Tag Archives: Teacher Tenure

What the New UFT Contract SHOULD Look Like

Michael Mulgrew attentively listens to my suggestions for a new UFT contract while also plotting how to kill me in my sleep.

Michael Mulgrew attentively listens to my suggestions for a new UFT contract while also plotting how to kill me in my sleep.

Talk of what a new UFT contract negotiated with Bill de Blasio will look like is rampant. Teachers have a sense that, finally, we can deal with a mayor who negotiates in good faith. At the last Delegate Assembly our fearful leader, Michael Mulgrew, alluded to a contract filled with dollar signs. My advice to New York City teachers is: DON’T FALL FOR IT.

I know we are all poorer than we were three years ago thanks to stagnant salaries and a skyrocketing cost of living. It is easy to salivate over the prospect of a wage increase that can keep up with the rent. For my part, having to move several times in the past few years and family issues have put me squarely in the pauper’s house. I will gladly remain a pauper and forgo loads of money in exchange for a contract that restores some form of dignity to the teaching profession. Below are just some of the things for which the UFT should fight in the next contract.

1. Anti-Bullying Clause

Every school now seems to have signs warning people against bullying behavior. At the same time, many of these schools have seen systematic harassment of teachers at the hands of administrators. It is not just that administrators face no repercussions for bullying teachers. It is that there are some administrators who believe that the more teacher heads they deliver on platters, the more brownie points they win with Tweed. Any anti-bullying campaign is meaningless without a clause in our contract that protects us from the bullying behavior of administrators. The UFT should make their vast legal department available to teachers who wish to file lawsuits against administrators who discriminate based upon age or race, or who sexually harass members of their staff with impunity. Schools should no longer be fiefdoms where petty bureaucrats wield absolute power.

2. Complete Opting Out of Race to the Top

Some school districts have already started opting out of New York State’s involvement in the Race to the Top debacle. We should look to these school districts as examples. First, opting out will protect sensitive data about our students from being the plaything of private corporations. Second, it will get rid of the ridiculous evaluation system that requires administrators to check off boxes, students to fill in bubbles and teachers to be rated by test scores of students they never taught. Third, it will prevent the horror that is Common Core from overtaking our schools. Kindergarteners will not have to learn fractions, teachers will not have to worry over whether or not they are using enough “informational texts” and some semblance of joy can be preserved in teaching and learning. Finally, opting out of RTTT will help stem the charter school craze that was a hallmark of the Bloomberg Administration. If Bill de Blasio wants to solidify his credentials as a true progressive, opting out of Race to the Top is the easiest way for him to do it. The only question is: will the UFT even push for this at the negotiating table?

3. No More Circular 6

Circular 6 has been the bane of many-a-teacher’s existence for some time now. This is the provision that requires teachers to do meaningless make work during certain times of the day instead of grading or preparing lessons. Cafeteria duty, hallway patrol, bus duty and the rest have enabled administrators to cut back on deans and other support staff. This might be good for slashing budgets but it has helped erode discipline and school tone. Circular 6 is one of the largest morale-crushers in the DOE and it will not be missed by anyone aside from administrators who enjoy making their staffs jump through meaningless hoops.

4. Restore the right to grieve letters in the file

The “letter in the file” is one of the most popular disciplinary tools administrators have at their disposal. There was a time when administrators reserved letters in the file for rather serious infractions. This was partially due to the fact that teachers had the right to grieve them, which could end in getting the letter removed. Ever since Randi Weingarten negotiated away the right to grieve letters in the file, administrators have seen fit to write teachers up for things like talking at staff meetings, smoking near (not within) the 100 feet from school grounds required by Chancellor’s Regulations or any other silly “infraction” dreamed up in the minds of petty bureaucrats. It is important to note that Randi negotiated this right away in exchange for more money. This contract should totally reverse Randi’s blunder: sacrifice the money for the protection.

5. Restore the integrity of the 3020a and investigation process

One of the dirty big secrets of Bloomberg’s DOE has been the exponential growth of the teacher trials unit. There are more lawyers, arbitrators and investigators employed by the DOE than ever before. All of these people have one job: to destroy the careers of teachers. The stories of Christine Rubino and David Suker should be proof enough for the union that the 3020a process needs serious reform. First, Richard Condon must be fired. He is the Special Commissioner of Investigation and is responsible for sending the goon squads over to the houses of teachers to rummage through their garbage and stalk their teenaged daughters (both of which have happened). SCI’s staff needs to be cut at least in half, if not more. Second, the rule that any teacher under investigation must be taken out of the classroom and reassigned needs to go. That rule was originally put in place for teachers who were accused of things that potentially made them dangerous to children. Now, as the case of Francesco Portelos proves, teachers can be reassigned for any infraction, even if none of them have to do with children. This is one of the most lethal weapons at the disposal of administrators and SCI and has ruined the careers of too many good educators. Finally, the arbitrators need to be properly vetted and qualified. DOE arbitrators used to have reputations of solid gold. Now, many arbitrators do the bidding of the DOE knowing that they run the risk of not getting paid if they do not. Arbitrator salaries need to be reduced and guaranteed so they cannot be cowed to do the DOE’s bidding.

6. Placement of all ATRs

The other dirty big secret of the DOE is the Absent Teacher Reserve. Teachers who managed to not get fired after being hit with frivolous SCI charges or teachers who were given the axe when Bloomberg saw fit to shut down their schools have been forced to rotate schools month-to-month in a sort of teacher purgatory. Since reliable statistics about ATRs do not exist, we do not know exactly how many of them are in the system and what their age and racial makeup are. It is amazing that in the era of data, do data on ATRs is available. Is this because these statistics would leave the DOE and UFT open to all types of discrimination lawsuits? All ATRs should be placed in schools with openings immediately. Furthermore, an investigation into how many ATRs are over 50 and/or minority should be conducted so that teachers can join in a discrimination lawsuit if they so desire.

7. Iron-Clad Contract

It needs to be clarified that contracts that have been collectively bargained have the force of law that can only be abrogated by another collectively bargained contract. This would prevent another set of laws from passing the state legislature like the ones passed to bring New York into compliance with Race to the Top. The Race to the Top’s laws regarding teacher evaluations and tenure rights effectively changed provisions in the existing contract. This set a dangerous precedent. Something like this should never happen again. The union needs to maintain the integrity of collective bargaining. They failed to so the first time around. Let us see if they can get it right this time. As an addendum to this, the nature of “binding arbitration” should also be clarified. Arbitrators need to be independent and neutral, meaning they cannot be part of management at either the city or state level. This will prevent another John King-imposed evaluation debacle that was the result of the UFT’s failure to defend their collective bargaining rights. Again, how likely is it that the UFT will push for this come contract time? The fact that they have so willingly compromised the integrity of collective bargaining, which is the fundamental right of all labor unions, should be a cause of concern to every teacher in NYC.

8. Rational Path to Tenure

New teachers are being denied tenure at a ridiculous rate. It has become the unwritten policy of the DOE to deny tenure to as many teachers as possible, the so-called “four-year-and-out” rule. The entire portfolio system needs to be scrapped. If an administrator needs to see a portfolio to determine if a teacher who has worked under them for three years is deserving of tenure, then they are not much of an administrator. Tenure needs to be based on administrator observations and possibly the observations of veteran teachers. Over 60% of the teachers currently teaching in NYC came in under Bloomberg, which speaks to an absurd rate of turnover. We need to retain dedicated and capable people. Systematically denying new teachers tenure makes as little sense as systematically granting them tenure.

These are just some of the things for which I would forgo money in the next contract. Of course, many of these things depend on reforms that need to be made in the DOE itself, which is a matter for another post. Sadly, my biggest worry is that our union will not even fight for these provisions. It is a shame because Bill de Blasio could score some political points if he could turn to the media and say he did not give teachers a fat raise or retroactive pay. He could avoid accusations of being a squishy, union-coddling liberal. At the same time, the UFT could strengthen their own position with all of these provisions. Most importantly, these changes would restore some dignity and independence to the teaching profession. This would end up improving education for all children in NYC, which is what really matters in the end.

 

A Case for Teacher Tenure: The David Suker Story

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PART I (Lessons from a Bureaucracy)

David Suker is a New York City native. When it came time for him to choose a college, this young white man opted for Howard University, one of the most prestigious black colleges in the nation. He disliked the de facto segregation in the schools he attended here in New York, so he placed himself in a completely different educational setting when he got the chance.

This type of awareness is rare for someone so young. It is even rarer for someone so young to allow this awareness to guide him in making such a major life decision. Two decades later, it would be this awareness and courage that got David Suker terminated from his position as a teacher in the New York City Department of Education.

Shortly after graduating college, David returned to New York as a newly minted history teacher. He sought to make an impact on the school system that was so repugnant to his sense of justice. It was 1998 and New York City’s school system was called the Board of Education. By that time, the Board had earned a reputation as an inefficient and incompetent government bureaucracy that had outlived its usefulness in the private sector worshipping decade of the 1990s.

