Circuit Judge Blocks Project Veritas' Muckraking Attempt to Attack the AFT

James O'Keefe

From Politico:
"Wayne County Circuit Judge Brian Sullivan issued the order Friday that blocks Project Veritas and a woman said to be working with the group, Marisa Jorge, from disclosing videos or other information gathered during an undercover operation carried out against the American Federation of Teachers office in Detroit. "

This may be precedent-setting. Let's see what happens with the First Amendment, wire and mail fraud.

Betsy Combier
betsy@advocatz.com

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Teachers union gets restraining order against O'Keefe video venture
By JOSH GERSTEIN, Politico, 09/29/2017 

The Michigan chapter of a major teachers union has obtained a temporary restraining order against

an organization run by conservative provocateur James O’Keefe.

Wayne County Circuit Judge Brian Sullivan issued the order Friday that blocks Project Veritas and a woman said to be working with the group, Marisa Jorge, from disclosing videos or other information gathered during an undercover operation carried out against the American Federation of Teachers office in Detroit.

AFT alleges that Jorge, using the name Marissa Perez, obtained an internship at AFT beginning in May of this year and that during the internship she often acted suspiciously.

Jorge “showed an interest in charter schools and in instances of educators who had supposedly engaged in ‘sexting'’ with students; there were no such instances,” the court complaint says. “Over the next three months Defendant engaged Plaintiff’s staff and regularly sought information which was beyond her assignment. … Defendant Jorge appeared at Plaintiff’s worksite wearing adornments which are capable of hiding a camera or recording device. She wore large pearls, large glasses and clothing with buttons capable of hiding a camera.”

AFT says that Jorge is actually a Liberty University graduate but that she posed as a University of Michigan student when seeking the internship. The union alleges that earlier this year Jorge tried to infiltrate DisruptJ20, a group opposed to President Donald Trump’s inauguration, but that she was identified and driven out.

Several of Jorge’s social media pages appear to have been abruptly taken down in recent days.

The restraining order issued Friday is unusual. It was granted at a hearing where Project Veritas’ attorneys were not present. The judge set another hearing for Oct. 10 to decide whether the order should be continued.

A spokesman for Project Veritas, Stephen Gordon, dismissed the significance of the lawsuit.

“James O’Keefe and Project Veritas have not been served with any court action in Michigan and we do not comment on investigations, real or imagined,” Gordon said via email. “Project Veritas has focused this year on investigating the mainstream media. I expect Politico to be as anxious to report on our findings in our upcoming investigative release aimed right at the heart of the establishment media complex as they are to bashing Project Veritas based on over-hyped press releases that don’t amount to anything of consequence.”

AFT President Randi Weingarten praised the judge’s order.

“James O’Keefe and his operatives will stop at nothing to smear their ideological opponents — deception, distortion and dirty tactics — all to advance a political agenda that undermines public school students, teachers and families,” she said in a statement. “We are grateful that the Michigan court has protected — at least for now — students, teachers and families in Michigan.”

O’Keefe has carried out a series of high-profile video operations against organizations like Planned Parenthood and ACORN, as well as news outlets, including NPR and CNN.

In 2010, O’Keefe was arrested for posing as a telephone repairman in order to gain access to an office of Sen. Mary Landrieu (D-La.). He eventually pleaded guilty to a federal misdemeanor, was fined $1,500 and was sentenced to probation.

The new suit seeks at least $50,000 in actual damages and $3 million in punitive damages.

O’Keefe and Project Veritas are already facing a $1 million lawsuit brought by liberal activists who say they were targeted by an O’Keefe-directed operation aimed at making them appear to be instigating violence at Trump presidential campaign rallies and events.

Josh Gerstein is a senior reporter for POLITICO.

Press Release

AFT Michigan Files Civil Complaint Against James O’Keefe’s Project Veritas, Alleging Illegal Surveillance

AFT President Randi Weingarten: These “operatives will stop at nothing to smear their ideological opponents—deception, distortion and dirty tactics—all to advance a political agenda that undermines public school students, teachers and families.”

For Release: 

Friday, September 29, 2017

Contact:

AFT Media Affairs

202/879-4458

press@aft.org

DETROIT—A circuit court judge has signed an emergency restraining order that prevents Project Veritas, a conservative hit group that uses deception and lies to attack its political opponents, from using illegally obtained information to smear Michigan children, teachers and families.

AFT Michigan on Thursday filed a civil complaint against Project Veritasand its operative Marisa Jorge for their fraudulent, unauthorized and unlawful surveillance of AFT Michigan staff, leaders and associates, and for gathering information from them. In response to the complaint, Judge Brian Sullivan of Michigan’s Third Judicial Circuit Court issued a temporary restraining order prohibiting Jorge, her agents and anyone acting in concert with her from releasing private and confidential information gathered from any unlawful surveillance.

