City Teachers Scramble For Jobs

City Teachers Scramble for New Positions

Tuesday, August 23, 2011 - 04:49 PM
By Beth Fertig, NYC News Blog
LINK

More than 1,900 city teachers let go by their principals because of budget cuts are still looking for new jobs this fall — and continue to receive salaries while they're assigned to work as subs and look for permanent positions within the school system.

Letting go of teachers for budget reasons has become an annual tradition in New York City, known as "excessing." This is the fifth consecutive year in which schools have had their budgets slashed. This year, individual schools lost an average of 2.4 percent of their city funds. Principals have responded by raising class sizes in order to let go of a teacher, or by moving librarians back to the classroom.

As many as 3,325 teachers were in the excess pool at its peak this summer, compared to 2,993 last summer — a figure that included more than 1,000 teachers who lost their jobs in previous years. But the total number of teachers still looking for work shrank to 1,940 by August 19, about the same number as this time last year.

It Could Have Been Worse

The teachers unions said it's not as bad as it feared.

"One potential reason could be that a larger-than-expected number of retirements and attrition could have created an unusual number of vacancies in schools," United Federation of Teachers spokesman Dick Riley said.

This allowed principals to pluck more teachers out of the excess pool, which is also called the Absent Teacher Reserve.

Mayor Michael Bloomberg has been lobbying to put a time limit on how long teachers can stay in the ATR pool if they don't find permanent jobs, because it costs the city about $100 million annually. As of August 19, 68 teachers have been in the ATR pool since 2006.

This year, as part of the deal to avoid any layoffs, the union agreed to give the Department of Education more flexibility in assigning teachers from the ATR pool to work as subs.

Other Positions Cut from Schools

The city expects to reassign 555 principals, assistant principals, guidance counselors, psychologists, social workers, attendance teachers and school secretaries to other positions because their principals couldn't afford to keep them on staff. There are no comparable figures for last year.

The city also has new estimates for how many non-teaching positions will be cut from schools this fall because the no-layoff pledge only applied to the teachers union.

It appears that a total of 777 positions were axed, including school aides, family workers, parent coordinators, health service aides, drivers and engineers.

Most of those come from District Council 37

Can Teachers Alone Overcome Poverty?

Can Teachers Alone Overcome Poverty? Steven Brill Thinks So

Steven Brill

Filed under: Education Policy,Poverty — millerlf @ 8:20 pm
By Dana Goldstein, The Nation – Wed, Aug 10, 2011
LINK

Steven Brill, the journalist and media entrepreneur, has come a long way since he helicoptered onto the education beat in 2009.

That’s when The New Yorker published Brill’s exposé of the New York City “rubber rooms,” where the Department of Education parked the one-twentieth of 1 percent of the city’s 80,000 public school teachers—about forty people—who had been accused of gross negligence and removed from the classroom. As they awaited the due process hearings guaranteed in their union contracts, rubber room teachers received full pay and benefits, sometimes for up to three years.

The article sparked outrage among readers, who were appalled that millions of tax dollars were spent annually paying the salaries and arbitrating the cases of teachers who came to work inebriated or practiced corporal punishment. Despite the fact that the Department of Education and the United Federation of Teachers shared responsibility for creating the clumsy and cumbersome arbitration process, Brill laid the blame solely at the union’s doorstep.

He followed up with his hyperbolically titled May 2010 New York Times Magazine feature “The Teachers’ Unions Last Stand,” which admired the Obama administration’s attempt to pressure states to tie teacher evaluation and pay to students’ standardized test scores. The article lavishly praised nonunionized charter schools while entirely blaming teachers unions for the achievement gap between poor and middle-class students.

Together, the two pieces had the kind of impact most journalists can only dream of. Rubber room teachers were reassigned to desk jobs, and their arbitrations were sped up. More significant, Brill’s framing of the education debate, borrowed from reformers like Joel Klein and Michelle Rhee—teachers unions vs. poor kids—infiltrated the popular consciousness more deeply than it had before, presaging the September 2010 release of the pro–charter school, anti–teachers union documentary Waiting for Superman. Brill began to appear on panels with key figures in the education debate, including American Federation of Teachers (AFT) president Randi Weingarten and Harlem Children’s Zone President and CEO Geoffrey Canada. And he embarked on an ambitious book project: a comprehensive history and analysis of the standards-and-accountability school reform movement called Class Warfare: Inside the Fight to Fix America’s Schools.