But David Suker’s problems with the Board of Education were not born out of impatience with the fact that it did not operate like a sleek corporation. His problems stemmed from being a first-hand witness to the injustice it perpetuated. The booming economy of the 1990s caused a teacher shortage, which meant that David could have plied his trade in almost any school he desired. What does it say about his character that he chose to start his career at a juvenile detention center in the Bronx, a place even the most fearless teachers dare not tread? While the education reformers were meeting around oaken conference tables scheming over how to remake the school system in their own image, David Suker would be meeting with the most forgotten children in the city to help them remake themselves.

It did not take long for him to witness as a teacher the types of injustices in the school system that had so repulsed him as a student. The children he was teaching in the detention center were being routinely brutalized by the corrections officers. When David questioned why this was being tolerated, he was promptly reassigned to an offsite office in order to shut him up. A week later, a principal named Robert Zweig picked him up off the scrap heap, so to speak, and hired him as a teacher for a program known as Offsite Educational Services. He would help children in places like housing projects and drug rehab centers get their GEDs. Once again, David Suker would help give the forgotten children of New York City one last chance.

Like most teachers, David started hitting his stride after his fourth year or so of teaching. The students with whom he worked had been written off by the rest of the school system. They had one last shot at some form of graduation by getting their GEDs. David Suker prepared his students for their GEDs not through rote test prep but by helping them appreciate the art of learning. Instead of drilling them in how to game an exam, he helped them navigate the New York Times in order to demonstrate how reading helps make sense of the wider world. In a program that routinely helped a mere 15% of students get their GEDs, David Suker was able to help 100 students get their equivalencies in a span of 3 years. By 2004, David Suker had arrived as a teacher.

Unfortunately, he was not the only one who had arrived. As David was giving his kids one last chance at a better life, Michael Bloomberg was getting his first chance at killing New York City’s public schools. Bloomberg did away with the clunky Board of Education and replaced it with a supposedly streamlined Department of Education headed by himself. To ensure this new system would run like a corporate machine, he installed middle management types in supervisory positions all over the city. Principals, superintendents and even his chancellor, Joel Klein, would institute Bloomberg’s reforms without dissent or delay. For David Suker’s “district” of forgotten children, known as District 79, Bloomberg installed Cami Anderson as superintendent. Anderson was a darling of Joel Klein. She would later use the slash-and-burn method of school reform she learned here in New York City with great effect as Newark’s schools chancellor.

In order to establish her reformer credentials, Anderson sought to shake up this “failing” district. The children of District 79, the children who were reared first under “Giuliani Time” and then under Bloomberg’s stop-and-frisk duchy; the children who had seen their neighborhoods gentrified; the children who had their social services cut year in and year out; the children who had been the biggest victims of Bloomberg’s crusade to turn New York City into a playground for billionaires; the children to whom David Suker had dedicated his career apparently were not making “adequate yearly progress” in filling out the correct bubbles on standardized exams. District 79 was ripe for “reform”.

The reform of District 79 could not follow the template that had been established in other districts. There were no charter schools looking to co-locate there. Charter operators like Eva Moskowitz do not exactly clamor to take on the types of students with whom David Suker worked. Instead of co-locating, Cami Anderson would “reorganize”. She consolidated the various incarnations of Offsite Educational Services into a handful of programs in order to run them on the cheap. To save even more cash she required every teacher in the district to reapply for their jobs, including David Suker. This was a way of circumventing tenure to get rid of expensive veteran teachers. Since the quality of David’s teaching was never in doubt, since he was not quite an expensive 15 or 20-year veteran and since Teach for America wunderkinds were not knocking on the door to teach in District 79, David was rehired by an independent panel of administrators, teachers and parents. This gave David a front-row seat to Anderson’s criminal shakedown of the forgotten children of District 79.

Helping Anderson shakedown the district was none other than Robert Zweig, the principal of Offsite Educational Services who had hired David Suker back in 1998. Zweig was Anderson’s inside man. He helped Anderson turn Offsite Educational Services, a typically utilitarian Board of Education moniker, into “GED Plus”, a typically Madison Avenue Department of Education moniker. It was an open secret that Zweig was in line to be promoted to Deputy Superintendent for his role in helping Anderson “reform” District 79. This meant that Zweig and his school were on the bureaucratic radar. Everything he did was being watched by Anderson, Joel Klein and possibly even Bloomberg himself.

This news did not bode well for David Suker. Part of being a great teacher is being an advocate for one’s students. If he did not have enough resources for his students, Zweig would hear about it. If students did not have access to proper facilities, Zweig would hear about. Other teachers at OES or rather, “GED Plus”, would also hear about it. David was a textbook example of the type of teacher tenure was designed to protect: the one who did not allow administrators to shortchange his children. His courage was a thorn in Zweig’s side, as Zweig would remind him every year by writing him up for one petty infraction or another. There was that time in 2004 when Zweig gave David a “U” rating for the year for being absent 11 times when the contractually allotted number of absences is 10. 11 absences hardly constitutes a case of gross absenteeism, and Zweig knew the 11th absence was due to David’s plane making an emergency landing on another continent, but he took the opportunity to give him a “U” anyway as a friendly reminder of who called the shots at OES.

However, friendly reminders were not enough anymore. Zweig had to show Cami Anderson that he inoculated his teachers against opposing her reforms. Instead of just being a schoolhouse rabble rouser, David Suker became a liability, someone who threatened Zweig’s coveted climb up the bureaucratic ladder. In 2007, when OES was in the process of being rebranded “GED Plus” and half the teachers stood to lose their jobs, the staff had an end-of-year meeting with Zweig where they applauded his many years of service. This applause was music to Zweig’s bureaucratic-climbing ears. Of course, only one teacher questioned the applause. Only one teacher asked why his colleagues were being fired for the “failure” of the program while the principal stood to be promoted. That teacher was David Suker.

At the last graduation ceremony for OES before its rebranding, some students hung up scathing cartoons they had drawn criticizing the program’s administrators. It was doubtless the students had been feeling the pressure of Cami Anderson’s reforms as well and were not happy about them. Principal Zweig saw the hand of David Suker behind this, since David was both a critic of these reforms and a popular figure among the students. Zweig had the assistant principal question David about it. Nobody in the administration bought David’s denials. It was clear that David would be a marked man when he returned next school year to work in GED Plus.

But nothing happened that year. In fact, the 2007-2008 school year was the only time David was not written up or given a “U” rating. Instead, Zweig was being investigated by the DOE for having an affair with one of his assistant principals. This assistant principal was also under investigation for a Youtube video that had surfaced of her rolling around on the floor in front of her students in an ambrosia-induced haze, ambrosia in this case being a cocktail of liquor and cannabis. These investigations meant they were too preoccupied to harass David Suker. By the end of the school year, Zweig learned he would not become Anderson’s deputy superintendent after all. Instead, he would get the special title of “Assistant” to the Superintendent and remain the principal of GED Plus. The uncovering of his schoolhouse love affair led to the dissolution of his marriage. One can imagine the type of mood Robert Zweig was in at this point. Someone was going to pay come next school year.

PART II (When the Conscience Calls)

In the summer of 2008, the Democratic Party was set to nominate its first black candidate for president at their convention in Denver, Colorado. Ever the history teacher, David Suker was there. As he was taking in the mountain scenes from the highway on his motorcycle, a big rig clipped him and sent him crashing onto the side of the road. The accident broke his jaw and gave him a serious case of road rash. Five days later, the school year started for teachers back in New York City. David Suker showed up to work that day with his jaw wired shut and covered in bandages from head to toe. His colleagues and doctors exhorted him to take some time off work so he could properly heal. A teacher without the ability to speak is like a major league pitcher without the ability to throw. So David placed himself on the disabled list until he was able to get back into the game.

Little did he know that his motorcycle crash was an adumbration for what would become of his career. David Suker turned the corner alright. Unfortunately, this corner led to a dead end.

Upon his return from the accident, David encountered a principal Robert Zweig with little appetite for controversy. Instead of allowing David to teach students, where he would surely find something else about which to complain, he put David on sentry duty in a stairwell of GED Plus. He would only be allowed to work with kids again once he passed a physical and mental evaluation by DOE doctors. David passed these evaluations, at which point he went back to work with the children of GED Plus. However, as soon as he was put back in the game, he was taken right back out again. David Suker was served notice that he was to report to the rubber room.

Why David Suker was rubber roomed at the start of 2009 was a mystery at first. Teachers in his position rarely discovered the allegations against them before they went to a termination hearing, the dreaded 3020a. Only later would David discover the supposed “misconduct” for which he was rubber roomed. It had to do with the way he dealt with two different students on two separate occasions. One was a troubled girl who started cursing out David Suker while filling out her GED application. David took her application away, threw it in the garbage and invited her back to try to fill it out again when she was in a less belligerent mood, which the girl eventually did. The second incident involved a girl who had threatened to kill any gay people in the room. She used her fingers to resemble a gun and started yelling “buck, buck, buck”. Not sure if there actually were any gay students in the room at the time, and not willing to take his chances, David asked the girl to leave so she could work on her own, which she did. These were the charges for which David Suker was rubber roomed for over a year. Even by the DOE’s malleable standards, these were frivolous accusations. This is why he was eventually returned to work without having to go through a 3020a hearing. This time he was sent to work at a site with more direct supervision, another “last chance” facility for students known as Bronx Regional.