It is believed to be the first time Project Veritas, founded by conservative activist James O’Keefe, has been subject to such an order in its near decade-long existence.

Jorge used fraud and deception under the alias "Marissa Perez" to secure an internship with AFT Michigan, ostensibly to obtain material Project Veritas could use in one of its infamously misleading hit videos, according to the complaint. Jorge falsely claimed to be a student at the University of Michigan interested in becoming a teacher when, in fact, she is a recent graduate of Liberty University and appears to be working for Project Veritas. The restraining order is against Jorge as well as “her agents, employees and those acting in concert,” which would include Project Veritas, also named in the complaint.

Project Veritas is funded by a constellation of conservative backers and has frequently targeted teachers unions. Indeed, O’Keefe recently vowed to use his puerile tactics in defense of embattled Education Secretary Betsy DeVos who, coincidentally, is from Michigan where this criminal infiltration occurred. Project Veritas has in the past received funding from the Trump Foundation.

O’Keefe has demonstrated his willingness to ignore both legal and ethical standards. Long before the Russian government propagated fake news and deceptive tactics to sway the 2016 presidential election, O’Keefe was assuming false identities and doctoring videos in his attempts to smear his ideological opponents.

AFT President Randi Weingarten says, “James O'Keefe and his operatives will stop at nothing to smear their ideological opponents—deception, distortion and dirty tactics—all to advance a political agenda that undermines public school students, teachers and families.

“When the rights of students are curtailed by our own secretary of education who has spent decades attacking, rather than supporting, public education, it is more important than ever to fight for the truth and for the promise of public education. We are grateful that the Michigan court has protected—at least for now—students, teachers and families in Michigan.”

View AFT Michigan’s complaint

View the temporary restraining order against Project Veritas and Marisa Jorge

The AFT represents 1.7 million pre-K through 12th-grade teachers; paraprofessionals and other school-related personnel; higher education faculty and professional staff; federal, state and local government employees; nurses and healthcare workers; and early childhood educators.

Computers and Education: A Good or Bad Partnership?

One scenario currently being given major media play is that technology used in schools are harming students. Dr. Nicholas Karderas believes that.

I think there is no doubt that huge sums of money are being spent on computers and computer-related accessories for schools, universities and other places whose main business is education, and money sways politicians who make public policy.

When this 21st century computer phenomenon becomes good education policy for the diverse populations throughout America is anyone's guess.

News Corp.’s $1 Billion Plan to Overhaul Education Is Riddled With Failures

Betsy Combier

President and CEO, ADVOCATZ

betsy@advocatz.com

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Screens In Schools Are a $60 Billion Hoax
Dr. Nicholas Kardaras
Aug 31, 2016

As the dog days of summer wane, most parents are preparing to send their kids back to school. In years past, this has meant buying notebooks and pencils, perhaps even a new backpack. But over the past decade or so, the back-to-school checklist has for many also included an array of screen devices that many parents dutifully stuff into their children’s bag.

The screen revolution has seen pedagogy undergo a seismic shift as technology now dominates the educational landscape. In almost every classroom in America today, you will find some type of screen—smartboards, Chromebooks, tablets, smartphones. From inner-city schools to those in rural and remote towns, we have accepted tech in the classroom as a necessary and beneficial evolution in education.

This is a lie.

Tech in the classroom not only leads to worse educational outcomes for kids, which I will explain shortly, it can also clinically hurt them. I’ve worked with over a thousand teens in the past 15 years and have observed that students who have been raised on a high-tech diet not only appear to struggle more with attention and focus, but also seem to suffer from an adolescent malaise that appears to be a direct byproduct of their digital immersion. Indeed, over two hundred peer-reviewed studies point to screen time correlating to increased ADHD, screen addiction, increased aggression, depression, anxiety and even psychosis.

But if that’s true, why would we have allowed these “educational” Trojan horses to slip into our schools? Follow the money.

Education technology is estimated to become a $60 billion industry by 2018. With the advent of the Common Core in 2010, which nationalized curriculum and textbooks standards, the multi-billion-dollar textbook industry became very attractive for educational gunslingers looking to capitalize on the new Wild West of education technology. A tablet with educational software no longer needed state-by-state curricular customization. It could now be sold to the entire country.

This new Gold Rush attracted people like Rupert Murdoch, not otherwise known for his concern for American pedagogy, who would go on to invest over $1 billion into an ed-tech company called Amplify, with the stated mission of selling every student in America their proprietary tablet—for only $199—along with the software and annual licensing fees.

Amplify hired hundreds of videogame designers to build educational videogames—while they and other tech entrepreneurs attempted to sell the notion that American students no longer had the attention span for traditional education. Their solution: Educate them in a more stimulating and “engaging” manner.

