Friday, February 24, 2012


UFT and NYSUT leaders (basically the same people) are obviously alarmed that their deal on evaluations for teachers is not going over that well with their members or education activists.  Besides Long Island Principal Carol Burris, who co-wrote the principal's letter objecting to the new evaluation system, and notable educational historian Diane Ravitch, who also has major concerns about teachers being rated ineffective because of student test scores, and the amazing parent activist Leonie Haimson who is out there defending teachers, we now have a NYSUT local president upstate questioning the deal and wondering why his members have to pay NYSUT dues.  The UFT leadership answers this by trotting out Leo Casey, to assuage fears and reassure everyone that all is well because the new evaluation system is actually a major step forward for the state's teachers. In New York City we have seen this movie before and it does not end well for teachers.

I read Leo's post over at EdWize and I encourage people to do the same.  He basically attacks  the work of Carol Burris, a principal who is fighting to defend teachers, particularly New York City teachers, who stand to lose the most if the new evaluation system is implemented.

Casey's main thesis seems to be that state standardized tests will only be used for 20% of the rating for many teachers but that for everything else there is nothing to be alarmed about because the entire system must be negotiated locally by each school district and their union local (NYC is one city district according to state law and the UFT is our local).

Assailed Teacher gets into the data weeds with Casey and dissects his argument in a very detailed way.  He concludes, and I agree, that Casey was not able to refute one of Carol Burris' main arguments which is that if a teacher is rated ineffective on the student growth portions (translation high stakes tests or some other nonsense evaluation that the State Education Commissioner must approve), then that teacher will be    rated ineffective overall.  I have to admit that my head is spinning trying to understand all of the minutia used by Casey, Burris, and other people as they crunch the numbers but I have concluded that it will be easier to rate teachers ineffective under the new system and that it will be much simpler to fire us as two ineffective ratings leads to a presumption of incompetence.  Many competent professionals will be terminated unless this is stopped.

In some districts throughout the state, where they have collaborative working relationships between labor and management, they might be able to come to an arrangement so that teachers won't be teaching in a climate of fear.  However, in New York City where there is a mayor who is on record saying if he had his way he would fire half of the teachers, there is basically no chance of anything being negotiated that will be fair for principals, teachers or students. Unless the next mayor is willing to clean house by getting rid of virtually all of Bloomberg's education department, there probably will not be much hope even after Bloomberg is gone.

My worst case scenario is for the UFT to finalize a deal with the City on the evaluations.  We need to tell the UFT that they should tell the mayor, governor and president that they can keep their Race to the Top money.  We want no part of it.  The alternative is the two sides negotiating a final evaluation agreement. History tells us that whenever the UFT goes into negotiations with Bloomberg, we lose. The evidence supporting this statement is overwhelming over the last decade.  For salary increases that have not even kept up with the cost of living, we have seen teaching and learning conditions deteriorate dramatically through collective bargaining with Bloomberg.

Look at 2002 where a contract agreement extended the school day and left the extended time up to management.  The deal was so bad it had to be renegotiated several times in subsequent years.  2002 also brought us the counseling memo, the ability of arbitrators to rewrite letters in the file and weakened due process.

Then, in 2005, the UFT agreed to a contract with a long list of givebacks such as a longer day with an extra small group instruction period, a return of lunch and hall duty for teachers, an end to grievances for unfair/inaccurate material in teacher files, further weakening of due process so teachers could be suspended without pay based on a probable cause hearing, expedited time and attendance 3020A hearings, and of course the end to seniority and School Based Option transfers, which paved the way for the perpetual Absent Teacher Reserve crisis. Last year the UFT exacerbated this problem by agreeing to allow ATRS to be moved on a weekly basis from school to school to avoid layoffs (We also gave up sabbaticals for next year).

Does anyone really believe that the Department of Education will negotiate a fair evaluation process that is teacher friendly and promotes professional growth?  As the saying goes, "Those who do not learn from the mistakes of the past are doomed to repeat them." Reading Leo Casey defend this indefensible evaluation system gives me that eerie sense of deja vu.  In 2005, Leo attacked people like me for criticizing the 2005 giveback laden contract. History has vindicated our view but Casey is at it again.