Not surprisingly, given Brill’s history of interest in only the most controversial school reform issues, the book is filled with misleading discussions of complex education research, most notably a total elision of the fact that “nonschool” factors—family income, nutrition, health, English-language proficiency and the like—affect children’s academic performance, no matter how great their teachers are. (More on this later.) Class Warfare is also studded with easy-to-check errors, such as the claim that Newark schools spend more per student than New York City schools because of a more cumbersome teachers’ contract. In fact, the New Jersey Supreme Court ruled in 1990 that the state must provide supplemental per-pupil funding to all high-poverty school districts, including Newark. As a result, New Jersey is considered a national leader in early childhood education, and Newark graduates more African-American boys from high school—75 percent—than any other major city.

But here’s the thing: by the closing chapters of his breezy, 478-page tome, Brill sounds far less like an uncritical fan of charter school expansion, Teach for America (TFA) and unionbusting and far more like, well, a guy who has spent several years immersed in one of the thorniest policy conversations in America, thinking about a problem—educational inequality—that defies finger-pointing and simple solutions.

Welcome to the beat, Brill!

One of Class Warfare’s stars, a charter school assistant principal named Jessica Reid, unexpectedly quits her job at Eva Moskowitz’s Harlem Success Academy in the middle of the school year; the charter chain’s rigorous demands pushed the 28-year-old Reid, a dedicated and charismatic educator, to the brink of a nervous breakdown and divorce. “This wasn’t a sustainable life, in terms of my health and my marriage,” she tells Brill, who concludes that he agrees (at least in part) with education historian and charter school critic Diane Ravitch. You can’t staff a national public school system of 3.2 million teachers, Ravitch tells Brill, with Ivy Leaguers willing to run themselves ragged for two years. Most of these folks won’t move on to jobs at traditional public schools, as the uncommonly committed Jessica Reid did, but will simply leave the classroom altogether and head to politics, business or law, where they’ll be paid more to do prestigious work, often with shorter, less pressure-filled hours.

One school principal has said that Randi Weingarten, of the teachers’ union,“would protect a dead body in the classroom.”

That’s the model of Teach for America, of course, another school reform organization with which Brill is somewhat frustrated by the end of his book. He comes to grasp the fundamental problem with TFA’s conception of the teacher pipeline: Let’s say the lowest-performing 10 percent of career teachers—320,000 people—are fired. How will we replace them? TFA will contribute only about 9,300 corps members to the nation’s schools in the coming school year; even if every graduate of a selective college entered teaching—and some would surely be terrible teachers—we’d still have a shortage. Education Secretary Arne Duncan was “actually making an important point,” Brill concedes, when he said, “You can’t fire your way to the top.”

Faced with these complexities, Brill comes up with a strange conclusion: Maybe New York City Mayor Mike Bloomberg should give Randi Weingarten control of the city schools in a “Nixon goes to China” move. If she were responsible for student achievement instead of teacher job security, Brill suggests, the labor leader would be forced to push union members harder to prioritize instructional excellence and embrace tenure reform.

But in fact, the sea change in union attitudes that Brill believes can only be achieved by this unlikely move has already taken place. The AFT and, more recently, the National Education Association have accepted the fundamental premise of tying teacher evaluation to student performance. The details need to be worked out in statehouses and school districts across the country—the most controversial issue, and rightly so, is the role that data from standardized tests will play. Nevertheless, the unions’ evolution into more student-achievement-focused organizations is, at this point, foreordained. In Colorado last year, the local AFT affiliate even supported legislation that requires student achievement data to account for 51 percent of a teachers’ evaluation score. Colorado teachers who receive a bad evaluation two years in a row will now lose their tenure protections.

All that said, it is truly ignorant to reduce school reform to a labor-management question. States with teacher collective bargaining routinely outperform right-to-work states academically, and teachers are unionized in most of the nations—such as Finland, Canada and France—whose kids kick our kids’ butts on international assessments.

School reform is just as much about the three Cs: curriculum (what knowledge and skills students actually learn); counseling (how we prepare young people, professionally and socially, for adult life); and civics (whether we teach students how to participate in American democracy).

Brill never mentions any of this. Class Warfare is built around the idea of children, particularly poor children, as test-score-producing machines, with little to no attention paid to other aspects of their personalities or lives. The book’s heroes are philanthropists, school administrators, policy wonks and politicians. We meet few students or parents.

Most pernicious is Brill’s repeated claim that the effects of poverty can be not only mitigated but completely beaten back by good teachers. “A snowballing network of education reformers across the country…were producing data about how teaching counted more than anything else,” Brill writes in the book’s opening pages. Later, he devotes a chapter to economists Thomas Kane and Douglas Staiger, whose work on value-added teacher evaluation has powerfully influenced Bill Gates’s education philanthropy. “It wasn’t that poverty or other factors didn’t affect student performance,” Brill summarizes. “Rather, it was that teacher effectiveness could overcome those disadvantages” (emphasis added).

