Vergara, Fair Student Funding and Open Market: Do Department Policies Violate the Fundamental Right to Equality of Education?

The judge in the California Vergara tenure decision wrote,

Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and, that these teachers are disproportionately situated in schools serving predominantly low income and minority students … plaintiffs equal protection claims assert that the Challenged Statutes violate their fundamental rights to equality of education by adversely affecting the quality of the education they are afforded by the state.

What if plaintiffs in New York State argue that high achieving, high wealth schools receive higher per capita funding than low achieving, high poverty schools violating the plaintiffs’ equal protection rights? and, in New York City, discourage schools from hiring experienced teachers?

What if the plaintiffs in New York City argue that high achieving selective schools have more experienced, higher achieving teachers and better educated teachers than high poverty, low achieving schools violating the plaintiffs’ equal protection rights?

The policies in New York City relating to student funding and teacher transfer both result in less experienced and in some cases less effective teachers working in schools serving poorer students.

In pre-Bloomberg days late in the school year Budget Memorandum # 1 would arrive – the hundred plus page document explaining the budget dollars for the upcoming school year was highly anticipated by each school district. The district divided up the dollars in the form of positions to each school.

In the nineties a new idea began to gain acceptance, staffing decisions should be made at the school site, not at a distant district office. Decisions over dollars should be driven by student needs, called weighted student funding.

An innovative process called weighted student formula is a fair and equitable way to distribute funds for school budgets. The amount of money given to a school will be based on individual student need, not enrollment. This means that students with more needs will receive more resources. For the first time, funding will follow students to whichever schools they attend, equalizing opportunities at the student level.

How weighted student formula works:
• A specific dollar amount will be allocated to educate each student enrolled.
• Additional money will be given to educate students with identified characteristics that impact their learning and achievement.

Eric Hanischek, an economist, questions whether the presumption that better decisions are made at the school site has a research support.

The highest-poverty schools in urban areas traditionally have received less funding than more-advantaged schools, not because of programmatic disparities, but largely because they employ more rookie teachers who come with lower salaries than more-senior educators…

A lovely school in Brownstone Brooklyn or Eastern Queens may have many senior teachers while a school in Brownsville many newer teachers, under the old system if you multiplied the school average teacher salary by the number of teachers and divided by the number of students the schools in Brownstone Brooklyn and Eastern Queens would receive substantially higher per capita funding than the school in Brownsville. Under a weighted student funding approach the funds would follow the student and the school budget would be the sum total of the students weights

The underlying motivation for weighted student funding is built on a presumption that districts are making patently bad decisions, either because of a lack of capacity or distorted incentives. Is it the case that these problems appear just at the district level, but not the school level? Why do we believe that school-level personnel—without any prior training and experience—will become better stewards of resources or better judges of personnel, curricula, or instructional techniques?

The reform envisioned is not so much about providing differential dollars based on student needs, but about changing who makes funding decisions.

The Bloomberg/Klein administration jumped on board using the term Fair Student Funding. See the latest Fair Funding Resource Guide, especially pp 49ff which explains the funding of teachers at schools: See Guide http://schools.nyc.gov/offices/d_chanc_oper/budget/dbor/allocationmemo/fy14_15/FY15_PDF/FSF_Guide.pdf

There is a significant flaw in the system, new hires are charged at their actual salary; principals are forced to factor in the cost of the teacher, i. e., should I hire the experienced $80,000 teacher or the newer $60,000 teacher? Since high poverty schools have much higher staff attrition the Fair Student Funding rules push principals to hire the least experienced, namely, “cheaper” teachers.

The Vergara law suit alleges that high poverty schools have the least experienced and least effective teachers and the current Fair Student Funding rules reinforce these claims.

There is a simple “fix,” a way to extinguish the Vergara claim, new hires should be “charged” to the school at the average district salary, not actual salary, experienced and newer teachers would be treated equally.

One of the keys to improving outcomes in high poverty schools is recruiting and retaining the best possible teachers and the current Fair Student Funding rules add an unnecessary word, “recruiting and retaining the best and cheapest teachers.” The current rules are antithetical to the outcomes we seek.

The Bloomberg/Klein administration vigorously attacked the seniority transfer system; each spring the Board posted half of all vacancies and teachers with at least five years of service could file for seniority transfer, and, no more than 5% of could transfer out of a school. Subsequent transfers required five years of service since the last transfer.

Under the Open Market Transfer System any teacher, regardless of seniority can transfer to any school regardless of years of service.