But let’s look more closely at that claim. ADHD rates have indeed exploded by 50 percent over the past 10 years with the CDC indicating that rates continue to rise by five percent per year. Yet many researchers and neuroscientists believe that this ADHD epidemic is a direct result of children being hyper-stimulated. Using hyper-stimulating digital content to “engage” otherwise distracted students exacerbates the problem that it endeavors to solve. It creates a vicious and addictive ADHD cycle: The more a child is stimulated, the more that child needs to keep getting stimulated in order to hold their attention.

Murdoch’s Amplify wasn’t the only dubious ed-tech cash-grab. The city of Los Angeles had entered into a $1.3 billion contract in 2014 to buy iPads loaded with Pearson educational software for all of its 650,000 K through 12 students—until the FBI investigated its contract and found that now-former Superintendent John Deasy had a close relationship with Apple and Pearson executives. (Before the deal was killed in December 2014, the Pearson platform had incomplete and essentially worthless curriculum and such feeble security restrictions students that bypassed them in weeks.)

Despite the Amplify and LA debacles, others still seek to convince naïve school administrators that screens are the educational panacea. Yet as more American schools lay off teachers while setting aside scarce budget dollars for tech, many educators and parents alike have begun to ask: Do any of these hypnotic marvels of the digital age actually produce better educational outcomes for the kids who use them?

We could look to Finland, whose school system routinely ranks toward the top globally and has chosen to skip the tech and standardized testing. Instead, Finnish students are given as many as four outdoor free-play breaks per day, regardless of the weather—while here, a sedentary American child sitting in front of a glowing screen playing edu-games while over-scheduled and stressed by standardized testing is seen as the Holy Grail.

Dr. Kentaro Toyama, an associate professor at the University of Michigan’s School of Information, once believed that technology in the classroom could solve the problems of modern urban education. No Luddite, he had received his Ph.D. in computer science from Yale and had moved to India in 2004 to help found a new research lab for Microsoft; while there, he became interested in how computers, mobile phones and other technologies could help educate India’s billion-plus population.

Rather than finding a digital educational cure, he came to understand what he calls technology’s “Law of Amplification”: technology could help education where it’s already doing well, but it does little for mediocre educational systems. Worse, in dysfunctional schools, it “can cause outright harm.” He added: “Unfortunately, there is no technological fix…more technology only magnifies socioeconomic disparities, and the only way to avoid that is non-technological.”

The list of supporting education experts and researchers is long:

The Organization for Economic Co-operation and Development said in a 2015 report that heavy users of computers in the classroom “do a lot worse in most learning outcomes” and that: “In the end, technology can amplify great teaching, but great technology cannot replace poor teaching.”

An exhaustive meta-study conducted by Durham University in 2012 that systemically reviewed 48 studies examining technology’s impact on learning found that “technology-based interventions tend to produce just slightly lower levels of improvement when compared with other researched interventions and approaches.”

The Alliance for Children, a consortium of some of the nation’s top educators and professors, in a 2000 report concluded: “School reform is a social challenge, not a technological problem…a high-tech agenda for children seems likely to erode our most precious long-term intellectual reserves—our children’s minds.”

Patricia Greenfield, distinguished professor of psychology at UCLA, analyzed more than 50 studies on learning and points out that reading for pleasure among young people has decreased in recent decades, which is problematic because “studies show that reading develops imagination, induction, reflection and critical thinking, as well as vocabulary…in a way that visual media such as video games and television do not.”

Education psychologist and author of Failure to Connect: How Computers Affect Our Children’s Minds Jane Healy spent years doing research into computer use in schools and, while she expected to find that computers in the classroom would be beneficial, now feels that “time on the computer might interfere with development of everything from the young child’s motor skills to his or her ability to think logically and distinguish between reality and fantasy.”

John Vallance, a Cambridge scholar and headmaster of Australia’s top K-through-12 school, Sydney Grammer, has said: “I think when people come to write the history of this period in education...this investment in classroom technology is going to be seen as a huge fraud.”

There has also been surprising research coming out of Canada: Students don’t even prefer e-learning over traditional education. In a 2011 study, researchers found that students actually preferred “ordinary, real-life lessons” to using technology. Those results surprised the researchers: “It is not the portrait that we expected, whereby students would embrace anything that happens on a more highly technological level. On the contrary—they really seem to like access to human interaction, a smart person at the front of the classroom.”

We are projecting our own infatuation with shiny technology, assuming our little digital natives would rather learn using gadgets—while what they crave and need is human contact with flesh-and-blood educators.

Schools need to heed this research in order to truly understand how to best nurture real intrinsic learning and not fall for the Siren song of the tech companies—and all of their hypnotic screens.