In fact, the work of the many researchers Brill approvingly cites—including Kane, Staiger and Stanford’s Eric Hanushek—shows that while teaching is the most important in-school factor affecting student achievement, family and neighborhood characteristics matter more. The research consensus has been clear and unchanging for more than a decade: at most, teaching accounts for about 15 percent of student achievement outcomes, while socioeconomic factors account for about 60 percent.

It is tiring to make this point over and over again. The usual rebuttal is that determining exactly how much teachers matter is irrelevant, because they are one of the only levers in a poor child’s life over which school systems exert some control. This is true, and it’s a fine argument for focusing education policy efforts on sustainable teacher quality reforms, such as recruiting more academically talented young people into the profession, requiring new teachers to undergo significant apprenticeship periods working alongside master educators, and creating career ladders that reward excellent teachers who agree to stay in the classroom long-term and mentor their peers. This is what such high-performing nations as China and Finland do; they don’t, à la Teach for America, encourage 21-year-olds with five weeks of summer training to swoop into the classroom and swoop out again.

But because we know, without a doubt, that family poverty exerts a crushing influence over children’s lives, it is no small thing when standards-and-accountability education reformers repeat, ad nauseam, that poverty can be totally “overcome” by dedicated teachers. Of course, we all know people who grew up poor and went on to lead successful, financially remunerative lives. Many of them feel grateful to educators who eased their paths. But the fact remains that in the United States in 2011, beating the odds of poverty has become far less likely than ever, and teacher quality has less to do with it than does economic inequality—a dearth of good jobs, affordable housing, healthcare, childcare and higher education.

Advances in cognitive science have made it possible to pinpoint how these disadvantages hinder children academically. One-fifth of the middle schoolers in Providence, Rhode Island, for example, entered kindergarten in 2003 suffering from some level of lead poisoning, which disproportionately affects the poor and is associated with intellectual delays and behavioral problems such as ADHD. “It is now understood that there is no safe level of lead in the human body,” writes education researcher David Berliner, “and that lead at any level has an impact on IQ.”

Food insecurity is similarly correlated with cognitive delays, and rising in incidence across the country—more than 17 million American children consistently lack access to healthy, nutritious meals. Here’s how a team of Harvard School of Public Health researchers describe the relationship between hunger and student achievement:

When children attend school inadequately nourished, their bodies conserve the limited food energy that is available. Energy is first reserved for critical organ functions. If sufficient energy remains, it then is allocated for growth. The last priority is for social activity and learning. As a result, undernourished children become more apathetic and have impaired cognitive capacity. Letting schoolchildren go hungry means that the nation’s investments in public education are jeopardized by childhood malnutrition.

Acknowledging connections between the economy, poverty, health and brain function is not an attempt to “excuse” failing school bureaucracies and classroom teachers; rather, it is a necessary prerequisite for authentic school reform, which must be based on a realistic assessment of the whole child—not just a child’s test scores. Successful education reform efforts—such as the Harlem Children’s Zone, which provides “wraparound” social and health services alongside charter schools, or California’s Linked Learning schools, which connect teenagers to meaningful on-the-job training—are built on this more holistic understanding of the forces that shape a child’s life and determine her future.

Brill and the accountability crowd are correct to note that high-performing teachers are consistently able to raise the test scores of even the poorest children. Research shows that an improvement of one standard deviation in teacher quality leads to approximately two to four points of gain for a student on a 100-point test in reading or math. Five years of great teachers in a row, therefore, could raise a student’s test scores by ten to twenty points.

Whether this potential growth is incidental or transformative depends on where a student starts out: if he began at the twentieth percentile in reading, he’d still be failing; a jump from the seventieth percentile to the ninetieth could make him a candidate for selective colleges. Unfortunately, as Paul Tough demonstrated in a recent New York Times Magazine piece, at far too many “miracle” inner-city schools, the vast majority of students—despite impressive test-score growth—continue to score below proficiency in reading and math. These students may graduate from high school, but they are unprepared for college or work beyond the service sector.

Honest reformers are all too aware of this problem. As KIPP charter school co-founder Dave Levin tells Brill, “I’m still failing.” Indeed, only one-third of the KIPP network’s high school graduates are able to earn a bachelor’s degree within six years. This is a remarkable achievement in a country where only 30 percent of all young adults—regardless of family background—hold a college degree. It’s also a reminder of how very difficult it is to make huge leaps and bounds in closing the achievement gap. After all, a full 75 percent of the highest-income high school graduates are able to earn that BA by age 24.