The current rules facilitate teachers moving from school to school and the movement is from high poverty, low achieving to higher achieving schools; there is considerable research,

Urban schools, in particular, have lesser-qualified teachers; and New York City stands out among urban areas. Low-income, low-achieving and non-white students, particularly those in urban areas, find themselves in classes with many of the least skilled teachers.

and, another study finds,

… we find that teachers with better pre-service qualifications (certification exam scores, college competitiveness) are more likely to apply for transfer, while teachers whose students demonstrate higher achievement growth are less likely. On the other hand, schools prefer to hire “higher quality” teachers across measures that signal quality. The results suggest that not only do more effective teachers prefer to stay in their schools but that schools are able to identify and hire the best candidates when given the opportunity.

Current Department policy is accelerating the movement of more effective teachers out of high poverty schools to higher achieving schools thereby violating the equal protection rights of minority students by adversely affecting the quality of their education.

The Department could remedy the issue by reinstituting the “five year rule” or limiting the number of teacher allowed to transfer from, “focus” and “priority” schools.

“Rules” that disadvantage one class of students passed by a prior administration are not written in stone, and, in fact, if the “rules” violate the civil rights of a class of students, if the rules adversely impact the quality of education, the courts could embarrass the current administration.

Perhaps the Chancellor should consider the recommended changes.

New NEA President Lily Garcia Meets Morning Joe and Fails the Test

Lily Garcia is the vivacious new president of the 3 million member National Education Association (NEA), the largest teacher union in the nation. The NEA has struggled since they torpedoed a merger agreement with the American Federation of Teachers (AFT) in 2000, in spite of the support of the NEA president the state federations sunk the plan, and, the NEA has drifted from leader to leader without much of a national presence. These days when you think of a national teacher union leader the only name is Randi Weingarten.

Lily, since her early July election has hit the ground running. She is the first NEA president to address the AFT convention and she very publicly chastised Arne Duncan, especially in regard to his “dumb ideas,” comments which undoubtedly play well with her membership.

Lily was a guest on MSNBC Morning Joe, a network with a left leaning viewership, the perfect audience for Lily. One of the troubling problems is that some of the strongest opponents of teacher tenure and opponents of teacher unions are within the MSNBC audience – left leaning democrats.

Unfortunately, in my view, Lily failed the test.

Watch Lily’s five minutes on Morning Joe: http://www.msnbc.com/morning-joe/watch/nea-president–end-factory-school-reform-333357123798

The program, as they frequently do, put on the screen a particularly harsh comment from Lily referring to Duncan’s “dumb ideas” and his strong support for high stakes testing of students. One of the program hosts, referring to the international PISA scores complained that as a nation we are doing poorly compared to other nations, and, wasn’t Lily’s objection to testing simply a copout?

Lily’s answer: Instead of testing we should use the number the of Afro-American and Hispanic students who take Advanced Placement courses … and it went downhill … too bad.

How Lily, in view, should have answered:

“Let’s look at data from the 34-nation Organization for Economic Cooperation and Development (OECD). On the children poverty scale the US places 27th out of the 30 nations that reported data ….we’re better than Mexico and Turkey

childhood poverty: http://www.oecd.org/social/family/43570328.pdf

Denmark 2.7%
Sweden 4.0
Finland 4.2
OECD 12.4
US 20.6

When we compare ourselves with other OECD nations on four year olds who are in school we’re in the lower third.

We have more teenage births than every country except Mexico.

We’re third from the bottom in childhood immunization rates.

We have the second highest family income among OECD nations.

According to the UNICEF measures of child well-being the US scores next to last, just ahead of the United Kingdom.

Of course if we subtract out the 20.6% of children in poverty and compare ourselves to similar children across the OECD we do fine.

These data do not absolve Duncan from “dumb ideas,” did you know that Duncan requires that 99% of children with disabilities must take the annual state tests even though their handicap prevents them from passing the test? Millions of students forced to take and fail tests … clearly a dumb idea.

Did you know that immigrant children must take the annual states tests after they are in the country for one year? Students with only one year of education in the US must compete with all other children … another clearly dumb idea.

Why do we need to test every student every year? The National Assessment of Education Program (NAEP) progress uses sampling and is not offered every year. The only reason is to enrich test creation companies and, perhaps, to use the data to assess teacher performance, the problem: kids change year to year and the year to year results for teachers varies wildly, from 20 -40%…

Arne’s requirement for annual testing is another dumb idea.

