The American Enterprise Institute Tenure Report: Half-Truths, Mistruths and Outright Lies: The Campaign to Destroy Tenure is Ugly.

The American Enterprise Institute is a right wing “think tank,” with funding ties to the Koch Brothers and others in the anti-union, anti-public education sector. AEI conducts what I call “advocacy research,” what they call research simply supports their political positions. (Read more at Right Wing Watch here)

AEI released a report on teacher tenure in New York State, not surprisingly just in time for the anti-tenure lawsuit, you can follow the case – Wright v New York here and the specifics of the claims within the suit here.

The AEI “research” tracks teachers charged under the section 3020a of the New York State Education Law between 1997 and 2007. The purported research conveniently fails to include the sweeping changes in the law in 2012.

Tenured educators have the right to retain their positions and may only be terminated if there is “just cause” pursuant to Education Law §3020. The rules specifying the process for terminating a tenured educator are set forth in Education Law §3020-a. This process was significantly modified effective April 1, 2012, by Chapter 57 of the Laws of 2012.

The authors of the report simply roll back the clock to 2007 and ignore the sweeping changes to the law since 2007. The Annual Professional Performance Review (APPR) governs the assessment of teacher performance in New York State. Within the law and regulations each school district negotiated a plan with the collective bargaining agent, the union. If a teacher receives an “ineffective” rating for two consecutive years, and, the school district complied with the requirement of an assistance plan in year two, the school district can prefer charges and seek the dismissal of the teacher.

The law states,

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

AEI claims,

The fundamental purpose of § 3020-a hearings is not to determine whether a school’s charge of inadequate performance is justified, but rather to determine whether there is any possibility that an inadequately performing teacher can be rehabilitated.

The AEI claim is blatantly incorrect. The new law, section 3012c, is ignored by AEI, the language, “a rebuttable presumption of incompetence,” places the burden on the teacher.

Yes, if a tenured teacher receives an ineffective rating the school district must provide assistance to the teacher in year two, a perfectly reasonable requirement,


Incompetent teaching in and of itself is not grounds for dismissal under § 3020.

The law states that two ineffective ratings are “a rebuttable presumption of incompetence,” and, if the teacher cannot rebut the ineffective rating the hearing officer can assess discipline; if a teacher has had many years of effective service the hearing officer may fine or suspend a teacher and require retraining, or, dismiss the teacher. Each case has a separate fact pattern. Incompetent teaching is grounds for dismissal, although the hearing officer has a range of options.

Proof that there is no possibility of rehabilitating a teacher is a necessary condition for dismissal.

Rehabilitating the teacher is an option that the hearing officer may consider; but does not have to consider. Once again, each case is determined on the merits of the case.

The law is clear: the employer must make efforts to assist the teacher in “correcting the behavior that resulted in charges being brought …” Hearing officers have wide discretion: penalties range from a reprimand to a fine, a suspension to discharge. In addition the hearing officer may require specific types of retraining in addition to the penalties described.

the hearing shall be conducted before and by a single hearing
officer in an expedited hearing, which shall commence within seven days
after the pre-hearing conference and shall be completed within sixty
days after the pre-hearing conference.
The written decision shall include the hearing officer’s findings of fact on each charge, his
or her conclusions with regard to each charge based on said findings and
shall state what penalty or other action, if any, shall be taken by the
employing board. At the request of the employee, in determining what, if
any, penalty or other action shall be imposed, the hearing officer shall
consider the extent to which the employing board made efforts towards
correcting the behavior of the employee which resulted in charges being
brought under this section through means including but not limited to:
remediation, peer intervention or an employee assistance plan. In those
cases where a penalty is imposed, such penalty may be a written
reprimand, a fine, suspension for a fixed time without pay, or
dismissal. In addition to or in lieu of the aforementioned penalties,
the hearing officer, where he or she deems appropriate, may impose upon
the employee remedial action including but not limited to leaves of
absence with or without pay, continuing education and/or study, a
requirement that the employee seek counseling or medical treatment or
that the employee engage in any other remedial or combination of
remedial actions.

The fundamental purpose of § 3020-a hearings is to determine whether a school’s charge of inadequate performance is justified, and, further to determine whether there is any possibility that an inadequately performing teacher can be rehabilitated.

Charges fall into three categories: incompetence, now governed by section 3012c, misconduct on the job and misconduct away from the job. Serious felonies result in suspension without pay and discharge without a hearing if the teacher is convicted or pleads guilty. Typical misconduct in schools is accusations of corporal punishment, excessive absence and insubordination; a typical punishment is a fine.

Misconduct outside of school: DWI, minor drug arrest, shop lifting, public intoxication, etc., are punished by a fine and/or a suspension.

The AEI report is simply a hatchet job, a crude attempt to discredit a law prior to the first judicial hearing, if you lie loud enough and long enough the public, and, the judiciary may believe you.

Schools have wide discretion in hiring; teachers serve three year under probation, with the ability to extend probation for a fourth year, and, forty percent of teachers leave voluntarily within five years.

The lowest achieving schools have the least experienced teachers, the poor have little or no legal representation, hospitals in poor neighborhoods are understaffed and the doctors come from the lowest rated medical schools.

How do we discharge incompetent lawyers or doctors? We don’t.

