Friday, April 03, 2015

DIGGING DEEP IN THE NEW EDUCATION LAW REVEALS THE TOTALITY OF OUR DEFEAT ON "FAILING" SCHOOLS

We were patient waiting for the release of the final language of the budget bill that included the new teacher evaluation rules and much more. The bill passed late Tuesday evening.  It is a complete disaster for public education, educators and students.

I read through much of the actual bill and saw Jessica Bakeman's excellent summary at Capital.  Everyone should take the time to close read (sorry I couldn't help myself common core haters) the legalize and try to understand it for yourself.  In addition, I recommend going regularly to Perdido Street School for updates and reaction.

Overall, it is obvious Governor Andrew Cuomo slaughtered UFT-NYSUT completely with this monstrous law. He got almost everything he wanted to ruin public education and he can complete his annihilation by raising the charter school cap in June. Others have already written on the evaluation system and other parts of the law so I want to focus this piece on the provision on so called "failing" schools, a part of the law not many people are concentrating on.

In reality, a school deemed "failing" is pretty much always one that has a high concentration of students who are living in poverty, English language learners, students with interrupted formal education, special education pupils, overage students or a combination of these kids with the greatest needs.  However, to the bureaucrats and politicians making policy on public schools, who know virtually nothing about education, a failing school is a place where teachers and administrators are doing a lousy job and must be replaced.  This is ridiculous.

I was in a so called failing school last year.  I am the same teacher now in a non-failing school.  I am willing to bet part of my pension that the Measures of Student Learning portion of my rating this year will be better than it was last year because of who I am teaching, not because of how I am teaching.

Keeping this in mind, let's now examine the actual language in the new evaluation law on receivership. Receivership is when "failing schools" are taken over by the district or state and given over to an all knowing receiver to manage.  UFT President Michael Mulgrew in his delusional email Sunday said we kept local control on this issue so we won.  I would like to ask our president this: Whether it is the district that takes your job or the state when schools are redesigned, what's the difference?  We still are likely to be out of a job.  This line in the new law (it's buried way down at the bottom in subdivision 154) is downright frightening:

In accordance with Paragraphs (B) and (C) of this subdivision, to abolish the positions of all members of the teaching and supervisory staff assigned to the failing or persistently failing school and terminate the employment of any building principal assigned to such a school, and require such staff members to reapply for their positions in the school if they so choose.

That language is bad enough. However as we dig even deeper, it becomes worse:

The receiver may abolish the positions of all teachers and pedagogical support staff, administrators and personnel service providers assigned to a school designated as failing or persistently failing pursuant to this section and require such staff members to reapply for new positions if they so choose.  The receiver shall define new positions for the school aligned with the school intervention plan including selection criteria and expected duties and responsibilities for each position.  For administers and pupil personnel service providers, the receiver shall have full discretion over all such rehiring decisions.  For teachers and pedagogical support staff, the receiver shall convene a staffing committee including the receiver, two appointees selected by the school staff or their collective bargaining unit.  The staffing committee will determine whether former school staff reapplying for positions are qualified for the new positions.  The receiver shall have full discretion regarding hiring decisions but must fill at least fifty percent of the newly defined positions with the most senior former school staff who are determined by the staffing committee to be qualified.  Any remaining vacancies shall be filled by the receiver in consultation with the staffing committee.

And if that is not bad enough, there is more:

Notwithstanding any other provision of law to the contrary, a member of the teaching and pedagogical support, administrative, or pupil personnel service staff who is not rehired pursuant to this paragraph shall not have any right to bump or displace any other person employed by the district, but shall be placed on a preferred eligibility list in accordance with the applicable provisions of  section twenty-five hundred ten, twenty-five hundred eighty-five, twenty-five hundred eight or three thousand thirteen of this chapter.

*(This post has been updated with links to all of the relevant laws which have also been copied in the comments section for those who wish to do further research.)

I am not a lawyer but this would seem to mean we will be laid off if the receiver doesn't want us and we would have to find a new job in the system on our own. (I will gladly correct this if I am reading incorrectly so please, please someone tell me I am wrong.)

The parallels to the failing schools provision and Article 18D of the UFT contract cannot be overlooked. This is taken directly from Article 18D Staffing New or Redesigned Schools in Section 3:

"If sufficient numbers of displaced staff apply, at least fifty percent of the School's pedagogical positions shall be selected from among the appropriately licensed most senior applicants from the impacted school(s), who meet the School's qualifications.

Does anyone think it is just a coincidence that Article 18D and this new provision in the law look somewhat alike?  I don't. Those UFT lobbyists were there in negotiations for a reason.

Rest assured the receiver will most likely end up with a veto (committee operates on consensus) and will be able to determine most of the teachers from the "failing" school are unqualified. Committees do it all the time in New York City when schools are closed and new schools replace them. 

