Tag Archives: Vergara

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.

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.

Vergara Comes East: Tenure, Graduation Rates and Searching for Answers: How Do We Improve the Odds for All Kids?

Vergara come East.

The same folks who won the lower court litigation attacking tenure in California will be suing in New York State (see Chalkbeat report here)

In my view the suit has no legs; I believe the courts will dismiss the suit as not “ripe,” the suit is prematurely filed. The New York State teacher evaluation law has yet to fully rolled out, we only have scores from year one and it will take a couple of years before we have any data on the effectiveness of the process.

As I described in a previous post the law expedites the time frames and establishes a process in which supervisory assessments, student test scores and a locally negotiated tool combine to create an overall score – the law requires that the implementation details (number of observations, Measures of Student Learning, etc.) are subject to collective bargaining.

The law determines teacher competency and sets processes for dismissal with an expedited due process hearing.

On the same day the new litigants announced their intent to sue State Education announced the graduation rates. (See a detailed PowerPoint)

There is nothing surprising – graduation rates report the 2009 cohort – students that entered high school in 2009 (if a student transferred to another school they are not counted in the cohort – if they dropped out they are counted). Graduation rates in “high tax,” meaning high tax school districts (wealthier districts that spend much more per student) have higher graduation rates and low tax (districts that spend less per student) – primarily rural school districts and the “Big Five” (NYC, Buffalo, Rochester, Syracuse and Yonkers) have lower graduation rates.

Statewide 74.9%
NYC 61.3
Buffalo 53.4
Rochester 43
Yonkers 66.4

English language learners ELL), who are primarily in the “Big Five” had declining graduation rates, no doubt to the elimination of the local diploma.

What the report does not do is investigate the 25.1% who did not graduate – who are they?

The answer is not surprising: English language learners, students with disabilities, Afro-American and Hispanic males, and, students with histories of poor attendance.

At the same meeting that the graduation rates were released the Regents began the process to approve changes in the regulations that govern English Language Learners – Part 154 – the first time the regs have been changed in thirty years. Unfortunately the regs are compliance regulations that will have little impact on actual classroom instruction. In fact, the regs will place additional financial burdens on the small, low tax districts that are already teetering on the edge of educational bankruptcy.

While the regs are an improvement, measuring minutes of instruction will not improve outcomes. Kids who exit (“score out”) ELL programs do at least as well as all other students. Students who enter school, especially in the middle and high school years, with interruptions in formal education, not surprisingly, do poorly, and “ever-Ls,” kids who never score out of ELL programs do poorly.

There are programs that have been successful, i. e., the International and Newcomer High Schools in New York City that teach English in the content areas instead of pull-out and/or push-in programs that essentially treat ESL instruction as a separate course. Counting minutes of instruction has no bearing on successful outcomes.

ESL students in schools with portfolio waivers have much higher graduation rates as well as high completion rates in college.

What is so frustrating is that we not only know why kids drop out of school we can identify the individual kids in the sixth grade. John Balfanz, a researcher at John Hopkins reports,

In high-poverty schools, if a sixth grade child attends less than 80 percent of the time, receives an unsatisfactory behavior grade in a core course, or fails math or English, there is a 75 percent chance that they will later drop out of high school — absent effective intervention.

There are schools that understand the issues and have instituted supports that have been highly successful; unfortunately these schools are the outliers.

Kathleen Cashin and Bruce Cooper, professors at Fordham University point to another key – the drastic reduction in guidance counselors, social workers and psychologists in New York State,

… attention and time devoted to the “whole child” are now much less likely because teachers working alone in their classrooms are assuming more and more responsibility. And we see less staff who are trained and hired to help students — socially and emotionally — with a reduction in social workers, guidance counselors, athletic coaches, and school psychologists.

As a consequence, what are the effects of this drop in guidance counselors, now fewer in number in many schools, on children’s growth, stability, school attendance, as well the impact on levels of bad behaviors, such as physical bullying, and cyber-bullying? Those staff, specifically trained to address these students’ needs and problems, have diminished and thus are no longer around — or have so many students to serve, that they are not able to counsel students fully for college and career readiness.