Let us examine some of what Mr. Casey said in 2005 when he was promoting that awful contract.  He claimed: "Seniority in lay-offs is a core union principle. We could not accept a contract which did not secure the rights of senior excessed teachers to a position in another school."  Tell that to the ATRs.

I ask Leo to look at his next statement justifying the 2005 contract in a section called "What Did We Turn Back?" closely before he writes his next piece on evaluations:

"The DOE demanded an end to tenure, an end to the ‘just cause’ standard for a teacher’s dismissal, and an end to having independent arbitrators hear and decide cases for a teacher’s dismissal. The Chancellor wanted the burden of proof in dismissal cases to be shifted to the teacher, who would have to demonstrate that she was a satisfactory teacher who should not be dismissed, rather than the DOE having to show that she was unsatisfactory and should not be dismissed." (Bold added by me.)

Didn't NYSUT support the  change in law that shifts the burden of proof to teachers just as former Chancellor Joel Klein wanted back in 2005 and won't the bulk of our appeals under the new system be exactly as Klein wanted them?

Leo has flip-flopped on using student test scores to rate teachers as well.  Leo's previous position on using student test scores to rate teachers is in this piece from 2008, that I thank Phillip Nobile for finding. Leo stated: "The DoE has no contractual or legal authority to use test score data in the evaluation of teachers, and the UFT will oppose it with all the means at our disposal. This is a line in the sand for the UFT."  I guess the line shifted a bit.  

It goes on and on.  

The NY Post, the Daily News, E 4 ME (Educators for Excellence) and all of the anti teacher and anti union forces are coming out in favor of the new evaluation agreement.  People like Diane Ravitch, Aaron Pallas, Leonie Haimson, Carol Burris and other enlightened thinkers are raising the red flags all over the place.  You would think the UFT would be smart enough to know where to line up.

However, that would contradict the doctrine of Unity Caucus (UFT leadership) Infallibility so instead of doing what is right by the membership, Leo Casey is out again playing the role of Defender of the Faith, telling us why the new evaluation agreement is a victory for us.  I can't wait to see his encyclical on how  the appeal process is such a big win too.

This is in no way a personal attack on Leo Casey.  In fact it is quite the opposite.  Having to defend the indefensible as Leo has done is not an easy task but someone in Unity has to do it every time they make our working lives worse, which unfortunately is way too often. Judging by results in UFT elections, where Unity always wins big, he is doing his job very well. However after having to stand up to numerous criticisms of his latest piece on EdWize, hopefully he will go back to President Mulgrew and the NYSUT people and call for a change of direction.

Sunday, February 19, 2012


Carol Corbett Burris is a principal in Rockville Centre, Long Island.  One of my former colleagues at Jamaica works for her and is very satisfied. Close to a third of the principals in New York State have signed the letter Burris co-wrote exposing the flaws in the new evaluation system.

At the Washington Post Answer Sheet education blog run by Valerie Strauss, Burris hammers home how excellent teachers will be rated ineffective by the new evaluation system.  Why isn't the UFT leading this fight?

Saturday, February 18, 2012

Shifting the Burden of Proof and Proving a Negative: How the Fundamental Structure of Tenure Has Been Eviscerated

In the wake of the new agreement (not fully implemented in our school district yet) it has become apparent that we have lost a major part of one of our few remaining job protections. Back in the early part of her UFT presidency, I once asked Randi Weingarten, in a union training session, whether there was any issue that she could foresee recommending to the membership that we strike. Without hesitation she howled, “Tenure! After all,” she argued, “what is more central to our job protection?”

While the protections afforded by teacher tenure have been modified over the Weingarten negotiated contracts and we have argued vociferously against those changes, they have not fundamentally changed tenure as has these Mulgrew negotiated concessions have.

Tenure, plain and simple, is the right to a due process hearing consistent with our long history of jurisprudence before a teacher (or other tenured civil servant) can be disciplined or terminated.  A tenured teacher, after all, has demonstrated their competence by obtaining tenure (a three year process) and otherwise performing satisfactorily. The law provides that should the DOE believe the teacher is incompetent it must prove (has the burden of proof and the burden of going forward) that the teacher is incompetent. The teacher has the right not to testify and no finding can be made against the teacher for asserting this right. As in most of our legal tradition the burdens never shift or change.

While the specific language has not been published, based on Mulgrew’s own statements, the New York Times coverage of the agreement and press releases from all involved it is clear that the new agreement changes tenure in some very fundamental ways.