Although Brill, by the end of Class Warfare, comes to recognize the limits of the education reform movement he so admires, he somehow maintains his commitment to the idea that teachers can completely overcome poverty. There’s a reason, I think, why this ideology is so attractive to many of the wealthy charter school founders and donors Brill profiles, from hedge funder Whitney Tilson to investment manager and banking heir Boykin Curry. If the United States could somehow guarantee poor people a fair shot at the American dream through shifting education policies alone, then perhaps we wouldn’t have to feel so damn bad about inequality—about low tax rates and loopholes that benefit the superrich and prevent us from expanding access to childcare and food stamps; about private primary and secondary schools that cost as much annually as an Ivy League college, and provide similar benefits; about moving to a different neighborhood, or to the suburbs, to avoid sending our children to school with kids who are not like them.

The fact of the matter, though, is that inequality does matter. Our society’s decision to deny the poor essential social services reaches children not only in their day-to-day lives but in their brains. In the face of this reality, educators put up a valiant fight, and some succeed. The deck is stacked against them.

American Institutes for Research Has Been Awarded a Contract to Aid NY State In Evaluating Teachers and Principals

Teachers, Principals To Be Evaluated
Morth Country Gazette, Saturday, 20 of August , 2011 at 6:27 pm
LINK

ALBANY – American Institutes for Research has been awarded a contract to develop methodologies and measures for the student growth component of the State’s new teacher and principal evaluation system.

The goal, according to the state Education Department, is to ensure New York has a state-of-the-art approach to developing fair and reliable assessments of educators’ contributions to their students’ growth in learning.

“The Race to the Top (RTTT) is in full swing,” State Education Commissioner John B. King, Jr. said. “If we don’t know how our educators are doing, they can’t get to where they need to be, and our students can’t get to where they should be. We need every tool possible to measure student progress and teacher effectiveness. Our students are counting on us to help them succeed.”

King said the contract, awarded through a competitive bidding process and valued at approximately $2.7 million over 3 years, will be paid for from federal RTTT funds. The contract requires AIR to develop the state-provided measures of student growth for teacher and principal evaluations. The other components in New York State’s multiple-measure evaluation system include locally selected measures of student achievement and other measures of educator effectiveness.

King noted that a variety of student and classroom characteristics will be included in the state evaluation measures AIR will develop including, among others, past test scores, English Language Learners, disabilities, and poverty.

Under the terms of the contract, AIR will provide three specific services:

The design and production of growth and value-added measures covering teachers and principals with students in grades 4-8 taking the State English language arts (ELA) and/or mathematics assessments;

The design of value-added methodologies and measures covering teachers and principals with students taking other existing State assessments, or new assessments added during the contract period, that are identified by the State Education Department (SED) as part of the teacher and principal evaluation initiative;

The design and delivery of reports that effectively communicate student growth measures to parents/students, teachers, principals, schools, districts, Boards of Cooperative Educational Services (BOCES), Teacher and Principal Preparation programs, and SED.

Founded in 1946, AIR is one of the largest not-for-profit behavioral and social science research organizations in the world. AIR is a national leader in teaching and learning improvement, providing the research, assessment, evaluation, and technical assistance to ensure that all students—particularly those who face historical disadvantages—have access to high-quality, effective education.

The contract runs through the 2013-14 school year.

Toxic Chemicals Close Down Bronx New School

The people in charge at the NYC Department of Education are well-known for trying to hide what 'they; are doing. Who cares if the effect is harm to children, employees, parents, anyone? As long as their relatives and friends aren't harmed, or until they are," leave it alone".

No one does anything until the press embarrasses the DOE. That's what happened here.

Betsy Combier

Bronx New School closed because of years-old toxic chemicals that made students sick

BY Juan Gonzalez, DAILY NEWS STAFF WRITER
Friday, August 19th 2011, 4:00 AM
LINK
 
The air at a North Bronx school may have been contaminated by dangerous chemicals for as long as 20 years.


Officials closed the Bronx New School at 3200 Jerome Ave. after repeated air monitoring tests since January revealed unsafe levels of several toxic chemicals, especially trichloroethylene (TCE), which is a possible carcinogen.

At an emotional meeting before several hundred parents of the school last night Dennis Walcott announced that the new location will be at a former Catholic school, Saint Martin of Tours more than two miles away.

