Education Politics is a Blood Sport: Chancellor Tisch Responds to the Threatening Cuomo Letter

The last two weeks have been strange: the NYS Director of Operations, Jim Malatras, the Cuomo policy guru sent a public letter to Chancellor Tisch and Commissioner King raising “questions” in twelve different areas.
(Read the letter here)

The confrontational letter challenges the teacher evaluation system (“How is the current teacher evaluation system credible when only one percent of teachers are rated ineffective?”) The letter claims the current teacher discipline law (3020a) “makes it virtually impossible” to remove low performing teachers and asks why teachers with “disciplinary problems continue to be paid in the absent teacher reserve as opposed to being terminated.”

The “questions” challenge the length of the probationary period, encourages more rigorous standards for pre-service teachers, supports monetary incentives for high performing teachers, asks the Chancellor to address the “deplorable situation in Buffalo,” the charter school cap, online courses, the consolidation of school districts, mayoral control in New York City, the system for selecting Regents members and the process for selection the new commissioner.

I was not surprised by the letter.

NYSUT, the state teacher union has been tussling with the Governor for months, demonstrations, e-blasts to members, press releases, a steady stream of criticisms of Cuomo policies and statements. Cuomo was on his way to another term with meager opposition, suddenly, an obstacle. An unknown Fordham law professor, Zephyr Teachout challenged Cuomo at the Working Families Party (WFP) convention. The WFP is actually the left wing of the Democratic Party. Many in the WFP were unhappy with the Governor; he hadn’t pushed hard enough on the Women’s Equity Agenda, on ethics reform, on the public funding of elections and a range of other issues. Surprisingly Teachout became the darling of the left wing of the left wing, the left wing of the WFP; after considerable arm-twisting the WFP endorsed Cuomo giving him another line on the ballot.

Out of nowhere Teachout announced she was a candidate in the September Democratic primary. In only three weeks she collected 40,000 signatures to secure a place on the ballot.

NYSUT did not make an official endorsement, however, teachers all over the state worked for Teachout and a few teacher locals, including Buffalo, endorsed Teachout. She garnered 34% of the vote with no money. In November Teachout voters either stayed on the sidelines or voted for the Green Party. Cuomo, who was polling in the mid-sixties won with 54% of the vote.

I mentioned to a teacher activist to expect “consequences” if the local endorsed Teachout. He thought Cuomo “would understand.”

Politics is a blood sport. When your guy/gal wins you expect them to support your issues and when your guy/gal loses you can expect the winner to seek retribution. A deeply embedded political aphorism: screw with me and I screw with you.

Maybe you didn’t learn this in your civics class and maybe you’re willing to take the heat and continue to battle and maybe you’re simply an idealist.

In my view, the major issues for NYSUT are not charter schools and the teacher evaluation law; the major issues are the 2% property tax cap and the Gap Elimination Adjustment.

The property tax cap makes it almost impossible to negotiate a contract. Normal inflationary day-to-day expenses eat up the 2% cap. Locals who have negotiated contracts have negotiated contracts in the 1% range, sometimes with no retroactive raises, some have agreed to freeze step increases to avoid layoffs.

The Gap Elimination Adjustment (Read explanation here) was the way the state survived the economic meltdown in 2008 – basically cutting away dollars that school districts should have received under the state funding formula.

The property tax cap and the GEA are opposed by NYSUT, the State Superintendents Association as well as the School Board Association, it might have been possible to work together to ease these issues.

Unfortunately the charter school and the teacher evaluation system have eaten up all the air.

Malatras closed his letter with, “Several weeks ago Governor Cuomo said that improving education is thwarted by the monopoly of the education bureaucracy. The education bureaucracies main mission is to sustain the bureaucracy and the status quo is the enemy of change.”

Earlier today Chancellor Tisch respond with a 20-page missive (Read letter here), Geoff Decker at Chalkbeat muses on the Tisch response,

The letter offers the first comprehensive look at what the Board of Regents and State Education Department are willing to support as Cuomo prepares to push for aggressive changes to the way teachers are hired, fired, and evaluated.