David Suker was horrified at what he saw at Bronx Regional. Students who, by state law, were entitled to extra education services because they had learning or emotional disabilities were instead required to sign away their rights to those services. There was no library or independent study area for students who wanted to prepare for their GEDs. The administration had effectively segregated the school by race: students from the Dominican Republic occupied the 2nd floor and black students, both African-American and African immigrants, occupied the first floor. There was no investment by the school or district in curricular materials, which meant each teacher was on their own to teach whatever they saw fit in their subject areas. In short, these neediest of students were not provided with anything with which to make good on their last chance. It was as if the system was shutting the last door that was open to them.  This is what Cami Anderson’s reforms had wrought upon District 79. It was never easy for David Suker to remain silent before. It would be impossible for him to do so now.

So David did what he knew was right. During a panel sponsored by National Public Radio, he accused the DOE of “educational genocide”. The racial segregation he witnessed at Bronx Regional as a teacher was the flipside of the same segregation he saw in NYC as a student. The more things had changed, the more they remained the same. The only difference was that resources were dwindling and corruption was increasing in Bloomberg’s DOE. David would bring these points home to chancellor Dennis Walcott himself many times during his appearances at the Panel for Educational Policy. Appearances like these were part of what put David Suker on the DOE’s radar. The event that truly caused a blip, however, was Occupy Wall Street.

David’s trenchant stance against the DOE’s reforms was part of the dissenting spirit in the air of those days of Occupy. Towards the start of the 2011 school year, a handful of protestors started sleeping over in Lower Manhattan’s Zuccotti Park. On their third evening of protest, well before what they were doing had caught on, they were joined by David Suker. Over the ensuing weeks, David became a conspicuous figure in many of Occupy’s marches. As the Occupy movement grew, so did the skittishness of the NYPD. The police’s tactic of “kettling” peaceful marchers led to a surfeit of arrests. Among those arrests was David Suker himself. Expectedly, his name and face were plastered in the local newspapers more than a few times. These articles were printed on Friday, November 4. By Monday, November 7, David returned to his school to find out the DOE was, once again, placing him in the rubber room.

They were not going to release him this time. For all of the trouble he had caused during Cami Anderson’s shakedown of District 79; for all of the times he had accused the DOE of “educational genocide”; and for all of the times his name was printed in the media, they were going to make David Suker finally pay. While he was sitting in the rubber room, the DOE thatched together a bunch of minor unrelated charges. They were hoping the aggregate of these charges would result in his termination.

The first set of charges was in step with the DOE’s tactic of piecing together disparate frivolities to make the teacher out to be a menace:

“SPECIFICATION 1 : On or about September 16, 2011 Respondent followed teacher Yanira Rodriguez into the guidance office saying, in a manner causing her to feel threatened, words to the effect of may it be the last time you talk about me behind my back.

SPECIFICATION 2: On or about October 3, 2011 , Respondent acted in a disruptive manner during a staff meeting by leaving the room twice while a colleague, Guidance Counselor Jackie Rangel, tried to address a comment Respondent

made and making comments to the effect of

a. I do not appreciate people talking about me.

b. We have to protect our jobs. There are  administrators looking to get people out.

SPECIFICATION 3: Respondent was arrested  on November 2, 2011 and failed to report the arrest in a timely manner as required by Chancellor’s Regulation C-105.”

The DOE did not stop here. Usually at 3020a hearings, the charges are broken up into individual “specifications” of varying degrees of seriousness. But in the case of David Suker, the DOE came up with separate groupings of specifications, as if his transgressions were so heinous and frequent they defied a single list. However, the likelier scenario was the DOE looked at the charges above, decided they were not enough to warrant termination and invented more. With David languishing in the rubber room, the DOE dredged up their second set of specifications:

“SPECIFICATION 1: Respondent was excessively absent in that he was absent on the following dates:

a. September 15,2011 – Thursday

b. September 21 , 2011 – Wednesday

c. September 22,2011 – Thursday

d. September 23, 2011 – Friday

e. October 5,2011 – Wednesday

f. October 17,2011 – Monday

g. October 25,2011 – Tuesday

h. October 27,2011 – Thursday

I. October 31 , 2011 – Monday

j. November 3,2011 – Thursday

k. November 4,2011 – Friday

SPECIFICATION 2: On or about October 24, 201 1 Respondent, at Town Hall meetings held in the auditorium of the Bronx Regional High  School:

a. Acted in an unprofessional and disruptive manner by causing students to make excessive noise and be uncooperative

during a presentation provided by the  New York City Police Department.

b. Questioned publicly why the police were  in the building.

c. Publicly noted his dislike of the police.

d. Said that he had been arrested and beaten by the police.

e. Showed a scar on his head that he claimed came from being beaten by police.

f. Stated words to the effect that the school practices segregation.

g. Exchanged high-fives and raised fist gestures with students.

h. Brought his students to attend two periods of the Town Hall meetings instead of just the one as directed.

SPECIFICATION 3: Respondent was arrested on November 6, 2011 and failed to report the arrest in a timely manner as required by Chancellor’s Regulation C-I 05.

SPECIFICATION 4: On or about February 13, 2009, Respondent threw Student LG’s* GED test application into the garbage can and directed her to leave the room when she refused to participate in a game of Jeopardy. (*Students’ names to be provided prior to trial.)

SPECIFICATION 5: On or about February 15, 2009, Respondent refused to allow student LG to enter his classroom requiring her to work alone.

SPECIFICATION 6: On or about the dates below, Respondent directed Student EB* to work independently and did not permit her to remain in his class:

a. February 27, 2009

b. March 3,2009″

This grouping of specifications reads like a what’s what in the defiant career of David Suker. Everything for which the DOE had already harassed him were in there, from “excessive” absences to failing to report his arrests in a “timely manner”. Even the accusation regarding the two students for which he had already been rubber roomed resurfaced, a blatant case of double jeopardy. The cherry on top, however, was his supposed “disruption” of a “town hall” meeting. The meeting was actually an assembly in which the students of Bronx Regional listened to lectures from NYPD officers on the pitfalls of violence. This violence was the result of Bronx Regional’s segregation of Dominican and black students. The DOE alleged that, during the assembly, David Suker questioned why the police were in the building. He even displayed a scar he had received as a result of a beat down from a friendly NYPD officer. He then supposedly committed the most treacherous act of which a teacher can be accused: he exchanged “high fives” with his students. It is amazing how such vile behavior went unreported by the New York Post, complete with a picture of David Suker sporting devil horns.

Yet, these evil deeds still were not enough for the DOE. With David Suker languishing in the rubber room, they continued scrambling to find things that could get him out of the door once and for all. Even with a 3020a process incredibly skewed against the teacher, there still might not have been enough at this point to terminate him. Then in January, three months and 9 specifications into David Suker’s rubber room stint, the head of the Administrative Trials Unit (the group that brings charges against teachers), Theresa Europe, sent a letter to DOE investigators. The letter revealed that David Suker had a daughter who attended an exclusive public high school in Harlem. Apparently, the address that David listed was not where his daughter really lived. This was the basis for the final set of charges:

“SPECIFICATION 1: On or about 2001 to present, Respondent submitted false documents to the Department of Education which listed addresses where neither he nor his daughter, a student attending Columbia Secondary School for Math, Science & Engineering, lived.

SPECIFICATION 2: On or about December 1, 2006, Respondent submitted false documents to the Department of Education with the intent to

defraud the Department by improperly obtaining admission of his daughter into the Columbia Secondary School for Math, Science & Engineering.

SPECIFICATION 3: On or about October 4, 2001, Respondent submitted false documents to the Department of Education with the intent to defraud the Department by improperly obtaining admission of his daughter to a school she was not zoned for.”

These charges were an incredible stretch. High schools are open to students of all 5 boroughs of the city. David listed his daughter’s address as in the Bronx. These facts alone should have been enough for the hearing officer to dismiss this set of charges out of hand. However, the DOE went through the trouble of sending investigators to follow David Suker’s daughter. Investigators noted that she lived with her mother in the Bronx. They even noted the exact route she took to get to the train every morning. Stalking a young girl sounds like a charge over which a teacher would terminated. Yet, DOE investigators maintain their employment with the same exact type of behavior.

After this third set of specifications was drawn up, Theresa Europe’s office expedited David Suker’s case directly to the 3020a. The hearing officer was Eleanor Glanstein. She listened to the arguments of the DOE’s lawyer, Nancy Ryan, and David’s union-appointed lawyer, Steven Friedman. It turned out to be the usual kangaroo court. Glanstein gave Nancy Ryan tremendous latitude in bringing in last-minute “evidence” and witnesses, a practice that went largely uncontested by the union lawyer. Any reporter, pundit or reformer who believes teachers are protected by an impregnable wall of tenure should sit in on a few 3020a hearings. DOE lawyers act like schoolyard bullies. Arbitrators act like indifferent monitors who permit the bullying to take place. When the hearing ended in May 2012, David Suker knew he did not have a chance to keep his career.

