David Bloomfield on Mayor Bloomberg's Latest Attempt to Tie Teacher Tenure To Student Performance

Do you know what is wrong with connecting test scores of students to teacher tenure, as Mayor Bloomberg is threatening to do in New york City? This is another way to unfairly sabotage a teacher's career.

Let's say you are a new teacher, and you have been teaching in a NYC public school for two years. You are waiting for your tenure in just one more year, and you do whatever is asked of you so that your tenure is not put into jeopardy. You are a great teacher, you know the core subject material extremely well, you "connect" with the students in your class, and everything is going well.

Except the Principal doesn't like you. Or, the Principal has a friend/neighbor/relative who wants your job.

So, the Principal assigns you to a class not covered by your license, and/or gives you a class with the most rowdy students in the school. This group of students mean disaster for any teacher, not just you. Unless there is a miracle, the scores of the students will not be good because on a daily basis there are too many discipline problems that must be addressed which detract from the learning time.

David got this one right!

Betsy Combier

Teacher Tenure Tantrum
by David Bloomfield, November 30, 2009

The lame duck is acting like a bantam rooster.

Mayor Bloomberg’s fuss-and-feathers [1] over use of student performance data in teacher tenure decisions is a short-lived diversion, like his presidential run during a previous lame duck period. Legal authority for his position is questionable and of little practical consequence. At best, under current law, he has one year to try to work his will but no principal’s tenure decision will change based on this new edict. Weakened by his slim re-election margin, Bloomberg’s tantrum is an understandable political strategy to appear politically strong. But our education plight is too important to be distracted by this sideshow.

The mayor invokes that portion of New York State Education Law § 3012-b as added by Chapter 57 of the Laws of 2007 which permits principals to make teacher tenure determinations based on “an evaluation of the extent to which the teacher successfully utilized analysis of available student performance data” and the more elastic “assessment of the teacher’s performance by the teacher’s building administrator.” The law was clarified by Chapter 57 of the Laws of 2008 to prohibit use of student test scores to grant or deny tenure. But even if the earlier version is found to permit use of test data for current tenure evaluations, State Education Commissioner’s Regulation § 100.2(o)(2)(iii) appears to prevent this use unless included in probationary teachers’ “professional performance review plan,” a formal document that must be developed “in collaboration with teachers … selected by the [Chancellor] with the advice of their respective peers.” Collective bargaining issues also exist as a change in the terms and conditions of employment. As a result, it is doubtful that the mayor’s unilateral analysis has much legal weight.

Rather than hastening their exit, the mayor has created a legal loophole for ineffective teachers to remain in classrooms. What the mayor has actually done is to hand every failing teacher, already on the chopping block based on principals’ prior determinations, a ready argument that his or her tenure was denied on illegal grounds. Principals already know who they want to fire and have developed their own grounds to deny tenure. At best, test scores will provide an additional, controversial excuse. And those who principals want to keep will surely not be fired on the basis of test scores alone. This grandstanding —Bloomberg didn’t even let the chancellor announce the move, so impatient was he to garner public credit — will thus have the reverse effect of its purported intent. The mayor has made martyrs of the system’s dross.

Test scores from the first few years of a teacher’s career are relatively meaningless anyway. Even if some test scores, interpreted correctly, turn out to be valid measures of long term teacher quality, our current three year tenure clock is too short to make that determination. How can a fair evaluation be made from test scores during the first year on the job? Other data such as classroom management, content knowledge, and the ability to improve will be more determinative of retention. So the second year becomes the benchmark to compare to the third year, if the testing calendar allows. But this permits insufficient data for a studied tenure determination. Other measures, especially classroom observations which I strongly encouraged in my last column [2], are more likely to provide usable information. The mayor seemed to admit as much in his recent Washington speech but continues to give principals too little time to practice what he preaches.

In sum, the mayor has picked the wrong battle. Nonetheless, if he really wants to use student test data to evaluate teachers for tenure, his first step should first be in Albany, convincing legislators to adopt a probationary period of at least five years, effectively extending the period for at will termination and giving slow starters a chance to prove their mettle. Five years’ experience would allow for meaningful, long-term evaluation of teachers’ growth and the justifiable reward of tenure that would follow.


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Article printed from GothamSchools: http://gothamschools.org

URL to article: http://gothamschools.org/2009/11/30/teacher-tenure-tantrum/

URLs in this post:

[1] fuss-and-feathers: http://gothamschools.org/2009/11/25/bloomberg-to-klein-use-student-data-in-tenure-decisions-this-year/

[2] my last column: http://gothamschools.org/2009/11/18/redemption/

Bloomberg to Klein: Use student data in tenure decisions this year
LINK
Posted By Maura Walz On November 25, 2009

WASHINGTON, D.C. – The city’s Department of Education will use student test scores in teacher tenure decisions this year, Mayor Michael Bloomberg announced this morning.

Speaking at the Center for American Progress, Bloomberg asked Schools Chancellor Joel Klein to follow a new interpretation of the state law that bans the use of student performance in tenure decisions. The law only applies to teachers hired after July 1, 2008, Bloomberg said. Teachers up for tenure this year, who were hired in 2007, are not subject to the rule, according to this interpretation, and so will be evaluated using their students’ test score progress as a factor.

The announcement came as the mayor called on Albany to enact a number of legislative changes, including mandating school districts to evaluate teachers with student performance data and eliminating the charter cap, that would make New York State more competitive in its Race to the Top application.

Much more to come; the full press release accompanying the mayor’s announcement, and the text of his comments this morning, are below the jump.

MAYOR BLOOMBERG CHALLENGES ALBANY TO LIFT SEVEN ROADBLOCKS PREVENTING NEW YORK FROM WINNING THE OBAMA ADMINISTRATION’S ‘RACE TO THE TOP’ EDUCATION REFORM COMPETITION

Mayor’s Proposals Could Net New York City More than $150 million of the $5 Billion Federal Program

Directs Chancellor to Start Using Student Performance Data Immediately to Help Make Teacher Tenure Decisions

Mayor Michael R. Bloomberg today urged New York State education officials and the State Legislature to implement seven specific measures that will enable New York State to compete effectively for hundreds of millions of dollars that are available through the Obama Administration’s Race to the Top education reform program. The new program will grant $5 billion to states that move to adopt high standards; develop strong data systems that measure student growth and provide feedback to teachers; recruit, develop, reward, and retain effective teachers and principals; and turn around low-achieving schools. The Mayor also announced that he has instructed City Schools Chancellor Joel I. Klein to begin using student performance data immediately to inform teacher tenure decisions. The Mayor delivered his remarks at an event hosted by the Washington-based Center for American Progress, where he appeared with U.S. Secretary of Education Arne Duncan and Education Trust President Kati Haycock.

The Mayor urged State education officials and the State Legislature to take the following steps, each of which would add points to the State’s Race to the Top application score card - and, therefore, millions of dollars to City and State coffers. The Mayor’s proposals, which together could net the City more than $150 million in badly-needed federal funds, are:

* Mandate all school districts in New York State develop teacher evaluation systems that use student performance data as one of multiple sources of input.

* Use State Education Department discretionary grants to attract and retain high-performing math, science, and special needs teachers in low-income schools.

* End “last-in, first-out” rules requiring principals to layoff or excess the newest teachers, even if they are among the best teachers, and instead allow principals to make such decisions based on merit.

* Streamline the process for removing bad teachers from the classroom and the payroll, ending the ‘Rubber Room’ as we know it.

* Ratify the nationwide Common Core Standards as soon as possible and without material alteration.

* Eliminate the charter school cap and provide facilities funding for charter schools.

* Impose a one-year limit on the time teachers can remain in an “excess pool,” as was done in Chicago, saving $55 million annually and enabling the City to close and replace the lowest performing 10 percent of its schools.

The following are Mayor Bloomberg’s remarks as delivered at the Center for American Progress.

“Arne, thank you and good morning everyone. Great to see you, Kati thank you for coming. I’m joined by Dennis Walcott, our Deputy Mayor for Education, as well as Joel Klein, our great Chancellor. I’m sure everyone here is thinking about turkey and pumpkin pie, and that’s fine. Tonight I’ll be watching the balloons being blown up. You can watch it on television. It’s an incredible experience. I actually can’t imagine as much hot air in one place, although this is Washington, so perhaps.

“It’s always a pleasure to be in the nation’s capital, particularly since this is the only city whose basketball team is doing as badly as New York’s, so I feel right at home. I ride the subway every day, and the only time anybody has ever yelled at me was one time as I was getting off a big, hulking guy looked at me, glared at me, and screamed: ‘Fix the Knicks!’ There are some things even a mayor can’t do.