Court of Appeals For the Second Circuit Rules That Teacher Peter Cohn Did Not Have Protected Speech When He Reported Grade Changing By Another Teacher

The issue of freedom of speech by a public employee is an important one. As seen below, the speech of a teacher who reports to a principal and/or other education policymakers what seems to be improper acts by another public employee is not protected under the First Amendment. In the case of Peter Cohn, the United States Court of Appeals, Second Circuit, affirmed the decision of the District Court, which denied the protection saying that Mr. Cohn was not speaking as a private citizen.

I believe that the pattern and practice of destroying any exposure of corruption and fraud in public agencies is an error of judgment which should be fought before there is none. If public employees and private individuals are afraid to speak up, our public dollars will continue to be wasted or stolen.

See Garcetti v. Ceballos
WEINTRAUB v. BOARD OF EDUCATION OF CITY SCHOOL DISTRICT OF CITY OF NEW YORK 32and,

US Supreme Court Rules That Public Worker Testimony Is Protected From Retaliation

Betsy Combier
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PETER COHN, Plaintiff-Appellant,

v.

THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, ERIC STRAUSS, individually, and JAMES JOHNSON, individually, Defendants-Appellees.

No. 17-517-cv.

United States Court of Appeals, Second Circuit.

September 20, 2017.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Block, J.).

STEWART LEE KARLIN, Stewart Lee Karlin Law Group, PC, New York, NY., for Appellant.

ERIC LEE (Fay Ng on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY., for Appellees.

PRESENT: DENNIS JACOBS, JOSÉ A. CABRANES, RAYMOND J. LOHIER, JR. Circuit Judges.

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Peter Cohn, a New York City public school teacher, alleges that he suffered unlawful retaliation after he suggested that a fellow teacher had improperly assisted students prepare for a state-wide standardized test.^[1] The United States District Court for the Eastern District of New York (Block, J.) dismissed the complaint on motion, concluding that Cohn's speech was not protected by the First Amendment because it was made pursuant to his duties as a government employee. We review that decision de novo. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008). We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.

As part of his duties as an earth science teacher, Cohn was required to set up the laboratory portion of the New York State Regents Examination and help grade it. Cohn observed that approximately a dozen students in another teacher's class received perfect scores, and suspected that the teacher had improperly coached those students before the test. Cohn raised his concerns to the school's principal and assistant principal and, when they failed to act, Cohn informed the New York State Department of Education and the Board of Regents. Cohn alleges that he afterward suffered various adverse employment consequences, including unsatisfactory performance reviews.

Only certain types of speech made by government employees are protected by the First Amendment: it is necessary (but not sufficient) that the government employee "sp[eak] `as a citizen' rather than solely as an employee." Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)). There is no "brightline rule" to determine whether or not "a public employee is speaking pursuant to [his] official duties," i.e., speaking as an employee rather than as a citizen. Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). "Courts must examine the nature of the plaintiff's job responsibilities, the nature of the speech, and the relationship between the two." Id.

In Weintraub v. Board of Education, a teacher alleged retaliation after complaining that a school administrator had declined to punish a student who had thrown books at the teacher. 593 F.3d 196, 198 (2d Cir. 2010). The teacher's complaint was made "pursuant to his official duties because it was part-and-parcel of his concerns about his ability to properly execute his duties as a public school teacher— namely, to maintain classroom discipline." Id. at 203 (citation and quotation marks omitted). Consequently, the teacher spoke as an employee rather than as a citizen.

So too here. Cohn and the other earth science teachers were responsible for setting up the laboratory exam, creating the answer key, and grading the exam. As in Weintraub, Cohn's speech was "part-and-parcel" of his job responsibilities—here, ensuring the fair and proper administration of a test for which he had some responsibility. Id. The alert to school officials that another teacher may have helped students cheat was therefore "pursuant to his official duties." Id. Accordingly, Cohn was speaking as an employee—rather than as a citizen—and his speech is unprotected by the First Amendment.

Cohn's counterarguments are unavailing. He contends that he was speaking in a private capacity when he raised his concerns beyond his immediate supervisors (the principal and assistant principal) by writing to state educational officials. A similar argument was rejected in Ross: "[t]aking a complaint up the chain of command to find someone who will take it seriously `does not, without more, transform . . . speech into protected speech made as a private citizen.'" 693 F.3d at 307 (quoting Anemone v. Metro. Transp. Auth., 629 F.3d 97, 116 (2d Cir. 2011)).

Cohn also argues that he spoke as a citizen rather than as an employee because private citizens may likewise write to state educational officials about suspected cheating. Although a "civilian analogue" to a government employee's speech militates in favor of an inference that the employee's speech is protected by the First Amendment, see Matthews, 779 F.3d at 175-76, the presence of an unofficial analogue does not necessarily mean the speech is protected. Weintraub concluded that the plaintiff teacher spoke as an employee (rather than as a citizen) before the opinion considered the presence of a civilian analogue. 593 F.3d at 203. Although the lack of a civilian analogue "supported" the conclusion that the teacher spoke as an employee, it was not determinative. Id. Even if private citizens can complain to state educational authorities in the same way he did, it would not change our conclusion that Cohn's speech was made pursuant to his official duties, and therefore unprotected by the First Amendment.

