Strategic Error Boxes-Out Class Size Reduction Complaint for Second Major UFT Legal Setback in Past Week

In an apparent miscalculation in the choice of proper forum for which to seek a remedy the Appellate Division, First Department this week, turned back a UFT/NAACP initiated lawsuit seeking proper allocation of Contract for Excellence funds toward class size reduction. Just a few days ago, the UFT/NAACP legal team was defeated in an attempt to stop the co-location of charter schools.

Late last year Bronx Supreme Court Justice John Barone denied the DOE’s motion to dismiss the proceeding. The City appealed and last Thursday the Appellate Division dismissed the lawsuit.

Contract for Excellence is a special State funded program which developed as an outgrowth of the Campaign for Fiscal Equity lawsuit in 2003, and tied additional state education funds to certain criteria, including lowering class size. A plan is put together, each year since 2007-2008 by the DOE and submitted to the Commissioner of Education for approval. Upon approval the funds are released.

Within the Contract for Excellence legislation are provisions for parents and others to complain about the plan and its implementation. When it became apparent through a City comptroller audit that class size reduction promises were not being met and the additional funding was going to principals to spend how they wish, parents and others began to complain.

Despite the fact that the law requires complaints to first proceed to the state Commissioner of Education the UFT/NAACP legal team decided to commence litigation in Bronx  Supreme Court citing a New York Daily News article as proof of the futility of following this statutory route. The Appellate Division held that an allegation that a secret deal was made with the State Education Commissioner does not obviate the need to follow the statute’s review process and that the Commissioner's decision could be reviewed in Court.

Although the guidelines for the Contract for Excellence funding allocations have not been published for this year it is almost certain that the money will not go to class size reductions next school year. We will keep you advised.

Bargaining With the Devil: How UFT Attorney Miscalculation Led to the Recent Charter School Victory

Riding high from their school closing victory in the Supreme and Appellate Courts last year the UFT and its co-plaintiffs started to see that their interpretation of these decisions were not the same as the DOE’s. Seeing that the DOE was going ahead with its charter co-locations in most of the 19 schools prevented from closing, UFT counsel sent the court a letter on May 28, 2010 complaining that the DOE was not following the Court’s decision.

Specifically UFT counsel asked for a conference with all sides to stop the co-locations arguing that the invalidated PEP vote also prevented the co-locations. The DOE appeared to believe that the decision only invalidated the PEP vote that closed the schools.

A conference was held and on July 14, 2010 a letter “agreement” was submitted, which, incorrectly relied upon by the UFT, seemed to answer their concerns. The letter agreement laid out a plan to provide services to the affected schools.

As usual the UFT claimed a great victory and everyone went on their merry way until it became clear that the DOE had not given up its plan to close most of the schools originally planned and co-locate charter schools. 

The UFT cried foul and based their claim of swindle on the letter agreement which they started to call a stipulation. Few, if any of the services “promised” in the letter agreement were provided or were provided so late in the year that they could not prevent the closing of the schools or the co-locations.

By May 2011 the UFT assembled its prior co-plaintiffs and decided to commence a lawsuit with a request for a temporary injunction to stop the DOE from the closings and co-locations. A temporary restraining order was consented to by all parties on June 21 pending a decision by the Justice Paul Feinman.

Then, on July 21, 2011 Justice Feinman issued his opinion right after the State permitted the DOE to close the schools. He denied the injunction paving the way for DOE celebration.

What went wrong?

As hinted at above the bottom line, relied on by Justice Feinman, was that the DOE never really agreed to provide the services of the letter agreement as a condition before closing the schools. Justice Feinman relied on Joel Klein’s affidavit which clearly claimed that if there were any conditions he never would have agreed. Adam Ross, a UFT attorney, admitted, “Thus, while Defendants are correct that the Agreement does not foreclose the DOE from ever seeking to close these schools, their contention that their promise to provide specified supports for these schools in the 2010-2011 school year (Klein Aff., pp6) is completely irrelevant to any further decision to close is incorrect.”