Our kids, schools and teachers, considering the burdens placed on our children and families are doing surprisingly well … it’s our nation that’s in trouble.”

Lily and Randi Weingarten are good friends; Randi’s partner officiated at Lily’s recent wedding. If Lily gets up to speed Lily and Randi may turn Arne Duncan’s “dumb ideas” into meaningful and effective policy for families, schools and teachers.

David Coleman, the Common Core, the “Redesigned” SAT and Growing Public Angst: Is the Testing Craze Ebbing?

Every teacher in American is engaged in the Common Core, how many have heard of the architect of the Common Core – David Coleman?

In a lengthy article in The Atlantic Dana Goldstein describes the architect,

David Coleman is an idealistic, poetry-loving, controversy-stoking Rhodes Scholar and a former McKinsey consultant who has determined, more than almost anyone else, what kids learn in American schools.

I first heard Coleman in April, 2011, I was sitting with a network, thirty or so principals and staff watching a telecast of what has become the iconic Coleman speech. (Read transcript of the Albany speech here).

Coleman strutted back and forth across a stage laying out in detail the elements of the Common Core, to be honest my attention was beginning to wane; there was a certain smugness about Coleman, and, maybe I knew too much about his past. He had created the “Grow Report,” one of the first data tools to assess student/school progress; it was widely adopted by school districts and Coleman sold the company for mega-bucks. After attending PS 41, IS70 and Stuyvesant High School he graduated to Yale, Oxford and Cambridge and according to his bio intended to become a high school teacher, instead, he became an entrepreneur.

As my mind was wandering I was jolted upright, Coleman told us,

“…the most popular form of writing in American high schools today …it is personal writing. It is either the exposition of a personal opinion, or, it is the presentation of a personal matter. The only problem, forgive me for saying this so bluntly, the only problem … as you grow up in this world you realize that people really don’t give a shit about what you feel or what you think.”

It was crass, intended to surprise, and wrong. Yes, employers seek employees with literacy and numeracy skills, they also tell us, as does Nobel Prize winner James Heckman, that it is the non-cognitive skills that employers find most important.

While forty-five states may have adopted the Common Core the debate continues and over the last week Marc Tucker, Anthony Cody, Diane Ravitch and Yong Zhao continued to debate over accountability and testing, debating the Common Core.

A few years ago Coleman moved from the Common Core to the College Board with the goal of redesigning both the SAT and the Advanced Placement exams – to make the exams congruent with the Common Core.

The SAT folks are on the road drumming up support for the new SAT – due out in 2015-2016. At the September 15th NYS Regents meeting a team from the SAT gave the Regents a preview of the new test. The “Redesigned SAT,” as it is called by the College Board is totally different from the current SAT, and, incredibly complex.

Try a few questions from the “Redesigned SAT:” http://www.regents.nysed.gov/meetings/2014/September2014/RedesignedSATCollegeBoardPresentation.pdf)

Goldstein tells us Coleman,

… hopes to effect change from the top down, by shifting what is expected of students applying to college and, he hopes, by increasing the number of students who apply in the first place. Coleman’s most radical idea is to redesign the SAT, transforming it from an aptitude test intended to control for varying levels of school quality, to a knowledge test aligned with the Common Core. He describes this change as a way to put applicants on an equal playing field, a message to “poor children and all children that their finest practice will be rewarded.”

To think that an extremely difficult test is going to change the face of American education is both foolish and arrogant.

… the SAT is unlikely to close the large test-score gap between affluent and poor students. “It’s hard to use the SAT as a driver of social justice, because tests tend to reproduce, not upend, social hierarchies,” says Nicholas Lemann, the author of The Big Test, a history of the SAT, … “Everybody is always looking for the test on which people from different races and classes do the same, but it doesn’t exist.”

If Coleman’s College Board really wants to prevent high-school students from dropping out—a focus of the organization’s latest advocacy campaign—it ought to develop an occupationally focused corollary to its Advanced Placement program, [Anthony] Carnevale suggests: not “Math for Harvard” but “Math for Heating, Ventilation, and Air-Conditioning.”

Coleman’s problems are not new, the SAT is no longer the college gatekeeper, with each year fewer and fewer students take the SAT, the reductions by state have been drastic. (Read state-by-state data here)

Coupled with fewer test takers is the “test optional” movement. More and more colleges are either giving applicants the option of not submitting SAT grades or have abandoned the SAT totally. A recent study compares students accepted through the SAT process (“submitters”) and students without the SAT (“nonsubmitters”).