We can identify students in elementary school who are dropout candidates simply by looking at chronic absenteeism. The Center for New York City Affairs at the New School points to specific schools,

In many neighborhoods, the challenges of child and family poverty are immense. Addressing these issues directly, alongside absenteeism, may not only improve school success in the long-term, but also strengthen families and improve the quality of children’s lives. The report suggests a targeted approach to addressing chronic absenteeism and family instability in 100 city schools with the goal of strengthening schools by strengthening families.

We know who is not graduating, we know why they are not graduating, and, our only approach is punitive. We identify priority and focus schools, schools with poor data, send in teams to write negative reports, and fail to address the core problems.

The Regents (although there appears to be some pushback) and the Commissioner have been fixated on the Common Core as the prime path to increasing student academic competency in New York State. It would be helpful if the focus on the Common Core was accompanied by a content-rich curriculum.

Around the state there are model schools and model clusters of schools that effectively serve all students. Regent Tilles calls them “hybrid” schools – public schools with a university or not-for-profit support organizations; examples are the International High Schools Network, the Expeditionary Learning Schools and Columbia Secondary School.

Towards the end of the monthly Regents meeting the board, once again, for the umpteenth time, began a discussion about eliminating the Global Studies Regents exam – the reason – it’s “too hard.” Mindless!! The feds only require exit exams in English, Math and Science, and, State Ed has been suggesting that the Regents consider adopting the federal standards and abandon the hundred year old requirement of five Regents Exams. Gee, what a novel approach, give fewer tests.

Why not a radical approach – encourage, cajole, arm twist or require school districts to adopt approaches with a proven track record and support with content rich curriculum.

If we get that sixth grader to school every day six years later s/he will graduate high school college and career ready. What a surprise!!!

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!!

Will Teacher Unions Survive? Do Teacher Unions Have to Change? What Should Teacher Unions Look Like in a Few Years?

With each year the number of workers belonging to unions declines, and, organizing increasingly targets low wages workers. In the February representation election in the Volkswagen Chattanooga plant workers turned down the union even through the employer did not actively campaign against unionization. Organizing efforts in Walmart and in fast food franchises has made incremental progress.

Highlights from the 2013 data:

In 2013, the union membership rate–the percent of wage and salary workers who were
members of unions–was 11.3 percent

–Public-sector workers had a union membership rate (35.3 percent) more
than five times higher than that of private-sector workers (6.7 percent).

–Workers in education, training, and library occupations and in protective
service occupations had the highest unionization rate, at 35.3 percent for
each occupation group.

–Black workers were more likely to be union members than white, Asian, or
Hispanic workers.

Part of the decline in a union work force is due to the shrinkage of the manufacturing labor force, traditionally unions represent workers in factories; automation and globalization sharply reduced the potential work force.

Teacher unionism stumbled for decades hindered by internecine warfare, Communist and Socialist factions vied for support of teachers with the vast percentage of teachers disengaged. The merger that led to the creation of the United Federation of Teachers resulted in a militant union – four strikes in the 60’s (1960: one day, 1961: one day, 1967: 13 days, 1968: 40 days) and another in the 70’s (1975: 5 days). As the teacher union grew the unaffiliated union, the National Education Association increasingly mirrored the AFL-CIO affiliated AFT.

Teacher union contracts mirrored the contracts of industrial unions – salary, health and pension benefits and long lists of regulations limiting management discretion.

No Child Left Behind (2002) began to focus more public attention on schools and teacher contracts. The US Department of Education, governors, mayors and education think tanks ratcheted up the criticism of teacher contracts as well as seniority laws, and, now in California, tenure laws.

Teacher unions were on the defensive fending off attack after attack. From Wisconsin to New Orleans, from Detroit to North Carolina tenure laws and pensions and the survival of public schools and teacher unions are in jeopardy. Unions are on the defensive.

What is the role of teacher unions in the current day economy? Is the role the same traditional role of contract negotiator and enforcer, or, has the role changed?

Unfortunately unions who only defended, who tried to maintain benefits, the traditional approach to unionism has begun to succumb to the assaults. Unions that moved to an organizing model, developing relationships with community organizations, unions that lobbied with community organizations attracted wider support.

For example in New York City the teacher union (UFT) is strongly supporting Universal Free Lunch, with the enthusiastic support of the head of the City Council.

City Council Speaker Melissa Mark-Viverito, a leader in the campaign, said that the growth in poverty in the city has made passage of universal free school lunch more urgent than ever.

