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Thursday, July 20, 2017

The Wall Street Journal Says ATRs Are NYC's "Worst" Teachers

The article in the esteemed Wall Street Journal re-posted below is an opinion piece of the worst kind. The Editorial Board threw facts out of the window in order to attack the Absent Teacher Reservists (ATRs) who are NYC's "worst" teachers, and ATR is the new name for the miscreants who sat in the rubber rooms.

Wrong, ugly wrong.

- first of all, it is very easy with the new set of arbitrators on the NYC permanent panel in NYC (and nowhere else is there a permanent panel) to fire anyone. If you do not know (as most private attorneys don't, especially if they are on their first 3020-a, or second-third) all the ins and outs of the UFT contract, the ATR agreement, buyout, Fair Student Funding, senior transfers and exactly how the Danielson rating system and HEDI fail, anyone can be fired at any time. 3020-a hearings are a minefield, even for my legal team after 14 years of observing and working on 3020-a cases. Every case has a WHAT???!!! moment that makes it unique and unforgettable. The charged Respondent can win, if the representative - the legal team - is experienced enough to know the minefield and how to defuse it.

-secondly, many (not all, true) ATRs are senior teachers at the 20+ years into teaching, usually with all S ratings until the Danielson rubric raised its horrible head and the principal decided he/she was too expensive to keep on the school budget. Without senior transfers, the only way a principal can get an expensive employee out of the school is to charge that employee with anything, i.e., sharpening a pencil too long, if that's what kind of 3020-a charge which must be made up.

- third, the rubber room folk waited for 2-15 years to have their days in arbitration, and that was the fault of over-anxious principals dumping anyone who would not do something or, who would. Mayor Bloomberg woke up one day and realized that there were not enough hearings and too many people in the temporary re-assignment centers ("TRCs") . He did what all politicians do when confronted with a mistake they made: first, try to hide the facts from the newspapers (that did not work, I made sure of it when I used to work for the UFT), then, try to make the mistake go away (not necessarily fix it, because then it will look like you are admitting the mistake). But the rubber roomers are almost always folk who had not had a hearing yet. ATRs are employees who have been excessed after a school was closed, or who won the 3020-a and did not get fired. There is a reason why the tenured employee did not get fired!!!! Principals lie under oath, and tell their AP, parents, students, staff to lie as well. Everyone follows a script. In my opinion, most people are bad liars. You can spot a lie immediately, because the person who does not tell the truth gets confused, and loses track of what they said, and change their story. When I read the transcripts to prepare for closing arguments, the lies stand out as if there were red highlights.

- fourth, the Editorial Board did the easiest thing for people who have made their minds up and refuse to see anything different (which is surprising, considering that the Wall Street journal is widely respected): go with the prevailing theory. The Board is misinformed, but probably could not look at any other versions than what their funders wanted, which is disappointing.

- fifth, many ATRs that I know are the best in the business. They are intelligent, hard-working, terrific individuals who asked the right question (why do I have to change the grades? Where's the money?) to the wrong person, and before they can blink are being accused of harming a student, having sex with a child in the classroom, saying something that "upset" someone, etc. But, when you look deeper into the situation, you find out it never happened.

Anyway, articles like the one below are extremely harmful to all the wonderful ATRs out there, and I apologize for re-posting such an ugly piece of someone's miniature brain. But I could not resist the urge to tell the Wall Street Journal Editorial Board that this post is just, plain, stupid.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

NYC Chancellor Carmen Farina, NYC Mayor Bill De Blasio

The Teachers No One Wants

New York forces its worst teachers back into classrooms

For decades the United Federation of Teachers has protected perverts, drunkards and other classroom miscreants from being fired. Now the union’s allies plan to put some of these teachers back in New York City schools.
On Monday the city’s Department of Education said it will require city schools to fill between 300 and 400 vacancies from the Absent Teacher Reserve, or ATR. This is the politically sanitized name for the “rubber rooms” where teachers who couldn’t be fired but no one wanted would sit from 8:15 a.m. to 3:15 p.m. collecting a paycheck as they napped or played cards. After a horrified public learned of the practice, the city abolished rubber rooms in 2010.
But many of those same teachers are now in ATR, which is no longer a physical room but remains a form of employment limbo. Some teachers are there because their last school closed. But trained, licensed teachers in ATR can apply for vacant positions in 1,700 other public schools. If a teacher can’t find another job in such a large system, there’s probably a good reason principals don’t want him.
Three years ago schools Chancellor Carmen Fariña vowed “there will be no forced placement of staff.” But now she would effectively mandate that schools take teachers they initially rejected. This includes teachers who end up in ATR because they drink too much, have abused students, or for some other misconduct that renders them unfit for the classroom.
The underlying problem is a tenure system that makes it all but impossible to fire teachers after they’ve spent four years on the job. Those suspended for misconduct continue to receive pay, pension contributions and benefits as disciplinary hearings stretch on and on, sometimes for years. Unions have the power each year to approve or reject the arbitrators who decide misconduct cases.
Under this rigged system, New York fired a mere 61 of its 78,000 teachers over a decade, the American Enterprise Institute found in 2014. Each teacher in ATR costs taxpayers about $100,000 a year, so no wonder many have declined the city’s $50,000 buyout offers.
The logical solution would be to make it easier to fire bad teachers, but Mayor Bill de Blasio is a wholly owned union subsidiary. Poor students will bear the real cost of his rubber-room rebound as their education suffers with a subpar teacher—or worse. No wonder tens of thousands of parents have put their children on waiting lists for charter schools that are free to hire and fire teachers on the merits, not by union diktat.
From Betsy Combier:
And then there is, of course, Chalkbeat, a well-known hater of teachers and teacher unions:

New York City principals balk at plan to place teachers in their schools; some vow to get around it
Many New York City principals are unhappy that the city is planning to place teachers directly into their schools — and in some cases, they’re vowing resistance.
Department of Education officials announced last week that they would place up to half of the 822 teachers who currently do not have positions into jobs that haven’t been filled by Oct. 15. Those teachers are part of the Absent Teacher Reserve, a collection of educators moved to the pool for disciplinary reasons or when their positions were eliminated. They remain on the city payroll in an arrangement that has generated political tension for years.
The move by the city reverses Chancellor Carmen Fariña’s promise in 2014 to avoid “forced placement” and raises questions about principals’ already fraying sense of autonomy. The city claims the plan is not forced placement because it would only apply to vacancies, as opposed to displacing teachers who are already employed. Regardless, many principals aren’t on board.
Some say they’ll avoid any attempt to place teachers at their schools, even if that means obscuring open jobs from the city’s hiring systems past October.
“I’m going to make sure my school doesn’t have a vacancy,” said one Bronx principal who wished to remain anonymous due to the sensitive nature of the topic. “I’m not going to post a vacancy if someone will place an ATR there. I’ll be as strategic as I can and figure out another way.”
Some principals raised concerns about the quality of the teachers in the pool. Education department officials could not readily provide the percentage of teachers in the pool who are there for disciplinary reasons, but a 2014 report estimated it at 25 percent. The same report said another third had received unsatisfactory ratings and half hadn’t held a classroom position in two years or more.
“Many of them have been coming from schools that have been closed down or subject areas that were cut,” said Scott Conti, principal of New Design High School in Manhattan. “The majority of them were at schools that were highly dysfunctional.” He noted that some may have been out of the classroom for years and not getting proper professional development, effectively hindering their performance as teachers.
Conti said he did hire a teacher from the ATR pool three years ago, through the standard procedure he would use to hire other teachers. He objects to the idea of being forced to hire someone whose effectiveness he could not fully judge.
“It’s never good when somebody from outside a school decides to fill in a vacancy in a school,” Conti said. “ It’s scary that some teacher could be put in your school that you have no choice about.”
Other principals were more harsh. One Bronx principal said multiple experiences working with ATR teachers sent to the school for monthly rotations in the past left the impression that those in the reserve are “not qualified, with very few exceptions.” Other principals agreed, suggesting that if the teachers were high-quality candidates, they probably would have found positions on their own.
To circumvent the new policy, some principals said they might check in with all their teachers early in the hiring period to be aware of potential future vacancies. If there is a vacancy in October, others said they’d consider hiring a long-term substitute to fill the position rather than leaving it open to an ATR placement.
The city says the new approach will be more stable than having teachers in the ATR rotate monthly, and will allow schools to more closely support and supervise the teachers in their building. It plans to work closely with principals on the hiring.
“We will work to find the right fit, and hear and work through concerns that they might have,” education department spokesman Will Mantell told Chalkbeat last week. “But ultimately, we do have discretion to place an educator in a vacancy that exists, and it kind of makes sense.”
Schools will still have final say over whether the teachers are permanently hired. If at the end of the school year, the teacher is rated as “effective” or “highly effective” in the observation portion of their evaluation — performed by principals or other school administrators — that teacher will be permanently hired to that school.
It is unclear if any of the ATR teachers placed into schools this coming fall could have a background of poor disciplinary conduct, or if the teachers placed would come solely from the share that are in the pool because they were excessed.
“The DOE has discretion on which educators in the ATR pool are appropriate for long-term placement, and may choose not to assign educators who have been disciplined in the past,” education officials said.
Last year, the city offered an incentive system to encourage schools to hire from the ATR pool. During that school year, 372 teachers were hired from the ATR pool under a DOE policy that subsidized the cost of the teachers’ first-year salaries by 50 to 100 percent. Those incentives will not be offered with the placements expected this fall.
Daniel Russo, principal of Walton Avenue School in the Bronx, said he has had positive experiences with the two teachers he hired from ATR pool in previous years. He added that though ATR teachers sometimes have a gap because they are coming from a different school — and sometimes not a high-performing school — his school is able to fill that gap and assimilate the teacher to the school’s culture and expectations.
Still, he noted, finding the right fit between candidates and schools could be a “challenging undertaking” for the city.
New Design’s Conti fears that challenge will disproportionately fall on schools like his that struggle with fluctuating enrollment.
“These teachers are not going to end up at Lab, they will end up at places like New Design where the positions will open up,” Conti said, referring to the selective and successful NYC Lab School for Collaborative Studies. “Schools with the most unstable populations, serving the neediest kids is where the low-functioning teachers will end up.”

