:

USCIS investigation tactics often exceed what is necessary and reasonable to obtain H-1B application verification information, according to Stern (Elizabeth Espin Stern, of law firm Baker and McKenzie). Unlike the Department of Labor, which has the statutory authority to investigate an employer's compliance with visa obligations but rarely conducts audits unless there are complaints, the USCIS has no statutory or regulatory authority to enter the workplace of H-1B and L-1 visa holders. And investigators do not arrive with search warrants or subpoenas, says Stern.

What's more, USCIS has hired contract workers, who complete a USCIS training course, to conduct the site visits. But many of the contractors lack expertise about how companies maintain employment records or demonstrate employment terms, adds Stern.

Evidently, compliance with the program is voluntary, but imagine if an agency of the federal government busted into your workplace without being prepared? It's not hard to imagine your employer feeling a bit compelled or intimidated to hand over information.

How nutty are the rules for these visas? Well, they can get rather challenging, especially if your company is considering getting rid of these employees as part of layoffs. Take a look at the blog post When H-1B Visa Holders and the Recession Collide.

Wednesday, August 19, 2009 4:56 PM/EST
Readers' Comments on H-1B Visa Surprise Visits

There is some buzz from readers on the recent blog article "H-1B Visa Companies Getting Unannounced Visits by Feds" and a healthy debate going on about problems with the laws around these visas.

Reader 'Vincenzo' writes (edited):

This search for fraud misses the REAL problems with the H-1B visa - 1) the "prevailing wage" nonsense and 2) the problems with portability - ie., the difficulties of an H-1B visa beneficiary of changing jobs.

1) Prevailing wage - this is a joke. There are large loopholes in this portion of the H-1B visa laws which allows employers to LEGALLY underpay H-1B beneficiaries. Moreover, it completely goes against the "free market" philosophy so many economists and corporate big-wigs love to parrot. Why not let the market dictate wages?

2) Portability - when an H-1B visa beneficiary becomes unhappy with his current employer, the H-1B visa laws do allow him to change employers, provided that another employer is willing to take over his H-1B visa. However, when an H-1B visa beneficiary does change employers, he has to re-file his Green Card application. So if he's been waiting for three years to get his Green Card, and then changes employers, that three years is completely wasted.

An anonymous reader writes about how the law should change to protect American workers:

Employers should have to actually offer the job to qualified US citizens (at least 10% of all applicants after advertizing the position for 90 days, all applicants if less than 15 applications received) and have all offers declined. Then the H1B visa applicant should be compensated no more than what was offered the US citizens; but the employer should be required to contribute (non-tax-deductable)an amount equal to all compensation, benefits, and travel/living expenses provided to the H1B visa holder to a University in the US that offers a degree that would qualify the degree recipient for the job. This payment to the University should be constrained to paying tuition, books, and fees for US citizen upper division students pursuing a STEM batchelors degree.

Another anonymous reader, who claims to be on the way to getting a green card, talks about some realities faced (edited):

I've been legally in the United States for more than 12 years. My green card is more than 3 years away.

I agree that the system sucks for immigrants. Other than the fact that I don't have job mobility, I am very well paid (almost 200K). I wish i had the option to move if I needed to, but the options available are limited.

The thing is, I pay federal, state and local taxes, social security, unemployment premiums (which I can never collect on) and I'm a participant in the health programs that my employer offers.

All these are a net benefit to all US workers (and me -- sort of) and just perhaps, in eight years or so, I'll be allowed to take the citizenship test.