… there was virtually no difference in grades and graduation rates between test “submitters” and “nonsubmitters.” Just 0.05 percent of a GPA point separated the students who submitted their scores to admissions offices and those who did not. And college graduation rates for “nonsubmitters” were just 0.6 percent lower than those students who submitted their test scores.

The revolution that rolled over New York State over the results of the Common Core state tests will be dwarfed by the tsunami of parent anger if hordes of students “fail” the redesigned SAT. As the SAT team projected “old” SAT questions and “new” SAT questions eyes rolled. The room was packed with principals and superintendents and scores of people with PhDs after their names. Had we all suddenly undergone a plague of “dumbness” or is it the new SAT?

How many thousands of dollars in tutoring fees will parents have to spend to prepare their urchins? And, how about the kids who can’t afford $100 an hour tutors? The current yawning achievement gap will become a chasm.

Regent Tallon is fond of referring to the “folks cross the street,” on the other side of Washington Avenue, where the legislative and the executive branches of state government are housed. As parents railed against the state tests legislators and the governor squirmed, the public’s angst was directed at government officials who have to stand for election every two years.

As College Board revenue shrinks and colleges and state governments retreat the overseers of the SAT will be looking at the bottom line.

One of the lessons of history is that reforms imposed from above without buy-in from below are doomed and ignoring history has dire consequences.

Perhaps David Coleman should consider his original career choice – a high school teacher.

Can New/Revised Rules for English Language Learners Improve Student Outcomes? or Does Change Begin in Schools and Classrooms? How Do We Encourage “Bottom Up” Reform?

Until now I don’t think I’ve agreed with an editorial in the NY Post since Dorothy Schiff sold the paper to Rudolf Murdoch.

A NY Post editorial includes comments made by Chancellor Farina’s newly appointed, and returnee from retirement, chief for “English-language learners,” Milady Baez, the Post writes,

[The Department] plans to help schools with kids struggling because of poor English by “increasing bilingual program options for ELLs,” “strategically using ELL density enrollment data,” “collaborating with a broad range of partners,” “strengthening the specialized skill sets necessary to effectively address the academic and linguistic needs of the diverse ELL population,” etc.

The problem is the Department leaders of programs for English language learners could have written the same sentences in 2004 or 1994 or 1984.

The Post reports a 2011 study,

• Of English learners who were in first grade in 2003, 36 percent failed the English proficiency test seven years in a row.
•  Only 30 percent passed within three years. The average kid took more than five.
•  Almost 70 percent of kids who failed for six or more years were born in America — meaning US citizens, not immigrants.

And, the editorial concludes,

In New York, we even reward schools for this failure, because they get money for each foreign-language speaker they have. In any language, that should be a recipe for change — not more of the same.

The unanimous 1974 Lau v. Nichols Supreme Court decision required school districts to provide specialized instruction to children deficit in English skills, the court wrote,

The failure of the San Francisco school system to provide English language instruction to … students of Chinese ancestry who do not speak English, or to provide them with other adequate instructional procedures, denies them a meaningful opportunity to participate in the public educational program, quoting Senator Humphey [the court averred[,

“Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.”

For forty years New York City, and more recently New York State have struggled with the issue of how you adequately provide the particular type of education to children whose primary language is not English.

Under the wave of 1970-2002 reform, fully empowered community school districts, in the poorest districts with the least unsuccessful students; jobs came before education. In a South Bronx school district the superintendent told the principals they must create at least one bilingual class on every grade in every school. When a principal complained he didn’t have enough kids the superintendent snapped back, “OK, but the school board has teachers who need jobs, form the classes”

The Supreme Court decision rather than providing targeted instruction for English language learners simply was a vehicle to provide jobs.

The battle over whether to create bilingual classes or English as a Second Language (ESL) echoed across the city – with bilingual classes as the default unless the parent opted out. While I’m sure there are “highly effective” bi-lingual teachers; unfortunately we don;t see expected gains in classrooms.

New York State responded to the Lau decision by doing what the state does, they wrote dense regulations that required school districts to develop a system to identify English language learners, required minutes of instruction related to the level of the student’s English competency, and a system deciding whether the student had “scored out” of the program – compliance rules. The thirty year old rules are referred to as “Part 154.” (See regs here).

For the last three years the state and a “committee of practitioners” have been dueling over revisions to the rules, and, finally, made a number of changes. (See revised regs here and excellent power point here).