“Before President Obama took office earlier this year, Rahm Emanuel told us that we should - quote - ‘Never allow a serious crisis to go to waste.’

“And so the President is not only working to stabilize the financial markets and save the auto industry from immediate collapse; he focused on the long-term economic challenges, including the auto industry’s public sector equivalent, and that is our school system.

“If you think about it, both the auto industry and our school system were built for another era. Both were very slow to adapt to changing times. And neither can compete in the 21st century without major structural reforms that place consumers at the center of their operations. In the case of our schools, the consumers are the children. Not the politicians. Not the labor unions. And not the ideologues. Schools exist to ensure that children learn - as much as possible, as well as possible.

“And for the first time, I will say, the federal government is telling states through its ‘Race to the Top’ program: Discard policies that impede learning and adopt policies that promote learning - or forfeit federal funding.

“As Arne had said a number of times, ‘A state can’t enter Race to the Top if it prohibits schools from using student achievement data to evaluate teachers and that’s why California just repealed its prohibition on doing so.’

“In New York, the State Legislature passed a law last year that actually tells principals: You can evaluate teachers on any criteria you want - just not on student achievement data. That’s like saying to hospitals: You can evaluate heart surgeons on any criteria you want - just not patient survival rates! You really can’t make this up! Thankfully, the law in New York is set to expire this June - but that is not enough.

“We will urge the State not just to prohibit but to require all districts to create data-driven systems to comprehensively evaluate teachers and principals. And we want New York City to lead the way. As it turns out our lawyers now tell us after a very close reading of New York’s law, the current law does not actually stop us from using student data to evaluate teachers who are up for tenure this particular school year, because the way it was written it covers only teachers hired after July 1st of 2008, and those are not up this year.

“So today, I’ve directed our schools Chancellor, Joel Klein, to ensure that principals actually use student achievement data to help evaluate teachers who are up for tenure this year. It is an aggressive policy, but our obligation is to take care of our kids. And we’ll also begin creating our own comprehensive evaluation system that includes classroom reviews and student achievement data.

“Now, we all know that great teaching is reflected in more than test scores - but we certainly should never dismiss quantitative data in favor of subjective opinions that fit a predetermined conclusion. That might make all of us feel good, but it really doesn’t help our children.

“Using data to help evaluate teachers and principals will get a state into the Race to the Top, but as Secretary Duncan has repeatedly said, unless states take other major steps, they’re not going to get very far off the starting line.

“And for New York City, that’s worrisome from a short-term budget perspective, because in this economic environment, we cannot afford to leave federal money on the table. And it’s even more worrisome from a long-term economic perspective. Any state that sits out the Race to the Top will lose jobs and revenues just as surely as car companies that sat out the race to build affordable hybrids, not to mention shortchanging our kids on the education they need to compete in an increasingly global and technological world.

“Today, I just want to take a few minutes to walk you through six other steps that New York should take to compete in the Race to the Top - and the more steps we take, the more likely we think we’ll be able to receive hundreds of millions of dollars in new funding that can only go to improve our system.

“The six steps fall into two broad categories: attracting and retaining more great teachers, and creating more great schools. And Mr. Secretary, I hope you hold all states accountable for submitting an application that achieves both. The time for excuses is over and this really is our nation’s future and it is in your hands. We will play our part, you can rest assured.

“The evaluation system that New York City is going to create will lay the foundation for each of the first three steps, including step one: paying higher salaries for higher-performing teachers and principals and for those with skills that are in the greatest demand.

“In New York City, over the last eight years we’ve raised teacher salaries by 43 percent, and veteran teachers in New York City now make more than $100,000 a year. I’ve always believed that if you want the best, you’ve got to pay for it and we really are improving the quality of teaching in New York City and the quality of those who are providing the service. We’ve also adopted, you should know, a bonus program - in partnership with our labor unions - that rewards teachers and principals in schools that meet their benchmarks.

“But sadly, like most places, New York City has difficulty attracting science and math teachers, because they have so many other career options that pay more. And we’re also prohibited from paying the highest-performing teachers more money. This kind of lock-step pay scale is what you see in factory assembly lines - but teachers, we think, are professionals certified by the State! And we need to pay based on skills, not just seniority - and we’ll start by demanding that our State Education Department changes the way it awards incentive pay.

“We want to see that money go to where it’s needed the most: to math, science, and special need teachers in low-income schools who receive high ratings on comprehensive evaluations. This would benefit students, schools, teachers, and our Race to the Top application - and rest assured, we will beat the drum among the public to make sure that this happens.

“The second reform that our new evaluation system would make possible - step number two - is ending a layoff policy called, ‘last-in, first out.’ Right now, as everybody knows, State law typically mandates that if layoffs have to be made, the newest teachers are the first to go - even if they are among the best teachers. The only thing worse than having to lay off teachers would be laying off great teachers instead of failing teachers. Remember who this system’s supposed to work for: the students, not its employees. With a transparent new evaluation system, principals will have the knowledge to make layoffs based on merit - but the ability to do so only if the State Legislature gives us the authority to do so, and so we will pressure them to get that authority.

“Third, our evaluation system will also give us the ability to identify the lowest-performing teachers, but it’s also a key criteria for Race to the Top funding. In New York City, removing bad teachers from the classroom is extremely difficult - and moving them off the payroll is even harder. When a teacher is removed from the classroom for multiple negative reviews, or for breaking the law, he or she can go to something known as the ‘rubber room.’ It is basically a suspension hall for teachers - with full pay. Believe it or not, we’re still paying teachers in New York City who have been in the rubber room for seven years - and counting. Seven years! This is the public’s money and this is the money that would otherwise go to pay those teachers who are helping our children. This is an absurd and outrageous abuse of tenure - and we’ve got to work with the State representatives to fix it.

“But let me be clear: We are not proposing an end to tenure. We are only proposing that our State Legislature streamline the process for removing failing teachers from classrooms and put an end to the ‘rubber rooms’ as we know it. Now, to ensure that students have more great teachers and more great schools, we are going to take a few more steps.

“Step number four in our list of six is the most important and that is raising standards. I believe that the federal government should require states to adopt a single national standard for all students and all subjects. But as Bill Bennett, one of Arne’s predecessors, once told me the reason we don’t have national testing is that conservatives hate anything with the word ‘national’ in it, and the liberals hate anything with the word ‘testing’ in it.

“Race to the Top very pragmatically skirts this ideological divide by incentivizing states to adopt a Common Core Standard - and I’m glad to say that New York State has signed up to be part of that. When the standards are completed next year, there will undoubtedly be pressure to water them down. And so today, Chancellor Klein and I are sending a letter to our State Board of Regents urging it to ratify the standards, without material alterations.

“In New York City, we’ve built all of our reforms around raising standards and holding everyone accountable for results. That’s why our kids have made enormous progress on State exams, especially when compared to the rest of the state. The Chancellor of our Board of Regents, Merryl Tisch, has been a great champion of raising standards, which account for 14 percent of a state’s Race to the Top application - and we’ll give her all the support we can to raise them as high as she can get done.

“The fifth step we’ve got to take is lifting restrictions on growth of charter schools. This fall, a Stanford University study showed that charter school students in Harlem have performed at nearly the same level as students in suburban Scarsdale - one of the wealthiest districts in the whole country. No wonder the waiting list for charter schools in New York City is upwards of 40,000 children.

“I’m committing to open 100 new charter schools over the next four years - but we do need the State Legislature to lift the cap, just as Illinois and Louisiana have recently done, because we’re about to hit it.

“Arne has said that states with any cap will lose points in the Race to the Top, and I think he’s absolutely right to do so. We’ll also urge the State Legislature to provide charter schools with funding for facilities, just as New York City is doing for other schools. Charter schools are public schools - people forget that - and all public school children deserve to share in the resources that the State has. To not do so is an outrage, and if the State doesn’t get this done, I’ve directed Chancellor Klein to sue, and see if we can’t get it done in the courts.

“The sixth and final major step that Race to the Top challenges us to take is turning around our lowest-performing schools. Since 2003, we’ve closed 91 schools in New York City — and the new schools that have replaced them have graduation rates 15 points above the citywide average.

“Secretary Duncan has challenged states to turn around their lowest-performing 5 percent of schools. Arne: We’ll see your 5 percent — and we’re going to double it. Our goal is to turn around the lowest performing 10 percent of city schools over the next four years — by closing them down, and bringing in new leadership, and holding everyone accountable for success.

“But — and this is important — the only way that we can achieve that goal is to reform something called the ‘Absent Teacher Reserve Pool.’ Right now, when we close a school, some teachers don’t get hired back on, and many find jobs elsewhere. But — some teachers do get hired back on, and many find jobs elsewhere, but some don’t. Those teachers can go to a reserve pool — and stay on the payroll indefinitely. When you combine the reserve pool with the rubber room, it’s costing us more than $100 million a year of monies that don’t produce better education for our kids. We just can’t keep wasting that kind of money. And — as Arne can tell us — Chicago has a one-year limit for displaced teachers — and we’ll urge our State Legislature to adopt the same.