And on the fraud detection strategies employed by the feds, another anonymous reader writes:

I have about ZERO sympathy for these companies being audited and some being caught abusing the H-1B visas. This has been going on for 15 YEARS; about time someone checked up on them. Sad it takes a recession of this magnitude to move someone to stop abuses of what is nothing more than a cheap labor pool of indentured workers so US companies can continue to live here and benefit from our society while undermining the ability of US workers to make a living. We've let in over 200,000 of these H-1Bs in a single year in the past 15 years or so. England has a similar program (used to be call the "Skilled Migrant Worker Programme"; know how many they typically let in? About 1,000. That spells "SUCKER" for you and me, allowing in nearly a quarter of a million of these people to be:

1) Stuck with their sponsoring company for 6 years (no raises, no bonuses); if they leave they have to find a new company within X days, pay a fine and start their 6 year immigration clock over again.

2) Paid far less than the "prevailing wage" standard (which is itself far too loose as pay can range all over for a given IT job title). This IS the reason these visas are sought - cheaper labor.

As you can tell, the heat of the debate over foreign technology workers is complex, and I thank those readers who offer some real depth and open communication on the issues affecting everyone.

The blatant racial comments, however, really have no place in this debate. The program has its flaws and strengths, but race, in my estimation, is not really part of the equation. Anger at the program is warranted, but not at the people who are trying to do right by themselves and their families.

Mike Bloomberg Needs To Improve Services For the Homeless in NYC

NYC Number of Homeless Single Adults in Municipal Shelters, 2008-2009

Capacity Crunch: The NYC Shelter System Risks Running Out of Shelter Beds for the Rising Number of Homeless Single Adults
By Patrick Markee, Senior Policy Analyst, Coalition for the Homeless
October 4, 2009
LINK

The number of homeless single adults in the New York City municipal shelter system has risen dramatically this year, largely as a result of rising unemployment and the continuing shortage of affordable rental housing. As winter approaches, the municipal shelter system is virtually at capacity and is at enormous risk of running out of available shelter beds. Indeed, on the night of September 30th there were only two available shelter beds for homeless men, and eight available beds for homeless women.

Unfortunately, NYC Department of Homeless Services officials have offered no plan to expand shelter capacity to meet rising need, even as temperatures are falling and the number of homeless single men and women in municipal shelters continues to increase.

Coalition for the Homeless urges the Bloomberg administration to add needed shelter beds immediately in order to meet the growing need for emergency shelter for homeless men and women this winter. In the long term, the Coalition urges Mayor Bloomberg to accelerate the development of permanent supportive housing for homeless individuals living with mental illness and other special needs, and to restore the City’s longstanding and successful policy of prioritizing homeless New Yorkers for Federal housing assistance.

Background: Dramatic Increase in Homeless Individuals in NYC Shelter System

Amidst rising unemployment and the acute shortage of low-cost rental housing, the number of homeless single adults has risen dramatically this year. Following are highlights of this trend:

* Even before winter begins, the number of homeless single adults in the municipal shelter system this year has increased by more than 7 percent - the largest one-year increase since the 2001 economic recession, and one of the largest year-to-year increases in more than two decades.

* So far this year, the number of homeless single adults in the municipal shelter system has risen every month except for one – a virtually unprecedented trend.

* Historically, the homeless adult shelter population rises in winter months and declines in the warmweather summer months. However, this year the number of homeless single adults in municipal shelter rose throughout the summer, a trend which has not occurred since the 2001 economic recession.

* So far this year, the number of homeless men seeking shelter at the City’s central intake center (located at the Bellevue shelter on the east side of Manhattan) has increased by 8 percent compared to last year. The number of homeless men seeking shelter who are new to the shelter system has increased by 10 percent.

NYC Homeless Men Seeking Shelter Each Day at Intake Center

* This year is the first to see an increase in the homeless adult shelter population since 2004. The number of homeless adults residing in NYC municipal shelters had declined in recent years, largely due to an expansion in the number of permanent supportive housing units and the targeting of supportive housing units to long-time shelter residents..

NYC Municipal Shelter System Running Out of Beds for Homeless Single Adults

* As the number of homeless adults has risen this year, municipal shelters for homeless single men and women have been at more than 99 percent of capacity. At the same time, shelters for homeless veterans and for chronic street homeless individuals (so-called “safe haven” shelters) – whose use is restricted to special populations – have also been near capacity.