Wednesday, July 12, 2017

The Coming Doom For Absent Teacher Reservists (ATRs)

Charlotte Danielson

We know that the UFT is not including ATRs in any negotiating. ATRs, Absent Teacher Reservists (my word) are not being protected from abuse and wrongful ratings by Field Supervisors, Peer Validators, and Principals who just want to get rid of tenured employees tainted by 3020-a charges or a school's closing.

By the way, for all those readers who don't know me, I have been an advocate for employees of the Department for 14 years, and I am not an Attorney, but work with 4-5 attorneys as a paralegal. I fight for a person's lawfully given rights which, as we all know, are denied by the Department constantly. What I would like to make clear is that when I say an ATR is a "substitute", I do NOT mean anything degrading by this, so I apologize for any miscommunication. I'm at a loss at what title to call ATRs, who have been put into an impossible situation. I just want to make clear that any reference to a "substitute" for a person who is an ATR just means I am looking for a better title, but I'm on your side, always have been and always will be.

As I said in my previous post, the 2017-2018 school year promises to be a big mess for ATRs, who may be assigned to a position which has not been filled ( because no one wants it) by October 15, 2017. Then these tenured substitutes will be rated under the Danielson Rubric, where anyone, even the most brilliant of employees, can be rated "Developing" or "Ineffective" without any evidence proving their incompetence. As Charlotte Danielson says herself, the Danielson rubric was never supposed to be used for rating senior teachers, only to give new teachers some guidelines on good teaching techniques:

Prohibit The Department of Education Lawyers From Using The Danielson Rubric For Observation Reports and 3020-a Arbitration

So, an ATR in a year-long position can now be rated pursuant to the Danielson rubric and given a bad rating, and zoom! Before you know it, this ATR will be in a 3012-c hearing where termination is  almost always the end result. Why? Because the burden of proof is on the employee - Teacher, Guidance Counselor - to prove that he/she is not guilty of incompetence as opposed to a 3020-a where the Department has the burden of proof to show that you are guilty - and I dont think the Department is very good at that. We usually (but not always, darn it) win our cases.

That is how the NYC DOE solves problems they have created. Fire everybody, start over.

Anyway, see below the webpage for substitute teachers on the DOE site. This page is for non-tenured substitutes, not tenured employees, but employees may want to check this page out after they are terminated as ATRs.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Human Resources

Substitute/Per Diem Teachers

Currently Employed Substitutes

Substitute Teacher Nominations are Closed

The Nomination Process

Applications for Substitute Teaching positions are only made available to individuals who have been nominated by a school principal, using our online process. Each school may nominate candidates for the position based upon the prevailing or projected vacancies (i.e., number, location, schedule, etc.) and the special requirements for some positions (e.g., foreign language proficiency, math, science, certification in physical education, etc.). If you are interested in becoming a Substitute Teacher, contact the school(s) of your choice directly.

Responsibilities of the Substitute Teacher

Substitute Teachers are utilized by the New York City Public Schools, on an as-needed basis, to cover the classroom in the absence of the regular (fulltime) Teachers.  The primary role of the Substitute Teacher is to continue student learning along the continuum, established by the absent full-time teacher.  The responsibilities of the Substitute Teacher in the classroom may include, but are not limited to, the following:

• Planning lessons
• Teaching students
• Managing the classroom
• Performing administrative tasks
• Promoting positive student behavior
• Ensuring the safety and security of the students

Pay Rate

Substitute Teachers, providing day-to-day service, are paid at the per diem contractual rate of $176.21 (as of May 2017), for the actual days worked; they do not receive any benefits.  Click, for more information about the Per Diem Payroll Frequently Asked Questions.

Substitute Teachers are represented by the United Federation of Teachers (UFT).

Eligibility Requirements

The minimum eligibility requirements to apply for a Substitute Teacher position are the following:

• Online Nomination by a school Principal
• A Bachelor's Degree
• Proficiency in reading, writing and speaking the English language
• Authorization to work in the USA

The Hiring Process

After a principal has completed the online nomination, an email will be sent to the nominee with instructions on accessing and completing the online application for the Substitute Teacher position.  Once the nominee submits the application, an email will be sent to the candidate listing the next steps necessary to work as a substitute teacher in New York City public schools. The first of these steps is to complete the mandatory Employment Forms, and any follow up requirements shown therein (e.g., fingerprinting).  The subsequent steps to be followed will differ, based upon the nominee’s New York State teacher certification status.