For the foregoing reasons, and finding no merit in Cohn's other arguments, we hereby AFFIRM the judgment of the district court.

[1] Cohn sued his principal and assistant principal, as well as the New York City Department of Education and Board of Education. 

COHN v Dept. of Educ. of N.Y.

BLOCK, Senior District Judge

MEMORANDUM AND ORDER Appearances: 
For the Plaintiff
STEWART LEE KARLIN
DANIEL EDWARD DUGAN
Law Offices of Stewart Lee Karlin, P.C.
111 John Street, 22nd Floor
New York, New York 10038 

For the Defendant
EMERY L. LYON
New York City Law Department
100 Church Street
New York, New York 10007 BLOCK, Senior District Judge :

Peter Cohn ("plaintiff"), a high school teacher at the High School of Art and Design, brings the present action against the Department of Education of the City of New York, the Board of Education of the City of New York, Eric Strauss, and James Johnson (together, "defendants"). Plaintiff claims that defendants retaliated against him for exercising his First Amendment right to freedom of speech in violation of 42 U.S.C. § 1983. Defendants now move to dismiss plaintiff's case for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reason, their motion is GRANTED.

I

The following facts are derived from the complaint, taken as true and viewed in the light most favorable to plaintiff. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11(2d Cir. 2010). Plaintiff was on the grading team for the New York State Regent Examination in June 2011. While performing his duties on the grading team, he noticed that another teacher's students were receiving disproportionately high scores on the exam, which suggested that the teacher had improperly coached the students. After plaintiff reported this observation to defendants Strauss and Johnson—principal and vice principal, respectively, of the High School of Art and Design—and also to the New York State Department of Education Testing Division and the Board of Regents, Cohn claims he received a series of unsatisfactory teaching reviews and was removed from his position as Chairman of Math and Science. He argues that these actions amount to First Amendment retaliation.

II

A government employer "may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large." U.S. v. National Treasury Employees Union, 513 U.S. 454, 465 (1995). However, "[t]he Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (emphasis added). Thus, to establish a First Amendment retaliation case, a public employee must allege facts demonstrating that he or she "spoke as a citizen on a matter of public concern," rather than pursuant to his or her job duties. Id. at 418. If the employee spoke pursuant to his or her job duties rather than as a citizen on a matter of public concern, the employee has no First Amendment cause of action. See id. at 421 ("[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.").

Such is the case here. Plaintiff's speech arose directly from, and "w[as] made pursuant to his duties," on the grading team for the New York Regent Examination. See id. ("The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy."). He was performing his duty of ensuring that the exam was fairly and properly graded; it "is part of what he . . . was employed to do." Id. As defendants point out, this case is directly on point with O'Connor v. Huntington U.F.S.D., No. 11-1275, 2014 WL 1233038, at *8 (E.D.N.Y. 2014), in which Judge Bianco held that a teacher on a grading team who reported grading irregularities on a statewide test was speaking "pursuant to his professional responsibilities and duties as a schoolteacher and grader[,]" rather than as a citizen on a matter of public concern.

Plaintiff here argues that O'Connor is distinct from his case because he reported his observation of grading irregularities to school administrators and the New York State Department of Education Testing Division and the Board of Regents, whereas the plaintiff in O'Connor only reported the grading irregularities to school administrators. But Garcetti instructs the Court to consider many factors, each non-dispositive, in a practical inquiry to determine whether the speech was made as a citizen rather than as an employee. See Garcetti, 547 U.S. 410, 420, 424 ("The proper inquiry is a practical one."). The mere fact that plaintiff here spoke outside of the small circle of school administrators is insufficient to transform his speech into that of a citizen on a matter of public concern. Thus, the facts plaintiff alleges in his Amended Complaint, taken as true and viewed in his favor, are insufficient to establish that he spoke as a citizen when he reported grading irregularities to Strauss, Johnson, and the New York State Department of Education Testing Division and the Board of Regents. And because he has not sufficiently alleged an underlying constitutional violation, his Monell claim also fails. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) ("If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.").

III

For the aforementioned reason, defendants' motion to dismiss for failure to state a claim is GRANTED.

SO ORDERED

/S/ Frederic Block

FREDERIC BLOCK

Senior United States District Judge Brooklyn, New York
January 25, 2017

NYC Special Education Teacher William Johnson: Confessions of a ‘Bad’ Teacher

I am re-posting the article below from my website Parentadvocates.org because Mr. Johnson gives what I believe to be an accurate picture of how random labels such as "bad teacher" and "unsatisfactory pedagogy" are used.