* Currently there are 7,704 total municipal shelter beds for homeless single adults (which includes 6,912 municipal shelter beds, 411 “safe haven” beds, and 381 beds for homeless veterans). On many recent nights there have been more than 7,500 homeless adults in municipal shelters, utilizing more than 97 percent of all shelter beds.

* This September, the number of available municipal shelter beds for homeless adults has reached critically low levels. On many nights there were fewer than 25 available beds for homeless women and fewer than 50 beds for homeless men. On the night of September 30th, there were only two available shelter beds for homeless men, and only eight available beds for homeless women.



NYC Homeless Men Seeking Shelter Each Day at Intake Center

* Despite the acute shortage of shelter beds, NYC Department of Homeless Services officials have failed to articulate a plan for adding needed shelter capacity. (In fact, this summer the City actually closed a 150-bed shelter for homeless men.) In the cold-weather winter months, the nightly homeless adult shelter population historically increases by hundreds of people.

The Need for Immediate and Long-term Action

The Bloomberg administration needs to act now In order to avoid an even worse shelter capacity crisis this winter. Coalition for the Homeless calls on Mayor Bloomberg to enact the following immediate and longterm measures:

1. Expand Emergency Shelter Capacity for Homeless Adults This Winter:

* The NYC Department of Homeless Services must add new shelter beds to the municipal shelter system this winter sufficient to meet the rising need for shelter.

2. Accelerate Construction of Permanent Supportive Housing:

* In 2005, the City and State signed a ten-year agreement to provide permanent supportive housing for homeless people living with mental illness and other special needs.
* However, more than half of the newly-constructed supportive housing – 3,276 units of the planned 6,250 new units – will not be built until at least 2011.
* City and State officials should accelerate the development of supportive housing for homeless people with special needs.

3. Target Federal Housing Aid to the Homeless:

* In 2005, the Bloomberg administration cut off homeless New Yorkers from longstanding priority for Federal housing programs, including Section 8 vouchers and public housing.
* This year the City will distribute more than 12,000 Section 8 vouchers and more than 5,000 public housing apartments will be available to rent – but virtually none to the homeless.
* Numerous studies show that Section 8 vouchers successfully reduce family homelessness.
* Reversing the City’s misguided policy will move thousands of homeless families and individuals to permanent housing – and will save City taxpayer dollars spent on emergency shelter.

Note: All homeless shelter population data is from the New York City Department of Homeless Services. For more information, please visit www.coalitionforthehomeless.org.

Mayor Bloomberg needs to stop hiding on the homeless issue
by Errol Louis, Sunday, October 4th 2009, 4:00 AM
LINK

The arrival of autumn's first chill coincides with a bombshell report, to be released by the Coalition for the Homeless this week, showing that the city's shelter system is filled to bursting, unable to take in another homeless person.

New York City maintains more than 7,500 beds for single homeless adults, but on Sept. 28, according to Patrick Markee, senior policy analyst of the coalition, official city figures revealed that virtually every single adult bed was filled, leaving only nine empty beds for homeless men and 30 for women.

Two nights later, on Sept. 30, there were only two empty beds in the entire city system for homeless men. Two.

"You have a municipal shelter system that is literally on the verge of running out of beds," says Markee.

That's not supposed to happen. The system for homeless adults includes 6,912 municipal shelter beds, 381 beds for homeless veterans, and 411 "safe haven" beds for domestic abuse victims and other special cases. And even when those beds are all filled, the city literally isn't allowed to run out of beds.

In 1981, the courts established that in New York State the homeless have a constitutional right to shelter, and a standing court order, known as Callahan vs. Carey, remains in effect to this day. The order requires the city to shelter however many homeless people arrive at the front door.

So as a practical matter, the city must find a way to accommodate more people when the weather grows cold.