The school year ended soon thereafter. David started summer vacation not knowing if he was going to have a job come next school year. The ante was especially high at this point since David’s wife was pregnant. It was a real possibility that, even before his son took his first breath, David would have no way to provide for him. Then, just as the 2012 school year was set to begin, David Suker learned his fate: termination. Glanstein’s written decision went through every one of the charges. She found David Suker guilty of the vast majority of specifications. The lynchpin of her entire decision was the matter of David’s daughter’s residence.

Needless to say, he was not about to let this decision stick. Like so many other wrongfully terminated teachers from the DOE, he took his case to the New York State Supreme Court. Throughout most of its history, the New York State Supreme Court has been reluctant to overturn the decisions of labor arbitrators for fear of compromising the arbitration process. Over the past few years, however, the courts have been overturning these decisions with unprecedented frequency. Even with terminations that get overturned, it is rare for a justice of the Supreme Court to question the DOE’s investigation. They assume arbitrators are correct in what they deem to be the facts of the case. They also assume that the teacher is guilty. At most, all a teacher can hope for is a ruling that the arbitrator’s penalty is “shocking to the conscience”. Fortunately for David, his case would be heard by a justice who saw through the entire witch hunt that comprised his termination.

Justice Alice Schlesinger’s decision is a devastating takedown of Glanstein’s termination, her guilty verdicts and the entire DOE investigation. The start of Schlesinger’s ruling (towards the bottom of page 11) suggests the not-so-impartial nature of David’s supposedly impartial DOE hearing:

“The ALJ recommended the penalty of termination. In doing so, she first summarized the number of charges for which she had found Suker guilty. She noted that they involved excessive absenteeism, unprofessional conduct toward a colleague, inappropriate and disruptive behavior at a school assembly, failing to follow correct procedures in dealing with two students in 2009, and failing to report one arrest in a timely manner. A necessary query here is whether the ALJ would have recommended termination if these were all the findings, in other words, findings related only to an assortment of unrelated conduct involving a politically charged assembly, an incident of rudeness to another teacher, taking too many days off without obtaining formal permission, failing by a few days in not reporting his arrest at a demonstration, and failing to follow correct procedures regarding two disruptive students almost three years before the Charges had been brought and which had earlier been investigated. I suggest the answer would have been no and that a lesser penalty would have been imposed, particularly since none of the above findings had anything to do with the quality of Suker’s teaching. If the penalty had been termination simply on these findings, it truly would have shocked the judicial conscience as being harsh. Even the very zealous attorney representing the DOE in her closing statement acknowledged this fact…”

In other words, the first two groups of specifications alone were not enough to terminate David Suker. They were a string of petty, unrelated charges that would have truly “shocked the conscience” if used as the sole grounds for his termination. The charges involving the disruptive students back from 2009, aside from being an example of double jeopardy, alleged that David merely did not follow the school’s ladder of referral for dealing with such students, hardly an offense for which a teacher should have their license revoked. This is a fact the DOE themselves realized when they released him from his first rubber room stint without penalty.

Instead, the arbitrator based her termination on the supposedly fraudulent address David Suker listed for his daughter. Schlesinger noted that the DOE lawyer’s plea for termination based upon this one charge took up seven pages of the hearing’s transcript. The lawyer characterized Suker’s conduct in this regard as “criminal”. Schlesinger, on the other hand, characterized these charges, and the termination upon which they were based, as a violation of his tenure rights.

The fact is that David did put down an address at which his daughter did not live on her application for elementary school. This was in 2001. The fact is that David did put down a false address for his daughter on her application to middle school. This was in 2006. He did this for various reasons, not the least of which was he did not have a stable residence. For David, it was a matter of picking an address and going with it. However, all of this should have been irrelevant to the DOE. Even if David had put down these addresses to intentionally deceive, he still should not have been charged for them. He could not be charged for them because the tenure law for NYC teachers states that the DOE cannot bring charges for anything more than three years old. The last time David provided an address at which his daughter did not live was 2006. These charges were drawn up in 2012.

At this point, David’s daughter was already enrolled in high school. Where David Suker or his daughter were living at that point were irrelevant since NYC high schools are open to students in all five boroughs. If this is the case, why in the world did DOE investigators stalk his daughter in the Bronx? Her place of residence did not matter at the time of the investigation. Perhaps these investigators should be brought up on charges of their own and required to be part of some sort of registry so their neighbors can know what types of creeps are living amongst them.

Justice Schlesinger summed up her decision with what she perceived were the real reasons for David Suker’s termination:

“As this Court stated earlier, the school’s leadership did not want petitioner Suker to remain there as a teacher. They did not like him or approve of his actions. They believed he was insubordinate, that he did not conduct himself properly, that he was getting arrested too often, and probably that he was not a team player. It is possible that much of that is true. But with the exception of the two episodes involving disruptive students, which had occurred almost three years earlier in 2009 and had not resulted in discipline, no one has claimed that David Suker is not a good and/or effective teacher.

Finally, it should be noted that the conduct spelled out in Charge 3, regarding a false address for his daughter, never involved Suker’s own school and never would have been discovered but for the DOE’S decision to target Suker to see if an investigation could find something to be used against him, which it did. But that “something” should not be a basis for terminating this tenured teacher, for the reasons already discussed.”

These words, and the entire David Suker story, encapsulates perfectly the reasons why all teachers everywhere need solid work protections. David stuck up for his students his entire career, even if it meant drawing the ire of his supervisors. He is the type of person determined to do the just thing, even if that thing is unpopular or dangerous to his livelihood. When his students were being beaten by corrections officers, he spoke out about it and was duly punished. Instead of being cowed by this experience with bureaucratic backlash, he continued to be an advocate. He was an advocate for kids who had no other advocate. When the reformer Cami Anderson came to town to rearrange the deck chairs on the Titanic that was District 79, she caused untold damage to the lives of the kids and their teachers. David Suker was not silent about these acts of education reformer criminality. For this, he paid with his career.

Education reformers are fond of saying how much they love poor children and how they want to help them. By the time David Suker was terminated, the DOE was thoroughly in the grasp of the reformers. Even though Anderson was off destroying the schools of Newark by 2012, Bloomberg acolytes still occupied every position of consequence within the system. They accomplished a feat by sucking resources away from the most underserved kids in the city. David Suker was systematically harassed when he protested against this. So while David is a textbook argument in favor of teacher tenure, he is also a textbook example of why reformers nationwide have made teacher tenure their biggest target. The reformers know what they are doing to our schools is an exercise in unmitigated brutality. Because of that, they need to shut teachers up so they can go about destroying the communities of poor people unabated.

We need to thank teachers like David Suker who refuse to lay down so the jackboots of school reform can trample over them. We need to thank them for using their own resources to lawyer up in order get their terminations overturned in an actual court of law, where a measure of justice can be served. We need to support them in their ongoing struggle against the witch hunts conducted by the Department of Education.

In the thick of last year’s holiday season, the DOE moved to discontinue the unemployment they were giving David Suker. They also sued him for the unemployment they had already given him. His son was born at that point. If not for the paychecks brought home by his hard-working wife, there is no telling what type of childhood their son would be having now. This is reminiscent of the Christine Rubino case, where she had to sell the house in which she was raising her two young children thanks to a wrongful termination by the DOE. They also tried discontinuing her unemployment. This is another reason why the DOE motto of “children first, always” is a cruel example of reformer doublespeak.

The battle is not over. The DOE is appealing Schlesinger’s decision. Let us hope it turns out like the DOE’s appeal of the Christine Rubino decision, where 5 justices saw through the charade of a sham DOE investigation and termination. Stay tuned…

 

 

 

 

 

DECLARATION OF A LIFELONG TEACHER

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Please welcome our next guest blogger, Christine Rubino:

The second paragraph of the Declaration of Independence reads:

We hold these truths to be self-evident, that all men (people) are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

To me, the Right to Life means I should not be deprived of my life for the benefit of another person or group of people.

To me, the Right to Liberty means that my thinking be free from interference from the forces of unfreedom.

To me, the Right to the Pursuit of Happiness means that I have a right to live for myself and choose what makes up my personal, private, and individual happiness, just as long as I respect the same right in others.

Today, I realize that these three things were taken from me. I watched them burn, smolder into ash and blow away right in front of my eyes. For the record, I did not go down without a good fight.

Some things in life you are born with. I was lucky to be on the line, which gave me a good sense of humor, fortitude, and the ability to relate to children. I consider the last gift to be paramount to my whole being.

I grew up in the early 1970′s in a predominately Italian neighborhood. It is now known as Cobble Hill. Before it was invaded by hipsters and Midwestern transplants, we just called it “”South Brooklyn”. I lived directly across from the Red Hook projects and one block off of the Brooklyn Battery Tunnel. My days were filled with playing outside and keeping my eyes on my younger cousins. I loved this job and took great pride in it. It was then that I learned that I was a natural teacher. This has formed a major part of my identity ever since.