See also:

Why Observation Reports Should Not Be Used To Terminate a Tenured Employee by Betsy Combier
At 3020-a arbitration, a good defense argued with supporting arbitration/court decisions made in prior cases will win, most of the time. Pick your lawyer/advocate carefully. Or, do it yourself pro se with a knowledgeable assistant.

Betsy Combier
betsy.combier@gmail.com
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Editor, NYC Public Voice
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William Johnson

NYC Special Education Teacher William Johnson: Confessions of a ‘Bad’ Teacher
Parentadvocates.org

William Johnson wrote: "What makes a great teacher? To a lot of people, the answer seems simple enough: a great teacher is one whose students achieve. For the most part these days, student success is measured with test scores. Logically then, a great teacher is one whose students perform well on tests......I’m a bad teacher. That’s not my opinion; it’s how I’m labeled by the city’s Education Department. Last June, my principal at the time rated my teaching “unsatisfactory,” checking off a few boxes on an evaluation sheet that placed my career in limbo. That same year, my school received an “A” rating. I was a bad teacher at a good school. It was pretty humiliating."


March 3, 2012
Confessions of a ‘Bad’ Teacher
By WILLIAM JOHNSON, NY TIMES
LINK

I AM a special education teacher. My students have learning disabilities ranging from autism and attention-deficit disorder to cerebral palsy and emotional disturbances. I love these kids, but they can be a handful. Almost without exception, they struggle on standardized tests, frustrate their teachers and find it hard to connect with their peers. What’s more, these are high school students, so their disabilities are compounded by raging hormones and social pressure.

As you might imagine, my job can be extremely difficult. Beyond the challenges posed by my students, budget cuts and changes to special-education policy have increased my workload drastically even over just the past 18 months. While my class sizes have grown, support staff members have been laid off. Students with increasingly severe disabilities are being pushed into more mainstream classrooms like mine, where they receive less individual attention and struggle to adapt to a curriculum driven by state-designed high-stakes tests.

On top of all that, I’m a bad teacher. That’s not my opinion; it’s how I’m labeled by the city’s Education Department. Last June, my principal at the time rated my teaching “unsatisfactory,” checking off a few boxes on an evaluation sheet that placed my career in limbo. That same year, my school received an “A” rating. I was a bad teacher at a good school. It was pretty humiliating.

Like most teachers, I’m good some days, bad others. The same goes for my students. Last May, my assistant principal at the time observed me teaching in our school’s “self-contained” classroom. A self-contained room is a separate classroom for students with extremely severe learning disabilities. In that room, I taught a writing class for students ages 14 to 17, whose reading levels ranged from third through seventh grades.

When the assistant principal walked in, one of these students, a freshman girl classified with an emotional disturbance, began cursing. When the assistant principal ignored her, she started cursing at me. Then she began lobbing pencils across the room. Was this because I was a bad teacher? I don’t know.

I know that after she began throwing things, I sent her to the dean’s office. I know that a few days later, I received notice that my lesson had been rated unsatisfactory because, among other things, I had sent this student to the dean instead of following our school’s “guided discipline” procedure.

I was confused. Earlier last year, this same assistant principal observed me and instructed me to prioritize improving my “assertive voice” in the classroom. But about a month later, my principal observed me and told me to focus entirely on lesson planning, since she had no concerns about my classroom management. A few weeks earlier, she had written on my behalf for a citywide award for “classroom excellence.” Was I really a bad teacher?

In my three years with the city schools, I’ve seen a teacher with 10 years of experience become convinced, after just a few observations, that he was a terrible teacher. A few months later, he quit teaching altogether. I collaborated with another teacher who sought psychiatric care for insomnia after a particularly intense round of observations. I myself transferred to a new school after being rated “unsatisfactory.”

Behind all of this is the reality that teachers care a great deal about our work. At the school where I work today, my “bad” teaching has mostly been very successful. Even so, I leave work most days replaying lessons in my mind, wishing I’d done something differently. This isn’t because my lessons are bad, but because I want to get better at my job.

In fact, I don’t just want to get better; like most teachers I know, I’m a bit of a perfectionist. I have to be. Dozens and dozens of teenagers scrutinize my language, clothing and posture all day long, all week long. If I’m off my game, the students tell me. They comment on my taste in neckties, my facial hair, the quality of my lessons. All of us teachers are evaluated all day long, already. It’s one of the most exhausting aspects of our job.

Teaching was a high-pressure job long before No Child Left Behind and the current debates about teacher evaluation. These debates seem to rest on the assumption that, left to our own devices, we teachers would be happy to coast through the school year, let our skills atrophy and collect our pensions.