While the changes to the regulations are an improvement they are far, far from a solution – they are still compliance rules written by lawyers.

If a school used the correct procedures for identifying English language learners, provided the appropriate minutes of instruction and the other rules all is fine – the regulations ignore student progress; a prime example of “…the operation was a success but the patient died.”

The number of children who qualify for English language learners services continues to increase and increase rapidly outside of New York City.

NYC: 151,000
Brentwood: 5.100
Buffalo: 4.100
Rochester: 3,500
Yonkers: 3,000

That’s right; the city with the second largest numbers of ELLs is Brentwood on Long Island. School districts outside of New York City are struggling with increasing numbers of students who require ELL instruction.

Complying with state regulations cost additional dollars – hiring appropriately certified teachers, class sizes, training, materials, etc., who pays the additional costs? The state funding formula does not provide additional dollars for English language learners (New York City does provide additional funding per student). As Commissioner King explained, school districts will have to make difficult choices – it may be necessary to dump popular programs, maybe an advanced placement class or a sports team to create English language learner classes and services. In the era of the 2% property tax cap these will be difficult and potentially politically toxic decisions.

The core questions are not confronted in state regulations: what is working, why is it working, can successful practices be transferred to other schools?

And, BTW, there are a number of highly successful schools.

Twenty-five years ago the International High School at La Guardia College was opened – a high school that only admitted students who were in the country four or fewer years: the principal, Eric Nadelstern was innovative, irascible and a thorn in the skin of the bureaucracy. The state approved his plans to assess students by portfolio instead of regents exams; he worked with the union to create a different kind of teacher transfer program and created a model for peer evaluation. The number of International High Schools increased, the Internationals Network for Public Schools, a 401(c) not-for-profit supports the increasing number of schools – fifteen in New York City and a number of others across the country. The student results are at or above the results for all students (See student results here).

Newcomer High School in Queens accepts students “new to the nation” and receives superb marks under the department’s rigid accountability rules (See School Progress Report here)

What can we learn?

* School leadership and school district supports are crucial … only alchemists can change dross to gold and you can’t change mediocrity to model leadership – collections of college credits do not a school leader make, and, I’ve yet to meet an alchemist. There is an alarming shortage of effective school leaders.

* Sadly, colleges accept almost anyone into education programs; too many students attain certifications that do not have the skills. – the Council for the Accreditation of Educator Preparation (CAEP) may be forcing sweeping changes in teacher preparation, there will be considerable pushback.

* Collaboration: school leader to school leader, school leader to staff, collaboration among staff members, among students, a top to bottom collaborative environment. The vast majority of schools are top down management models and teachers primarily work alone in classrooms only occasionally interacting with colleagues.

How many school leaders tell a teacher, watch me, I’m going to teach a mini-lesson in your class … and we can talk about it. How many school leaders are capable of engaging teachers and staffs in meaningful discussions about practice? (See Charlotte Danielson, Talk About Teaching! Leading Professional Conversations)

How many schools are designed to facilitate teacher collaboration – teachers working together, discussing actual kids, jointly creating lessons and rubrics, seeing student work from other teachers’ classrooms, watching colleagues teach classes and engaging in discussions, etc.?

Press releases, memoranda, ukases, “programs,” rarely change what happens within schools and classrooms: to change outcomes for children with limited or absent English skills schools have to change practice not simply comply with the rules. Skilled teachers, skilled teachers working with other skilled teachers, “cultural awareness,” socio-emotional supports for children and caregivers, change is complex and difficult, we inherently look at calls for change as punishment.

In spite of the clarion calls from Gracie Mansion and Tweed change starts in schools and classrooms, I don’t see a commitment to change schools, only pleas to hug more, which is not a bad thing; however, hugs alone don’t make kids better speakers of English or writers or readers or mathematicians, or, maybe more importantly, better coders (See www. code.org)

Vergara East: How Politics, Education Policy and the Law Are Irrevocably Intertwined

The law suits challenging the New York State tenure law came before a judge in Staten Island; the judge combined the two suits and admitted the UFT as an intervener. Down the road the judge will undoubtedly admit other interveners who have the right to file briefs, and, to a limited extent participate in the argument. The suit will be defended by the Attorney-General of the State of New York under the leadership of Eric Schneiderman.

Once the preliminary motions are out of the way the state will make a motion to dismiss the suit and we will be off and running.

In the ideal world, if there ever was one, the suit will be decided on its merits; however, how do you define “merits”? By “merits” do you mean applying the law and relevant legal precedents? Do you mean putting your finger in the air to judge the political winds? Do you mean applying “common sense” and defending the “rights” of children in the classrooms of “ineffective” teachers?