Many of the other proposals and positions aren’t new, Tisch noted in an interview. Others were unsolicited, such as an increase in funding for underserved students, boosting school diversity and passing the DREAM Act.

But the letter’s contents stuck out because of the areas that Tisch and Berlin wade into that the State Education Department and Regents rarely speak up about, in part because they have limited power to change them.

“The questions and concerns outlined in the letter relate to issues of State Law, which are under the direct control of the State Legislature and the Governor, not the Department or the Board of Regents,” they write.

The Tisch-Berlin response is a defense of their own actions, a reiteration of policies that State Ed has sought from the legislature for years as well as support for issues raised in the Malatras letter. On a core issue in the original letter, the future of the Board of Regents, the Chancellor is curt – leave us alone.

The response letter calls for the extension of probation from three to five years, the elimination of independent arbitrators and the replacement with state employees, the restructuring of the teacher evaluation system with the state/school district not having to negotiate with local unions, termination without hearings for teachers with two consecutive ineffective ratings, fiscal incentives for high performing teachers, greater authority for the state to intervene in low performing schools and districts and greater funding for a range of initiatives.

For me, the most significant part of the response letter is the sections that are not a response. At the conclusion of the letter Tisch adds two areas for consideration: school desegregation and support for the Dreamers Act. Tisch-Berlin suggest exploring a number of efforts to reverse the deep segregation of schools and references a number of programs and goes on to urge the Governor to support the New York State Dreamers Act that makes a category of undocumented students eligible for state financial aid.

Next Wednesday the Governor will deliver his State of the State message, I expect he will continue to attack, and the unions will respond, the questions are whether the Governor and the unions can find some common ground, and, whether the Governor seeks changes in education governance at the state level.

In 1968 the UFT and the John Lindsay, the New York City mayor were engaged in a bitter struggle – the 40-day teacher strike, racial invective, the “white. liberal intelligentsia” traditionally pro-union viciously attacking the UFT, the growing and militant black power movement painting the union as akin to the worst of the racists of the South. A year later John Lindsay and the union negotiated a dramatic change in the teacher pension system, called Tier 1. (Read Dana Goldstein, The Teacher Wars). John Lindsay was considering running for president in 1972 and wanted to heal wounds and a spectacular increase in pension benefits was the salve.

Cuomo wants to “punish” teacher unions, to make it clear that attacking the Governor will have repercussions. A lesson for teacher unions and a lesson for other unions, the teacher unions have to fight back as well as seek avenues for reconciliation.

As a history teacher I’m reminded of “Going to Canossa (“Canossa” refers to an act of penance or submission), Henry IV, the Holy Roman Emperor, dressed in “sackcloth and ashes,” humbled himself in the snow outside of the castle of Pope Gregory seeking absolution from the threat of excommunication. Henry retained his throne.

Charter school quotas and the teacher the evaluation system are negotiable, and, the core issues are the Gap Elimination Adjustment and the property tax cap, the union has to seek absolution from Pope Andrew and move on to resolve the core issues.

Firing Teachers: How New York State Tenure Laws Protect Students and Teachers.

A NY Post editorial, commenting on the just-passed “safety net” that matches the impact of state tests on students to the impact on teachers by granting a two-year moratorium for both, sarcastically writes,

Great news for bad teachers. For kids, not so much. If you worry more about anxiety than achievement, you’ll never fire bad teachers.

Last year, only 1 percent of teachers outside Gotham were rated “ineffective” — even though 69 percent of third- through eighth-graders flunked their math and reading tests.

Doesn’t that suggest that maybe we don’t have enough teacher anxiety?

More than a year ago AFT President Randi Weingarten, at an Association for a Better New York (ABNY) breakfast called for a two year moratorium on the impact of the Common Core State Standards (Watch speech here). The audience was filled with the education and political glitterati, her speech was well-received; however, the Commissioner plowed ahead. The result was a disaster! A nascent parent unrest became a movement and the movement raced across the nation.