I.  If the nominee holds a valid New York State teaching certificate, he/she will be invited to attend an expedited processing event. At this Fast-Track processing event, the teacher nominee must present a valid government photo identification (i.e. passport, current non-expired driver’s license or state ID) and is required to submit the following:

• Original copy of a valid NYS teaching certificate (or a print-out from TEACH Online)
• $70 Money Order payable to the NYC Department of Education (processing fee)

II. If the nominee does not possess New York State certification as a teacher, he/she will be invited to attend a Combined Assessment & Processing event consisting of written & oral assessments to determine English language proficiency, and submission of required forms and documents.
At the nominee's scheduled event, he/she must present a valid government photo identification (i.e. passport, current non-expired driver’s license or state ID) and will be required to submit the following:

• Bachelor’s Degree diploma or official transcript indicating Bachelor’s Degree conferral date
• $100 Money Order payable to the NYC Department of Education (processing fee)
• Proof of completion for the NYSED approved workshop on Child Abuse Identification.
• Proof of completion for the NYSED approved workshop on School Violence Prevention.
• Proof of completion for the NYSED approved workshop on the Dignity for All Students Act (DASA).
• Proof of completing the NYCDOE supported and authorized online training program for Substitute Teachers.  There is no additional fee for this online training program.   Information on this online training program will be disseminated at a later stage.
• Proof of creating an online profile with the New York State Education Department, Office of Teaching Initiatives.  There is no additional fee for creating the online profile.
Upon successful completion of all the above requirements, the substitute teacher nominees, certified and uncertified, will receive information on the following, to be reviewed prior to their first teaching assignment:

• Handling Blood Borne Pathogens
• The NYCDOE’s absence management system (SubCentral) for Substitute Teachers


Subject to receiving clearance (fingerprint & appraisal of record) from the New York City Department of Education’s Office of Personnel Investigations, the nominee will be staffed as a Substitute Teacher and approved to serve throughout the New York City Public Schools, for the current school year.

Continuation of Substitute Status

To continue substitute status for the next school year, the substitute is required to fulfill the renewal requirements, which are updated annually, and can be accessed via the following link: Substitute Teacher Renewal Requirements

The renewal requirements include the following:

• Provide at least 20 days of service as a substitute teacher during the school year.
• Maintain a record of “Satisfactory” ratings from the schools worked in and be in good standing (as determined by the Office of Personnel Investigations).
• Substitute teachers who work in excess of 40 days and do not hold valid NYS Teacher certification, must also complete the following:

    Proof of Professional Teacher Education courses totaling at least 6 credits
    during that year or meet the maximum requirement of 21 credits.  
For additional information, write to or visit NYC Department of Education, Office of HR School Support, 65 Court Street, Room 504, Brooklyn, NY 11201.

Click for information about Substitute Paraprofessionals.

Click for information about Full Time Teachers.

Tuesday, July 11, 2017

ATRs Headed To Year-Long Positions and Danielson Ratings

The only thing that I think anyone can say right now about the ATR situation is that the NYC Department of Education is finally seeing the mess they have made.

And what a mess it is.

By the way, for all those readers who don't know me, I have been an advocate for employees of the Department for 14 years, and I am not an Attorney, but work with 4-5 attorneys as a paralegal. I fight for a person's lawfully given rights which, as we all know, are denied by the Department constantly. What I would like to make clear is that when I say an ATR is a "substitute", I do NOT mean anything degrading by this, so I apologize for any miscommunication. I'm at a loss at what title to call ATRs, who have been put into an impossible situation. I just want to make clear that any reference to a "substitute" for a person who is an ATR just means I am looking for a better title, but I'm on your side, always have been and always will be.

For many years, teachers who worked at a school that was closed, became "excessed", and became Absent Teacher Reservists (my name for ATRs), "absent" meaning not in a permanent position. This nomad status lent itself to a myriad of problems, especially in the area of evaluations. How does a "tenured substitute" teacher know the students well enough for anyone to say the students have learned something, if the substitute is in the classroom for a day, a week, a couple of weeks? Impossible. Yet, a peer validator, field supervisor or other agent of make-it-up evaluators come in, observe and rate as if there was a standard for S/U that applied to these tenured substitutes.

There is no contract to cover rating tenured substitutes. The UFT has a contract for Substitute teachers, but these are people who can be fired, not hired again, etc. That is their rating, if they are not good in the classroom or Guidance Office.

These tenured teachers, ATRs, cannot be fired suddenly and are not covered by the Collective Bargaining Agreement which covers Substitute Teachers, because although most of the excessed-by-school-closing-employees (not only teachers, but other staff such as Assistant Principals, Guidance Counselors, etc) and others with the title ATR are substitutes, they have tenure.

You'd think that the easy solution would be to create a contract that had appropriate evaluation and rating standards for "tenured glorified " substitutes -like, for example, you cannot rate the performance of a substitute tenured employee if they have not been teaching the class you want to observe for at least a month - or two.