The truth is, teachers don’t need elected officials to motivate us. If our students are not learning, they let us know. They put their heads down or they pass notes. They raise their hands and ask for clarification. Sometimes, they just stare at us like zombies. Few things are more excruciating for a teacher than leading a class that’s not learning. Good administrators use the evaluation processes to support teachers and help them avoid those painful classroom moments — not to weed out the teachers who don’t produce good test scores or adhere to their pedagogical beliefs.

Worst of all, the more intense the pressure gets, the worse we teach. When I had administrators breathing down my neck, the students became a secondary concern. I simply did whatever my assistant principal asked me to do, even when I thought his ideas were crazy. In all honesty, my teaching probably became close to incoherent. One week, my assistant principal wanted me to focus on arranging the students’ desks to fit with class activities, so I moved the desks around every day, just to show that I was a good soldier. I was scared of losing my job, and my students suffered for it.

That said, given all the support in the world, even the best teacher can’t force his students to learn. Students aren’t simply passive vessels, waiting to absorb information from their teachers and regurgitate it through high-stakes assessments. They make choices about what they will and won’t learn. I know I did. When I was a teenager, I often stayed up way too late, talking with friends, listening to music or playing video games. Did this affect my performance on tests? Undoubtedly. Were my teachers responsible for these choices? No.

My best teachers, the ones I still think about today, exposed me to new and exciting ideas. They created classroom environments that welcomed discussion and intellectual risk-taking. Sometimes, these teachers’ lessons didn’t sink in until years after I’d left their classrooms. I’m thinking about Ms. Leonard, the English teacher who repeatedly instructed me to “write what you know,” a lesson I’ve only recently begun to understand. She wasn’t just teaching me about writing, by the way, but about being attentive to the details of my daily existence.

It wasn’t Ms. Leonard’s fault that 15-year-old me couldn’t process this lesson completely. She was planting seeds that wouldn’t bear fruit in the short term. That’s an important part of what we teachers do, and it’s the sort of thing that doesn’t show up on high-stakes tests.

How, then, should we measure students and teachers? In ninth grade, my students learn about the scientific method. They learn that in order to collect good data, scientists control for specific variables and test their impact on otherwise identical environments. If you give some students green fields, glossy textbooks and lots of attention, you can’t measure them against another group of students who lack all of these things. It’s bad science.

Until we provide equal educational resources to all students and teachers, no matter where they come from, we can’t say — with any scientific accuracy — how well or poorly they’re performing. Perhaps if we start the conversation there, things will start making a bit more sense.

William Johnson is a teacher at a public high school in Brooklyn who writes on education for the Web site Gotham Schools.

FEBRUARY 6, 2012
A New Model: Schools As Ecosystems
by Mark Anderson and William Johnson, at 10:30 am

What makes a great teacher? To a lot of people, the answer seems simple enough: a great teacher is one whose students achieve. For the most part these days, student success is measured with test scores. Logically then, a great teacher is one whose students perform well on tests.

Let’s take it a step further: what makes a great school? Again, the same basic logic applies: great schools are ones that produce the highest proportion of students who perform well on tests. The role of the school, in other words, is to produce students successful according to test proficiency.

Perhaps this framework appears overly simplistic, but it’s the framework that currently directs our efforts to improve public schools. Schools are knowledge-manufacturing facilities, with students being their products. This framework has led school reformers to advocate for accountability systems, human capital mechanisms, and other private sector management tools in public school reform.

Not surprisingly, New York City Mayor Mike Bloomberg is an aggressive proponent of this business framework. The mayor’s private sector management approach recently led him to propose a “turnaround” program at 33 city schools that would require replacing half of those school’s teachers. Not happy with the product? Fire experienced workers and bring in cheaper, lower skilled replacements.

This framework is not just a New York thing. All across the country, school districts are being pushed, by influential figures like U.S. Secretary of Education Arne Duncan and Calif. Secretary of Education Bonnie Reiss, to evaluate teachers based on a “value-added” analysis. What does this mean? It’s a kind of metaphor: students are raw natural resources; unprocessed, they contribute little to the economy and thus possess little value. If teachers process them effectively, however, their value increases.

Let’s leave aside our gut reactions to talking about children this way. The real problem with this framework is that it’s been a dead end. For the most part, debates about how to produce better students have led to discord within the field of education, while demonstrating little significant impact.

Applying an industrial-growth model to student learning has rightfully caused consternation on the part of both parents and teachers. Parents don’t send their children to school simply to be processed like chaff from wheat. Yes, parents want their kids to get good jobs and to be academically successful, but they also want their kids to become mature, responsible, well-rounded individuals. Parents look for more from a school than its achievement on tests: is the school safe? Will their child receive individualized support and attention? Are there extracurricular resources and programs available? Are children happy at school? What sort of curriculum is offered?