My parents moved us out to Marine Park by 1984, which seemed like the opposite end of the planet to a 12-year-old like me. One day, a new family moved across the street from us. They had 4 children ages 7,4,2, and 1. The mother of this family asked me one day if I knew anyone who could babysit her children. Being the boisterous child I was, I immediately told her it was her lucky day because she was looking at her new babysitter. Looking after her children made me happy and gave me purpose. They are grown now and help take care of my own kids. As time went on, they became my second family. There is a trust, an unspoken bond, between us. It is a bond that was forged all of those years ago when they were little ones in my care.

Babysitting was my sole means of income throughout college. I watched many people’s children around my neighborhood.  When it came time for me to decide upon a college major, it was inevitable that I chose Childhood Education. My parents were proud.  They said it was a fabulous union job, something I could make into a career. I graduated from Kingsborough Community College with an Associate’s Degree in Early Childhood, then transferred to Brooklyn College where I got a B.S. in Elementary Education. I continued at Brooklyn College until I received my Master’s in Math Education.

In 1996, at the ripe old age of 24, I began teaching full-time at P.S.203 which is in a section of Brooklyn called Old Mill Basin. Once there, I held many different jobs and developed into a jack-of-all-trades. I got along with every child that crossed my path, just like I did during my babysitting career.

My days as a teacher were filled with:

1) The constant chatter of children, to which I added constant chatter of my own.

2) Paperwork, paperwork and paperwork.

3) Planning, organizing, and implementing lessons

4) Meeting deadlines

5) Adhering to a minute by minute schedule, including planned bathroom breaks.

6) Creating and grading homework and projects.

7) Writing notes and making phone calls home.

8) Making sure that I was always prepared and that my students were learning.

9) Planning and overseeing trips that I always managed to creatively connect to even the most boring topics.

10) Making copies

Within this list are things that I loved and things that I did not love so much. It was all worth it because it allowed me to be around children; to let my natural vocation as a teacher flourish.

Fourteen years of my life I put in that school before I was terminated at the ripe old age of 38 in June 2011.

Whenever I speak to colleagues, I find that I do a ton of reminiscing. Most of my sentences start with “when, I was in the classroom…” or “when I was a teacher…”. When that happens, my friends say “you will always be a teacher”. Their words make me pick myself up and brush the eraser dust off.

I am still a teacher when I listen to my own children chatter and laugh.

I am still a teacher when my children come home from school and I help them with homework, projects and studying.

I am still a teacher when my friends send their children to me so that I can help them with their tricky math problems.

I am still a teacher when I am talking to my own friends, neighbors, and complete strangers. I am asking a million questions and answering all of theirs.

I am still a teacher when I see a sign misspelled or a grammatical error in a book. I feel a need to get out a red pencil and start circling, highlighting and commenting. I even want to reach for the post-it notes.

I am still a teacher when I am trying to cheer a friend up, requiring me to dig deep into my humor arsenal to get a smile or a laugh.

I am still a teacher when I have to shuttle my children and their friends to and from school and all of their other activities.

I am still a teacher when I realize that every single second of the day has to be spent productively and accounted for. Yes, even bathroom breaks are still planned.

Despite the Department of Education’s efforts to deprive me of my life, liberty and happiness, they have not deprived me of my identity as a teacher.

That does not mean that my life has not been drastically changed. It has changed in ways that I could never have imagined. I was living decently when I was employed, raising my children and trying to keep my head above water like every other working person. Instead of a ”rags to riches”, my life since being terminated has been a ”rags to tattered threads” tale. It is not even remotely close to the life I led when I was gainfully employed in a “good” union job

My liberty has been buried. Yes, I am free to think but I always have this little pitchforked guy on my shoulder. He is constantly poking me. He is forcing me to self-edit EVERY SINGLE THOUGHT, WORD AND ACTION. Self-editing is essential in life but not to the extent of which I am speaking. That one moment years ago when the pitchforked man was not around constantly comes back to haunt me. People continue to judge me, my character and my abilities as a teacher based upon a few sentences I wrote years ago, sentences that I regretted and erased quickly after they were written.

As far as my happiness goes, I have been forced to pursue it even more. I have on the best and most expensive running sneakers. I am running as fast as I can. Yet, no matter how fast I run, I just cannot grab the baton from my partner’s hand. I can see it shining but I just cannot feel it. But, one day, I hope to have hold of it again.

So, despite the fact that I have been deprived of my life, liberty and happiness, I have not been deprived of my identity. YOU CAN TAKE THE GIRL OUT OF TEACHING, BUT YOU CANNOT TAKE THE TEACHING OUT OF THE GIRL.

Does New Jersey Stand?

Yesterday, I wrote about how the teacher evaluation law in New Jersey was a victory for the union and a sign of education reform losing steam across the country. While I still stand behind these assertions, it is obvious I painted too rosy of a picture of the new evaluation law. I communicate from time to time with a few NJ teachers and asked them for their feedback, and they all had some very interesting things to say.

From a NJ teacher’s perspective, this tenure law certainly is a frightening prospect. From a NYC’s teacher’s perspective, this tenure law is not as bad as many of the things that have happened to us over the past few years. I think this accounts for the tone of my article yesterday. If the governor of my state pushed to end collective bargaining, get rid of due process and institute merit pay the way Chris Christie did, he would have had our union holding his hand every step of the way. I was shocked by the fact that, by the end of the process, Christie got very little of what he wanted. This certainly is a foreign concept to us New Yorkers who are used to being beaten like piñatas with the club of value added, high stakes testing and charter school co-locations.

Nonetheless, NJ’s tenure law is wrought with danger. There is plenty of room for abuse by administrators. In some respects, the new law resembles some of the things going on in NYC. Before we discuss that, let us delve into the things that are, or have the potential to be, positive.

To start off, new teachers will have to work under a mentor for one of their first four years. I am a huge fan of mentoring new teachers, mostly because a mentor helped mold me into the teacher I am today. Now, to be sure, my mentor was a true veteran hired by the principal to do nothing but mentor the younger history teachers. Her only purpose in that building was to make us better and give us the keys to honing the teacher’s craft. I think proper mentoring can make or break a teacher’s career. Instituting a mentoring policy for teachers would dramatically improve the abysmal teacher retention rates, in my opinion.

The devil is in the details, however. For New Jersey’s young teachers, who will choose these mentors? How much experience will they have? Are they going to be required to give actual guidance, or merely get paid to be in the room so the district can say that a teacher was “mentored”? I suppose time will tell. Mentoring is a wonderful idea if it comes from a genuine concern to train the next generation of teachers and not merely find excuses to get rid of them before they get tenure.

Another potentially positive thing about the tenure law is that teachers will not be evaluated, even in part, by standardized test scores. Much of this has to do with the fact that NJ did not get approved for Race to the Top, unlike us lucky souls in New York. Leaving testing out of the teacher, not to mention the student, evaluation process is a good thing. It was something Chris Christie pushed for, no doubt with the prodding of DFER. The fact that it does not appear in the tenure law is a minor victory for the NJEA.

Yet, how teachers both young and old do get evaluated was one of the big questions surrounding the crafting of the law. Here is a good explanation of what the law finally said:

In each school, a School Improvement Panel will be created that will consist of a principal or his or her designee, an assistant or vice principal, and a teacher. The teacher will be a “person with a demonstrated record of success in the classroom,” chosen in consultation with the union.

The panel will be responsible for overseeing the mentoring of new teachers and will conduct the evaluations of all teachers. One interesting part is that the teacher member will not be allowed to be part of those evaluations, unless agreed to by the union.

Therefore, teachers have a hand in the evaluation process, although they will not be allowed to evaluate teachers themselves. The teacher on the panel must be approved by the union. In schools where there is a proper balance of power between administrators and union leaders, this might work out well. In schools where the union leaders are nothing more than rubber stamps for the administration, these panels have the potential to be terror squads. What is interesting, however, is that teachers have any hand at all in teacher evaluations. This is a different breed of animal from all of the other evaluation laws passed in the age of education reform, where testing and administrators are co-kings.

That is not all:

The New Jersey Education Association, the state’s dominant teachers union, wanted that provision, so not to throw their members into the difficult situation of teachers evaluating teachers. The American Federation of Teachers, the smaller union but representing Newark teachers, has asked that teachers be included.

I am with the AFT on this one. I think allowing teachers to evaluate other teachers is a good idea. I understand that the NJEA wants to avoid conflicts between its members, but it would be a step towards increased autonomy and professionalism to allow teachers a hand in evaluating teachers. All the same, the fact that teachers have any part in the evaluation process whatsoever has good potential, as long as the teacher is not a shill for the administration.

Now that the good aspects of the law are out of the way, we can look at the negative parts of the law, which are many. First, the evaluations of the board are final. There is no way a teacher can appeal an evaluation. This sounds eerily similar to what happens in New York City. The principal’s evaluation is pretty much the end, unless you want to spend the money to sue in a real court of law. The only things that a teacher can contest are the facts of the observation report or if the principal violated the contract in some way. The same rule applies to evaluations in NJ. A teacher can contest facts of an evaluation, but the evaluation itself is final. So, again, it comes down to who is on that panel and how it reflects the politics of the particular school.