In the real world I believe politics and the courts intersect.

Was the Bush v. Gore, 531 U.S. 98 (2000) decision based on sound legal precedent or political party loyalty?

Remember the Citizens United (2010) decision?

The Supreme Court held in Citizens United that it was unconstitutional to ban free speech through the limitation of independent communications by corporations, associations, and unions …
.
… the ruling … removes[d] the previous ban on corporations and organizations using their treasury funds for direct advocacy. These groups were freed to expressly endorse or call to vote for or against specific candidates, actions that were previously prohibited

Was the Supreme Court decision, once again, based on sound legal precedents or political party loyalty?

In my mind there is no question that from the lowest courts to the highest court in the land politics enters into the decision-making process. No matter what judges say, or do not say at their confirmation hearings or political campaigns (Supreme Court justices in New York State are elected) their life experiences and political loyalties impact decisions.

In 1803 Chief Justice John Marshall, in Marbury v. Madison, seized power away from the executive and legislative branches, creating the concept of judicial review, granting power to justices to invalidate laws made by the legislative and executive branches.

the Constitution was “the fundamental and paramount law of the nation” and that “an act of the legislature repugnant to the constitution is void.” In other words, when the Constitution–the nation’s highest law–conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court’s power of judicial review.

How will the anti-tenure law suit be decided? By that I mean the legal and the political influences.

Forum Shopping:

Why would the litigants file the suit in Staten Island? Probably because Staten Island is more conservative, more Republican, the litigants may feel there is less judicial sympathy for the issue of tenure. Who are the greatest enemies of tenure: Republicans or Democrats? The Democrats for Education Reform (DFER) are strongly opposed to tenure and Davis Boies, one of the lead attorneys for the litigants is also a lifelong liberal Democrat. Staten Island is also the home to many public employees, again, maybe more sympathetic to job protections – ultra liberal Manhattan may have been a better choice to file the suit,

Eric Schneiderman: The Governor in Waiting:

If Governor Cuomo left the Albany mansion the prime candidate-successor would clearly be the Attorney General. In a possible primary election and a November general election Schneiderman would love to have the avid support of the 600,000 member New York State United Teachers, not just a mechanical endorsement but credit for defeating the assault on tenure. Schneiderman has a lot at stake: winning or losing can determine his political future.

Judges and Politics in New York State:

Supreme Court justices in New York State are elected, Appellate and Court of Appeals justices are appointed by the Governor with the consent of the Senate. In New York State “elected” usually means being selected by the geographic party in power and perhaos running in a primary election. Republicans and Democrats in New York State, for the most part, have a cozy relationship, not the acrimony you see at national level. Judges are creatures of the political power structure.

The “Sound Basic Education” Burden

The NYS Constitution states, “the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” … usually referred to as “… a sound basic education.” The Campaign for Fiscal Equity (2003) decision found that “a sound basic education” consisted of “the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” Does the current tenure law prevent students from receiving a “sound basic education” as defined by the Campaign for Fiscal Equity (CFE) decision? The CFE case took a dozen years, and was argued, pro bono, by Simpson Thatcher, of the most prestigious law firms in the city and the question of education funding inequities has been subject to litigation since the seventies. (Levittown v. Nyquist). In my view the current anti-tenure litigation is not ripe ( “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”) it will take years before we know whether the new tenure law achieves its purpose.

Tenure in New York State and Annual Professional Performance Review:

New York State has totally revised the method of assessing teacher performance as well as dismissing teachers. The State guidance document is 166-pages with scores of links. School districts can prefer charges against teachers who have received “ineffective” ratings for two consecutive years. At this point we have no idea how many teachers fall into the two consecutive ineffective ratings category. For teachers in New York City we will not have data until next year.

In New York City well under 100 teachers were charged with incompetence for the 12-13 school year; however about 40% of teachers had their probation extended and over 40% of teachers leave voluntarily within five years. Perhaps retaining “effective” teachers is more crucial than dismissing “ineffective” teachers.

Reticence of Lower Courts to “Make Law” and the Prerogatives of the Legislative and Executive Branches:

I don’t remember the last time a New York State court ruled a law unconstitutional. Federal judges are appointed for life; they can only be removed, impeached, for misconduct. State judges are elected or on the Appellate level appointed by the governor. Judicial candidates are selected by their political party, very occasionally run in a contested primary, and run on a party line in the November election. If both houses of the legislature and the governor support a bill and convert it to a law it would be a heavy lift for a judge to challenge the legislative and executive branches. Yes, a Republican or a liberal Democratic judge might want to embarrass the Governor, a potential presidential candidate; although it is unlikely.