Feinman made clear in his decision that there was never any representation, implicit or otherwise, on which the UFT could reasonably rely that the DOE waived any of its authority to co-locate or close the schools. To grant the injunction, Feinman ruled, would relegate students in these allegedly failed schools to an inferior education.

Good Summer Reading on Failure of Business Model in Education & Other News and Commentary

My colleague Marc Epstein has written a piece showing how the business model has failed in public education but as usual there is no accountability for failure. Like everything else, accountability is for little people.

http://www.huffingtonpost.com/marc-epstein/which-business-model-is-b_b_909695.html

While I was away on vacation, the news was depressing as a judge sided with the city and will allow charter co-locations in public schools and school closings to continue. The judge did leave a window open to continue the suit but this fall will be a disaster for kids in many closing schools as Leonie Haimson of Class Size Matters pointed out.

Then there is the related issue about what is likely to happen to the kids who are currently enrolled at the closing schools. At Jamaica HS, they are planning to allow only the high-achieving kids in the Gateway program to transfer into the new selective small school in the building, called Jamaica Gateway to the Sciences . For most of the rest, they will either be forced to drop out, be discharged to GED programs, or given sub-standard “credit recovery” programs, and never be allowed to graduate with a real HS education. A recent summary shows what happened at Tilden HS when it closed. 44 Haitian students fell between the cracks; they “came to the United States in search of better educational opportunities, but they didn’t find it.” There is no evidence that DOE has learned anything from the past and will do anything different in the future.

I don't know who the person was who confronted a deputy chancellor at the DOE happy hour celebrating the court ruling that will leave thousands of children behind in separate and unequal schools but those of us at Jamaica and Paul Robeson thank you.

It was good to see the parents fighting back on charter co-locations in a new lawsuit filed yesterday.

The march to Save our Schools is Saturday in DC. Great news that wounded education activist Norm Scott will be there.

The DOE has also told principals how they will implement the new ATR agreement. In their video they inform principals that they can still put substitutes into positions and don't have to hire ATRs to fill vacancies.

We hate to say we told them so again and again but each time the UFT makes a deal with the DOE, the DOE subsequently does everything they can to not abide by their part. Shouldn't the UFT learn by now?

UFT Fiddles While Large Numbers of Probationers Are Denied Tenure

Back in November 2010 Mayor Bloomberg and then Chancellor Klein announced "sweeping changes" to the tenure system in the New York City school system. They claimed that tenure was a "rubber stamp" process and needed to be overhauled to assure high quality teachers remained in the system.

Where was the UFT in all of this? Right behind Bloomberg and Klein. In fact Mulgrew "welcomed" the new, overhauled process and help bring in the new evaluation system that was made a part of it.

Then in December the principals were given general guidelines based on "Framework for Teaching" developed by Charlotte Danielson and a rubric. They were instructed to use these guidelines in making tenure decisions.

The UFT either supported the guidelines, as Weingarten signaled in February, or remained silent and complacent. In fact UFT borough offices began to hold information sessions where superintendents were invited to "explain" the new rules to probationers. These included a mandated portfolio, prepared by teachers up for tenure, in which they highlighted their probationary accomplishments within the rubric.

By May 1, the DOE imposed deadline for principals all recommendations and portfolios were to be submitted to superintendents for final review.

Then the surprise. Although it was common knowledge for almost two years that rates for extensions of probation and probationary terminations were geometrically increasing the UFT stood by and did nothing fearing that if they attacked the new rules they would somehow be perceived by the public that they were protecting incompetent teachers.

Reports from all over the city came in which proved that the "new rules" were a sham. Superintendents told teachers that if they worked in poorly rated schools they were not eligible for tenure. Teachers were told they did not have enough time with their last principal to be properly evaluated or their portfolios did not make the grade even though many of them were not even reviewed.

With all of the evidence in what does the UFT do? It makes a Freedom of Information Request to determine the number of teachers affected by irrelevant criteria in end of probation decisions. Mulgrew's letter demonstrates how fearful the UFT is of the DOE. The fact that the letter went out to Chapter Leaders instead of the entire membership and that they waited until the middle of the summer to start their feeble attack clearly indicates they have no real interest in changing the DOE tenure policy both in its design and in its implementation.