“Now all of the reforms that Secretary Duncan and I have talked about today share something in common: They make sense! They are not Democratic ideas or Republican ideas. They are common sense ideas. And the way you make progress in government is by combining common sense with political courage, which the Obama Administration is doing.

“The Race to the Top is challenging the education establishment in a way that I think has never happened before, and New York City is ready, willing, and able to help the charge. The year ahead will tell us a lot about whether we’re going to bring our schools into the 21st century, or whether our schools — and our students — are going to be left clinging to the 20th century, as more and more countries pass us by.

“The President and Secretary Duncan have set the bar high - and if they keep the bar high, and if they keep the bar high, we really can give our children more great teachers, and more great schools.

“They deserve it. Parents demand it — both here as well as in Korea. And it’s up to us here to deliver it. So thank you very much, and now you’re going to hear from Kati Haycock. She is the President of the Education Trust, and she is well worth listening to. Kati?”

Article printed from GothamSchools: http://gothamschools.org

URL to article: http://gothamschools.org/2009/11/25/bloomberg-to-klein-use-student-data-in-tenure-decisions-this-year/

Over-Punishment in New York City Schools Has No Positive Outcome

I have been the advocate for more than 100 children who have been suspended from their respective New York City schools, so I know what is going on. The same process used to unfairly accuse a teacher of some kind of misconduct and get him/her removed from the school in which he/she works is used against children of color every day. I fight this, just as I fight suspending a child for no reason. See my article on "T":

T Wins at His Impartial Hearing After the NYC Board of Education Denies Him a Free and Appropriate Public Education

I can say that a child of color with an Individualized Education Plan (IEP) has no chance to succeed in the New York City public school system.

The NYC public school system targets children, and forces their parents to accept a sentence of "a few months" in a detention center as punishment for crimes that were never committed. The 'School To Prison Pipeline' is alive and well.

Criminalizing the Classroom

November 29, 2009
Editorial
Over-Punishment in Schools
New York Times

New York City joined a national trend in 1998 when it put the police in charge of school security. The consensus is that public schools are now safe. But juvenile justice advocates across the country are rightly worried about policies under which children are sometimes arrested and criminalized for behavior that once was dealt with by principals or guidance counselors working with a student’s parents.

Children who are singled out for arrest and suspension are at greater risk of dropping out and becoming permanently entangled with the criminal justice system. It is especially troubling that these children tend to be disproportionately black and Hispanic, and often have emotional problems or learning disabilities.

School officials in several cities have identified overpolicing as a problem in itself. The New York City Council has taken a first cut at the problem by drafting a bill, the Student Safety Act, that would bring badly needed accountability and transparency to the issue.

The draft bill would require police and education officials to file regular reports that would show how suspensions and other sanctions affect minority children, children with disabilities and other vulnerable groups. Detailed reports from the Police Department would show which students were arrested or issued summonses and why, so that lawmakers could get a sense of where overpolicing might be a problem.

Most important, the bill would create an easily navigable system under which parents, students and teachers could file complaints against school security officers. This provision comes in response to a 2007 report by the New York Civil Liberties Union, which said students were being roughed up for minor infractions like talking back or walking the halls without a pass.

The Police Department and the Department of Education are sometimes stingy with data. But the City Council is on the right track when it says that the disciplinary system could benefit from greater transparency. Lawmakers who are negotiating with the city over the language of the bill should keep this basic point in mind.

November 4th, 2009
Problems with over-policing our schools



By Marian Wright Edelman

Imagine being four years old and put into handcuffs because you and your friend wouldn’t take a nap in your pre-K class. Or being five years old, handcuffed, and taken away from your school by ambulance to a hospital psychiatric ward after throwing a tantrum in the kindergarten room. These scenarios might sound far-fetched, but both are true stories that captured the local media’s attention after they happened to children at their New York City public schools. The over-policing of public schools - not just in New York, but around the country - is one more threat to our nation’s children at risk of entering the pipeline to prison.

In New York, the expanded police presence started becoming especially obvious about ten years ago when the New York Police Department (NYPD) took control over school safety from the Board of Education. By the start of the 2005-06 school year, the NYPD employed 4,625 School Safety Agents in New York City schools - more personnel than there are officers in the police forces of Washington, DC, Detroit, Boston or Las Vegas, according to the New York Civil Liberties Union (NYCLU) report, "Criminalizing the Classroom: The Over-Policing of New York City Schools." In addition to increasing the numbers of these school safety agents, who are unarmed but can make arrests, the city also launched the Impact Schools Initiative, in which armed police officers have been deployed in the city’s "most dangerous" schools. Modeled after the NYPD’s Operation Impact program for fighting street crime, the initiative is designed to flood those schools with armed officers and surveillance cameras. Over the last five years, a total of 28 schools have been designated as "impact schools."

A June 2005 report by the Drum Major Institute found that impact schools were among the most overcrowded and underfunded in the city and serve a student body that is disproportionately poor, Black and over-age for their grade. Another report by Fordham University found that targeting a school as an impact school led to a significant decline in attendance there. This is exactly the opposite of what schools serving poor, at-risk youths should want to happen. But since the NYPD-takeover of school security, many students and teachers have said that their schools feel more like prisons than places of learning.

One English teacher described the scene this way in the NYCLU report: "On this random Wednesday morning, scanners were set up in the cafeteria of the public high school in the South Bronx where I work. Students’ bags were placed on a scanner, they were forced to walk through metal detectors, and any item deemed inappropriate for school - including food, keys and spare change - were taken away. Many students were patted down, some even with their hands on a police car. An overwhelming ratio of adults to students made the cafeteria seem a lot like a police station...[C]an we please not treat already-struggling, inner city teenagers who have gotten themselves to school like they’ve committed a crime?"

In some ways, the sense that too many schools are turning into prisons is very real. Students are learning that many school disciplinary incidents, including the kind that used to end with a trip to the principal’s office, can now lead to an arrest. The NYCLU recently filed a Freedom of Information Act request in order to obtain police arrest data, and learned that the NYPD has illegally arrested over 300 students under age 16 for non-criminal violations such as loitering and disorderly conduct. Under state law, children younger than 16 can only be taken into custody without a warrant if they have committed a crime, not a violation. But the incidents mentioned earlier about the four-year-olds at a Bronx public school and the five-year-old Queens kindergartner only highlight how soon children can be at risk of over-policing in schools.

In response to the excesses of school policing in New York City, the NYCLU has convened a Student Safety Coalition to address the school-to-prison pipeline in that city and promote solutions. Children’s Defense Fund–New York is an active member of this coalition and is working with others to promote positive approaches to school safety and discipline. We are also collaborating with the NYCLU and a group of other organizations on the School to Prison Pipeline Mapping for Action Project, whose goal is to map out current policies that push children out of school and into the juvenile justice and adult criminal justice system, so that changes can be made to stop them. It’s an important step, and the problem certainly doesn’t begin or end with New York City. At-risk schools in New York and across the country deserve to be flooded with resources and support instead of police. And students at those schools need to be applauded and encouraged for being at school and wanting to learn, not made to feel as if they are criminals just for trying to go to class. It is time to treat children as children and not as criminals - especially at very early ages.

Related story:

NYPD on Track to Interrogate Record Number of Innocent New Yorkers in 2009,
New Stop-and-Frisk Numbers Show
LINK

* The First Quarter Stop-and-Frisk Report (2009) (1.43 MB)
* The Second Quarter Stop-and-Frisk Report (2009) (1.42 MB)
* The Third Quarter Stop-and-Frisk Report (2009) (1.93 MB)

Related Publications:

* Palm Card: What to Do If You're Stopped by the Police (English and Spanish) (2004)

November 19, 2009 — The NYPD is on track to stop and interrogate a record number of totally innocent New Yorkers in 2009, according to police reports obtained and analyzed by the New York Civil Liberties Union this week. During the first nine months of 2009, police made more than 404,000 stops of completely innocent New Yorkers – the overwhelming majority of whom were black and Latino. If stops continue at this pace, 535,000 completely innocent New Yorkers will suffer through street interrogations in 2009 – the most ever since the Department began collecting data on its troubling stop-and-frisk program.

“A practice that wastes an officer’s valuable time with a 90 percent fail rate – while at the same time humiliating hundreds of thousands of black and brown New Yorkers – is not a wise or effective policing technique,” said Donna Lieberman, the executive director of the New York Civil Liberties Union. “It is a stunning abuse of power. It is not a crime to walk down the street in New York City, yet every day innocent black and brown New Yorkers are turned into suspects for doing just that.”