“As poverty and income inequality threaten more and more families in New York City, too many of our children are attending school on an empty stomach — hungry, distracted and unable to focus on their education,” she said.

The UFT is also in the forefront of legislation that changes the admission requirements at Specialized High Schools (Stuyvesant, Brooklyn Tech etc.,) to a multiple measures metric. The legislative Black and Hispanic caucus as well as anti-poverty and civil right organizations support the bills.

Michael Mulgrew, the president of the United Federation of Teachers, which is behind the push, said he thought the administration might get more forcefully behind it, too.

“I do remember candidate de Blasio speaking very eloquently about this issue,” said Mr. Mulgrew. “I’m sure they’ll be coming out shortly, one way or another, now that this is out there and it’s moving.”

On the national front the American Federation of Teachers is part of a major effort to revive one of the poorest counties in West Virginia, Reconnecting McDowell.

The just-negotiated UFT contract is filled with educational and community-oriented sections, from increasing the number of parent-teacher meetings to a school-based professional development committee to the opportunity to join a thin-contract zone to the creation of a variety of different teacher titles to a bonus for teachers in hard-to-staff schools. Although the contract was approved (77%) by a healthy majority members complained, why does the union “waste time” with all of these “education” issues? Union leadership took a risk, convincing membership that while salary increases are great, unless the union is perceived by the general public as caring about the wider issues, caring about the children they teach, they could be begin to lose public support, as teacher unions lost support in too many cities. In too many locations teacher are perceived as caring more about tenure, “protecting bad teachers,” than caring about the kids they teach.

The national union, the American Federation of Teachers publishes a superb journal, the American Educator;
the current issue explores Early Learning,

This special collection of articles in American Educator highlights the importance not only of early learning, but also of what, exactly, young children learn. It begins with an article explaining the research on children’s oral vocabulary development and how educators can effectively support students in learning new words. Acquiring and understanding a significant amount of vocabulary in the early years helps children build the necessary background knowledge that will lay the foundation for future learning.

However; the AFT doesn’t “own” collective bargaining agreements, local unions negotiate local contracts.

At the local level building representatives (in NYC called chapter leaders) have to move from contract enforcers to educational leaders in their schools.

Unions will survive, and prosper, if they move to a new role, not abandoning their role as negotiating salary and working condition, moving beyond their former role to unionists/educators: leading discussions on which textbooks to purchase, what kind of professional development would be of the greatest benefit, leading school leadership team meetings that look closely at issues of teaching and learning.

“Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we’ve been waiting for. We are the change that we seek.”
― Barack Obama

“Tenure Protects Bad Teachers” and Branding: The Fight for the Hearts and Minds of the Public

We never order a gelatin dessert, we order Jell-O, we don’t ask for a petroleum gel, we buy Vaseline, the advertising gurus successfully brand products. A political application: only dyed in the wool democrats refer to the Affordable Care Act, we call the law Obamacare, branding a law by tying it to an increasingly unpopular president is an effective strategy.

The branding of a product is the embedding of a “sticky idea.”

According to Chip and Dan Heath in Made to Stick: Why Some Ideas Survive and Others Die there are six principles that help you craft a sticky message:

Simplicity, Unexpectedness, Concreteness, Credibility, Emotions, and Stories

By Simplicity the Heath’s mean, keep it simple and profound.

“We must relentlessly prioritize. Saying something short is not the mission — sound bites are not the ideal. Proverbs are the ideal. We must create ideas that are both simple and profound. The Golden Rule is the ultimate model of simplicity: a one-sentence statement so profound that the individual could spend a lifetime learning to follow it.”

Tap into emotions to convey your point. We’re wired to feel things for people, not abstractions:

“How do we get people to care about our ideas? We make them feel something … Research that we are wired to feel things for people, not for abstractions.”

Tell stories to get people to act on your ideas:

“How do we get people to act on our ideas? We tell stories. … Research shows that mentally rehearsing a situation helps up perform better when we encounter that situation in the physical environment. Similarly, hearing stories acts as a kind of mental flight simulator, preparing us to respond more quickly and effectively.”

“Tenure protects bad teachers” has been embedded in the minds of the public, it is a sticky idea. The Silicon Valley billionaire and the judge hearing the case are victims of a successful campaign, they have allowed an idea, a deeply flawed idea, to enter and embed in their subconscious.