A note on tenure…

We have explained before, in this blog, what tenure is and what it isn't. Briefly stated the law defines tenure as that period of time, usually 3 years, where a teacher has performed satisfactorily. Tenure fundamentally changes the employment rights of a teacher from being an "at-will" employee while under probation and fired for any or no reason at all to one that is entitled to a due process hearing where the DOE must prove, by a preponderance of the evidence, that the teacher should be fired before an arbitrator.

Education Law 3012 provides, in relevant part: "At the expiration of the probationary term…, the superintendent of schools shall make a written report to the board of education …recommending for appointment on tenure those persons who have been found competent, efficient and satisfactory, consistent with any applicable rules of the board of regents adopted pursuant to section three thousand twelve-b of this article. ...Each person who is not to be recommended for appointment on tenure, shall be so notified by the superintendent of schools in writing not later than sixty days immediately preceding the expiration of his probationary period."

 

The statute provides that tenure decisions must be made solely on a teacher's competence, efficiency and satisfactory service. The part of the statute which refers to State Regulations only refers to the new, 4 part, evaluation system, effective September 2011 which make no mention of probation or tenure at all.

So why is the UFT so conspicuously absent in the face of such a radical change in working conditions for so many teachers? Perhaps, their lawyers believe that since tenure is not a subject of bargaining there is legally little they can do. While, admittedly, legal avenues are limited although there are actions that can be brought if the Union knew or cared about its members.

Now, we must wait for a FOIL request to be filled (they can take months or even years) and teachers who have provided competent, efficient and satisfactory service must serve additional probation time or be terminated.

ON EDUCATION

A Failing School? Not to These Students

Librado Romero/The New York Times

In February, the Bloomberg administration placed Jamaica High School on a list of 22 failing schools it planned to shut. No new pupils will be accepted this fall. In three years, when the last of its current students graduate, the school will close.

By MICHAEL WINERIP

Published: July 3, 2011

Enlarge This ImageEveryone knows Jamaica High is a bad school. The past two years, it has received D’s on its report card from the city and been labeled persistently dangerous by the state.

Librado Romero/The New York Times

Muhammad Ahmad at the Jamaica High School graduation last week. He received a full scholarship to Clarkson University.

Enlarge This Image

Librado Romero/The New York Times

Afsan Quayyum, valedictorian. He plans to start an engineering program for degrees from Queens College and Columbia.

In February, the Bloomberg administration placed Jamaica on a list of 22 failing schools it planned to close. The mayor and his schools chancellors have sent letters encouraging students to enroll elsewhere, and the shrinking of the student body has led to a decline in financing, squeezing the juice out of Jamaica High.

There was no money for lab lessons in advanced biology, which upset Doreen Mohammed and Tonmoy Kabiraj,  who hope to be doctors. Courtney Perkins’s advanced math class did not have graphing calculators until eight months into the school year. The last music teacher was sent to another school, which really frustrated Mills Duodu, who plays violin, trumpet, drums and piano.

City officials have vigorously fought a lawsuit brought by the teachers’ union seeking to save the 22 schools, 15 of them high schools. In May, the schools chancellor, Dennis M. Walcott, called the union’s position “unacceptable” and vowed to “defend the honor of our students.”

This surprised Afsan Quayyum and Doreen, who graduated from Jamaica High, in Queens, last week. They did not realize their honor needed defending. Afsan, the valedictorian, plans to start an engineering program this fall that will give him a bachelor’s degree from Queens College in three years, and another from Columbia University after two more. Doreen, the salutatorian, has a full scholarship to Columbia.

Their classmate Gerard Henry is struck by all the people he meets who have never stepped inside Jamaica High yet are sure it is a living hell. “If I say, ‘My name is Gerard Henry and I just graduated Jamaica High School,’ they say, ‘Oh my God, you’re one of them?’ If I say, ‘My name is Gerard Henry and I’m going to Columbia next fall,’ they say, ‘Oh my God, you’re one of them?’ ”

It is puzzling how a school can be labeled failing and yet produce Afsan, Doreen and Gerard, not to mention Mills (who is heading to Denison University in Ohio), Kevin Gonzalez (Stony Brook University), Courtney (Howard University), Nujhat Choudhury (University of Alberta) and two top math students who are best friends: Muhammad Ahmad (Clarkson University) and Mohammad Khan (City University’s Grove School of Engineering), known throughout the school as “the Mohammads squared.”

