Wednesday, July 27, 2011

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.


Anonymous said...

Randi was a "labor lawyer" yet many things in the '05 agreement and side agreements with Klein, like evaluations and parking, as well as the agreement she reached with Rhee in Washington, DC backfired. So maybe things are not an oversight but are written in such a way so Klein can walk away with the store???

Or, our dues are paying for the worst lawyers in history.

Anonymous said...

Or maybe a little of both.

Anonymous said...

Joel Klein, Dennis Walcott and Michael Bloomberg are all cockroaches. It seems that they created a plan to help failing schools that they never intended to implement. They will not be satisfied until they have taken a wrecking ball to every traditional high school in the city and replaced them with small schools, in which the principals are all of 25 with 6 months of teaching experience. Most of these small schools have younger CHEAPER teachers. Today we learned that the newbies apparently can't even teach yet magically 80-85% of their students pass because their principals are desperately trying to save their own schools and jobs from the DOE wrecking ball. These principals force their teachers to pass students - everyone knows it except for the cockroaches. Just one more thing, most many if not most teachers loathe the leadership of the DOE, I am not so happy with the UFT either. Thanks for selling out the ATRs (the older -more experienced - more expensive - better teachers) at the expense of the newbies. I have 2 Masters Degrees, an extra Certification and 15 years experience and I will be no more than a glorified traveling baby sitter come September. I will have to move to a different school each week. Who thought of this disgusting idea? The pencil pushers at the DOE aren't competent to implement such a plan which will change weekly. (How many pencil pushers will be placed on ATR assignment duty anyway for their 6 figure salaries?) I will be sent from school to school and from class to class like a traveling saleswoman. Great idea for the students too - to have 20 different teachers paraded in front of them during a semester. Congrats to both parties on a swell deal.

Anonymous said...

To grant the injunction, Feinman ruled, would relegate students in these allegedly failed schools to an inferior education.

this is ridiculous. Feinman clearly does not understand what happens. the closings will do NOTHING to help the students currently at the schools, nor the students that would have gone to those "inferior" schools. the current students will play out the string, and the future students will go to the next school slated for closing. When are people actually going to try to help the kids in these schools? either fix the school or replace it with a school with the exact same responsibilities (i.e. zone/district)

Give one of these vaunted charter schools a zone to cover and let's see how they do (just not MY zone!)

Anonymous said...

7:00 pm July 27 is a wonderful commentary. Keep hope alive.

Anonymous said...

The UFT has lost every major battle but continues to claims victory. It sounds like a couple of Middle Eastern dictators and just ask the Libyans, Syrians, Egyptians, and Iraqis how it ends.

Anonymous said...

If Jeff's analysis is correct, then this case was lost last July. Fault lies more with Mulgrew for agreeing to deal than poor Ross.

Anonymous said...

If only we could get rid of those roaches. Send them to bother someone else.

Anonymous said...

Thanks for information Jeff. We lost the case not because we did not have a case, but because of the collaboration of the Union and the DOE, the same thing happened last year, when Bloomberg and Mulgrew went to Washington to beg forthe700 million for the DOE and we lost our case.This year the union settled around the question of saving 4000 teaching positions in exchange for going along with the colocations and charter schools, plus the ATR's and what else we see as time goes on. We the teachers continue to be at the mercy of the DOE and the mayor. The question of tenure might be another one. YOu might not remember but when I use to attend ICE meetings I raised the question of tenure and the Taylor Law and the Pension. The Taylor Law no one mentions even ICE, the question  of tenure is treated as a legal matter, a contractual matter by it self, which the Union is ready to sell out too. But Tenure is a question of Academic Freedom, so far no one is looking at this from a this perspective. Any way the only way forward is to organize the opposition, any progress on this?

Anonymous said...

To annonymous July 27th,
Welcome to the "substitute world"
I think ATRs and subs should hold a big rally about how we were both displaced from our regular positions.
We could also "discuss" many other things at this rally.
Good luck waiting for the UFT to defend you or us. We need to organize a protest or it's going to be more of the same.