Walcott called this "a highly unusual situation" and promised to do everything possible to facilitate a transition to the new location. Several angry parents told Walcott that children have been complaining of headaches, nausea and other illnesses for years. A thorough investigation of possible health effects on teachers and students is called for, something that Walcott did not commit to do.

Still unanswered is why the contamination was not discovered sooner.

This week, I asked Walter Hang of Ithaca-based Toxics Targeting Inc., to do a quick hazardous waste profile of the school's site and the blocks around it.

Hang's firm compiles such information from scores of state and federal environmental monitoring agencies. It then issues site-specific reports for businesses and local governments that want to guard against potential dangers before buying a property.

Within 24 hours, Toxics Targeting produced for me a 241-page report on the Bronx New School, also known as Public School 51.

The two-story building was a factory and industrial warehouse for more than 70 years before the old Board of Education leased and renovated it back in 1991.

One of the building's previous occupants was Nessen Lamps Inc. In 1987, Hang found, Nessen reported to the state's Department of Environmental Conservation generating 130 gallons of "spent halogenated solvents used in degreasing." Solvents like TCE.

The previous year, Nessen reported generating 218 gallons of "halogenated solvents."

In other words, the very toxic chemical that school officials suddenly discovered at more than 10 times safety levels in the building's air had been used at that site back in the 1980s.

Nessen wasn't the only neighborhood company that reported using such solvents. So did a city water pumping station across the street, and the Transit Authority's Jerome Ave. train yard, which is less than 500 feet from the school.

If it only takes a few hours to identify these potential chemical dangers, why did it take education officials 20 years to even check the air?

The agency, after all, was paying top dollar to rent the building from its owners, the Rinzler Family Parnership.

Last year, the DOE paid $506,000 in rent for the 18,500 square-foot building. That works out to nearly $28 per square foot, an astonishing rate for a Bronx factory. Plus, the DOE paid for all renovations and utilities, and its lease absolved the landlord from paying any property taxes.

Bradley Rinzler, the firm's executive vice president, did not return calls for comment.

There's no excuse, given the site's industrial history, for the DOE's failure to even check the air until now.

jgonzalez@nydailynews.com

Boycott The "On Education" Forum Hosted By City Hall and Gotham Schools

We do not have to go to the "On Education" Breakfast hosted by City Hall Magazine and Gotham Schools. In fact, we need to boycott the breakfast. Do you really want to pay to hear a group of people talk among themselves about how wonderful the state of public school education is, and how much Mayor Michael Bloomberg has done to help our children?

If you really want to know what they are saying wait for the review on the Gotham Schools' blog.

Here is the email that I sent to J Freeman and Anthony Hawkins:

To:
jfreeman@manhattanmedia.com,

ahawkins@cityhallnews.com,
betsy.combier@gmail.com
date Thu, Aug 18, 2011 at 9:59 PM
subject Education Forum

I received an email to attend the Education Forum at Con Edison on August 25, 2011, and as a member of the press who writes about issues surrounding the disasters known as the New York City Department of Education, the Rubber Rooms, and the United Federation of Teachers (for whom I worked as staff for 3 years and I am writing a book on) I would have considered attending in order to write a scathing article about how no one on the Panel knows what they are talking about or would admit to same, I dont think I will take my valuable time to listen to the same rubbish that I have heard regurgitated over and over again since 2002.

Your arrogance that you would believe you can continue to stuff the false facts that the people on your panel cite down any informed parent, teacher, or informed citizen's throat now, after all the blogs and websites out there are touting the real facts, is astonishing.

Betsy Combier
Editor, Parentadvocates.org
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, NYC Public Voice

It has been a tumultuous summer in the education world, full of budget fights and labor showdowns. Heading into the new school year we are sitting down with a panel of leaders and influencers in the education field to better understand how the past year’s fights will play out in the school year ahead and how these events will impact education policy, city politics, teachers and parents for years to come.


MODERATED BY:

Andrew Hawkins
Managing Editor at City Hall News

Philissa Cramer
Managing Editor of GothamSchools.Org

THURSDAY
AUGUST 25, 2011
8:00 a.m.
Networking Breakfast

8:30 -10:00 a.m.
Panel Discussion Followed by Q&A

Location:
Con Edison Building
4 Irving Place (@14th Street)
New York, New York

TICKETS:
EARLY REGISTRATION:
$30 for individual tickets/
$250 table of 10

AFTER 8/24:
$40 for individual tickets /
$350 for a table of 10

PURCHASE TICKETS BELOW
*$20 ticket for government and non-profit employees

FOR MORE INFORMATION or sponsorship opportunities
call 646.442.1662 or email us here.