The NYPD stopped and interrogated New Yorkers 137,894 times between July and September. Nearly nine out of 10 of these stops resulted in no charges or citations. This record number of stops fell disproportionately on the city’s communities of color – 77,308 of those stopped were black and 41,103 of those stopped were Latino, while only 12,398 were white.

Between April and June, police stopped and interrogated New Yorkers 140,552 times. The Department made another 171,094 stops between January and March. Overall, this record number of stops represents a 15 percent increase from the stops conducted during the first nine months of 2008. If stops continue at this pace, the NYPD will conduct a record 610,000 stops in 2009. In 2008, the current record, police stopped New Yorkers 531,159 times.

The Department is then recording the name and home address of every person stopped – including the millions of completely innocent New Yorkers who have been stopped over the years.

“The NYPD is building a massive database of black and brown New Yorkers,” said NYCLU Associate Legal Director Christopher Dunn. “Innocent New Yorkers who are the victims of unjustified police stops should not suffer the further harm of having their personal information kept in an NYPD database, which simply makes them targets for future investigations.”

The NYCLU has for years been advocating against the Department’s excessive use of street interrogations and has been fighting for details of the program to be released to the public for debate. In the summer of 2007, the NYCLU served the NYPD with a formal legal request to turn over the complete stop-and-frisk database under the state’s Freedom of Information Law. The Department resisted transparency and so, in November 2007, the NYCLU filed a lawsuit in State Supreme Court challenging the NYPD. In May of 2008, the NYCLU won that case and received the database.

The NYCLU requested the information to allow for an independent analysis of the Department’s stop-and-frisk practices, which have been the subject of enormous controversy since the 1999 shooting death of Amadou Diallo.

The NYCLU’s concerns about excessive numbers of stops are supported by the RAND Corporation study commissioned by the Department in 2007. That report estimated that, “[e]ven with the most liberal assumptions,” one would expect the NYPD to have “roughly 250,000 to 330,000 stops” each year. Even when measured against the most permissive of standards, the NYPD is on its way to conducting 300,000 more stops than would be expected.

New York's Shield Law

I. Introduction: History & Background
LINK

The New York reporters privilege, codified in Civil Rights Law § 79-h (the "Shield Law"), provides broad protection to reporters and publishers. As originally enacted, the statute only applied to materials or information given in confidence to the reporter. However, various amendments, some in response to judicial decisions, expanded the statute so that it now protects both confidential and nonconfidential information from disclosure.

The New York Shield Law is an outgrowth of the state's long history of protecting the freedom of the press and of providing "one of the most hospitable climates for the free exchange of ideas." In re Beach v. Shanley, 62 N.Y.2d 241, 255, 476 N.Y.S.2d 765,733 (1984) (Wachtler, J., concurring). According to one judge, the first New York case in which a reporter refused to reveal his sources dates back to 1735, when John Peter Zenger was prosecuted for publishing articles critical of the New York colonial governor. The case resulted in an acquittal. Id. Since that time, and particularly with the growth of the publishing industry in New York in the 19th century, the privilege has been expanded to the point that it provides "broadest possible protection" to the press.

Both Article I, § 8 of the New York State Constitution and New York Civil Rights Law § 79-h provide an absolute privilege from forced disclosure of materials obtained or received in confidence by a professional journalist or newscaster, including the identity of source. Beach, 62 N.Y.2d 241 (applying absolute privilege against disclosing a confidential source even though the disclosure of the materials to the reporter may itself have been a crime). The privilege applies in both criminal and civil contexts and to information passively received by a reporter.

As a result of a 1981 amendment to the Shield Law, the term "professional journalist" was expanded to include not only those working for traditional news media (newspapers, magazines, and broadcast media), but those working for any "professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public," as well. Civil Rights Law § 79-h (a) (6).

In 1988, the New York Court of Appeals, in O'Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1 (1988), held that both the New York State Constitution and the First Amendment to the U.S. Constitution provide a qualified privilege from the forced disclosure of nonconfidential materials. This privilege may only be overcome by a clear and specific showing by the party seeking disclosure that the materials sought are: (a) highly material and relevant to the action; (b) critical or necessary to the maintenance of a party's claim or defense; and (c) not obtainable from any alternative source. In 1990, Civil Rights Law § 79-h was, in the wake of O'Neill, amended to incorporate this three-part test for nonconfidential news.

The Shield Law represents a formidable barrier to those who seek to compel the disclosure of information obtained by reporters in the course of their newsgathering activities. The O'Neill court, citing to the New York State Constitution and the State's early recognition of a constitutionally guaranteed free press, noted that this barrier is deliberately high:

The ability of the press freely to collect and edit news, unhampered by repeated demands for its resource materials, requires more protection than that afforded by the [CPLR]. The autonomy of the press would be jeopardized if resort to its resource materials by litigants seeking to utilize the newsgathering efforts of journalists for their private purposes were routinely permitted. Moreover, because journalists typically gather information about accidents, crimes, and other matters of special interest that often give rise to litigation, attempts to obtain evidence by subjecting the press to discovery as a nonparty would be widespread if not restricted. The practical burdens on time and resources, as well as the consequent diversion of journalistic effort and disruption of newsgathering activity, would be particularly inimical to the vigor of a free press.

O'Neill, 71 N.Y.2d at 526-27 (quashing subpoena seeking nonconfidential photographs) (citations omitted). New York courts thus afford the broadest possible protection to those engaged in "'the sensitive role of gathering and disseminating news of public events,'" and they do not hesitate to quash subpoenas issued to reporters in both criminal and civil actions. Id. at 529 (quoting In Re Beach v. Shanley, 62 N.Y.2d at 256).

There are limits to the protection afforded by New York's Shield Law, however, and, as discussed below, recent decisions indicate that some courts may be more willing to order reporters' materials produced in cases where a criminal defendant's Sixth Amendment rights are at stake.

Special thanks to Elisa Krall, who is a student at the New York University School of Law (class of '04) and a summer associate at Davis Wright Tremaine LLP, for her substantial and untiring assistance in researching and drafting the New York section of this compendium.

From Reporters For Freedom of the Press:

II. Authority for and source of the right

A. Shield law statute

New York Civil Rights Law § 79-h. Special provisions relating to persons employed by, or connected with, news media.

(a)Definitions. As used in this section, the following definitions shall apply:

(1) "Newspaper" shall mean a publication that is printed and distributed ordinarily not less frequently than once a week, and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising or other matter regarded as of current interest, has a paid circulation and has been entered in the United States post office as second-class matter.

(2) "Magazine" shall mean a publication containing news which is published and distributed periodically, and has done so for at least one year, has a paid circulation and has been entered in the United States post-office as second-class matter.

(3) "News agency" shall mean a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.

(4) "Press association" shall mean an association of newspapers and/or magazines formed to gather and distributed news to its members.

(5) "Wire service" shall mean a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.

(6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.

(7) "Newscaster" shall mean a person who, for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission.

(8) "News" shall mean written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.

(b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news or information to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose news obtained or received in confidence or the identity of the source of such news coming into such person's possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by a radio or television transmission station or network or for public dissemination by any other professional medium or agency which has as one of its main functions the dissemination of news to the public, by which such person is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material or related material gathered by a person described above performing a function described above is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person.

(c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. A court shall order disclosure only of such portion, or portions, of the news sought as to which the above-described showing has been made and shall support such order with clear and specific findings made after a hearing. The provisions of this subdivision shall not affect the availability, under appropriate circumstances, of sanctions under section thirty-one hundred twenty-six of the civil practice law and rules.

(d) Any information obtained in violation of the provisions of this section shall be inadmissible in any action or proceeding or hearing before any agency.

(e) No fine or imprisonment may be imposed against a person for any refusal to disclose information privileged by the provisions of this section.

(f) The privilege contained within this section shall apply to supervisory or employer third person or organization having authority over the person described in this section.

(g) Notwithstanding the provisions of this section, a person entitled to claim the exemption provided under subdivision (b) or (c) of this section waives such exemption if such person voluntarily discloses or consents to the disclosure of the specific information sought to be disclosed to any person not otherwise entitled to claim the exemptions provided by this section.

Legislative History

The bill (L. 1970, c. 615, § 2) containing what became Civil Rights Law § 79-h was signed into law, effective May 12, 1970, by Governor Rockefeller. Several news publishers, broadcasters and other media organizations expressed support for the bill, including the State Reporters Association, the Association of Managing Editors, the New York Society of Newspaper Editors, the American Newspaper Publishers Association, and the Magazine Publishers Association. Columbia Broadcasting System, Inc. (CBS) submitted perhaps the most detailed comments in favor of the bill, which included its amicus brief in In the Matter of Caldwell, 311 F.Supp. 358 (N.D. Ca. 1970), a California case decided in April 1970. CBS's amicus brief included affidavits from such luminaries as Walter Cronkite, Mike Wallace, and Dan Rather. At the time, several of the bill's supporters expressed the concern that the bill was not broad enough and that reporters' resource materials, in addition to the identities of confidential sources, should be protected.