However, there are only two limited options, a buyout and the 2017 ATR Agreement, both shockingly negotiated without an ATR Chapter or ATR Representatives in existence. I don't get it.

So, the NYC DOE are going to try to give year-long jobs left vacant after October 15 to ATRs. In my opinion, this will be a problem, when the only positions left open at that time are the ones that no  one wants. No one will be happy. At most, a small percentage may be, but certainly not when all the year-longs are given year-end ratings under the HEDI rating scale used in Danielson.

I betcha a tiny amount of ATRs - if any at all - will be rated Effective/Highly Effective.

Then the s___t will hit the fan.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, The NYC Public Voice

New York City plans more aggressive steps to move hundreds of unassigned teachers out of Absent Teacher Reserve

Schools that still have vacancies by October will be sent staffers from the city’s Absent Teacher Reserve, a move that may shrink the costly pool but could also rankle principals.
The policy, first reported by the New York Daily News and confirmed by the education department Monday, marks the city’s latest attempt to reach its goal of cutting the pool in half from its current 822 teachers.
The Absent Teacher Reserve is a group of teachers collecting salaries and benefits without holding full-time positions. Teachers can be placed into the ATR either because their jobs were eliminated or for disciplinary reasons.
Under the new policy, principals have until around October 15 — six months from when hiring begins — to fill their vacancies. After that, city officials say they will make placements from the ATR, even potentially over principals’ objections.
“We will work to find the right fit, and hear and work through concerns that they might have,” education department spokesman Will Mantell said. “But ultimately, we do have discretion to place an educator in a vacancy that exists, and it kind of makes sense.”
The placements will be for one year, rather than a monthly rotation. Mantell said that would allow teachers to participate in training and receive guidance from principals. Teachers who score “Highly Effective” or “Effective” on the observation portion of their evaluation when there is a remaining vacancy will be permanently hired.
Schools Chancellor Carmen Fariña promised in 2014 that she would not endorse “forced placement of staff” as a strategy for shrinking the pool. Though the new policy may require principals to take on teachers, Mantell said it is not an example of forced placement because it only applied to vacancies and will not allow ATR teachers to bump existing teachers from their jobs.
Still, the change could prove unpopular with principals. Under former Mayor Michael Bloomberg, principals were given more power to run their schools and make hiring decisions. The de Blasio administration has, to a certain extent, reined in this power — which has drawn some criticism.
The ATR pool swelled under former Mayor Michael Bloomberg, who aggressively closed struggling schools, and cost the city an estimated $105 million in 2013. Current Mayor Bill de Blasio has pledged to shrink the pool in half.
Measuring the ATR pool can be tricky, since it represents only a snapshot in time and fluctuates throughout the year. Still, city officials argue that, in the aggregate, it has steadily decreased under de Blasio.

The city has undertaken a number of initiatives toward that end, including hiring the former principal of Brooklyn Technical High School to lead efforts to shrink the pool, offering $50,000 severance payments and subsidizing the salaries of teachers hired from the ATR.
Still, at the end of the 2016-17 school year, 822 teachers remained in the pool, according to numbers provided by the education department. This new policy will mark a more aggressive approach to reducing that number. In addition to the placements, teachers in the pool can now be hired across school district lines within their borough.
In an emailed statement, United Federation of Teachers President Michael Mulgrew praised the plan.
“These changes reflect the UFT’s conviction that members of the ATR pool provide needed services to schools and that their work should be respected,” Mulgrew said in an emailed statement.
But critics argue that if principals had wanted to hire these teachers, they would have already done so. The result, they say, will put poor quality teachers into New York’s neediest classrooms.
“It is shockingly irresponsible for the city to force place hundreds of teachers of dubious quality into the classrooms of our most vulnerable students,” said StudentsFirstNY Executive Director Jenny Sedlis in a statement. “There are reasons why no principal has chosen to hire them and this policy is bad for kids, plain and simple.”


City schools will soon be stuck with lots of bad teachers
Selim Algar, NY POST, July 11, 2017
Some 400 unassigned — and in many cases bungling — teachers will be foisted on principals across the city under a controversial new plan by the Department of Education.
The move is designed to radically shrink the Absent Teacher Reserve — an expensive pool of roughly 800 instructors without permanent posts due to downsizings, incompetence or misconduct.
A department spokesman said Monday that they hope to place between 300 and 400 current ATR teachers in schools that still have job vacancies after Oct. 15.
Some principals, who in the past were able to fill all positions from the open market of available instructors throughout the school year, balked at the plan.
“In the end, you want to be the one making the personnel decisions for your school,” said one Staten Island principal.
If an ATR teacher earns either an effective or highly effective rating after one year at their new school, they will be rewarded with a permanent position, according to the DOE.