PANELISTS:

LEO CASEY
Vice President of Academic High Schools, UFT

SYDNEY MORRIS
Co-Founder of Educators 4 Excellence

EVA MOSKOWITZ
Former City Council Member & Founder/Chief Executive Officer of Success Charter Network

SHAEL POLAKOW-SURANSKY
Department of Education Deputy Chancellor & Chief Academic Officer

BILL THOMPSON
Former President of the NYC Board of Education & Former NYC Comptroller

MERRYL TISCH
Chancellor of the NY Board of Regents

JOSEPH P. VITERITTI
Thomas Hunter Professor of Public Policy at Hunter College

Terminated Probationary Teacher Has No Property Right in His Or Her Position

Kahn v New York City Dept. of Educ.


2010 NY Slip Op 09168 [79 AD3d 521]
December 14, 2010
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, February 16, 2011

Leslie Kahn, Respondent,
v
New York City Department of Education et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellants. New York Civil Liberties Union Foundation, New York (Adriana C. PiÑon of counsel), for respondent. James R. Sandner, New York (Wendy M. Star of counsel), for New York State United Teachers, amicus curiae. Charity M. Guerra, Brooklyn, for Council of School Supervisors & Administrators, amicus curiae.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about September 8, 2009, which denied respondents' motion to dismiss the petition, unanimously reversed, on the law, without costs, and the motion granted.

Petitioner challenges the termination of her probationary employment as a social worker, and asserts due process claims pursuant to 42 USC § 1983. She began working for the Department of Education in February 2005 as a social worker, spending 2½ years at Williamsburg High School. In July 2007 she switched to Khalil Gibran International Academy, where respondent Salzberg, as Interim Acting Principal, gave her a rating of unsatisfactory in an evaluation on December 19, 2007. Two days later, the Superintendent wrote to petitioner, denying her a certification of completion of probation, and advising that her service would be terminated effective January 25, 2008, and that she was entitled to administrative review under the collective bargaining agreement.

Petitioner proceeded with an administrative appeal on January 3, 2008. Following an administrative hearing, the Department of Education, by letter dated May 9, reaffirmed the denial of petitioner's certification of completion of probation. On or about September 9, 2008, [*2]petitioner commenced this proceeding.

Petitioner's claims, which are equitable in nature, are not barred by her failure to file a notice of claim pursuant to Education Law § 3813 (1), which is only required when money damages are sought (Ruocco v Doyle, 38 AD2d 132 [1972]).

However, her claims are time-barred. A petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination (see CPLR 217 [1]; Matter of Andersen v Klein, 50 AD3d 296 [2008]; Matter of Lipton v New York City Bd. of Educ., 284 AD2d 140 [2001]). The time to commence such a proceeding is not extended by the petitioner's pursuit of administrative remedies (Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], lv denied 14 NY3d 704 [2010]). Petitioner failed to commence this proceeding within four months of the effective date of her termination. Although the notice of termination was procedurally defective in that she was not given the requisite 60 days' prior notice of discontinuance, as required by Education Law § 2573 (1) (a), that defect does not invalidate the discontinuance or render the statute of limitations inapplicable; at best, it would have entitled petitioner to additional back pay, had she served a notice of claim and sought money damages (see Matter of Pascal v Board of Educ. of City School Dist. of City of N.Y., 100 AD2d 622, 624 [1984]).

Nor does petitioner have a valid claim for deprivation of civil rights under 42 USC § 1983. Such a claim requires an allegation that the proponent was deprived of a property or liberty interest without due process of law (see Ciambriello v County of Nassau, 292 F3d 307, 313 [2d Cir 2002]). A probationary teacher does not have a property right in his or her position (see Pinder v City of New York, 49 AD3d 280 [2008]; Donato v Plainview-Old Bethpage Cent. School Dist., 96 F3d 623, 629-630 [2d Cir 1996], cert denied 519 US 1150 [1997]). The process provided for in the collective bargaining agreement did not create such an interest (see Sealed v Sealed, 332 F3d 51, 56 [2d Cir 2003]). Moreover, petitioner was not deprived of a liberty interest by the "stigma" arising from allegations of poor work performance. To establish such a "stigma plus" claim, a petitioner must prove "some action by the [agency] imposing a tangible and material burden, and . . . [the] utterance of a false statement that damaged his reputation in connection with the burdensome action" (O'Connor v Pierson, 426 F3d 187, 195 [2d Cir 2005]). While Salzberg's accusations against petitioner may "go to the heart of [petitioner's] professional competence and damage her professional reputation to such an extent as to severely impede her ability to continue in the education field in a supervisory capacity" (Donato, 96 F3d at 633), [*3]petitioner's "stigma plus" claim is defeated by the availability of a post-termination administrative hearing (see Segal v City of New York, 459 F3d 207 [2d Cir 2006]). Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ

