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?


Anonymous said...

And how nice that Unity gets to choose the 13%. If you open your mouth to the dist rep watch out. The DOE and UFT can truly collaborate on getting rid of trouble makers/

Anonymous said...

Decertify the uft.
It might be the only answer.

Anonymous said...

This evaluation will most likely open up a Pandora's Box from hell and beyond that many on the outside will not see. Chapter Leaders in high school beware! There will be major calls from the rank and file for fair and balanced scheduling of regents classes and CTTT/ITT classes. Many teachers are usually pigeon holed into these classes for years in a row because they work "well." Graduation and credit rates may fall because a teacher will most likely attempt to safeguard these evaluation exams scores by speaking with thier own classroom evaluation of the student - in other words - "Hey, of course he or she didn't show growth on the exam, the kid did little homework, failed many tests and was absent 15 days - so I failed him. My own evaluation backs up the state's who used their own." This will cause conflict with the APs and Principal who want the 80 percent passing rate in all classes. Telephone bills for the school will grow ten fold as teachers will make sure they now record and call for even the slightest infraction by a student as possible future proof of their competence. This may now threaten the teachers reputation he or she desperately needs in the classroom to sell the material they are teaching. "Ahh, Ms. N calls my house now everytime I come in 30 seconds late." OR "It's the first homework I missed out of 15, you call my house for that?" I think you get the point. There are many more. The teachers who read this blog know that. Would love to hear more examples of how this silly, destructive and in my opinion impossible system can be installed without hurting truly effective teachers and the students they teach.

Anonymous said...

Well done article. Well written. Good analysis. But it gives absolutely no hope.

If one haven't done so already, it is long past time to come up with plans to get out of this sick, toxic and absurd profession ASAP.

Save some sense of self respect! Unless, of course you enjoy groveling.

ed notes online said...

Maybe you're right. If you're not going to fight them might as well get out. They just feed off people who are afraid --both the DOE and their partners the UFT.

Anonymous said...

with half of the teachers quiting in 5 years and half of the remaining being denied tenure, would you want your children to follow in their footsteps and become nyc teachers?

Anonymous said...

Anon 3:39

What is significant about your post is that it would make no sense to anyone who has not taught for a significant amount of time. You are exactly right. In the coming weeks all predictions will be revealed and will prove correct in the coming years.

16 years speaking
Will probably leave this system for another one
Love teaching but want no part of NYC anymore

Ps: I think there is more to this with unity/UFT
Perhaps they see the writing on the wall in terms of the demographics of teaching and not just the political winds
Of course they are in part responsible for the new's all about creating a new normal...soon no old guard will be left so the UFT figures join them in order to stay alive...tragic

Anonymous said...

If anyone here votes for Obama you are delusional-HE above all others is responsible for this. HE, who's taken more Wall St. money than any other candidate. HE, who is responsible for NO MAJOR ARRESTS OR INVESTIGATIONS OF WALL ST CRIMINALS. And finally HE that has COMPLETELY GUTTED PUBLIC EDUCATION.

If you refuse to vote for the GOP< then VOCALLY sit this next election out, and tell your fellow teachers to do the same. If every teacher in the country does so-he will lose. Look, on the major issues, there is NO DIFFERENCE between the Red vs. the Blue team-NONE! And what Junior Cuomo just did is no different than what Walker of Wisconsin did last year-destroyed collective bargaining. VOTE NO ON OBAMA !!!