Diane Ravitch, in her inimitable fashion, tells us that the data that the judge relied upon is fatally flawed, Jesse Rothstein, in a NY Times op ed (“Taking on Teacher Tenure Backfires” writes,

… Eliminating tenure will do little to address the real barriers to effective teaching in impoverished schools, and may even make them worse.

The lack of effective teachers in impoverished schools contributes to [the achievement] gap, but tenure isn’t the cause. Teaching in those schools is a hard job, and many teachers prefer (slightly) easier jobs in less troubled settings. That leads to high turnover and difficulty in filling positions. Left with a dwindling pool of teachers, principals are unlikely to dismiss them, whether they have tenure or not.

A NY Times editorial (“A New Battle for Equal Education”) supports the decision, and, sort of begrudgingly, supports “reasonable due process rights for teachers,”

Teachers deserve reasonable due process rights and job protections. But the unions can either work to change the anachronistic policies cited by the court or they will have change thrust upon them.

In the battle for the hearts and minds of the public the West Coast teacher unions and the New York teachers unions took vastly different approaches. The California Teachers Association has battled for years to prevent any changes in tenure laws – the California law grants tenure after serving an 18 month probationary period and the procedures for removing tenured teachers are complex and the process lengthy, it can take years. The result: almost every teacher achieves tenure and the dismissal of a tenured teacher is exceedingly rare. The attrition rates, especially in the schools teaching the poorest kids are high – half of new teachers leave voluntarily within five years.

The image of kids failing in high poverty schools and the California tenure laws allowed the “messagers,” the framers of public opinion to embed the sticky idea, “tenure protects bad teachers.”

The New York City teacher union has been led by Randi Weingarten, currently the president of the American Federation of Teachers (AFT) and now by Michael Mulgrew.

The AFT has taken a different approach which Weingarten calls “solution-driven unionism,”

Solution-driven unionism is rooted in solving problems, not winning arguments. AFT affiliates are pursuing this approach, and we are encouraging many more to follow suit. We know that this tough climate — marked by increasing poverty, continuing budget cuts, and a recession-fueled resurgence in attacks on unions and public services — can’t stop us from having a proactive quality education agenda. To the contrary — while we will continue to fight for the resources children need, we must also devise innovative, creative and new approaches to help all children succeed.

The UFT has worked diligently with a wide range of citywide and community-based organizations, from the NAACP to parent groups across the city. This type of coalition-building embeds “sticky ideas,” A Zogby Analytics poll,

New Yorkers now trust the oft-maligned teachers more than they trust the mayor’s office: almost half of all respondents said that teachers should “play the largest role in determining New York City’s education policy,” compared with 28 percent who thought that the mayor-appointed schools chancellor should.

In 2009 the NYC Department of Education changed the administrative procedures for the granting of tenure. After a three year probationary period the vast percentage of teachers received tenure, the Department changed the process – principals received data sets linking pupil performance to each teacher, teachers were required to submit “artifacts,” examples of student work as well as a review of supervisory observations.

Rather than a major public battle the union provided workshops across the city, every probationary teacher had the opportunity to meet with a union expert to assist in creating their portfolio and well as how to respond in meetings with their principals. While the number of teachers with extended probationary periods increased significantly the percentage of teachers who were denied tenure only increased by one percent.

A just-released study finds, (

“The receipt of tenure had become an expectation for nearly all teachers.’Tenure was rarely based on strong evidence of accomplishment.’

.. the percent of teachers granted tenure dropped from more than 90 percent to less than 60 percent while a substantially greater share of teachers had their tenure period extended. While denial of tenure increased from two percent in 2008 to just three percent in 2012, teachers whose probationary period was extended rose from less than 5 percent to over 40 percent of teachers. Extended teachers were given an additional year to demonstrate effective teaching consistent with the Effectiveness Framework.

Despite not altering the proportion of teachers denied tenure, the tenure reform meaningfully affected the composition of teachers. Researchers found that teachers who were extended were more than 50 percent more likely to transfer to another school within the district or to exit teaching in the district than otherwise similar teachers who were granted tenure. The authors compared the effectiveness of extended teachers who transferred or exited to all teachers entering these schools to assess whether the quality of teachers improves as a result of the policy.