Will the teacher on the evaluation panel be allowed to act as a witness for the teacher who is appealing?

Probably the worst part of the law was something I touched upon yesterday: two “inefficient” ratings in a row and a tenured teacher can be brought up on incompetency charges where they are in danger of losing their license. Chris Christie got what he wanted here. He had been complaining about how few NJ teachers were ever fired for incompetence. With evaluations being final, principals can harass teachers they do not want out of the system. This is despite the fact that teachers actually can appeal a bad evaluation if they prove it is the result of discrimination or nepotism. Any teacher from any system will tell you it is easy for a principal to harass a teacher without leaving a paper trail, making it tough to prove in front of an independent third party. In the end, what this amounts to is a serious weakening of tenure.

The picture becomes even more grim when the new arbitration process is taken into account. This is the process teachers will go through when appealing an evaluation:

Eight arbitrators will be picked by the NJEA; three, by the AFT; nine, by the New Jersey School Boards Association; and five, by the New Jersey Principals and Supervisors Association. Only if a vacancy goes unfilled will the state commissioner appoint an arbitrator….

The rules of dispute are critically important. The law explicitly allows the arbitrator only to decide if proper procedures were followed, and not the merits of the teacher evaluation itself. (emphasis mine)

Again, not only are evaluations final, but the parts of evaluations that can be contested by a teacher are subject to a similar process that NYC teachers go through during 3020a hearings. As we have seen on so many occasions, no matter who picks these arbitrators, the school district is signing their checks and they seem all too cognizant of that fact. There is very little prospect of a NJ teacher successfully contesting any part of their evaluations, leaving them totally at the mercy of their school’s panels which are dominated by administrators.

In short, NJ’s new teacher evaluation law weakens tenure. If I was a NJ teacher, I certainly would not be happy. However, as a NYC teacher, I am struck by what is not in the law and how the governor came away with so little of what he wanted. This is why my post yesterday was so upbeat. It is like someone living in North Korea looking over the border to China and thinking the people there are so much more free. While that might be the case, there is no freedom in any absolute sense. Same thing with this law. Teachers in neither NJ nor NY are free in an absolute sense, although the reformers have made greater headway on this side of the Hudson.

I wish the teachers of New Jersey well. One can only hope that this is where your fiasco ends and that your union will hold the line in the future. As for us in NYC, our union has no line.

Farewell, Old Friend

Joshua Javits (left) takes time out from firing teachers to present an award.

Recently I heard a rumor that Joshua Javits is no longer working as an arbitrator at the New York City Department of Education. All I can say to that is: great!

His tenure at the Administrative Trials Unit in the DOE has been marked by extreme prejudice against teachers. A DOE insider I respect has said that he “fires everyone”, regardless of the facts of the case or the charges brought.  Betsy Combier, who has sat in on more 3020a hearings than perhaps anyone, dubbed Javits as being one of those arbitrators who were “hired to fire”.

Very recently, I had the displeasure of reading one of Javits’ last decisions. This was a case of a teacher who I know and respect whose charges were absolutely bogus. I was not prepared for what I read. It was vitriolic, vicious and seemingly personal. He went through great lengths to describe the absolutely horrid nature of the teacher. In fact, the words in his decision were the exact words the DOE lawyer used during the hearing. All he did was paraphrase the DOE lawyer’s argument, while ignoring every counter-argument proffered by the defense.

What was most disturbing was that he gave absolutely zero grounds as to why he bought the DOE argument. He put forth no original reasoning and, most likely, no effort in constructing this decision. It was an incoherent tapestry of contradictions, deductive reasoning (the DOE says that the teacher is bad, therefore everything he did was bad.) and outright lies. It was a carbon copy of the DOE’s position.

His punishment, which I am not at liberty to discuss, was equally arbitrary. He spent pages on spewing venom about the teacher. Then, at the very last sentence, he reveals his punishment. Again, there were absolutely no grounds provided for this punishment. There was no “this teacher is so horrible and this horrible punishment I set forth is just for this reason.” He did not cite any precedents, previous cases or chancellor’s regulations. He merely rewrote the DOE’s argument and said “here is the punishment”, and that was it. It was completely arbitrary.

It is arbitrators like Javits that have caused real courts of law to overturn more DOE arbitrator rulings than ever. The fact that the courts are getting involved at all says all that needs to be said about the integrity of the 3020a procedure.

Joshua Javits has no integrity.

Does it matter to him that so many of his decisions get overturned by real judges with an eye for real evidence? Absolutely not. He just fires, fires, fires and lets the chips fall where they may. If his rulings get overturned, he does not care. He gets paid his $1,800 a day regardless. You would think the DOE would fire him due to all of the legal fees he has caused the DOE from all of his cantankerous rulings.

So where is Javits now?

Today, President Barack Obama signed an Executive Order creating a Presidential Emergency Board to help resolve an ongoing dispute between major freight rail carriers and their unions.

That is right freight rail carriers of America, guess who is coming to dinner? The Montgomery Burns of arbitrators will have a hand in determining the future of your career. Just hope that he does not hate you as much as he hates educators. If he does, just hope that the other arbitrators on the board will outweigh whatever invective he throws your way.

Just remember:  Joshua Javits has no integrity.

I noticed something interesting about the Javits bio the White House put up:

Joshua M. Javitsis a neutral mediator and arbitrator and serves on numerous permanent arbitration panels.  He served on a Presidential Emergency Board in 2007. From 1993 to 2001, Mr. Javits was a Partner at Ford & Harrison LLP where he also served as executive director of the Labor Relations Association of Passenger Railroads. He was also an adjunct professor at the Georgetown University Law Center where he taught courses in labor arbitration, transportation labor law, and alternative dispute resolution. He was Chairman and Member of the National Mediation Board from 1988 to 1993.  He began his career as a trial attorney with the National Labor Relations Board. Mr. Javits has represented both labor unions and management, at different times, and is on the rosters of the American Arbitration Association, the Federal Mediation and Conciliation Service, and the National Mediation Board.  He has been rated “AV” – the highest rating – by Martindale Hubbell’s Best Lawyers in America since 2001.  Mr. Javits is a graduate of Yale College and Georgetown University Law Center.

It does not mention his time at the DOE. I mean, this was the job he left in order to be on this board. I suppose he is not too proud of his tenure there.

It is easy to have all of these accolades when you are the son of one of the most well-known New York Senators in history. One wonders why he never soared to the heights his father did. Could it be a lack of integrity that follows him like a foul odor throughout everything he does?

Joshua Javits has “represented labor” and served with the NLRB. He is a perfect fit for the era, since the American worker has steadily been losing ground over the past 35 years. We can see why if all NLRB attorneys have the same values and methodology of Joshua Javits.

At least he is gone from the DOE. Now they will have to find the next overpaid shill to fire teachers indiscriminately regardless of the facts. Javits sure got the job done for them, however.

Good riddance to bad rubbish.

A Very Close Look At Tenure

South Bronx School posted the first twelve of what promises to be many hundreds of pages of transcripts from Christine Rubino’s 3020a hearing. This is the supposedly fair hearing process through which teachers in New York City accused of wrongdoing have to go to determine whether or not they get terminated.

This is tenure in action. Anyone who still clings to the fallacy that tenure means a job for life should read these transcripts. By the way, the “tenured” Christine Rubino was terminated in this hearing.

It has been some months since I have read a book. Yet, in that time, I have read a few 3020a transcripts from different teachers and I am always enthralled by what goes on in those secretive little rooms on Chambers Street. This is the type of reading material that can be made into a great and sad movie, like a Greek tragedy or, more appropriately, a farce.

From a distance, the 3020a process resembles a legal proceeding. There is a judge, known as an arbitrator. There are lawyers: a defense attorney (appointed by the union by default) for the teacher and a lawyer for the Department of Education (the one who tries to terminate the teacher).  There is a stenographer keeping records. There are supposedly neat protocols and procedures determined by state labor law.

These protocols, again, resemble a court of law. There is a pre-hearing where the lawyers exchange evidence, the most important of which is a list of witnesses. This process is called “discovery” in a regular court of law (correct me if my legalese is off here). Then, witnesses are examined and cross-examined by the lawyers. Attorneys can object and have those objections sustained or overruled by the arbitrator.

Upon closer look, however, the fancy sheen of these hearings hides a rotten core. We can see this rotten core in the transcripts of the Rubino case.

As is mentioned in the transcripts, Christine rid herself of her union-appointed lawyer during the pre-hearing. This is understandable. Teachers who have gone through this process raise concerns that the union lawyer is not really on their side. For example, union lawyers always advise teachers to close off the hearing to the public. This allows them to work clandestine deals with the arbitrator and DOE without input from the teacher. These deals routinely end up with the teacher getting either the pink slip or forced resignation. It seems that the union lawyers have an interest in shepherding as many veteran teachers out of the system as possible. In many cases, the lawyers advise the teacher to resign even before the hearing begins. The same thing can be said for union leaders at both the school and district level who, as I have seen on many occasions, advise teachers facing 3020a charges to merely lie down and die by allowing the DOE to take their careers from them. Therefore, even before the pre-hearing begins, the union, the supposed defender of the teachers, beats it into the teachers’ heads that there is no hope.