I have some firsthand knowledge of this as Jamaica High School was phased out and four new schools were phased in starting in 2011.  I am aware of just five former Jamaica teachers who are employed today in the new schools that replaced us even though we had over 100 teachers just a few years back. I personally applied for one of the new schools and only heard back that the position was filled.  I was sent to another school in the building for a mandatory interview but of course was never hired.  I guess I am not qualified.

UPDATE: We wrote a revised post when we read Education Law 2588 which covers NYC layoffs. We are laid off by seniority in license in NYC so it looks like the new law is going to create a whole bunch of Absent Teacher Reserves in the city and layoffs outside of NYC.


Even rudimentary due process is a thing of the past if someone is unlucky enough to work in a "failing" school that goes into receivership.  As NYC Educator pointed out:

Then there is the failing schools model, and it looks like it's designed to create them. When you mandate that the bottom 5% are failures, there will always be failures.

Yes, I know it will take a while before a school goes into receivership but criteria will probably be set so that it happens enough to make a real difference. 

Why would anyone want to work in a school even in jeopardy of failing?

Truly, the people who will lose the most from this new law are some of our most needy students who most veteran educators will need to risk their livelihoods to work with.






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24 comments:

Anonymous said...

The language is a little bit different than 18D. 18D says the hiring committee "shall" hire at least 50% of the former.... This language is the receiver MUST hire 50% of the former.... I have a feeling that most of the teachers would be rehired. Cuomo wanted to use the Lawrence Mass. model. If you read the account of Lawrence Mass. in CapitalNewYork...The receiver said he rehired 90% of the former teachers in that district. Which makes sense...this isn't the 18D for the small schools during the Bloomberg phase-outs. These receivers are required to KEEP the current students. Bloomberg's small school were always allowed to be somewhat selective with their student enrollment. It would be insane to try and bring large numbers of new staff into these schools with the hugely disproportionate number of high needs students. We're at the end of the line James. They can't shuffle the high needs kids off anymore, the way Bloomberg did without forcing "high performing schools" to enroll them. Those schools are pretty well connected politically, so you know that isn't going to happen.

James Eterno said...

It still says qualified teachers in the hiring. Finding someone not qualified is easy. This is NYC, not Lawrence, Mass. I wish I could share your optimism.

Anonymous said...

In Diane Ravitch's blog she states about Cuomo, "If he acted like an angry bully, the Legislature acted like fools."

Some of the legislators didn't understand the bill or did not read it in its entirety. Carol Burris wrote a piece on Diane's blog where she "shows how thoughtless and mean-spirited this legislation is."

Arroyo will pay for her comments and Fahy does not know what she's talking about especially she voted yes.

http://dianeravitch.net/2015/04/03/carol-burris-what-cuomo-and-the-legislature-did-to-teachers/

What action can we all take that will send a strong, powerful message without violating the Taylor Law?

Anonymous said...

From Dictionary.com on the meaning of shall as a legal term.

(in laws, directives, etc.) must; is or are obliged to:
The meetings of the council shall be public.

Shall and must are synonyms.

I am not reassured 5:56 pm.

Anonymous said...

"The receiver shall have full discretion regarding hiring decisions BUT MUST FILL AT LEAST FIFTY PERCENT of the newly defined positions WITH the most senior FORMER SCHOOL STAFF who are determined by the staffing committee to be qualified."

They're NOT synonyms in that sentence.

Anonymous said...

They were using a thesaurus and didn't want to use the word shall twice in the same sentence. Are you telling me the dictionary is wrong?

Perhaps you think our friend Carmen will save us.

Anonymous said...

At this point, why are you worried about the Taylor law?

Bronx ATR said...

I remember a similar provision being touted when Bloomberg closed my school. The 4 schools that replaced it hired ZERO teachers out of the 114 teachers that are now ATRs. This scenario is even worse; teachers wil now lose not only their teaching position, but their livelihood as well. What's incredible is that most teachers are completely oblivious and think the UFT won the fight (in light of Mulhrew's announcement).

Anonymous said...

10:28
Just look at the uppercase words. That is what a neutral arbitrator will look at. The "BUT MUST FILL" will require the receiver to hire "the 50%". Now, if they don't, will the "Useless Federation of Teachers" file a grievance? I hope so... They did in 2012 with Bloomberg's Turnaround proposal and actually won.

ed notes online said...

Education Chicago Style comes to NY - where there are few job protections as the old Unity style leadership - the UPC crumbled under the assault, allowing CORE to seize power, something unfortunately I don't expect to see happen here as Unity will cling to power while selling out every protection. For some reason the kind of militancy from the rank and file that exists in Chicago doesn't seem to be operating here - maybe it's the water.

James Eterno said...

Look at the word QUALIFIED. That is how they get around the 18 D provision. They can easily deem people not qualified.

James Eterno said...

Never thought it was the NY water that made us weak. Just to clarify, my understanding is that if a school closes in Chicago, teachers get five months to find a new job or they are laid off. The new NY law looks a lot like windy city on the Hudson. Sadly, nobody yet has refuted my reading of it.
This looks like a very dangerous precedent to circumvent civil service rules. Seniority means nothing if a receiver does not deem someone qualified.