First the shift. Many legal scholars have commented on the absurd difficulty of proving a negative. How does one prove they are competent? Can you do this without testifying? What evidence could you show? Could you ask the arbitrator to observe your lesson?

The real problem in the shift of the burdens is the fact that when the validator (that term is part of the  “anti-tenure new-speak” explained below) determines the teacher is incompetent the onus on the teacher will strip the hearing of any sense of due process. Just where the Mayor wants it.

Hey, Randi, are you recommending strike?

Anti-tenure new speak
The new agreement has brought at least 3 terms we have not seen before. The terms are subtle but reflect how the language has changed to support this radical loss of teacher protection.

Validator- a supposed neutral person hired to observe the alleged incompetent teacher who will have an 80 to 100 teacher caseload to determine if the principal’s ineffective rating is supported. A validator validates, meaning they operated under the assumption that the charged teacher is ineffective. In New Haven, where this concept was borrowed, validators evaluated both highly effective and ineffective teachers to determine evaluative characteristics. When a principal shoves a teacher in the most difficult classes or programs a teacher in a difficult way, will this be taken into account. How about teachers who are “not team players” another one of my favorite evaluative phrases. With up to 100 cases and three observations a year per teacher the “validator” clearly will not be in a position for remediation, a current teacher right under the tenure law.

Ineffective – The current tenure law speaks of incompetence and does not mention ineffectiveness. While the shift is subtle it does expose a major shift in teacher evaluation. The measurement of ineffectiveness has already been put out there as based on test scores. Will test scores be admissible in an incompetency hearing? Currently they are not.

The 13% - While not directly relevant to tenure (I couldn’t resist commenting on this) the new agreement proposes that initial ineffective ratings be reviewed by the Union and 13% of these ratings, believed by the Union to be motivated by other than incompetency, be referred to an “independent body” who, unlike the DOE’s kangaroo court, has the power to reverse the rating. The number is based, according to published reports, on the number of reversals of unsatisfactory ratings pre-Bloomberg. While I concede that labor-management agreements often lack logical explanation this one is a beaut. The Union, under this procedure, is put in a total conflict of interest. While grievance arbitration has always been somewhat discretionary by the Union, never before has such decisions have such a strong impact on a member’s job. Under the pre-Bloomberg 13% teachers, at least, had a due process hearing to look forward. What are we looking at now?

Thursday, February 16, 2012


The UFT and New York State United Teachers (All of the local unions in the state) gave away the store in today's agreements with the city and the State Education Department concerning teacher evaluations. This is part of a 2010 law that New York State passed to try to get Federal Race to the Top money. Details had to be negotiated with unions.  While we still don't have a final agreement on a new evaluation system in New York City, what is emerging is a system with few safeguards that has the potential to allow the Department of Education to terminate many tenured teachers starting in 2014.

At the state level, the NYSUT lawsuit on evaluations was resolved by today's agreement with the state. 40% of a teacher's annual rating will be based upon student performance on tests, with half of that 40% being standardized tests and the other half being locally developed assessments (whatever that means) that the State Education Department must approve.  The other 60% will be based on subjective measures such as principal observations and they can throw in some peer review, parent review or student review if the local district and union want to.  

The overall grade to achieve a passing rating for the year will be 65. Scores of 0-64 will result in an ineffective rating, 65-74 will mean a developing rating, 75-90 will mean an effective rating and 91-100 will translate into highly effective.  However, if a teacher is rated ineffective in the student test score portion, the teacher cannot get a passing grade.  Also, if a principal doesn't like a teacher and does hatchet jobs in observations, it appears to me that huge test score gains will not save the teacher.  There are so many ways to fail teachers here. 

People say we shouldn't worry because we have tenure but two ineffective ratings in a row shifts the burden of proof onto the teacher to prove that he/she is not incompetent.  That will not be easy. One wonders why NYSUT would agree to any of this and not just tell the State to turn down the federal money that we would lose if there was no agreement.

As for New York City, the UFT held out in negotiations with the city for a stronger appeal process for teachers rated ineffective.  The DOE walked out of negotiations during the Christmas break and proceeded to announce that they would close most of the transformation-restart schools that were supposed to be the first to use the new evaluation system.  The UFT wanted teachers rated ineffective to have a review before an independent arbitrator while the DOE held that teachers should have a review by the Chancellor like the U rating appeal process where teachers lose 99.6% of these appeals. 