How hard, then, do you expect the union to fight in a teacher’s favor? Campbell Brown says the United Federation of Teachers goes to bat for sexual predators. In reality, they do not go to bat for anyone.

So, after being subject to the union’s defeatist attitude for months, Christine fired her union attorney. She saw him in (in)action during the pre-hearing and knew she was toast if he continued to represent her. She signed off on his release, at which point he gave her all of the pertinent documents given to him by the DOE during discovery. This was late in the day of February 16, 2011. The hearing was scheduled to start the morning of February 17, 2011. Christine had mere hours to scrounge up the money to find a new, non-union lawyer. She also had to get home to feed, bathe and tuck in her two young children who she raises by herself.

Needless to say, when the next day rolled around, she was short a lawyer. She knew that she was going to retain Bryan Glass as her attorney, but did not have the time to get him the $5,000 he charges for his services. She had the money, which she had to scrap together throughout the course of the previous evening, but not the time to get it to him. All she needed was an extra day, an extra few hours even, to get him the money and have him come to Chambers Street.

Therefore, the entire first day of Christine’s hearing (the day covered by the transcript at the South Bronx School website) revolves around the DOE lawyer maneuvering to start the proceedings without Christine’s lawyer. He had a lot of help in this from the arbitrator and our old friend, Randi Lowitt.  Christine was faced with the prospect of being her own lawyer that day. She at least wanted an hour to go over the humungous stack of files given to her the day before so that she could know who the DOE was going to call as witnesses that day. As she said:

… I had just gotten the packet. So I would like to read it. I really haven’t been given much time. Once I left Mr. Glass, I went home to my two children and was enthralled in homework and bath and bedtime. So I could not read that. I would like to have some time to read this and go through the documents. I need a good hour or two. And Mr. Glass will get his money by the end of today or tomorrow, so that he can take on the case. So, right now, I have no counsel.

And our good friend Randi Lowitt responds later:

The case, as I told Mr. Glass on the phone last night, and I know he wasn’t representing you, and as Mr. Kelly (the union lawyer) told you yesterday during the course of the prehearing conference, the case is properly scheduled. The timing is properly met. Nothing has been improperly done, relative to the scheduling of this case. And that is why today’s hearing has not yet and will not be adjourned. It is a properly timed, properly commenced action. And it will proceed today. You will be able to participate in it, to the extent that you wish. The Department has the obligation to bring the case forward. So, unless I’m speaking out of turn, Mr. Gamils (the DOE lawyer), he’ll make an opening statement. I assume he has a witness or two here for us to hear. He’ll question them. You’ll have the opportunity to cross-examine them. And that’s the way the case proceeds. And the next hearing date is February 28th. So there is plenty of time, between now and then, if you chose to retain counsel…

Therefore, because the case is “properly scheduled”, it does not matter if Christine has a lawyer or not. Christine can cross-examine the DOE’s first witness, which happened to be Christine’s principal, on her own. For all of the proper rules and procedures established by 3020a, apparently a properly represented teacher is not one of them. Even accused terrorists at Guantanamo Bay get some sort of representation. But, hey, we are teachers. We are worse than terrorists in the eyes of everyone else.

Of course, the DOE lawyer chimes in later with this revealing nugget:

I don’t think it’s appropriate for the Department to make any type of comment on Ms. Rubino’s statements. All we’re going to say is that we believe that she was well aware that this hearing was commencing by February 3rd. She had requested the hearing. She has spoken to counsel previously. She was adequately represented yesterday. The Hearing Officer made a representation that the hearing was commencing today. She still chose to fire her counsel and she has come today without counsel. Department is ready to proceed and, at that point, we will rest making any comments regarding her statements…

So, Christine was told way ahead of time that the hearing was going to start that day. Despite that important fact, she still chose to fire her lawyer. What a horrible decision on her part! I mean, she knew the hearing to decide her career and whether or not she will be able to feed her two children was starting February 17, 2011, and she had the gall to not want her incompetent, defeatist and uncooperative union attorney to be in charge of her defense. She is just so difficult. To hell with her representation. If she does not want to play ball the way it is supposed to be played, she can defend herself. We, the almighty DOE, are ready to proceed. After all, we had an army of high-priced New York City Police Department detective drop-outs investigate her for a year, go through her garbage, question her friends and write up reports through Richard Condon’s office, and we did it with no time limit and no pressure whatsoever. We took our sweet old time and spent hundreds of thousands of dollars railroading Christine Rubino for the past year. It is only fair that she have no opportunity to get real representation or even get an hour break so she can read the thousands of pages of “evidence” we handed off to her deadbeat lawyer yesterday. Most of that evidence we have absolutely no intention of using anyway, since it is a tactic we use to prevent the other side from properly preparing a defense.

Yes, this is exactly what Mr. Gamils, the DOE lawyer, is saying.

To her credit, Christine held her ground. She held the floor as long as she could to reiterate her point that she needed proper representation that would take her one measly old day to get. She kept explaining how it was not fair that she was being forced to proceed without representation, or at least a break to give her the opportunity to prepare. At one point, she even said that she felt as if she was being punished for firing her union lawyer. That is precisely what they were trying to do. It is typical DOE: retaliation for not playing their brand of filthy ball. Retaliation with the complicity of the union.

And then we get to my favorite Randi Lowitt quote of the entire hearing:

Oh, okay. I have been reviewing in my mind the conversation we had over the past hour or so. And while acknowledging that there is no obligation at all, anywhere, for me to do so, I am going to grant Ms. Rubino’s request for an adjournment for today. Please be clear, on the record, that if State Education does not cover my fee–obviously, I am not going to let the DOE cover it because the DOE is not asking for the adjournment–and it will be your responsibility to cover my fee, Ms. Rubino. Do you understand that? If the State Education Department does not cover my fee–but I’m going to submit it to them because we have been working this and that’s the way it goes. Um, but I do not want to disadvantage you, especially when it comes to questioning witnesses, with not having counsel present. Acknowledging the fact that although you were told, yesterday, that the hearing would go forward today, you were not able to retain counsel as expeditiously as you might have wished….

So, Randi Lowitt, a woman who gets paid upwards of $1,800 a day, does not want to adjourn because she fears she will not get paid her daily “fee”. She demands that the woman she knows she is going to terminate, the woman who is blowing her life’s savings on salvaging her career, pay her daily fee if “State Education” does not cover it. This just so Christine Rubino can get halfway decent representation. Christine’s children have to starve so Randi Lowitt can keep driving her Mercedes (I assume) and living in her McMansion (I assume). Apparently, people can make a great living from destroying teachers and making inane sports references (read the transcript) all day long.

Of course, this could have also been Lowitt’s way of trying to dissuade Christine from asking for an adjournment, in which case it makes Lowitt a liar and a bully. Liar, bully, extortionist or teacher-killer, you decide.

Yet, Christine stuck to her guns and received the adjournment she was seeking. As you can read in the transcript, she refused to be bullied by the DOE, Randi Lowitt and Theresa Europe.

Unfortunately, this was just the start of many daily uphill battles Christine Rubino had to fight. We know what happened at the end of this hearing. We also know that the New York State Supreme Court overturned Lowitt’ s Draconian termination. Unfortunately, Lowitt got the case again and suspended Christine for two years without pay. That is two years of being unable to pay her mortgage or feed her children. All the while, Randi Lowitt lives high on the hog terminating, extorting and taking revenge on teachers.

This is another close-up of the 3020a process. This is what “tenure” looks like for New York City public school teachers. Oh, what cushy gigs us teachers have.

The Joke of 3020a

As you know, I have been promoting a public 3020a hearing that began today. The principal will most likely testify today, so I encourage you all to show up to 49-51 Chambers Street at 10am if you can. Ask for the hearing being conducted by Joshua Javits.

My role as a potential witness precludes me from discussing the specifics of the case. I will just say that 3020a is a rotten process that is heavily biased against the teacher. Here is a brief video of former union lawyer Brain Glass on the 3020a process.

Betsy Combier of the New York City Rubber Room Reporter site has been saying this for years. I met Betsy for the first time yesterday. If you have not seen her website, take a look at the 3020a horror stories she describes. This is what “tenure” and “due process” has become in New York state. Imagine what it is like in these “right to work” states.

The process has become so biased that real courts of law are overturning more 3020a decisions than ever before. It happened in the case of Christine Rubino, whose case Betsy describes in her latest post:

Christine Rubino taught for 15 years and was, according to the Principal of her school, an “excellent” teacher. On June 23, 2010 Christine posted on her Facebook page to her 120 friends early in the morning that she felt terrible about a young girl drowning while on a trip with her class the previous day, as reported in the newspapers. Later that afternoon, she posted a comment that her kids were the “devil’s spawn”, which she took down a few days later, not thinking that anyone outside of her small circle of adult friends had seen it, and knowing that she did not treat her students abusively and that her comment was not reflective of her work, herself, or her feelings about her students.