Anonymous said...

" but shall be placed on a preferred eligibility list in accordance with the applicable provisions of section twenty-five hundred ten, twenty-five hundred eighty-five, twenty-five hundred eight or three thousand thirteen of this chapter."

It seems as if this is a very important piece of the law....Does anybody know what..."section twenty-five hundred ten, twenty-five hundred eighty-five, twenty-five hundred eight or three thousand thirteen of this chapter.".. acatually says?

NYCDOEnuts said...

The prefered eligibility list provision souds more to me like an ATR pool for every district in the state (I would think to have seen language similar to 'notwithstanding the CBA' otherwise),
The pattern seems to be clear: loading districts up with tons and tons of unfunded mandates.

Anonymous said...

In NYC, teachers would end up in the ATR, not laid off.

James Eterno said...

The no bumping is the frightening part. Preferred list is in the contract on layoffs too. Bumping was used in previous layoffs. I hope NYC DOE NUTS is right about ATRs being created and not layoffs.

James Eterno said...

Section 2510 doesn't really clarify but it would seem to me that the original post might just be correct. You will be eligible for another vacancy. Since placement in NYC is now up to a principal, good luck. Once again, I hope I am totally wrong and DOENUTS is 100 % right.

3. (a) If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position. -

James Eterno said...

Here is 2585 Please read 4 closely. The jobs are being abolished as I see it.

1. Except as otherwise provided herein the boards, bureaus, teachers, principals, supervisors, superintendents, heads of departments, assistants to principals, examiners, supervisors of lectures, directors and all other officers and employees of the school systems or of boards of education of the several cities of the state, lawfully appointed or assigned before June eighth, nineteen hundred seventeen, shall continue to hold their respective positions for the term for which they were appointed or until removed as provided in subdivision five of section twenty-five hundred twenty-three of this article. 2. If a board of education abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. 3. Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued. 4. If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. The persons on such preferred list shall be reinstated or appointed to such corresponding or similar positions in the order of their length of service in the system. -

James Eterno said...

Here is 2508. Only transfers, which this is not one, would be applicable to the transfer provision here.

The superintendent of schools of a city school district shall possess, subject to the bylaws of the board of education, the following powers and be charged with the following duties: 1. To be the chief executive officer of the school district and the educational system, and to have a seat on the board of education and the right to speak on all matters before the board, but not to vote. 2. To enforce all provisions of law and all rules and regulations relating to the management of the schools and other educational, social and recreational activities under the direction of the board of education. 3. To prepare the content of each course of study authorized by the board of education. The content of each such course shall be submitted to the board of education for its approval and, when thus approved, the superintendent shall cause such courses of study to be used in the grades, classes and schools for which they are authorized. 4. To recommend suitable lists of textbooks to be used in the schools. 5. To have supervision and direction of associate, assistant and other superintendents, directors, supervisors, principals, teachers, lecturers, medical inspectors, nurses, claims auditors, attendance officers, janitors and other persons employed in the management of the schools or the other educational activities of the district authorized by this chapter and under the direction and management of the board of education; to transfer teachers from one school to another, or from one grade of the course of study to another grade in such course, and to report immediately such transfers to such board for its consideration and action; to report to such board violations of regulations and cases of insubordination, and to suspend an associate, assistant or other superintendent, director, supervisor, expert, principal, teacher or other employee until the next regular meeting of such board, when all facts relating to the case shall be submitted to such board for its consideration and action. 6. To have supervision and direction over the enforcement and observance of the courses of study, the examination and promotion of pupils, and over all other matters pertaining to playgrounds, medical inspection, recreation and social center work, libraries, lectures, and all other educational activities under the management, direction and control of the board of education. 7. Notwithstanding any inconsistent provision of law, the provisions of subdivision five of this section relating to the transfer of teachers may be modified by an agreement that is collectively negotiated pursuant to the provisions of article fourteen of the civil service law. -

James Eterno said...

And finally here is Section 3013.

This one might help but my issue is how teachers are hired these days. We don't get a hired any longer off of a civil service list in reality although that is what is supposed to happen in the law. The no bumping part is really scary.


1. If a trustee, board of trustees, board of education or board of cooperative educational services abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled. 2. Whenever a trustee, board of trustee, board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued. 3. (a) If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position. (b) The persons on such preferred list shall be reinstated, in accordance with the terms of paragraph (a) of this subdivision, to such substitute positions of five months or more in duration, as may from time to time occur without losing their preferred status on such list. Declination of such reinstatement shall not adversely affect the persons' preferred eligibility status. -

James Eterno said...

OK legal scholars. Read through this and help me out.

Anonymous said...

After reading through this lawyer's dream come true, I am firmly convinced it will be the court who will eventually figure this out.

Anonymous said...

It's over for teachers in NYC schools that go into receivership, period. That is one of the main objectives for all this. For the UFT not to explain this and claim its a UFT victory is simply mind boggling.

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