Randy Asher
DOE senior adviser Randy Asher, a former principal who was brought on to cull the ATR, said the “common-sense” approach would be to “reduce the number of educators in the ATR pool.”
Critics have blasted the costly ATR arrangement for years, arguing that it’s difficult to fire bad teachers and that many continue to draw paychecks without actually having to do much work.
“Students deserve teachers who are selected by their principals from a pool of qualified candidates, not ones who are forced onto schools unwillingly,” said Jenny Sedlis, executive director of the pro-charter advocacy group StudentsFirstNY.
But the DOE stressed that ATRs who are given new positions will be qualified.
“This new policy will put teachers back in classrooms, and by moving towards full-year rather than monthly rotations, schools will have time to evaluate teachers from the ATR pool and see if they’re the right fit,” said Robert Gentile, principal at the High School for Health Professions and Human Services, in a statement provided by the DOE.
Critics said the move will put teachers who were unable to retain their posts elsewhere back into the classroom.
“Putting hundreds of bad teachers back into classrooms they’ve been kicked out of rubber stamps one of the UFT’s highest priorities, leaving New York City’s children to suffer the consequences,” said charter backer Families for Excellent Schools.


Sunday, July 9, 2017

NY State Supreme Court Judge Alice Schlesinger Grants Eileen Smith's Article 78 and Defines Verbal Abuse (2006)