Department of Homeless Services officials say the agency decides how and when to expand shelter capacity as the need arises. Unused space in existing shelters will be used first, they say, with new shelters opened as a last resort.

"We are looking to bring on additional beds," says George Nashak, a DHS deputy commissioner. "We have seen an unprecedented demand for shelter on the adult side."

But advocates say City Hall, warned of growing problems, dithered while the crisis grew.

"The city literally has no plan," says Markee. On a recent visit to the central intake center for homeless men in Manhattan, says Markee, he met a man who showed up at 7:30 in the evening, desperate for a place to sleep - and was still waiting for help at 2:30 the next morning.

"It was complete chaos," he says. "Next month, if they don't do something dramatic, they're going to literally run out" of space.

The timing - "next month" - matters greatly, given the Nov. 3 mayoral election.

Voters must judge whether Mayor Bloomberg responded to indicators that were obvious long before the economy crashed last year.

According to the Mayor's Management Report, the 311 system recorded a steadily rising number of calls related to homelessness in recent years.

The 105,150 calls received in fiscal year 2009 are nearly triple the 50,751 calls in FY 2005.

The same report shows the number of homeless families increasing by more than 61% during the same years, to 12,959 from 8,027.

Nashak touts administration successes like moving 10,000 adults a year out of shelters and into permanent housing.

At least he's willing to talk about the issue. Bloomberg, on the other hand, would just as soon change the subject.

In August, when challenged on the city's homeless policies by his Democratic challenger, Controller Bill Thompson, the mayor told my Daily News colleague Frank Lombardi there would be "plenty of time" to debate the matter "after the election."

That won't cut it. The Bloomberg administration needs to answer questions right now about what it did - and did not do - to stem a growing homelessness crisis that's about to get much worse.

elouis@nydailynews.com

NYC Voters Do Not Like Bloomberg's Grab For a Third Term

October 4, 2009
Voters Like Mayor, but Not His Path to 3rd Run
By MICHAEL BARBARO, NY TIMES

Mayor Michael R. Bloomberg’s re-election campaign can generate reams of statistics on how quickly the city repaired potholes in each neighborhood. It can produce memos on climate change and public health, and even translate fliers into Creole.

Just don’t ask about term limits.

Rosemary DeStefano found that out on her doorstep in the Bronx the other day when a Bloomberg volunteer showed up, asking for her vote.

When she complained about how the mayor had the law changed to stay in office, the volunteer recited details of his economic plan. When she persisted, he extolled Mr. Bloomberg’s promise to create 400,000 jobs.

“They missed the whole point,” she said.

With four weeks remaining until Election Day, little seems uncertain in the contest between the colossally advantaged incumbent, Mr. Bloomberg, and his lesser-known rival, William C. Thompson Jr.

But interviews with both campaigns and dozens of voters reveal that anger over a single issue still simmers, seemingly immune to a flood of television commercials and glossy brochures.That bedevils Bloomberg advisers and gives hope to his underfunded challenger.

Disenchantment over the change in the law helped topple four veteran City Council members this fall, the greatest repudiation of incumbents in a generation, and has catapulted two local lawmakers who opposed the measure into citywide office.

“The Bloomberg campaign can’t convince voters to not be upset about this. It won’t work,” said John H. Mollenkopf, a professor of political science at City University who has informally advised the Bloomberg campaign.

“If you ask New Yorkers what they did not like over the last eight years,” he added, “term limits is the major negative.”

Mr. Thompson is building his entire campaign around the topic, adopting the slogan “Eight Is Enough,” accusing the mayor of breaking his word and preparing commercials that portray him as a power-hungry mogul who plays by his own rules.