I’m curious how the Post will react when the State releases the current round of test scores – I am wagering that the scores will be significantly better. Will the Post praise teachers for suddenly becoming better teachers or will they trash the test and the Commissioner for jacking up the scores.

Test scores are zip code based while the new teacher evaluation system compares teachers to colleagues around the state teaching “similar” students. It is my understanding that the 1% “ineffective” were not concentrated in high poverty districts.

The state sets cut scores, on the first round of the new Common Core-based tests: the state set the cut score at a level that resulted in 69% of kids scoring “below proficient.” During the lengthy discussions that proceeded the cut score decision a few members of the Regents (namely, Cashin, Rosa, Phillips) asked that cut scores be set at the same level as the previous year and slowly be increased to acknowledge the “newness” of the test and the phase-in period for teachers to get up to speed on the new standards, unfortunately, to no avail.

60% of teacher assessment scores are based on principal observations using a state-approved rubric, 20% on a “locally negotiated” instrument and 20%, the controversial 20%, on growth in student test scores (about 70% of students do not take state tested subjects and use a Measure of Student Learning – usually a district-approved test at the end of the school year). At the end of the 2013 school year 51% of teachers scored “highly effective,” 40% “effective,” 8% “developing” and 1% “ineffective.”

This should not be surprising: teachers are trained at state-approved teacher training institutions, they are selected by schools frequently after teaching a demonstration lesson, they serve a three-year probationary period during which about 30% of teachers leave voluntarily within three years. Candidates and new teachers are screened numerous times before they achieve tenure, and, in New York City about a third has tenure extended for a year.

After achieving tenure teachers can still be dismissed pursuant to provisions of state law. There is enormous confusion regarding how the law provides for disciplining and firing teachers.

Section 3020a of Education Law, amended in 2012, sets forth the procedures for hearings against tenured teachers

Where charges of incompetence are brought based solely upon a pattern of ineffective teaching or performance of a classroom teacher or principal, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, and shall be completed within sixty days after the pre-hearing conference.

Such charges shall allege that the employing board has developed and substantially implemented a teacher or principal improvement plan in accordance with subdivision four of section three thousand twelve-c of this article for the employee following the first evaluation in which the employee was rated ineffective, and the immediately preceding evaluation if the employee was rated developing. Notwithstanding any other provision of law to the contrary, a pattern of ineffective teaching or performance as defined in section three thousand twelve-c of this article shall constitute very significant evidence of incompetence for purposes of this section. Nothing in this subparagraph shall be construed to limit the defenses which the employee may place before the hearing officer in challenging the allegation of a pattern of ineffective teaching or performance.

The hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hearing

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.

Summary of the timelines can be found here.

The SED Guidance document is here – see pages 25-27 for procedures to dismiss a probationary teacher

The lengthy and dense statute, Section 3012-c is here.

Most teacher discipline involves “constitutionally and statutory permissible reasons other than classroom performance without regard to APPR,” meaning a “bad act,” which the law goes on to define as “permissible reasons include, but are not limited to, misconduct, insubordination, time and attendance issues, or, conduct inappropriate for a teaching professional.” The cases include convictions or guilty pleas for crimes involving drugs, violence or sexual misconduct, for certain felonies the teacher is discharged without a hearing. In recent years posting on social media deemed inappropriate or inappropriate texts can constitute chargeable offenses.

If there are teachers with successive “ineffective” overall scores (60 + 20 + 20) on the APPR a school district may proffer charges pursuant to the provisions of Section 3012-c as described above.

We will find out in the fall after the second year scores are released, the scores are impacted by the modification just approved by the legislature.

In my view the tenure laws in New York State will survive any constitutional challenge – the Vergara Decision (Read full decision here) in California will not have legs in New York State.

And, I anxiously await the Post praising teachers for the leap in scores on the state tests – I won’t hold my breath!!