While the New York Attorney General, Louis J. Lefkowitz, had no objections to the bill, the New York Civil Liberties Union opposed it, citing its concern that a blanket privilege could "lead to instances in which the reporter, if for no other reason than his own convenience, can defeat a public or private right of access to due process." Governor's Bill Jacket, L 1970, ch. 615, p. 10.

In his memorandum approving the bill, Governor Rockefeller stated:

This "Freedom of Information Bill for Newsman" will make New York State -- the Nation's principal center of news gathering and dissemination -- the only state that clearly protects the public's right to know and the First Amendment rights of all legitimate newspapermen, reporters and television and radio broadcasters."

The bill protects journalists and newscasters from charges of contempt in any proceeding brought under State law for refusing or failing to disclose information or sources of information obtained in the course of gathering news for publication.

***

Freedom of the press is one of the foundations upon which our form of government is based. A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news.

The threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information. That this real and imminent threat has been demonstrated by the statements of several prominent reporters that valuable sources of information have been cut off because of recent attempts by the Federal government to require the disclosure of information obtained by reporters in confidence.

***

At the present time, fifteen states have enacted legislation extending the testimonial privilege to newsmen. This measure affords a stronger safeguard of the free channels of news communication than most existing legislation, by protecting newsmen from being compelled to disclose the information they gather, as well as the identity of their informants.

Memorandum of Governor Nelson A. Rockefeller, Governor's Bill Jacket, L 1970, ch. 615, p. 91-92.

As originally enacted in 1970, the Shield Law only protected from disclosure information obtained by a professional journalist "under the cloak of confidentiality," and it only applied to professional journalists employed by traditional media outlets, such as newspapers, magazines and broadcast media. In addition, the original statute made no mention whether grand juries were included among the "other bodies" precluded from using their contempt powers against journalists. In 1975, Civil Rights Law § 79-h was, with the support of the New York Attorney General, the New York Civil Liberties Union (reversing its former position) and others, amended to make clear that the statute prohibited grand juries from seeking to hold reporters in contempt for failing to disclose information obtained in confidence.

The 1981 Amendment

In 1981, the statute was again amended in response to judicial decisions that, in the words of one of the sponsors of the bill containing the amendments, failed "to follow the letter or even the spirit of the existing law." Memorandum of Assemblyman Steven Sanders, Governor's Bill Jacket, L 1981, ch. 468, p. 1 ("Sanders Memorandum"). This was an apparent reference to the decision in People v. LeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252 (2d Dep't 1979), in which a criminal defendant succeeded in obtaining the notes of an author who was writing an investigative book on a notorious crime family to be published by a subsidiary of Harper & Row, Inc. The LeGrand court reasoned that the Shield Law did not extend to "authors," despite the fact that the writer in question previously worked for national and local broadcasters and had written, produced and directed numerous documentary films and news broadcasts. Id. at 448. See Sanders Memorandum at 2 ("But the highly absurd situation of Mr. Smith who writes news stories for the New York Times being covered while that same Mr. Smith six months later leaving the Times and beginning work on an investigative book of non-fiction intended for sale to a Harper & Row is not covered, is corrected in this bill. Thus the new bill will protect the journalistic process wherever that process is being professionally undertaken.")

The purpose of the amendment was to fill the "gaps and loopholes not perceived and not intended in the original legislation, such inadequacies that have allowed the courts to pierce the Shield Law time after time, leaving it in a state of legal impotency, with defense attorneys engaging in frequent and increasingly popular fishing expeditions for reporters' notes, and with judges becoming ever more creative in finding limitless reasons to violate the statute and ignore the intent of the Legislature in its 1970 adoption of 79-h." Sanders Memorandum at 1. This amendment to the Shield Law, however, was not without its detractors. Despite some opposition, the bill was passed and signed into law.

The 1981 amendment broadened the definitions of the terms "news" and "professional journalist" in the statute, so that all persons "professionally engaged in a journalistic capacity" could claim its protection, including freelance journalists. Sanders Memorandum at 2. Accordingly, as of 1981, the Shield Law protects traditional, mainstream journalists and media entities, as well as those working for any "other professional medium which has as one of its regular functions the processing and researching of news intended for dissemination to the public." Civil Rights Law § 79-h(a)(6), (b), (c).

The 1990 Amendment

In 1988, the New York Court of Appeals recognized a constitutional privilege, under both Article I, § 8 of the New York State Constitution and under the First Amendment, for nonconfidential information gathered by reporters. See O'Neill, 71 N.Y.2d 521 (privilege extends to nonconfidential photographs sought in a civil action). The decision in O'Neill, however, left open the question whether the qualified privilege would apply in the criminal context, and it came less than a year after the same court held that the Shield Law, as then written, did not protect from disclosure to a grand jury nonconfidential outtakes of an interview conducted of a suspect in a homicide investigation. Knight-Ridder Broadcasting, Inc. v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (1987). See People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310 (1st Dep't 1984) (nonconfidential outtakes ordered produced for in camera inspection).

In the wake of O'Neill and Knight-Ridder, the Legislature again amended Civil Rights Law § 79-h (effective November 1, 1990) to settle conflicting interpretations of the Shield Law. The 1990 amendment extended the qualified privilege to nonconfidential information obtained by reporters in the course of newsgathering and made clear that the privilege applies in both criminal and civil proceedings. The amendment codified the three-part test enunciated in O'Neill, which provides that the qualified privilege can only be overcome by a "clear and specific" showing by the party seeking to discover a reporter's resource materials that the materials sought are: (a) highly material and relevant; (b) critical or necessary to the maintenance of a party's claim or defense; and (c) not obtainable from any alternative source.

Other changes to Civil Rights Law § 79-h included provisions requiring that an order overcoming the qualified privilege could be no broader than necessary, and the order must be supported by clear and specific findings made after a hearing. Civil Rights Law §79-h (c). In addition, subsection (g) was also added to the statute, which provides that the privilege for both confidential and nonconfidential information may be waived by voluntary disclosure to a non-journalist of the specific information sought.

While the media supported the 1990 amendments, the New York Defenders Association, Inc. opposed extending the qualified privilege to nonconfidential news on the grounds that it conflicted with criminal defendants' Sixth Amendment rights and gave the press alone the power to decide whether and when to disclose information relevant to prosecutors and criminal defendants. Governor's Bill Jacket, L 1990, ch. 33 (pages not numbered). In order to address these concerns, the Defenders Association proposed that the privilege be limited to civil proceedings only, a position advocated by state Senator Gold and others in the floor debates over the bill. New York State Senate Debates, 1990, ch. 33 at p. 1834-35, 1849-50. However, Governor Cuomo signed the bill into law on March 23, 1990, stating:

Significantly, this qualified privilege will apply in both civil and criminal cases. Indeed, the need for protection of nonconfidential information and sources is especially strong in criminal cases where journalists are all too often drawn into the criminal justice system merely because they have reported on a crime.

In applying this standard to criminal proceedings, the bill does not override the right to a fair trial guaranteed to defendants in criminal proceedings by the United States and New York State Constitution. To the contrary, the bill strikes an appropriate balance between the principle of a free press embodied in the First Amendment and a defendant's right to a fair trial.

Memorandum of Governor Mario Cuomo filed with Assembly Bill No. 3226-B, Governor's Bill Jacket, 1990 ch. 33.

Open Letter To President Obama

From Brian D'Agostino, PH.D
LINK

November 19, 2009

Dear President Obama,

I taught in New York City colleges and public high schools for fifteen years, have published peer reviewed research, and hold a Ph.D. in political science from Columbia University. I voted for you and had high hopes for your education policies, especially when I learned that Linda Darling-Hammond was one of your advisors. She is an educator and knows what she is talking about. I’m sorry you didn’t listen to her, because your administration is now on a collision course with public school teachers and administrators across the country.

There is no more glaring indication of your problem with educators than Arne Duncan’s attack on the staff of so-called failing schools. First, it is not as easy as you may think to identify academic failure. For example, based on standardized test scores, which give a very incomplete and distorted picture of academic performance, New York City schools Chancellor Joel Klein has sought to close certain schools that the parents want to keep open. Secondly, even if all agree that a school is failing, it is not always clear that closing the school is the best solution, as education professor Pedro Noguera (pictured below) has noted.