Mr. Thompson’s campaign aides have told undecided voters to express their outrage over term limits by supporting him, whether they like him or not. And Mr. Thompson will make it a major line of attack during two debates and turn it into a rallying cry in the days leading up to Election Day, the anniversary of the term limits change, which Mr. Bloomberg signed into law on Nov. 3, 2008. “It will be a big theme,” said Eduardo Castell, Mr. Thompson’s campaign manager.

The mayor’s political advisers privately acknowledge the public anger, but since they cannot reverse Mr. Bloomberg’s actions, they are looking for ways to deflect attention from it.

They have created a new round of commercials that play up Mr. Bloomberg’s middle-class roots, to soften his image as an imperious billionaire who defied the will of the voters.

They are leveling frequent attacks at Mr. Thompson’s record, as president of the Board of Education and comptroller, to send the message that, even if voters are still resentful about term limits, they would be foolhardy to choose an untested leader.

If voters insist on talking about term limits, volunteers are instructed to tell them the mayor “is not guaranteed” a third term and has given them “more choice” by changing the rules.

“Bill Thompson wants to make this election about one issue,” said the mayor’s campaign manager, Bradley Tusk. “And given his track record that’s understandable. But the performance of the mayor has an enormous impact on people’s lives, and because of that, voters choose their mayor based on very real tangible issues.”

No one is predicting that resentment over term limits will, by itself, be enough to cost the mayor the election. But in interviews, political analysts and pollsters said that unease over the issue helps account for a stubborn anomaly in New Yorkers’ feelings about the mayor. Polls consistently show that a large majority (roughly 70 percent) approve of his performance, but that a significantly smaller number (50 percent) plan to vote for him in November.

The 50 percent figure has not budged in months, even though the Bloomberg campaign has spent about $65 million to promote the mayor’s record. “Term limits has a lot to do with that,” said Geoff Garin, Mr. Thompson’s pollster. “It has put a ceiling on good will toward the mayor.”

Marilyn Arthold, 64, who lives in Bensonhurst, Brooklyn, said she liked the mayor but was considering voting against him because of how he changed term limits.

“He did it the wrong way,” she said.

Her neighbor, Anna May, who would give only her first and middle name, agreed: “I didn’t go to college, but I know right from wrong. This was wrong.” She said she would vote for Mr. Thompson.

Those involved in the mayor’s campaign said the issue has unexpected staying power, a year after City Hall introduced the legislation allowing officials to serve three consecutive terms, not two.

“It comes up a lot with voters,” said one campaign staff member. In the fall of 2008, when Mr. Bloomberg and his aides fought to change the rule, they made two predictions: that voters would be distracted by the presidential election, and that any anger over the move would recede by Election Day 2009.

They may have been overoptimistic, pollsters and analysts said.

“The anger in the electorate remains an inconvenient truth for the Bloomberg campaign,” said Bruce N. Gyory, a political consultant.

New York voters approved a referendum limiting council members and officials elected citywide to two four-year terms in 1993, and then ratified that vote in a second referendum in 1996. Mr. Bloomberg, in overturning the law, rewrote it through legislation that was approved by the City Council; critics and good-government groups said any change should have gone before the voters.

Mr. Bloomberg was previously outspoken in his opposition to changing term limits, saying any effort to do so would be a “disgrace.”

Just how much it will hurt him on Election Day remains an open question, however. Many voters who intensely opposed the change said they planned to vote for him, citing his skills as a manager and a weak opponent.

“If it were anyone else, I would probably be against him,” said Carlo Dioguardi, who lives in Battery Park City and voted in favor of term limits. “I don’t think anyone else can do the job he’s done.”

As for those who are less forgiving?

The campaign’s strategy of changing the topic occasionally backfires. A few days after Ms. DeStefano’s confrontation with a Bloomberg campaign volunteer in the Bronx, a handwritten letter from a campaign volunteer arrived, ticking off the mayor’s plans to improve the economy in the borough. Ms. DeStefano, a 75-year-old Republican, tore it up.

“I didn’t ask about jobs,” she said. “I asked about term limits.”