- against -                                                        Index No. 118947/06
Motion Seq. No. 001
OF THE CITY OF NEW YORK and JOEL KLEIN, as the Chancellor
of City School District of the City of New York,
On October 21, 2003, the first day of the implementation of a new policy at Far Rockaway High School where petitioner Eileen Smith was a tenured Social Studies teacher, an incident occurred which led to an unsatisfactory rating for Ms. Smith dated June 24, 2004, for the 2003-2004 school year. It is this rating that petitioner is challenging by way of this Article 78 proceeding.
The new policy consisted of periodic sweeps by the school administrators as a means of forcing students to get to their classrooms on time. One minute after the late bell had rung signaling that classes had changed, teachers were required to lock their classroom doors. The locked-out students would then have to report to an assigned place to get a special pass to be admitted to their classrooms. The students, not unexpectedly, were hostile to this new procedure, and in the petitioner's class, the ones locked out banged on her door to compel the teacher to let them in. Ms. Smith then attempted to leave the room to get help, but two students in the classroom barred her way by holding the door closed. She became desperate.[1]
Ms. Smith sought help, which finally came when the Assistant Principal appeared. By that time, things had quieted down. However, at her hearing Ms. Smith acknowledged having used inappropriate language during the chaotic time. Her UFT adviser, who was present and represented her at her hearing, said that Ms. Smith had said: “This ‘fucking’ language has to stop. I do not want abusive or profane talk in the class." Ms. Smith had also reportedly said: “I will not continue until the stupids stop," and then presumably in an effort to clarify added: “I mean the stupid remarks. I am not calling anyone stupid.”
After the incident, an investigation was conducted by the principal, Cheryll Jones (later retired and thus unavailable to testify at the hearing). This investigation included a review of statements by members of the class, as well as a meeting with Ms. Smith. It was concluded by a November 12, 2003 letter to Ms. Smith from Principal Jones finding that petitioner had “committed acts which are prohibited by the Chancellor’s Regulation A-420 Corporal Punishment and Chancellor’s Regulation A-420 Verbal Abuse which constitutes unacceptable teacher deportment.” The letter concluded that the finding “may lead to disciplinary action, including an Unsatisfactory rating and termination.”
Petitioner filed a grievance challenging this letter, one at which she prevailed after a hearing held on December 7, 2005. The arbitrator, Martin F. Scheinman, Esq., ruled in a decision dated January 3, 2006, that:
The letter of November 12, 2003 shall be deleted from Eileen Smith’s file because it is unfair and inaccurate as these terms have been defined by the parties.
Mr. Scheinman, however, limited the effect of his ruling to the discrete issue before him, stating that:
This decision shall not be cited by either party as a determination of the underlying facts nor shall it preclude either party from relitigating the underlying facts.
Before this January 3, 2006, determination of the grievance challenging the November 2003 letter, Ms. Smith had been given a copy of the June 15, 2004 “Unsatisfactory" rating at issue herein. Ms. Smith had signed to acknowledge receipt of the "U-Rating” on June 24 and had immediately appealed it. However, she had also asked to postpone the appeal until she had received a final decision on her grievance challenging the letter. Thus, after Arbitrator Scheinman had ruled in Ms. Smith’s favor regarding the letter in January 2006, Ms. Smith’s union representative informed the Department’s Office of Appeals that she wished to expedite her appeal of the U-Rating.
That hearing was held on May 31, 2006 before the Chancellor’s designated Chairperson, Leila G. Zuckerman. Ms. Smith was accompanied by her union representative, Michael Gotlieb. Denise Hallett, the current principal of the Far Rockaway school, was there, and the Assistant Principal Jocelyn Badette appeared by telephone.
In the “Background Data” section of her decision, Chairperson Zuckerman stated that: “The basis of this ‘Unsatisfactory’ rating was a substantiated A-420." This remark had been taken directly from the U-Rating which Principal Jones had prepared where the comment appears under "Additional Remarks." The A-420 itself had been prepared by
Assistant Principal Badette. This document, which was used at the hearing over the
petitioner’s objection because she had not been given a copy of it until a few minutes
before the hearing, was largely relied upon by the Chairperson in sustaining the U-rating.
That,togetherwith Mr. Gotlieb’s acknowledgment that Ms. Smith had made the statements
quoted earlier, formed the basis for the decision denying Ms. Smith’s appeal. Specifically,
Chairperson Zuckerman made the following findings:
The Chairperson carefully considered the facts and various arguments presented by the Appellant and the Administration.
The documentation, although substantial in part, leaves many questions about the hostile environment which escalated into an incident. Ms. Smith called for help three times. When the A.P. arrived, she found the class to be quiet.
Unfortunately it has been clearly acknowledged that inappropriate language was used by the Appellant. This may also have motivated some of the hostility in the class. The A- 420 does acknowledge that inappropriate language constitutes verbal abuse.
It is recommended that the appeal be denied and rating of “Unsatisfactory" be sustained.
Both sides here agree that teacher evaluations and appeals of Unsatisfactory Ratings must be conducted in compliance with the formal procedures promulgated pursuant to Section 102.2(o)(a) of the New York State Commission of Education Regulations. In the City of New York, those procedures are set forth primarily in two Handbooks prepared by the Division of Human Resources; namely, “Rating Pedagogical Staff Members” and “The Appeal Process." The “Rating” Handbook emphasizes the importance of completing evaluations based on documents in the teacher’s file. “The
Appeal Process” requires, among other things, that before the hearing, the teacher/appellant "be furnished with a complete set of the documentation used by the Rating Officer to support the reason(s) for the adverse rating" (Section A2).
In the case at bar, petitioner Smith asserts that the decision denying her appeal of the Unsatisfactory Rating was arbitrary and capricious and made in violation of lawful procedures. Specifically, petitioner asserts that Chairperson Zuckerman erred in relying on (1) various student statements which had been excluded from the file; and (2) the A-420 Report which had not been provided in advance. Had those documents been excluded as they should have been, no rational basis would exist for the decision, petitioner asserts. Respondent counters that Chairperson Zuckerman properly considered the A-420 and made a rational decision based on the evidence.
Turning first to the student statements, the record is clear that petitioner prevailed at her grievance challenging the November 12, 2003 letter from Principal Jones, and that Arbitrator Scheinman directed that the letter be deleted from Eileen Smith’s file as "unfair and inaccurate.” Chairperson Zuckerman properly sustained petitioner’s objection to the admission of the letter at the appeal of the U-Rating on this ground. Those student statements referred to in the letter and attached to it should also have been excluded. To the extent the Board offered additional student statements at the appeal which may not have been attached to the letter, those statements should have been excluded because they had not been shown to petitioner before the hearing as required by the above-quoted Section A2 of the Appeals Process.
The A-420 should have been excluded as well. The Chairperson erred in overruling petitioner’s objection to the inclusion of the A-420, stating that: "It’s not given to the teachers.” (Transcript, p. 5). Respondent contends that petitioner’s objection had no basis in the rules. However, as noted above, Section A2 of The Appeals Process Handbook expressly entitles the teacher to "a complete set of the used and expressly referred to the A-420 documentation used by the Rating Officer”, and the Rating Officer in this case (Principal Jones) in the U-Rating at issue. Neither the Chairperson, nor the Respondent Board, has pointed to any specific rule or regulation which would override Section A2 and entitle the Board to withhold the A-420 from petitioner while still relying on it at the hearing.
The Commissioner and the courts have held that a U-Rating cannot be sustained where, as here, the Chairperson improperly relies on documents which should have been excluded from consideration at the teacher’s appeal. Thus, for example, in The Appeal of
Naomi Dowrie, 45 Ed. Dept. Rep. ________ , Decision No. 15,506 (Dec. 22, 2006), the
Commissioner reversed the decision by the Chancellor’s designee to sustain a U-Rating because the decision relied on documents which had not been included in the teacher’s file and shown to the teacher in advance. Citing to various provisions in the “Rating" Handbook, the Chancellor’s designee emphasized the importance of including relevant documents in the file in advance of the hearing so the teacher could grieve them and seek their removal. If it fails to provide the teacher with that opportunity, the Board may not consider the documents at the appeal of the U-Rating.
Wholly unavailing is respondent's attempt to distinguish Dowrie on the ground that the excluded documents were the only documents relied upon by the Chancellor in that case. Respondent does not, and cannot, challenge the principle in Dowrie that a U-Rating cannot be sustained based pn documents which the Board failed to give the teacher in advance.
This same principle was recently applied by Justice Lewis Bart Stone in Mangone v. Board of Education, Index No. 117353/06, Aug. 3, 2007, (Sup. Ct., NY Co). In Mangone, the Court denied the Board’s motion to dismiss the teacher’s petition which challenged, among other things, an unsatisfactory rating. Citing to Dowrie, the court reiterated the rule that a U-Rating cannot be sustained based solely on documents which had not been provided to the teacher in advance of the hearing as part of the file.
Respondent nevertheless argues that the U-Rating was properly sustained based
on the A-420. As discussed above, this Court disagrees based on the requirement in “The
Appeals Process" Handbook that the teacher be shown all documents in advance of the
appeal hearing. But even if the A-420 were properly relied upon by Chairperson
Zuckerman at the hearing, it does not suffice to support the determination. The A-420 is
a pre-printed form with a box checked that merely indicates “The allegations were
substantiated.” The allegations are those in the November 12, 2003 letter from Principal
Jones and the various student statements, both of which were referenced and made a part
of the A-420.[2] The A-420 also contains a typewritten "description of incident” which simply
paraphrases the student statements and reads as follows:
Student [name redacted] alleges that Ms. Smith grabbed a statement that student wrote complaining about the teacher, “pushed it into her pocket and then pushed her into the door”.
Another student [name redacted] alleges that Ms. Smith called the class "stupid” and said that the “fucking has to stop”. [Name redacted] also alleges that while she was trying to help [name redacted] Ms. Smith pushed her breaking her nail against the board.