A single arbitrator on the UFT-NYCDOE 3020-a Arbitration Panel, Randi Lowitt, terminated Ms. Rubino under what seems to be a “zero tolerance” mandate in NYC for tenured teachers, no matter how well or badly the tenured employee does in any classroom. Am I saying that arbitrators in NYC on the 3020-a panel chosen by, supposedly, NYSUT, the UFT and the DOE, are not “neutral” as required by statute and the rules of the American Arbitration Association?

Yes, I am.

Traditionally, courts of law are hesitant to overturn the decisions of independent labor arbitrators. They only do so when the decision of the arbitrator is “shocking to the conscience” of the court. What does it say about the process when so many cases are being overturned?

I can only hope my friend is able to get out of this process with her career. She has been through enough as it is and certainly does not deserve to lose her career over a joke. It would be “shocking to the conscience” if the worst were to happen.

Teacher Fired For Student Horseplay

Instead of grading papers, teachers should be on the lookout for "oral sex".

A 3rd grade teacher in Tallulah, Louisiana was fired recently for failing to notice two of her students having “oral sex” under a desk during class.

First question: how do two 3rd graders have “oral sex”?

Since the details of what actually took place under that desk have, understandably, not been released, the only things we have to go on are sensationalized news headlines. Children that age usually do not have a concept of “sex”, let alone “oral sex”. They might explore, play doctor and do things that adults consider “inappropriate”. However, whatever is done is done out of curiosity and sheer obliviousness to what we adults consider right and wrong.

Therefore, there should be a great deal of thought before what happened under that desk is construed as “oral sex”. That term connotes a certain intentionality that 3rd graders just do not have.

Second question: why is the teacher on the hook for this?

According to Lisa Wilmore, Superintendent of Madison Parish School District, “We have to make sure we have people in these classrooms who are monitoring our students”. Fair enough. Two 3rd graders are under a desk doing God knows what. What was the context? Notwithstanding all of the issues around calling what 3rd graders do “oral sex”, how many children were in that classroom? What kind of activity was the class doing? Was it a lecture, group work or some sort of individualized instruction? How many years was this teacher on the job? How much training and support did this teacher get from her administrators?

Most importantly, how is firing this teacher going to ensure that people are in the classrooms properly monitoring students, as this superintendent claims is her goal?

Third question: this is what happens in “right to work states”.

I know this is not a question. Louisiana is a “right to work” state, meaning that employers can hire and fire anyone at will, including public employees, without due process or even a reason. This story is really about one thing, and that is a grandstanding superintendent. Lisa Wilmore is trying to win political points by looking like she is cracking down on incompetent teachers, a very popular thing to do in this day and age.

This is yet another argument in favor of teacher “tenure”. For the millionth and one time, “tenure” does not mean a guaranteed job for life. Tenure is merely a civil service protection to ensure that, if a teacher does get fired, it is for a legitimate reason. These protections ensure that teachers can act as advocates for children without fearing retaliation. They also prevent the teaching profession from becoming a patronage position, a supply of jobs that exist to reward supporters, relatives and other political lickspittles. Lastly, as we see from this story, tenure protects teachers from superintendents and municipal leaders who want to score cheap political points by looking all tough. It would have prevented this teacher from Lisa Wilmore’s meat axe.

Tenure does not exist in “right to work” states and it has been eroded away in every other state. Yet, teachers are expected to ensure student success, supervise the actions of every student in oversized classrooms, notice signs of abuse, provide a nurturing environment, be a shoulder to cry on and essentially play the role of parent, counselor and disciplinarian. All of this while we get bashed in the media, work under outdated contracts and generally are expected to do more with fewer resources.

At the very least, some sort of tenure process in this case of “oral sex” would have generated discussion over the legitimacy of calling anything 8-year-olds do by such a term. Decency and accuracy in the media are sacrificed for the sake of running a salacious headline. They know it works. This is the same media that professed outrage over Bill Clinton’s affair while at the same time providing every last detail. People got on their Puritanical high horses after reading each sordid fact in rapt attention.

If, in fact, two 3rd graders were having “oral sex” under a classroom table, with all of the intentionality that this term connotes, how is the blame not squarely on the shoulders of the parents of these children? What is going on in these children’s homes that they know of such things? How are their parents being held accountable in any way?

When we grow up as a nation, we might actually see that teachers can only work with the children who sit in front of them. Those children are raised not only by their parents, but the communities in which they live and the media to which they are exposed. With headlines like these, is it any wonder that 8-year-olds are doing what they claim they are doing?

Before getting self-righteous over “incompetent” teachers, remember the words from scripture:

“You hypocrite, first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother’s eye.”

Public 3020a Hearing Coming Soon

For those that do not know, 3020a is the process that teachers in New York City must go through when facing termination. Some teachers choose to make them private and others opt for a public hearing.

Although I cannot yet reveal specific details, this case revolves around a Facebook post. The short story is that the charges are highly frivolous, much more frivolous than the case of Christine Rubino. Rubino was terminated at 3020a and spent two years getting that termination overturned by a real court.

Anyone who has the time should stop by. It promises to be a glimpse into the sordid, twisted and paranoid world of the harassment of teachers in the age of education reform. As the case shapes up, there will be more specific information on what evidence will be admitted on which dates.

Check the sidebar of this blog for updates on important dates and times related to this case.

Address: 49-51 Chambers Street in Manhattan

Start Dates: April 4th and 5th, 2012

Start Time: Usually 10 am

16 Reasons To Fire Mr. Hand

Front page New York Post photo of the evil Mr. Hand.

I’m not much of  a movie buff but I do have my favorites. Fast Times at Ridgemont High is one of them. Although considered risque for its time due to its portrayal of teenage sex and drug use (not to mention the bare-chested Phoebe Cates scene), it is pretty tame by today’s standards.

My favorite character is Mr. Hand the history teacher, played by Ray Walston. He runs a tight ship.

Imagine if Mr. Hand was teaching in Bloomberg’s DOE.

He is too much of a veteran and too overpaid. His principal, who is half his age with 3 years of teaching experience, needs to trump up some bogus charges in order to terminate his license.

How many things can you twist out of context in order to terminate Mr. Hand?

1) Locked his classroom doors,  fire hazard.

2) Grabbed hat off student’s head, assault.

3) Snatched cigarette out of student’s mouth, assault.

4) Took candy bar from student’s hand, assault.

5) Hovered over young girl’s desk and talked about coming to her house, sexual harassment.

6) Sarcastic towards Sean Penn by saying “I get so lonely when all my students aren’t here.”, verbal abuse.

7) Ripped up Sean Penn’s schedule in order to cause him mental anguish.

8) Revealed students’ test grades in front of class, causing them all mental anguish.

9) Mistakenly said that Platt Amendment was an amendment to “our constitution” when, in fact, it was an amendment to Cuba’s constitution, incompetence. (We know the DOE strives for accuracy in teaching).

10) Lectured class about truancy, verbal abuse.

11) Menacingly waves his finger at Sean Penn saying “food will be eaten on your time.”, assault.

12) Wrote “I don’t know” on the board in order to cause Sean Penn mental anguish.

13) Said Spain had a “disorganized Parliament”, racist speech.

14) Oh my God, did he say “what in the hell is going on here?”

15) Took Sean Penn’s pizza, unlawful confiscation.

16) Encouraged students to eat pizza, promoting bad health. (We know Bloomberg is serious about our health.)

Mr. Hand was called into a meeting with the principal and his chapter leader regarding certain accusations. These accusations were never specified but, for the good of the students, he was reassigned to Tweed pending investigation by OSI.

After Mr. Hand left the office, the principal immediately got on the phone to “legal” and said he wanted Mr. Hand terminated. Legal then coached him in exactly how to write up the accusations to make them sound as horrible as possible.

Both the principal and OSI wrote reports alleging that Mr. Hand “physically and verbally assaulted several students”, “had inappropriate sexual contact with a teenaged girl”, “locked his students in a classroom creating a safety hazard”, “partook in hate speech” and “demonstrated gross incompetence”.

He is awaiting a 3020a hearing that will drag on for several months and years in the hopes that he will just quit. The arbitrator assigned to the case knows that the principal wants him terminated, so he will do his best to oblige.

Meanwhile, the NY Post is set to run a headline tomorrow morning “Worst Teacher in the City”, with a huge picture of Mr. Hand. The tagline will read “racist pedophile harasser collects salary while on suspension.”

The internet version of the story will have 50 comments underneath from readers bemoaning “tenure”, “lazy teachers” and “pedophiles”. There will be lots of righteous outrage, like “why does he still get to collect his big fat salary?!” and “I have to produce in order to keep my job, why do teachers get to have tenure?!”

Sound far-fetched?

There are hundreds if not thousands of teachers in Mr. Hand’s position all over the city.