Third, even if closing a school is the right decision, it is not reasonable and just to fire the entire staff. Mr. President, if soldiers have fought a battle against all odds and lose the battle, do you discharge them from the military when they return? If fire fighters plunge into a burning building to save lives and stop the fire, do you dismiss them from their jobs if they don’t succeed? If a doctor treats a person who is in critical condition and the person dies, do you drum the doctor out of the medical profession? I don’t imagine you would answer “yes” to any of these questions. In that case, please tell your Education Secretary to stop attacking teachers who find themselves in failing schools.

President Obama, you and Mr. Duncan are not educators and apparently do not grasp how demoralizing and counterproductive your “Race to the Top” policies will be for students, teachers, and administrators. Using standardized tests as the primary method of assessing academic performance creates powerful incentives for “teaching to the test.” Instead of getting students excited about academic work and responding to their individual learning needs, teachers will be pressured to focus on test preparation, which can only produce mindless conformity and a life-long aversion to study.

These predictable outcomes are precisely the opposite of what the country needs from public education. One authoritative 2007 report, Tough Choices or Tough Times, calls for schools that can teach creativity and “out of the box” thinking in order to meet the competitive economic challenges of the 21st century. By contrast, you are now pushing states down the path of standardized test driven instruction and teacher evaluation, which will turn our schools into soul-less factories for producing standardized minds. This will imperil not only economic competitiveness but the critical thinking skills needed to preserve freedom and democracy from the threat of authoritarian rule.

It didn’t have to be this way. Instead of micromanaging how the states spend federal education money, you could have mandated instead that schools themselves develop and implement their own innovation plans. Besides need, there should be only two requirements for a school to receive federal education money. First, require each school to identify its core values, produce a mission statement addressing the aims of education in the twenty-first century, and produce an innovation plan addressing how the school will work to achieve its aims. Second, require every school to demonstrate that their mission statement and innovation plan were generated through an open dialogue and collaboration involving all their immediate stakeholders including parents, students, teachers, administrators, and community leaders.

A bottom-up approach such as this would tap the energies, intelligence and creativity of our schools’ stakeholders and give them ownership of the process, which is essential for reform to succeed. Some schools would produce a vision of reform that matches yours. But instead of imposing it on the schools, you would be empowering the stakeholders to create and enact their own visions. Other schools may take different approaches, and we should all welcome such diversity.

Here is my approach to school innovation. My core values include competence, creativity, individual responsibility, and teamwork. I would like to see a system of teacher evaluation that includes video portfolios, peer observation, and feedback from students. My school should be committed to science, the arts, and social studies, not only to math and literacy. It should offer nutrition, physical fitness, and other programs of proven effectiveness for building heath and achieving optimal brain function. And finally, my school should eliminate unproductive bureaucracy, supervision, and paperwork to help pay for all of the above.

Mr. President, it is not too late to listen to the teachers and other stakeholders in our nation’s schools. I respectfully urge you to do so.

Sincerely,

Brian D’Agostino, Ph.D
New York, NY

In Support of Teacher Tenure

Good Reasons to Save Teacher Tenure
By Michael E. Kramer
General Counsel, Georgia Association of Educators
LINK

Of the 50 states in the United States, 49 have some form of teacher tenure, or "fair dismissal laws" protecting teachers from arbitrary firings. Most of these states clearly outrank Georgia on student testing and achievement in multiple categories. These states have no problem outshining Georgia on educational measures while also requiring administrators to justify the firing of public schoolteachers. Clearly, tenure laws are not holding back other states from achieving education reform or student progress and achievement. (In fact, Mississippi is the only state that has no statutory protections providing a due process hearing for teachers. Mississippi ranks lowest in most educational measures.)

How can anyone object to requiring an administrator "to have a good reason" for firing a public schoolteacher? Isn't this simply holding the administrator responsible for sound educational judgment? The Governor's reform legislation is supposed to be about accountability. Georgia's Fair Dismissal Act provides just such accountability of administrators' competency, both as to evaluating educators and as a safeguard against arbitrary, capricious, discriminatory, political, or retaliatory firings.

A case in point. Drew Hamernick, a 10-year biology teacher in the Cartersville City Public Schools was terminated last year by his Superintendent for insubordination, willful neglect of duties, and incompetency. Sounds like pretty strong stuff—you'd expect the Superintendent to have real good reasons to support those charges. He didn't. Instead, the Superintendent had his staff assemble student failure rate statistics from Mr. Hamernick's classes and attempt to pass them off as evidence of poor teaching. The only problem was that the statistics were falsely presented at the hearing, and actually supported Mr. Hamernick. The evidence showed that most of the students had also failed at least two or more of their other classes or had exceeded the number of allowable school absences under local board policy (mandating a failing grade). His classes were also filled with students in the non-academic track, for whom biology was also the most difficult subject in their schedule. When Mr. Hamernick taught students in the regular academic track, his pass rates were consistent with all other science teachers in the school system.

Students, parents, and business leaders came to testify on Mr. Hamernick's behalf—particularly testifying that he was a compassionate and effective teacher. One mother cried while testifying to her daughter's first signs of interest in any academic course. The local board of education which heard the case reinstated Mr. Hamernick to his teaching position for this school year. If the Superintendent hadn't had to justify the termination, Cartersville City would have lost a good and productive schoolteacher.

The Fair Dismissal Act actually reduces expensive court litigation. By having a statutory hearing process Georgia minimizes the number of state and federal lawsuits filed in court. Without the Act, teachers will have no other recourse but to go to federal or state court by filing breach of contract, employment discrimination, and First Amendment lawsuits to protect their rights. By providing an administrative hearing, everyone gets a cost-effective, fair and more efficient public airing which resolves most of these claims.

The public and journalists normally support access to government decision-making. Eliminating fair dismissal hearings will end public oversight. After all, if an administrator doesn't have to give any reason, let alone a "good reason" for a teacher firing, the public's inquiries will be met by silence. School administrators' personnel decision-making already takes place behind closed doors, subject to the exemptions under the Georgia Open Meetings Act and the Open Records Act. The fair dismissal hearing of a teacher is often the only public airing and accountability of school-based personnel decisions.

The Georgia Association of Educators supports ridding classrooms of incompetent teachers. GAE supports peer review, site-based decision-making, and a stronger evaluation process---which will help accomplish that goal and raise Georgia's educational accomplishments. The Governor failed to incorporate peer-review into his reform legislation.

Governor Barnes' strengthening of evaluations and accountability for low-performing schools will place all educators under a stronger magnifying glass. GAE supports a rigorous evaluation process. However, administrators in low-performing schools will be more likely to dismiss teachers just for the sake of showing they're taking action. You can bet that any teacher critical of the administrator's competence and leadership will be among the first to go. By eliminating fair dismissal protections the Governor will just empower unjust administrators to abuse their authority for the sake of their own protection.

Georgia has had fair dismissal since 1975, over 25 years. The first fair dismissal law was enacted in the United States 75 years ago. Of course, the last 75 years has seen the United States become the leading economic, political, and military power in the world. While educational systems can and should be constantly improved, its disingenuous to suggest that tenure has held education back.

It is relatively easy to fire a teacher, even for mediocrity, contrary to misrepresentations by some legislators and journalists of this fact. The Fair Dismissal Act provides minimum due process protections: the teacher can be fired for "any good and sufficient cause;" the hearing is held before the teacher's employer (the local school board decides the outcome); the decision is always upheld on appeal if there is "any evidence" in the record to support it; and decisions are therefore rarely reversed. In my experience, fewer than 100 teacher dismissal hearings are held per year statewide. Many more teachers with tenure elect to resign without invoking their right to a hearing because of the evidence against them. Of the 40 or so teacher dismissals that are appealed each year, over 90% are upheld. If an administrator is doing his or her job, and has a "good reason," then it is relatively easy under these rules to fire any teacher. This is a small price to pay for a fair hearing, and for protections that hold the line against arbitrary, political, and unfair firings.

Does the Fair Dismissal Act make it impossible to fire an incompetent or even a mediocre teacher? Of course not. All an administrator has to do is evaluate and document teacher performance. This isn't brain surgery. School systems have three full years—540 classroom instructional days--in which to observe and judge a teacher before granting hearing rights. If a school administrator can't figure out in 3 years whether a teacher is going to make a contribution to student progress and achievement, then maybe it's the administrator who should be held accountable. Thereafter, if an administrator doesn't have the competence or integrity to build a case against a teacher who ought to be fired, then perhaps the administrator should be fired.

Fair dismissal is not about protecting bad teachers. The solution to the problem of the "bad" teacher is not the abolition of a fair hearing for all teachers. The hearing process protects good teachers from arbitrary, retaliatory, political, and discriminatory actions. We should all support that goal.