New York State Supreme Court Judge Paul Fineman Dismisses Steglich v Board of Education

Judge Fineman wants Plaintiffs to go to the NYS Commissioner first:
"It should be emphasized that this dismissal does not constitute any factual finding by this court as to the propriety of the planned co-location; rather, the action is dismissed because procedurally, the court finds that in light of Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]), the State Education Department Commissioner should be permitted to exercise his concurrent jurisdiction in the first instance. Upon a final determination by the Commissioner, any aggrieved party may, of course, exercise any right to judicial review it may have by statute."



Betsy Combier

Steglich v Board of Educ. of the City School Dist. of the City of N .Y.


2011 NY Slip Op 21282

Decided on August 12, 2011
Supreme Court, New York County
Feinman, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Lisa Steglich, individually and as parent and natural guardian of ALEXANDER HERLIHY, infant, RIC CHERWIN, individually and as parent and natural guardian of MARLEY CHERWIN, infant, CAROL BARKER, individually and as parent and natural guardian of OMAR BROWN, infant, GINA DEMETRIUS, individually and as parent and natural guardian of SEBASTIAN DEMETRIUS, KIMBERLY JARNOT, individually and as parent and natural guardian of MARGARET THOMAS, infant, NYDIA JORDAN, individually and as parent and natural guardian to HARRY D. JORDAN, infant, KAVERY KAUL, individually and as parent and natural guardian of ASHOK KAUL, infant, RUBIN and GERALDINE LOPEZ, individually ans as parents and natural guardians of SHANE LOPEZ, infant, MADELINE OLMEDA, individually and as parent and natural guardian of CRISTINA JULIA CRUZ, infant, LAZARA QUINONES, individually and as parent and natural guardian of DORIS ALCANTARA, infant, and MARILYNN SARJEANT, individually and as parent and natural guardian of ALIYA CLUNIE, infant, Plaintiffs,

against

The Board of Education of the City School District of the City of New York a/k/a THE PANEL FOR EDUCATIONAL POLICY, THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as Chancellor-Designate of theCity School District of the City of New York, Defendants. UPPER WEST SUCCESS ACADEMY CHARTER SCHOOL a/k/a SUCCESS ACADEMY CHARTER SCHOOL, MATTHEW MOREY, individually and as parent and natural guardian of THOMAS MOREY and CLAIRE MOREY, MARTIN AARES, individually and as parent and natural guardian of in- fant SABINE BALOU-AARES, GABRIEL BAEZ, individually and asparent and natural guardian of in- fant of CHRISTOPHER BAEZ, LISBETH DELOSSANTOS, individually and as parent and natural guardian of infant MIYAH MUZO, ELANA KILKENNY, individually and as parent and natural guardian of infant LIAM KILKENNY, ELISSA KLEIN, individually and as parent and natural guardian of infant AVA KLEIN, REBECCA KUHAR, individually and as parent and natural guardian of infant ROBERT MAXWELL KUHAR, LATISHA SINGLETARY, individually and as parent and natural guardian of in- fant RANIYA GARRETT-WELLS, MICHAEL SUCHANEK, individually and as parent and natural guardian of infants SALLY SUCHANEK and AMELIA SUCHANEK, and DAVID TURNOFF, individually and as parent and natural guardian of in- fant HUNTER KIM-TURNOFF, Intervenor-Defendants.

 107173/11

Plaintiffs
Phillips Nizer LLP
By: Jon Schuyler Brooks, Esq.
Marc Andrew Landis, Esq.
Elizabeth A. Adinolfi, Esq.
Paul A. Victor, Esq.
Chryssa V. Valletta, Esq.
666 Fifth Avenue
New York NY 10103
(212) 977-9700

Defendants
Michael A. Cardozo, Esq.
Corporation Counsel of the City of New York
By: Chlarens Orsland, Esq.
Emily Sweet, Esq.
100 Church Street
New York NY 10007
(212) 788-0904, 1171
Intervenor-Defendants
Arnold & Porter LLP
By: Stewart D. Aaron, Esq.
Emily A. Kim, Esq.
Mary Sylvester, Esq.
399 Park Avenue
New York NY 10022
(212) 715-1000