“The extended teachers who leave their schools were less effective than the teachers likely to replace them” said Susanna Loeb, professor of education at the Stanford Graduate School of Education, a coauthor. “Likely replacement teachers are much more likely to be rated Effective or Highly Effective than the extended teachers who leave.

The New York State Teacher Union (NYSUT) fully participated in the creation of a teacher evaluation law – moving from a system solely based on principal assessment at the school level to a multiple measures system that involves measuring all teachers against similarly situated teachers across the state. The exceedingly dense system, in the first year, only found 1% of teachers ineffective.

In New York City the union negotiated changes in the teacher disciplinary procedures to expedite the process.

The recent teacher contract received a “thumbs up” from the editorial board of the NY Times,

There was no snarling at City Hall when Mayor Bill de Blasio and the teachers’ union announced a very significant labor agreement on Thursday Dispensing with the unproductive tension that tarnished the Bloomberg administration, the two sides showed that real progress can be made — on both the fiscal and the educational sides of the contract — when there is good will instead of disdain. On the whole, the agreement represents a good deal for the city and its students.

Even the Citizens’ Budget Commission, the self-proclaimed guardian of the City coffers gave the contract a qualified approval.

The tentative agreement between the city and the teachers union resolves major uncertainty surrounding the city’s financial plan and ensures some stability in labor relations with a major segment of the city workforce for the next five years.

It establishes a reasonable pattern for other city workers, but its affordability rests on ensuring concrete savings from health care costs.

Union leadership cannot be guided by the anger of members, in California teacher anger over attempts to modify tenure rules was popular, and a losing position. “Solution-driven unionism,” means pragmatism driven unionism; picking your fights and understanding that crafting solutions is far more effective than a win or lose approach.

Every year the UFT gives a million dollars in scholarships to deserving high school graduates, the UFT is supporting legislation to change the multiple choice test score method for admission to specialized high schools (Stuyvesant, Brooklyn Tech, etc.), which results in only a handful of Black and Hispanic students passing the test, to a multiple measures system, a change strongly supported by the NAACP.

Union leadership in New York City has created a climate in which the public sees the union at the forefront of working to create better schools in partnership with parents, in spite of a snarky barrage of negative articles in the print media. Teacher tenure is not an issue.

Every day, on Twitter, on Facebook, in blogs, in computer downloads the battle goes on … the battle for the hearts and minds, in the battle to convince legislators, to convince parents and voters, the battle to brand policies, to embed sticky ideas, the teacher union works to brand themselves as allies and partners of parent and families.

And, no, it is not obvious, the public is overwhelmed with messages, we have moved from a 24-hour news cycle to a 24-second news cycle. The “winners” will not be decided by the best ideas, the “winners” will be decided by those who can change public opinion, to build consensus, to win over the hearts and minds of the electorate.

BTW, eliminating tenure would probably increase a district budget. Howard Wainer, the author of Uneducated Guesses: Using Evidence to Uncover Misguided Education Policies, in a brief, powerful paper identified a district that ended tenure for superintendents, over the years after the elimination of tenure the teacher-superintendent salary gap widened significantly. To attract superintendents the district had to increase salaries, when given a choice teachers would clearly choose to work in districts with tenure and the only way to attract teachers would be to pay them more than in non-tenure districts.The elimination of tenure: a perfect example a “misguided education policy.”

Vergara v California Strikes Down Teacher Tenure: Which State is Next? New York State?

The Los Angeles Superior Court sustained the appellants and ruled that the California teacher tenure laws violate the state constitution. (Read full text here)

The NY Times writes,

“Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students,” Judge Rolf M. Treu of Los Angeles Superior Court wrote in the ruling, “The evidence is compelling. Indeed, it shocks the conscience.”

In his sharply worded 16-page ruling, Judge Treu compared the Vergara case to the historic desegregation battle of Brown v. Board of Education, saying that the earlier case addressed “a student’s fundamental right to equality of the educational experience,” and that this case involved applying that principle to the “quality of the educational experience.”

He agreed with the plaintiffs’ argument that California’s current laws make it impossible to remove the system’s numerous low-performing and incompetent teachers, because the tenure system assures them a job essentially for life; that seniority rules requiring the newest teachers to be laid off first were harmful; and that granting tenure to teachers after only two years on the job was farcical, offering far too little time for a fair assessment of the teacher’s skills.