The compromise that was reached today was, as usual, an almost total capitulation by the union.  13% of teachers rated ineffective can have an appeal before a three person panel. One of the panel members will be chosen by the union, one by DOE and the third person will be selected by the first two.  That is truly an independent appeal process but according to President Mulgrew's email to us, "The union can identify up to 13% of all ineffective ratings each year to challenge on grounds of harassment or other matters not related to performance."  It will be extremely difficult, if not impossible, to prove harassment if the students didn't succeed on the tests or a teacher's performance in class was rated ineffective by the principal.  Also, it is the UFT who decides which teachers get to have their case heard by the independent panel.  There will be no favoritism there right? It gets worse.

The other 87% rated ineffective can only appeal to the chancellor just like the current U rating appeal process.  One does not need a crystal ball to predict that teachers will continue to have virtually no chance in these hearings.  However the UFT says don't worry because, "A teacher who has an ineffective rating the following year will receive an independent validator.  (The person is chosen through a joint process and will not be a UFT or DOE employee.)  The independent evaluator will observe the teacher at least three times during the school year and issue a report with his or her rating of the teacher."  

This process sounds eerily like Peer Intervention Plus to me.  In PIP+ people not employed by UFT or DOE observe U rated teachers and basically rubber stamp the U's in most cases. In the new system if the validator agrees that the teacher is not ineffective, then that evidence can be used in a 3020A hearing (tenure process) to help the teacher as the burden of proof would then fall on the DOE but if the validator validates the ineffective rating as they usually do in PIP+, then the teacher would carry the burden of proof in the tenure hearing and the chances of staying on the job will be slim and none in my opinion. 

Tenure will be significantly weakened if this evaluation system is finalized.  The local assessments and other details still have to be negotiated by the UFT and DOE.  A best case scenario is that there will never be an agreement on the local assessments and this whole new evaluation process will then collapse under the weight of its stupidity.  What are going to be the assessments for teachers in non regents subjects in the high school for example? 

The only way to stop any of this from going into effect is for us to raise our collective voices loudly and say that we're not going to voluntarily walk into the guillotine.  If today's agreement becomes our actual teacher evaluation system, then there will more than likely be massive teacher firings beginning in 2014.  

If there is anything positive to take from today's events, it's that President Mulgrew was there with the governor announcing the deal and maybe they are developing the kind of bond we can use to influence the state to pass legislation to end mayoral control now before the school system is completely destroyed.

PS-For those expecting our monthly Delegate Assembly report, I was stuck on the platform waiting for the 7 train for a long time yesterday, as a train was stuck one station ahead, so I missed most of the DA.  The resolutions that passed were not controversial and some of the Presidents' report, I am told, was about the evaluation issue so I am skipping doing a report which today is obsolete.  If anyone else wants to do it, email me at and I will post it.

Sunday, February 12, 2012


For the fourth time in the last three years, I attended a school closing Panel for Educational Policy meeting at Brooklyn Tech.  At last Thursday's meeting there were 23 schools facing the chopping block or grade truncation.  The script is familiar.  Masses of people come from the schools slated for closure to advocate for their schools and protest the closures.  DOE officials respond that these schools are horrible places and families need better options.  Then, the mayor's appointees on the PEP ignore the public and dutifully fulfill their role and rubber stamp the phase outs.

Last Thursday followed the script to the letter but it was still a rather unique experience for me as the protesters were split about how to voice displeasure with the process.  On one side was the UFT which wanted to stage a huge walk out (or not even show up at all inside the school) and hold an alternate people's PEP meeting while on the other side was the Occupy DOE crowd that includes students, parents, teachers and other activists who wanted to drown out the PEP so they would have to stop the meeting and not be able to vote to close the schools.  This dispute was covered on video and by  Many people were happy that the Occupy DOE crowd won out as the UFT leaders did enter the meeting and never held their alternative PEP meeting.  From my perspective both sides need to examine closely what happened and learn from the experience.