The Fair Dimissal Act: Ten Mistakes School Systems Make

Appeal Decisions

Georgia Fair Dismissal Act doesn’t apply to school administrators
LINK

The Clarke County Board of Education ousted Cedar Shoals High School Principal Tommy Craft without providing a reason for his termination. When board members refused to explain their decision to Craft or the public—citing the school board attorney's advice—Cedar parents like Chris Hale were frustrated. “It's an unfair situation for Dr. Craft and for us as parents —just the not knowing exactly why,” Hale said. Absent any explanation, Craft says politics, not performance, led the school board to let him go. He's even accused two board members of holding a grudge against him for a decision he made two years ago to pass over board member Sidney Anne Waters' son-in-law for an administrative position at the school. According to the school system’s attorney, Terrell Benton, the school board long has refused to comment on personnel decisions. The state Fair Dismissal Act—passed more than 30 years ago—offers some protection to teachers when their contracts aren't renewed. The law gives tenured teachers—typically a teacher who's taught at a school four years or more—the right to appeal or at least request a reason when the school board opts not to renew his or her contract. But changes to the law in 1995 meant most school principals no longer have that right. That doesn't mean school board members can't explain their reasons to fire a principal, Benton said, but he warns them they may expose the school system—and taxpayers—to a lawsuit.

Benton's advice is not uncommon in Georgia, where principals often are shown the door without an explanation. The state legislature removed administrators from the Fair Dismissal Act in 1995, approving a bill sponsored by the Georgia School Boards Association (GSBA), an entity that represents all 180 of the state's school districts. Principals are public figures, said GSBA's Angela Palm, and the law protects their privacy and protects taxpayers from lawsuits. But professional organizations like Georgia Association of Educational Leaders (GAEL) and the Professional Association of Georgia Educators (PAGE), each of which represent about 2,500 administrators in the state, see a different perspective. When local school boards aren't required to give a reason, they're rarely willing to explain, said Jim Puckett, GAEL's executive director. “Certainly the board doesn't want to have to defend itself in a lawsuit, so they have to determine the balance between risking going to court or the public relations issue because parents and the community are worried about what's going on. But typically, boards will err on the legal side.” But if school board members don't have to give a reason for firing a principal, maybe they don't have one, PAGE spokesman Tim Callahan said. “The idea of a fair dismissal law is that it protects people who may not always be politically correct or are willing to step on some toes,” Callahan said. “... I don't know if it's made principals more accountable. It's probably made them more gun shy and a little less willing to take risks.”

Source: Athens Banner-Herald, 1/27/08, By Benjamin Price

Georgia State Board Decisions

Former teacher files suit
Claims violation of Fair Dismissal Act
LINK

Ashley Payne, a former 9th and 10th grade literature teacher at Apalachee High School, has filed a lawsuit against the Barrow County School District, claiming she was forced to resign against her will and in violation of the Georgia Fair Dismissal Act.

Payne, who had just begun her third year at AHS, said before class began the morning of Aug. 27, Assistant Principal for Curriculum and Instruction Dorann Mansburger asked Payne to meet in her office. There, Payne said, Principal David McGee questioned Payne about the content of Payne’s Facebook page, saying there had been a complaint about her site.
Payne said her Facebook status at the time mentioned an event called "Bitch Bingo," and said McGee told her the parent of one of her students had complained to the superintendent about the word. According to Payne, McGee also had issue with photographs on the page depicting Payne with alcohol.

"My co-worker and I went all over Europe this summer," Payne said. "We went to a Guinness brewery up there (which is terrible and I didn’t drink all of it), and went to Italy and had wine there; we went to the Temple Bar District in Dublin."

She said the trip was not school-related, and the pictures merely showed her holding the beverages, not drinking them or displaying drunken behavior.

According to Payne, McGee told her he had spoken with Superintendent Dr. Ron Saunders, and disciplinary action against her would be taken. She said she assumed they had decided to suspend her.

"They went on to say that if it was just the language or just the picture that would be one thing, but since it was both, there was no way I could win this," Payne said. "I took this to mean there was no way to win my job."

Payne claimed McGee encouraged her to immediately resign, telling her a suspension would only hurt her chances of future employment. She also claimed that Mansburger helped her write a resignation letter, which stated she was leaving for personal reasons.

Those actions, if proven true, may violate the Georgia Fair Dismissal Act. By law, teachers who are suspended can only be put on suspension for 10 days and must be given a hearing. Furthermore, they must be paid until that hearing takes place. Payne said she was never told any of this, and was led to believe she had to make a decision -- to resign or be suspended -- right away.

"I did trust him, and I trusted that he was telling me everything, and that was not the case," Payne said. "I didn’t have time to look at my options or look at the process, or even process in my mind until I got out of that room."

"In a sense, our position is that her principal held a gun to her head and forced her to resign, and in effect he did so under false pretenses," said Richard Storr, one of Payne’s attorneys.

McGee declined to discuss personnel matters, as did Saunders.

"Our school system has a long-standing practice not to discuss personnel issues in the public," Saunders explained. "We just don’t think it’s beneficial to the district, its employees or its former employees...to hash these things out in public."

Storr and his associate, Robert Friedman, will soon take Payne’s case before a judge, hoping the judge will order the Barrow County Board of Education to give Payne her hearing. They have petitioned for a writ of mandamus, which a judge can issue when a state entity does not comply with state law.

"We don’t know what the judge is going to do, but we hope he’ll give us a hearing," Friedman said. "We don’t know what the board will do, but we hope they’ll reinstate Ms. Payne."

Friedman went on to say that, no matter the board’s decision on Payne’s employment, the important thing is that she get her hearing.

"We’re not asking that Ashley be automatically reinstated; we just want fairness, what’s called due process," he said. "We would accept whatever decision the board decides."

They are also asking that Payne be paid for the time from her resignation until her eventual hearing.

As she waits for her day in court, Payne said she is convinced she did nothing worthy of punishment.

"It just doesn’t seem inappropriate or unethical to me. I didn’t have a caption that said ‘Ms. Payne thinks all her students should drink this,’" she said. "I don’t promote drinking alcohol to my students and I don’t talk about drinking alcohol with my students, and I never intended for them to see photos of me with alcohol...What matters is how I am as a teacher and what I do [in the classroom.] It just upsets me that the focus on what I do in my classroom has shifted to what I do in my personal life, when that has nothing to do with [my job.]"

At the time, the school district had no policy governing social networking sites – although such a policy is now being discussed by the Board of Education -- and the 2009 Code of Ethics for Educators only prohibits alcohol use during school functions, on school property, or while supervising students. Payne doesn’t believe her actions violated that code of conduct.

"It’s the same thing a student would see if I were having a margarita at Applebee’s and a student walked by and saw me," she said. "There’s nothing unethical about it."

Regarding her use of the word "bitch," Payne said there is stronger language in "Of Mice and Men" and other books she used as part of her literature curriculum.

Payne said she has no idea how a student and parent had access to her Facebook page.

"I’m very sure [my Facebook page] was always set to private, and I wasn’t friends with any of my students. Keeping my personal life personal was very important to me," she said.

The crux of Payne’s case is whether her lawyers can prove the district is in violation of the Fair Dismissal Act, which outlines eight situations that justify suspension or termination of a school employee.

Those eight grounds are incompetency, insubordination, willful negligence of duties, immorality, inciting or encouraging students to violate any law or policy, reducing staff due to loss of students, failure to secure and maintain educational training, and "any other good and sufficient cause."

Additionally, the Fair Dismissal Act states that employees may only be suspended for 10 days and must be given a hearing, and that "the names of the known witnesses and a concise summary of the evidence to be used against him."

Payne said she was never told the name of the student or parent who complained, or told specifically what photo was objectionable.

Friedman said that should the judge deny them a hearing before the Board of Education, the case could be taken to federal court. Payne and her lawyers have not discussed this step.

"We want to take it as it comes, and hopefully get it resolved in the easy part," Storrs said.

The evidenciary hearing before the judge has not yet been scheduled, but Friedman expects to present their case within the month.

Teacher Tenure

Teachers Can Go to BODIES Exhibition For Free

As a thank you for years of support and patronage, BODIES…The Exhibition, one of New York’s leading educational atractions, is thanking teachers by hosting Free Teacher Tuesdays.

Beginning Tuesday December 1st 2009, teachers can explore BODIES…The Exhibition free-of-charge. There they will have the opportunity to see what historically has been accessible only to the medical profession ~19 real human bodies dissected to show various internal systems as well as over 250 individual healthy and diseased organs.

A downloadable, free comprehensive Teacher’s Guides for elementary, middle, high school and post-secondary levels with experiential classroom activities aligned to the National Academic Standards and the State Content Standards for New York, New Jersey, Connecticut, Rhode Island and Pennsylvania, is also available.