Of course, it is possible that such seniors are the exceptions. As James S. Liebman, the Columbia law professor who developed the city report card, wrote in an e-mail: “Good high schools aren’t satisfied when just a few kids get into strong colleges. They aim for all kids to do so.” Education Department officials point out that the graduation rate at Jamaica has stayed at about 50 percent for years.

But it is also possible that the deck has been stacked against Jamaica High, that the 15 “worst” high schools have been packed with the students with the worst problems. According to an analysis by the city’s Independent Budget Office, these schools have more poor children (63 percent versus 52 percent citywide), more homeless students (6 percent versus 4 percent), more special-education students (18 versus 12). For 24 percent of Jamaica High students, English is a foreign language, compared with 11 percent citywide.

The “worst” high schools are sent the eighth graders who are the furthest behind: their average proficiency score on state tests is 2.6 out of 4, compared with 2.9 citywide, and more of these students (9 percent versus 4 percent) are over age, suggesting they have had to repeat grades.

It is no big mystery to Doreen why Stuyvesant High gets A’s on the city progress reports while Jamaica gets D’s: “Only the smartest kids are accepted,” she said.

Jamaica High’s enrollment has fallen to about 1,000, a quarter of what it was in the mid-1970s. No new pupils will be accepted this fall. In three years, when the last of its current students graduate, the school will close. Four new small schools will take over its storied building.

Each administration wants to be remembered for pioneering something or other, and Mayor Michael R. Bloomberg long ago chose small schools and charters.

James Eterno, Jamaica’s representative to the teachers’ union, has been portrayed in the news media as a man who cares more about preserving jobs than — as the mayor never tires of saying — “putting children first.”

That is not how Kevin Gonzalez sees it. For Kevin, Mr. Eterno is the United States history teacher who stayed late to tutor his students, helping Kevin earn a top score of 5 on theAdvanced Placement test.

Doreen and Gerard definitely feel put first. Jamaica had no college adviser this year — until October, when Mr. Eterno stepped in. “Before Christmas break he stayed late to make sure everything was perfect to send to the colleges,” Gerard said. “Mr. Eterno went way beyond.”

After Doreen was accepted to Columbia, she spoke with people at the admissions office. “They told me how Mr. Eterno kept calling them about me and faxing them stuff,” she said.

Last Tuesday, students did not have to be at the graduation ceremony until 9 a.m., but Doreen was up at 4:30 getting ready. To ensure she was out of bed by 6, Nujhat set two alarms, “my cellphone and my mother.” When Afsan was asked if he was nervous about delivering a speech, he said: “A little, but I’m fine now. I’m fine. I got my confidence back.”

No Jamaica High band is left to play “Pomp and Circumstance.” But Clayton Ezell, a senior, belted out “The Star-Spangled Banner” as if he were Robert Merrill standing at home plate in Yankee Stadium.

The third-ranked student in the senior class, Tonmoy, whose father was a professor in Bangladesh but drives a taxi in New York, gave a speech about the need to see the glass as half full.

After the ceremony, the parents lingered: it was hard to tell that their children had attended a failing school. Muhammad Ahmad’s father, also named Muhammad, said his son’s full scholarship to Clarkson was a sign that the family plan was working. The father had been an accountant in Pakistan, but he, too, drives a cab here. “My job here is not a recognition of my dignity,” he said, “but I am supporting my kids to a great future.”

Of course, it is still possible that Jamaica High is a failing school. The two D’s may be deserved. But it did not fail Afsan, Doreen, Courtney, Nujhat, Gerard, Mills, Tonmoy, Kevin or the Mohammads squared.

E-mail: oneducation
@nytimes.com

A version of this article appeared in print on July 4, 2011, on page A17 of the New York edition with the headline: A Failing School? Not to These Students.