For UFT officials, they hopefully will learn that they cannot control every event as if it were a Delegate Assembly meeting where many of the delegates are predisposed to follow their lead just like the PEP puppets blindly do the Mayor's bidding. Watching them lose control of the protest was something I have never seen nor have they. The Occupy DOE  people did not succeed in shutting the meeting down.  Using the people's mic, where people say something and the crowd repeats it. in that huge auditorium will not drown out a good electronic amplification system.  By posting their intentions to try to shut the meeting down all over the internet, Occupy DOE gave the DOE time to plan.

The DOE strategy for the meeting was to turn up the volume on the official microphone and just wait the protesters out while blanketing the auditorium with police officers. This succeeded as the Occupy DOE crowd burned out so people ended up for the most part walking out like the UFT wanted and the meeting went on with an eerie calm setting in.

In 2010, so many people spoke out against school closings so that the vote to close schools wasn't held until after 3:00 am.  Last year there were two PEP school closing meetings since there were so many schools closed at once. The first one on February 1 didn't end until after 1:00 am.  At the second meeting on February 3, all of the frustration from the public against the PEP led to a loud walkout which did stop the meeting for a time.  Following the walkout, the PEP was able to spout out their lies about our schools to a nearly empty auditorium. At least we were all able to arrive home at a reasonable hour.

Hence, the debate this year about whether to stay or go.  There were only about 75 people left in that huge auditorium when the PEP voted to close or shrink 23 schools last week.  I was one of them.  I stayed along with Norm Scott, a Chapter Leader friend and his friend.  I actually kind of wish there were more people there for the vote as I still get sickened each time the PEP votes to kill a school.  The DOE needs to hear about the havoc that their policies are causing to school communities even if these DOE officials won't listen.  They need to know about the kids who are casualties of school reform: those left behind in phasing out schools.  75 people yelling "shame on you" late at night is not sufficient.

I did not take to the electronic microphone as the Occupy DOE and UFT people seemed not to want us to speak.  However, I did see Manhattan PEP representative Patrick Sullivan and told him about what is occurring at Jamaica High School where the kids are totally demoralized as the school phases out.  They are not getting the courses they need; many are being taught by out of license teachers; many are not getting proper English as a Second Language or Special Education services and they are being pushed out of school in droves.  Patrick raised some of these issues during the discussion and the DOE had no answers. 

I think we should not let the DOE or PEP off the hook. Yes the process is a sham and the mayor's appointees will say yes to anything the mayor wants. However, these people need to be told how they are ruining the education of so many young people.  I'll explain how awful the teaching and learning conditions continue to be at Jamaica in some detail and how we are continuing the fight in a later post.  As for last Thursday, I want to believe we all learned something.

Friday, February 03, 2012


It is appropriate that the videos from the school closing Joint Public Hearing for Washington Irving were sent to me on Ground Hog Day.  In the movie with that title, Bill Murray has to live the same day over and over again.

School closing hearings are eerily similar with teachers, students, parents and union officials making great cases on behalf of their schools and DOE officials ignoring them.

Wednesday, February 01, 2012


Professor Eli Silverman and my brother Professor John Eterno have written a fascinating new book explaining problems with data driven crime fighting.  They expose the myths of the miracle crime reductions we have supposedly seen in recent years and its impact on policy.

In their peer reviewed research study that is featured in their book: The Crime Numbers Game: Management by Manipulation, they have discovered that many retired captains admitted that they fudged the numbers during their careers to make crime statistics look good because of the Compstat data system.  Police performance reviews have been based on high stakes crime reports since the nineties.

As a result, it seems that the police crime statistics are about as reliable today as numbers coming from the Department of Education. If there is so little crime, the authors then wonder why stop and frisks, which are supposed to be based upon reasonable suspicion. are up to over 600,000 a year from around 90,000 a short while back.

Professor Diane Ravitch contributed a blurb on the back jacket of the book and prominent criminologists are praising it.  You can go to John and Eli's website and pick the book up at a discount.  It is well worth reading.

This story needs to be reported by the mainstream press. Do you think they will have the guts to run with it and tackle Bloomberg and Commissioner Kelly? The NY Times reported recently on a study that concluded that a decent teacher replacing a lousy teacher can add $250 a year for earnings even when this study was not yet peer reviewed. Will they report on this book too?

My brother and Dr Silverman made a splash in 2010 when they first released their preliminary findings and now they have dealt with the reaction to their study and its implications.

It is becoming ever more clear that New York City government today is a public relations firm masquerading as a government.