Secretary of Education Arne Duncan vigorously endorsed the decision.

“For students in California and every other state, equal opportunities for learning must include the equal opportunity to be taught by a great teacher. The students who brought this lawsuit are, unfortunately, just nine out of millions of young people in America who are disadvantaged by laws, practices and systems that fail to identify and support our best teachers and match them with our neediest students.”

The decision is not surprising, in a previous decision the California courts struck down the layoff of teachers in high needs schools by seniority, (“last in, first out”) ruling that the layoff rules disadvantage the neediest students by laying off the least senior teachers who were clustered in the highest needs schools.

The tenure decision, of course, is absurd. There are many states without any tenure laws and the absence of laws has no impact on pupil achievement. The state with the highest level of student achievement for high needs students, Massachusetts, is one of the highest unionized states. The “great teacher,” canard, that waiting in the wings are endless “great teachers” waiting to rush into the classrooms of bad teachers is a fantasy. In the real world we do not have precise methods of measuring teacher ability. If we were able to measure teacher performance two-thirds would fall in the middle of the bell curve – with about two percent at either end of the curve.

Virtually every expert warns that attempts to measure teachers by test scores are fraught with the possibility of errors. To remove tenure and allow principals and school boards to dismiss whomever they choose would unquestionably lead to discharge by favoritism, by race/ethnicity, by size, by anything the firing authority desires.

The teacher unions in California have aggressively fought legislative attempt to extend the probationary period beyond the current eighteen months and the discharge process is lengthy. Perhaps they should have negotiated changes; however that is hindsight.

The American Federation of Teachers (AFT), which opposed the suit, has promised to fight the ruling in court, saying the decision overlooks a bigger problem: inadequate funding.

“While this decision is not unexpected, the rhetoric and lack of a thorough, reasoned opinion is disturbing,” AFT President Randi Weingarten said in a statement.

“[The judge] argues, as we do, that no one should tolerate bad teachers in the classroom. He is right on that,” Ms. Weingarten said. “But in focusing on these teachers who make up a fraction of the workforce, he strips the hundreds of thousands of teachers who are doing a good job of any right to a voice. … It’s surprising that the court, which used its bully pulpit when it came to criticizing teacher protections, did not spend one second discussing funding inequities, school segregation, high poverty or any other out-of-school or in-school factors that are proven to affect student achievement and our children.”

The lawsuit, funded by a Silicon Valley zillionaire is disrespectful to all teachers.

In high income schools and school districts kids do well, high test scores, does that mean the teachers are excellent? In high poverty schools kids struggle, that means the teachers are bad, of course not.

Does the decision mean that teacher tenure laws are in jeopardy across the nation? In New York State?

While teachers are uncomfortable with the NYS teacher evaluation law (APPR), as it turns out UFT President Michael Mulgrew was right.

Mulgrew has argued that the new teacher evaluation law actually protects teachers. The multiple measures law (60% supervisory judgment based upon an approved rubric, 20% student test scores and 20% a locally negotiated measure) produces a score and teachers are measured against other teachers who teach “similar” students. In the first year 51% of teachers scored “highly effective,” 40% “effective,” 8% “developing” and 1% “ineffective.”

Teachers with consecutive “ineffective” scores can be charged and undergo an expedited appeal process.

Using the courts to attack tenure in New York State would be frivolous.

Vergara will move through the California appellate courts and a year or two down the road the California Supreme Court will rule.

Vergara will not change one reality – if we superimpose a map of poverty by zip code and schools by lowest achievement the maps would be a perfect match.

50% or higher teacher turnover rates in high needs schools are commonplace, removing tenure will only discourage teachers who want to work in challenging settings. Yes, inadequate teachers should be discharged as a result of an orderly procedure with the decision made by an mutually agreed upon arbitrator in a timely fashion. Tenure is simply a due process protection.

Rather than benefiting students in high needs schools the decision will achieve the opposite.

As the economy continues to improve and onerous laws attacking teachers and the profession spread fewer and fewer of the “best and the brightest” will choose to teach.

And, loyal lifelong teacher Democratic voters are so angry, so disappointed that the chances of Republicans gaining control of the Senate only increases.

If Arne’s glee over Vergara antagonizes enough voters he may spend his last two years watching Republicans dismantle public education.