Lastly, the A-420 contains the typewritten conclusion of the Assistant Principal which reads as follows:
The teacher committed acts which are prohibited by the Chancellor’s Regulation A-420 Corporal Punishment and Chancellor’s Regulation A-420 Verbal Abuse which constitutes unacceptable teacher deportment.
Significantly, as Chairperson Zuckerman indicated in her decision quoted above (at p. 4), when the Assistant Principal finally responded to Ms. Smith’s three calls for help, she found the room quiet. Therefore, the description of the incident and the conclusion stated in the A-420 are not based on any personal observation by any administrator; instead, they are based solely on the hearsay statements written by the students. Thus, the A-420, by itself, cannot support the U-Rating.
Without the various documents, the only evidence left is the undisputed fact that Ms. Smith made the above-quoted statements in the midst of an extremely difficult time in class. Presumably recognizing this point, Chairperson Zuckerman in her decision did not find that Ms. Smith had engaged in prohibited corporal punishment. Rather, she made a finding - somewhat reluctantly - of prohibited verbal abuse based on the statement by petitioner’s union representative that the language Ms. Smith used was "inappropriate”. The Chairperson’s reluctance is revealed by her finding that the evidence “leaves many questions," by her emphasis on Ms. Smith’s repeated calls for help, by her confirmation that the Assistant Principal found the room quiet when she finally responded, and by her statement that Ms. Smith “unfortunately" acknowledged using “inappropriate” language at the hearing.
But even an acknowledgment of “inappropriate” language does not support a finding of prohibited verbal abuse. The Chancellor’s Regulation A-421 defines verbal abuse as:
                   Language that tends to cause fear or physical or mental distress;
                  Language that includes words denoting racial, ethnic, religious, or sexual orientation which tends to cause fear or physical or mental distress;
                   Language that tends to threaten physical harm; or
                   Language that tends to belittle or subject students to ridicule.
Respondent cannot reasonably claim that the language falls into any of the first three categories since no evidence exists of any words which caused fear or threatened harm. At most, the Board can claim that the language “tends to belittle or subject students to ridicule." But when Ms. Smith’s words are examined in context, they fail to meet that standard. Clearly, Ms. Smith was attempting to gain control of the students in a chaotic situation and to compel them to stop using inappropriate language and making inappropriate remarks. She made clear that she herself was not cursing at the students or calling them stupid. Ultimately, Ms. Smith achieved her goal because the class was quiet when the Assistant Principal arrived. Thus, while it may well be that Ms. Smith could have achieved her goal by using different language, it cannot reasonably be said that the language she used qualifies as prohibited verbal abuse as defined in the Regulations sufficient to support an Unsatisfactory Rating.
Accordingly, it is hereby
ADJUDGED that the petition is granted, the denial of petitioner’s appeal of the Unsatisfactory Rating is annulled, and the Unsatisfactory Rating shall be removed from the file.
This constitutes the decision and judgment of this Court.  

The facts related here are taken from the decision by Committee Chairperson Leila G. Zuckerman, which denied Ms. Smith’s appeal of the unsatisfactory rating after a hearing on May 31, 2006. The denial was upheld by the Chancellor on August 28, 2006. The petition timely challenges that denial. In the background data of Ms. Zuckemnan’s decision, she states (referring to Ms. Smith): “It was clear that she became desperate”.
[2] As noted above, Chairperson Zuckerman properly excluded the letter, and the student statements were, or should have been, excluded as well.