The anti-tenure gang achieved their purpose – they created a national discussion over tenure and incompetent teachers – they ate up the air – how many print media lines? Op ed articles? How many hours of TV time devoted to the question of tenure? The unions have been trying to turn the conversation to collaborative schools, to community schools with wraparound services, to Universal Pre-Kindergarten, with only limited success. Newspapers are extremely conscious of “clicks per article” and the negative article collects more “clicks” than the “feel good” story. Female teachers having sexual encounters with male students garner far more ink than a student winning a prestigious scholarship.

Edwin Chemerinsky, the dean of the University of California, Irvine School of Law and Catherine Fisk, a professor at UC Irvine School of Law, write,

” …the kinds of reforms that school officials, teachers’ unions, education policy experts and legislatures should design through discussion. It is judicial activism of the worst sort for a trial judge to do so alone.”

I believe the California Vergara decision will be reversed and the New York State anti-decision may be dismissed before trial.

Hopefully we can move forward to debate issues that truly impact teaching and learning.

“I’ll Show You Mine If You Show Me Yours … I Promise Not to Tell Anyone,” (Teacher Evaluation Scores are Released to Teachers/Principals)

Teachers flocked back to school on the Tuesday after Labor Day and aside from greeting colleagues each teacher and principal received their score under the state teacher/principal evaluation plan.

The system, called Advance, is described by the department,

Advance, New York City’s new system of teacher evaluation and development, was designed to provide the City’s teachers with accurate feedback on their performance and the support necessary to improve their practice, with the goal of improved student outcomes to ensure all students graduate college and career ready.

Though Advance was formally established on June 1, 2013 in alignment with the New York State Education Department’s education law 3012-c on teacher and school leader performance reviews, its design was informed by three years of pilot work in New York City’s schools. Advance uses multiple measures – including observations of classroom practice, review of teachers’ artifacts, student outcome data, and student feedback – to provide teachers, school leaders, and families with a more accurate understanding of teacher effectiveness than ever before.

As reported by Chalkbeat,

Ninety-eight percent of teachers statewide received top ratings, “effective” or “highly effective,” on the 60 percent of their evaluations made up primarily of observations, the data shows. Less than 1 percent of teachers earned the lowest rating on their observations.

Nearly nine times as many teachers, or about 4 percent, received low ratings on the 40 percent of their evaluations that use a combination of state and local tests.

Under the former “S” or “U,” satisfactory or unsatisfactory system, 2.7%, of teachers received a “U rating” for the 12-13 school year.

The percent of teachers in New York City rated “unsatisfactory/ineffective” dropped to 1%.for the 2013-14 school year.

There is a new two-level system of appeals of “ineffective” (“U”) ratings in New York City.

There are two different types of appeals in the new evaluation system: chancellor’s appeals and panel appeals. All teachers are entitled to a chancellor’s appeal. After talking to you and reviewing your forms and supporting documentation, the UFT will determine whether your case may be appropriate for a panel appeal.

Chancellor’s appeals

A hearing office from the DOE’s Office of Appeals and Review, the same office that hears U rating appeals, will hear your case. Unlike the U rating appeals process, which can drag on for months, the DOE hearing officer has 30 days to issue a decision in a chancellor’s appeal.

Panel appeals

The union can identify up to 13 percent of all Ineffective ratings each year to challenge on grounds of harassment or reasons not related to job performance.

These cases will be heard by a three-member panel comprised of a person selected by the DOE, a person selected by the UFT, and a neutral arbitrator.

While the number of teacher rated unsatisfactory exceeded 2000 in the 12-13 school year the number of teachers who faced dismissal charges for incompetence was under 100.

It is baffling that the Bloomberg administration did not vigorously pursue charges of imcompetence against teachers, in fact, department lawyers discouraged principals.