As special education teachers, we know how critical these environmental factors are. Our students, for reasons as varied as their individual learning needs, rarely thrive in a high pressure, test-driven environment. The vast majority of students with exceptional learning needs perform significantly below the norm on standardized tests, significantly enough that these tests (or the scores required to pass them) must constantly be modified so that our students can be accounted as successful. Students receiving special education services are often more attuned to environmental factors than their general education counterparts. It is this sensitivity to their environment that often makes it so difficult for such students to focus on their studies.

Schools as ecosystems

But positive, supportive environments are not important only for students with exceptional learning needs. All students thrive in environments that support their development in diverse ways: from offering a coherent, sequential curriculum to providing students with a comfortable, stimulating physical space. Such schools, like their curricula, take responsibility not simply for academic development, but personal development as well. School environments where the curriculum is designed around standardized tests, and where factors like the physical and social environment take a back seat to those tests, are not conducive to learning.

We propose a fundamental shift in the framework and language we use to discuss educational reform. Instead of a framework that views students as products, we propose a framework in which the products of education are viewed as the contexts and content of schools themselves. The schools we produce should be positive and nurturing learning environments where students are engaged in a rich, coherent curriculum. Rather than view our students as widgets, we’d do better to view them as vibrant, dynamic organisms, and view the school, by extension, as an ecosystem. While such a model would make it harder to quantify school quality based on a simple numerical scale, it would enable us to have more productive conversations about systemic education reform, and to take action in targeted ways that will have a sustainable impact.

There are principles for maintaining a healthy ecosystem that can provide guidance in strengthening our school environments. We are certain that this shift in focus will — perhaps paradoxically — result in more productive student outcomes. Land maintained according to sound ecological principles results in abundant microbial soil life, interdependency of diverse species, and a sustainable yield. A school maintained according to ecological principles will result in lower teacher turnover, greater community engagement, and positive long-term student outcomes.

Our belief is that many schools commonly considered “great” already operate as healthy, sustainable ecosystems. Such schools offer their students adequate sunlight, fresh air, exercise, and nutrition. Their students feel intellectually, emotionally, and physically safe because their school communities celebrate diversity and offer equity of opportunity. These schools offer an array of supplemental options–such as music, foreign languages, clubs, and sports–to meet the diverse needs of their dynamic student bodies. They offer protection from short-sighted policies and destructive external forces through the strong relationships and trust engendered and developed within the school community. They possess built-in mechanisms to maintain equity and equilibrium, preventing one type of personality or learning need from dominating at the expense of others.

Cultivation, not demolition

How does this framework relate to ongoing conflict around school closures? Under the Department of Education’s current “turnaround” plan, as many as 33 city schools could be closed, re-staffed (with as many as half their current teachers replaced), and reopened. At schools all over New York, teachers, students, and families have voiced concerns about the city’s slash-and-burn approach to school “turnaround.”

If schools are factories, tearing down “ineffective” ones and replacing them with newer, shinier ones might sound like good business. If, however, we view schools as ecosystems, then struggling schools are depleted ecosystems desperately in need of resuscitation and support. Such resuscitation requires a holistic, long-term approach.

Using an ecological design approach, reformers could not treat schools as vacant lots primed for subdivision. Instead, school revitalization would need to be a community-driven, long-term process. In an ecological framework, school reformers would need to acknowledge the complexity of school communities, rather than simply pretending that schools could be leveled, bulldozed, and magically reinvented as high performing lots of isolated land.

Implicit in such a framework, and diametrically opposed to the “student as product” framework, is the understanding that there is no ideal school (nor student). Just as healthy ecosystems might come in a myriad of forms, healthy school environments may come in a wide variety of shapes and sizes, dependent on specific local community needs and circumstances. That said, healthy school environments, like ecosystems, are guided and cultivated by a set of core principles, which the authors would like to explore in future posts.

Perhaps the best part of this paradigm shift (for the authors) is that in such a framework, the role of the teacher would shift from test-prep overseer to environmental steward. Instead of being trained and treated as a widget, teachers would be content experts and community leaders of their classroom and school ecosystem, responsible for all the students who inhabit it. Such stewards would necessarily need to be long-term inhabitants of these ecosystems themselves, growing more and more effective as their knowledge of the environment deepens and their relationships within the school community strengthens.

A new metric

Do we sound like dreamers? Would such a model be impossible to quantify? We do not believe so, and we’re not the first to propose such a paradigm shift. In fact, we believe that by refocusing our attention on the content and contexts of our schools, we can establish a new measuring stick. What’s more, since this framework would not be based on improving student test scores but on improving school environments, the responsibility would be shared by all who work within and support that community, rather than solely upon the backs of individual students and teachers within the confines of an isolated classroom.

In the posts that follow, the authors will lay out a series of ecological principles that we believe can be used as a guide for effective school design and reform. We will also examine model schools and investigate how they’ve constructed such exceptional school environments. We look forward to your feedback.