The AEI report is disgraceful; poorly done, filled with half-truths, and exactly what we can expect from the amoral right.

It is sad that anyone believes that the path to highly effective schools is firing incompetent teachers. We all know there is a pool of highly effective teachers just waiting to fill their classrooms.

What is amazing is that so many smart people actually believe this canard.

Can the IBM Watson Computer Whisper to Teachers? Can We All Have Our Personal Mentor-Advisor? Can We Trust IBM?

You may remember in early 2011 the IBM Watson computer took on former Jeopardy champions and defeated them – a stunning example of a “learning” computer, called “cognitive computing.”

The Roosevelt House at Hunter College hosted the rollout of a new use for Watson, a “teacher advisor.”

Every edition of Education Week is filled with computer applications for students, the Los Angeles School District is spending a billion dollars to buy I-Pads for every kid, schools commonly spend thousands to equip schools with white boards, school boards envision computers replacing teachers, During the credit recovery craze kids who failed classes made them up by sitting at a computer for a few hours answering questions.

Would real, live teachers be replaced by humming, flashing computers?

When I casually suggested that someday soon they’d be stapling a chip into your earlobe a friend, with a sneer, commented, “They haven’t done you yet?”

The still unnamed Watson system, maybe “teacher personal advisor,” is not meant to replace teachers but, according to IBM, to empower teachers, to use the power of Watson to advise and mentor a teacher.

Stan Litow, a former Board of Education Deputy Chancellor, and now with the impressive title of Vice President, Corporate Citizenship & Corporate Affairs, and President, IBM International Foundation explained the concept.

Watson is a non-judgmental, on-demand, cloud-based, trusted advisor with the ability to provide vetted lessons, specific to the teacher and his/her students, way beyond a search engine. The Watson system is an “open domain Q & A,” Each time a teacher asks a question Watson learns and customizes the response to the teacher, a type of Artificial Intelligence (AI).

As I understood the presentation Watson is both free, available 24/7 and the teacher is anonymous. Schools and school districts will not have to purchase the system, teachers simply log on and begin to use.

The first panel: Michael Cohen, the President of Achieve, Inc., Mitchell Chester, the Massachusetts Commissioner of Education, John King, the NYS Commissioner of Education, James Shelton, Deputy Secretary of Educating and Randi Weingarten, AFT President.

Weingarten called the program, potentially, a Siri for teachers, reminded us that Google Maps is far from perfect and explained the success of Share My Lesson, an AFT-sponsored site on which a few hundred thousand teachers have signed up. The other panelists were impressed by the “personalization” of the process, the ability to curate and continue to learn, one goal is to establish communities of teachers who can mentor each other online. John King saw Watson as enabling teachers to speed up the searching process, responding to student errors, offering a range of teaching strategies and translate into student native languages. Michael Cohen reminded us that teachers, not Watson, are the experts.

A teacher panel from New York City, Half Hollow Hills, Newburgh and Plainsboro, New Jersey spent time over the summer with the design team.

Every teacher expressed concerns over new teacher evaluation systems and voiced uneasiness over the use of the Watson data – Litow, again and again emphasized that the system was non-judgmental and was not intended to assess or evaluate teachers in any way, the sole purpose was to assist teacher in planning, to offer a “personal assistant,” guided by the needs of the teacher.

In one of the demonstrations Watson was asked, “What is cloze reading instruction?” and, Watson answered by giving a long quote from David Coleman and made references to PARCC. In the Q & A audience members were sharply critical of the answer, and, emphasized that teacher suspicion would only be exacerbated by these types of responses.

Many of the questions danced around: how do you ameliorate suspicions of any computer-based program? How do you deal with the privacy issues? How do you respond to the presumption that there must be an ulterior motive? After all, IBM is in the business of making money.

The Watson team is setting up their offices in New York City and the actual rollout of the product is probably two years away.

As one questioner pointed out Watson suggestions were not answers – watching a video of a lesson, trying a suggested approach, all fine, there is no guarantee of success; Watson is simply one tool in the tool kit of a teacher. It did not strike me as a “game-changer,” the net is filled with tools, teachers have their favorites. Watson may speed up lesson planning; the “proof” is in the lesson execution.

I suggested to Stan Litow that he speak with Diane Ravitch, and he said he was eager to speak with Diane.

Many of us are ultra-suspicious of the tech companies who see billions of dollars waiting to be snatched away, the lure of a computer standing in front of a classroom, a computer that doesn’t need a pension and a health plan and doesn’t belong to a union, is an attraction to school boards. On the other hand we can’t be Luddites; the world of computing can make us more effective teachers and students more effective learners.

Interactive whiteboards cost a couple of thousand dollars each and I see teachers using them as high priced projectors, is a classroom filled with kids tapping on an I-Pad the type of “teaching and learning” we want to encourage?

I peeked into a classroom in a middle school, it was pretty loud, the kids were arguing with each other and the teacher was facilitating the argument/discussions, the teacher threw up his hands, “Okay, I’ve heard enough, you have fifteen minutes, write down your arguments, remember, each point must be backed up with evidence.”

Watson may have suggested the lesson, provided the sources and kids can use Google to search the web – are we also teaching the kids to write?

What do you think?

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.