The new law (State Education Law 3012c) sets forth a process in which two consecutive ineffective ratings, and, if the year two independent validator agrees, the school district may bring dismissal charges,

If a teacher receives an ineffective rating for a school year in
which the teacher is in year two status and the independent validator
agrees, the district may bring a proceeding pursuant to sections three
thousand twenty and three thousand twenty-a of this article based on a
pattern of ineffective teaching or performance. In such proceeding, the
charges shall allege that the employing board has developed and
substantially implemented a teacher improvement plan in accordance with
subdivision four of this section for the employee following the
evaluation made for the year in which the employee was in year one
status and was rated ineffective. The pattern of ineffective teaching or
performance shall give rise to a rebuttable presumption of incompetence
and if the presumption is not successfully rebutted, the finding, absent
extraordinary circumstances, shall be just cause for removal.

One of the major criticisms of the new system is the instability of the scores. The swings in individual teacher scores can vary significantly from year to year – the bottom line: the 1% of teachers who received “ineffective” ratings in the 12-13 school year may NOT be the same teachers who received an “ineffective” rating for the 13-14 school year.

Since the students change every year and some teachers change grades taught the supposed impact of teachers on students can vary widely. If a teacher receives an “ineffective” rating due to low student scores on state tests a legal challenge may be sustained. Additionally an unanswerable question: is there a consistency in scoring among supervisory observers? Yes, all supervisors in New York City use the Danielson Frameworks; do they see lessons through the same lens? We don’t know.

The core question: does the evaluation score assist the teacher in improving their practice? The answer is a resounding “no.” Hopefully the principal meets with the teacher after every observation and informally during the school year and coaches the teacher; for example. does the lesson foster higher order thinking skills? Do questions move up the ladder from recall to analysis to comparison to inference to evaluation?

However, the grades on student tests scores (20%) and the local measures (20%) are baffling, neither teachers nor supervisors can tell a teacher why they got their grade and how the grade can be used for improvement.

Perhaps the 35% of New York State democratic voters who cast ballots for Zephyr Teachout will impact the Governor’s education policy … perhaps a teacher evaluation plan that both assesses practice and assists teachers in getting better.

Why Did Teachout Lose? Musing on the Realities of Politics and Elections

Let me ask a question: how many readers who were vigorous supporters of Zephyr Teachout donated to her campaign or volunteered a few days to work in her campaign?

You win campaigns with Money (intelligently spent) and Get Out the Vote (GOTV).

Bloomberg in 2009 outspent Bill Thompson many times over and Bill de Blasio in 2013 spent his dollars wisely.

If every teacher who voted for Teachout contributed $100 and three days of volunteer work the election results may have been different.

Who are the electorate in a Democratic primary election? The electorate is prime and super prime voters and issue-oriented voters. Read a superb primer on elections: http://gograssroots.org/files/analyzevoters.pdf

On September 3rd I was at a major event – Farina, Mulgrew, Tisch, King and a few others were on a panel – hundreds in the audience. At the reception I was introduced to a State Senatorial candidate, an education advocate, passionate about school issues, endorsed by a range of important names – I thought, “What is he doing at an education panel in Manhattan – why wasn’t he at a bus stop in his district handing at buttons and ‘meeting and greeting’ voters in his district?.” BTW, he lost.

Two long time incumbents under indictment were running for re-election. In Queens Leroy Comrie – a term limited City Councilman defeated the incumbent – Malcolm Smith – who is awaiting trial. Across the border in Brooklyn Del Smitherman, endorsed by Cuomo, de Blasio and the two biggest unions (1199 and 32BJ) lost to the incumbent – John Sampson. In fact, the union endorsed did not do well in the hotly contested elections.

High profile endorsements as well as endorsements by unions help, but by no means guarantees an election.

You win elections because:

• name recognition – you spend your time attending community meetings, civic and block associations, planning boards, senior citizens centers, religious organizations, ethnic or home country organizations, chatting, answering a few questions …

A candidate popular with the “progressives,” the Working Families Party lost, the supporters whined, “the machine” beat us…

Actually the folks who know how to win elections beat the guys and gals weren’t willing to do the grunt work – licking envelopes and knocking on doors.

• The power of local politics – endorsements closest to home: letters from a block association endorsing your candidacy because you got a stop light on the corner of the school block, from the cricket team to members thanking you for getting the parks department to establish a cricket field, offering free flu shots in your office, a legal services clinic for immigrants, a Medicare informational meeting, etc. “All politics is local.”

• Building consensus one voter at a time and the pulse of the electorate – what are the local interests? Supporting the Dream Act, limiting “stop and frisk,” supporting Israel, supporting medical marijuana, choosing to support policy issues that reflect the electorate in your district.

If the 35% of primary voters who bubbled in Teachout on the ballot also supported with their pocketbooks and time we may have seen the politicl upset of the young century.