Teachers must provide proof of employment as a teacher and must attend during normal operational hours, Tuesdays 10am-6pm.

Please let me know if you would like more information.

Lizzie Jenkins
Rogers & Cowan
919 Third Avenue
Floor 18
New York, NY 10022
O: 212.445.8146
F: 212.445.8477

Power Brain Education Program Gets $400,000 From the NYC BOE

okay, everyone, on this one story led by Yonev Gonen, I may have some reservations to thinking that Dr. Warrington Parker's program needs to be seen as a cult. I was invited to the United Nations last year to view the Power Brain Program and meet Dr. Warrington Parker.

"Ties with a cult" does sound spooky, but I'm reserving my judgment against saying 'absolutely not' to empowering our brains in any positive way, and I am posting this for the reason that David Cantor seems to be listening to the public, for some reason. That's unusual. All apologies to you, David, but it is.

Betsy Combier





'Cult' program in NYC schools
By YOAV GONEN, NY POST, November 9, 2009
LINK

Thousands of city public-school students and teachers are participating in a "Brain Education" program run by a group with ties to an alleged cult.

For the past three years, the Department of Education has shelled out nearly $400,000 for 44 schools to participate in the Power Brain Education company's lessons and workshops.

But dozens of former employees of an organization called Dahn Yoga -- whose founder developed the teachings for Brain Education -- said the school program is run by a group that is part of a vast web of interrelated companies conning participants into investing all their time and money in unproven health and healing activities.

The former workers of Dahn Yoga, which operates 130 health centers and two training retreats across the country, filed a federal lawsuit in Arizona in May charging that its activities are abusive and grow increasingly devotional over time to the group's founder and spiritual leader, 57-year-old Seung Huen "Ilchi" Lee.

"If my child was [participating in Power Brain], I would pull them out in about two minutes," said lawyer Terry Brostowin, who settled a wrongful-death suit against Dahn Yoga last year. "I would be very scared."

Brostowin sued Dahn Yoga in 2005 on behalf of the family of Julia Siverls -- a fit, 41-year-old CUNY professor who collapsed and died during an endurance hike at the group's Sedona, Ariz., retreat.

Her family alleged that Siverls had been drugged and forced to hike in desert heat with 40 pounds of rocks in her backpack and with little water.

Another former Dahn employee who alleged that she was sexually assaulted by Lee settled her case against him in 2002.

Although Dahn Yoga officials claim there's no direct link between Lee and the city schools' program, one of Lee's own Web sites describes Power Brain Education as "Ilchi Lee's Brain Education," and he wrote a book called "Power Brain Kids."

This year, Lee visited PS 65 in The Bronx -- which is using the Power Brain program -- and personally taught a lesson to the students.


'LEE' CLUB: Students last week participate in a "Brain Power" exercise, developed from the teachings of controversial guru Seung Huen "Ilchi" Lee.

Foes said the organization reels people in with lovey-dovey, group-building activities before steadily ratcheting up the pressure for more involvement and money.

This includes taking expensive training courses and retreats that cost as much as $10,000 per week to become "Dahn Masters," who help operate the health centers and recruit new members under high-pressure quotas, according to the ex-workers' lawsuit.

One of the former employees says in the lawsuit that coercion was so great that she was sexually assaulted by Lee in 2006.

Joseph Alexander, a vice president at Dahn Yoga, insists that the suit is without merit.

"They just made all these allegations and accusations with nothing to back it up," he said.

Alexander also said there was no business connection between either Lee or Dahn Yoga and Power Brain Education. He said the only relation between the groups was that the school programs were adapted from Lee's Brain Education teachings. "He's treated as the founder of the philosophy, but as far as that business is concerned, he's not involved with it," Alexander said.

Last Thursday, at a Bronx elementary school, a 25-minute demonstration of the Power Brain lesson was full of positive language and activities the kids seemed to enjoy.

Kids were told to say, "I love your Power Brain face," to one another and to rap songs with lyrics like "I love my thalamus."

City Department of Education officials -- who have known about the former employees' lawsuit since late summer -- said principals selected the program on their own and that many felt it had benefits for students.

But they said they are pulling it for now, after The Post inquired about the program and the controversy surrounding Lee.

"There do not appear to be any allegations against the company that offers [the program]," said DOE spokesman David Cantor. "Given the allegations, however, we will discontinue the program until we determine whether it is inappropriate or improper."

Additional reporting by E.J. Kessler

yoav.gonen@nypost.com

The 5 Steps of Brain Education

Research on Brain Education for Enhanced Learning



'Cult’ program in NYC schools
ReligionNewsBlog.com, Posted: Monday November 9, 2009
LINK

New York — Thousands of city public-school students and teachers are participating in a “Brain Education” program run by a group with ties to an alleged cult.

For the past three years, the Department of Education has shelled out nearly $400,000for 44 schools to participate in the Power Brain Education company’s lessons and workshops.

But dozens of former employees of an organization called Dahn Yoga — whose founder developed the teachings for Brain Education — said the school program is run by a group that is part of a vast web of interrelated companies conning participants into investing all their time and money in unproven health and healing activities.

Although Dahn Yoga officials claim there’s no direct link between Lee and the city schools’ program, one of Lee’s own Web sites describes Power Brain Education as “Ilchi Lee’s Brain Education,” and he wrote a book called “Power Brain Kids.”

Foes said the organization reels people in with lovey-dovey, group-building activities before steadily ratcheting up the pressure for more involvement and money.

This includes taking expensive training courses and retreats that cost as much as $10,000 per week to become “Dahn Masters,” who help operate the health centers and recruit new members under high-pressure quotas, according to the ex-workers’ lawsuit.

Mountain enlightenment leads to yoga empire

Dahn Yoga stretches into controversy

Yoga Cult?

Critics Compare Dahn Yoga to Cult

Dahn Hak: Rewarding Yoga Or A Korean Cult?

Founder peddles belief in ‘ancient healing’

Brain sensitising

How yoga class got personal

Dahnhak sued after member dies trying to master art

I-Team Investigates Yoga Group Some Call A Cult

“There do not appear to be any allegations against the company that offers [the program],” said DOE spokesman David Cantor. “Given the allegations, however, we will discontinue the program until we determine whether it is inappropriate or improper.”

Freedom of Mind

Research on Brain Education for Enhanced Learning

Studies of Brain Education for Enhanced Learning have found that the program promotes behavioral, emotional, and cognitive improvements, including positive effects on learning efficiency, multiple intelligences, emotional intelligence, and stress coping strategies. Following are summaries of three studies that used a control-group design.

Learning efficiency. Twenty students at fifth grade level participated in a pilot Brain Education program twice weekly for twelve weeks. After completion of the program, they displayed significant improvements in five out of twelve tests of learning efficiency, including concentration, learning strategy, learning acceptability, self-control strategy, and emotional control strategy, as well as a global score of learning efficiency. In contrast, a control group of twenty students did not show improvements in any of these measures. (Oh et al. Effect of a brain respiration program on learning efficiency for elementary school age children. Korean Journal of Educational Research. 2004; 6: 42 (2): 511-42.)

Multiple intelligences. Forty pre-schoolers (age 5) participated in a Brain Education program for thirty minutes daily, for five months. Compared to a control group of 40 children, the children in the Brain Education program showed significant improvements in six of eight different intelligences tested, including linguistic, logical-mathematical, body-kinesthetic, musical, interpersonal, and intrapersonal intelligence. (Kwak Yun-jung and Jo Tae-im, Effects of a brain development program on multiple intelligences. Journal of Brain Education. 2006; 12 (1): 1.)

Emotional intelligence and stress coping strategies. Twenty-seven fifth grade students received the Brain Education curriculum once weekly, during their homeroom period, for thirty-five weeks. Compared to a control group of 25 students who practiced writing Chinese characters, children in the Brain Education group demonstrated greater emotional intelligence (for example emotional perception, expression, and control). Children also reported less stress and showed a preference for active stress coping strategies, compared to children in the control group. (Oh et al. Effectiveness of a brain-based health curriculum on children’s emotional intelligence, stress, and stress-coping strategies. Manuscript under review.)

BE Impact on Multiple Intelligences

Former Dahn Masters File Mass Law Suit
May 29th, 2009 -
LINK

This is a law suit filed on May 20th 2009 by numerous former Dahn masters.

It is the most ambitious lawsuit of its kind by multiple victims who are seeking financial compensation in order to address the heavy debt that they have incurred by their membership in Ilchi Lee’s organization.

One woman alleges that she was raped by Ilchi Lee in Korea.

There have been several other women who have also alleged to have been raped by Lee.

Lawsuit: PDF