Paul G. Feinman, J.
Papers considered on plaintiffs' motion for partial summary judgment: PapersE-Filing Document No.
Notice of Motion for Partial Summary Judgment [FN1]84, 94 (Ret. for correction)
Memorandum of Law in Support of Plaintiffs' Motion85
Plaintiffs' Statement of Uncontested Facts86
Defendants' Responses to Plaintiffs' Statement of Uncontested Facts90
Rouhanifard Aff. in Opposition91
Defendants' Memorandum of Law in Opposition92
Defendants' Verified Answer & Rouhanifard Aff.97, 97-1
Intervenor-Defendants' Response to Plaintiffs' Statement of Uncontested Facts93
Kim Aff. in Opposition93-1 through 93-16
Intervenor-Defendants' Memorandum of Law in Opposition93-17, 95
Intervenor-Defendants' Verified Answer96
Reply Memorandum of Law in Support of Plaintiffs' Motion98
Appendix to Plaintiffs' Reply Memorandum99

Plaintiffs in this action are concerned parents of school-age children who attend one of the public schools currently located at the Brandeis Educational Campus (Brandeis Campus). Defendants are the Chancellor of the New York City public school system as well as the executive branch agency charged with overseeing educational policy for the City of New York. Intervenor-defendant Success Academy Charter School (Success Academy) is a charter school which is intended to serve kindergarten and elementary school children. In this lawsuit, plaintiffs seek, among other things, to prevent the co-location of Success Academy at the Brandeis Campus during the 2011-2012 school year. Brandeis Campus currently houses five public high schools.[FN2] The court previously denied plaintiffs' application for a temporary restraining order and motion [*2]for a preliminary injunction. The plaintiffs now seek partial summary judgment. Upon a search of the record, the court denies plaintiffs' motion and dismisses the action in its entirety.

I. Background and Arguments

The first attempt to halt this proposed co-location was made in response to a vote of the Panel for Educational Policy (PEP) made on February 2, 2011 (February PEP vote), approving the co-location. On April 8, 2011, plaintiffs brought an Article 78 proceeding against defendants challenging the co-location, entitled Steglich v Board of Education, Index No. 104300/11 (Steglich 1). Defendants opposed the challenge.

On June 1, 2011, defendants abandoned the original PEP vote, and provided, in the same month, a new notice of the proposed co-location, with a revised Educational Impact Statement (EIS), and revised Building Utilization Proposal (BUP). On June 27, 2011, after public hearings were duly held on the revised proposal, PEP again voted to approve the co-location (June PEP vote).

Following these revisions, and before the June PEP vote, plaintiffs commenced the present action. On June 30, 2011, plaintiffs filed an amended complaint, seeking to have the June PEP vote declared a nullity.[FN3]

Plaintiffs argue that (1) the Department of Education (DOE) lacked the authority to revise the EIS and BUP after the February PEP vote, in that the February PEP vote was a final determination of the issue on the administrative level; (2) the revised EIS and BUP are improper, because, under the Education Law (EL), they are untimely, having been brought less than six months before the start of the school year; (3) the revised EIS impermissibly includes a school not mentioned or addressed in the original EIS; and (4) defendants did not comply with EL notice requirements prior to the June PEP vote, by providing a notice of hearing in English only, and then, purportedly in an untimely manner, published the notice in Spanish. On this motion, plaintiffs seek partial summary judgment voiding the June PEP vote.

In response, defendants, and intervenor-defendants (all parents of school-age children who are slated to attend Success Academy, and who, as a result, support the co-location), argue that the Success Academy would be placed in an under-utilized space within Brandeis, and so cause no harm to the existing schools. For example, some of the rooms allocated to Success Academy are currently being used to store file cabinets and extra furniture. They maintain that this court lacks jurisdiction over plaintiffs' action and the present motion, because (1) the Commissioner of the State Education Department (SED) has exclusive, original jurisdiction over the issue; (2) plaintiffs have failed to exhaust their administrative remedies, in that they did not refer their grievance with the PEP vote to the Commissioner, in derogation of the EL; or (3) that the court should defer to the Commissioner as a matter of primary jurisdiction.

On the merits, defendants argue that (1) they had the right to revise the EIS and BUP after the February PEP vote; (2) the revised EIS and BUP were timely brought; (3) the revised EIS did not include a new school, as the Young Adult Borough Center (YABC) is a "program" not a "school"; and (4) defendants complied with all statutory notice requirements, in that the notice of hearing concerning the revised EIS and BUP was timely, despite the fact that a Spanish version appeared later than the original notice. [*3]

II. Discussion

In a recent decision of this court (Mulgrew v Board of Education, ___Misc 3d___, 2011 NY Slip Op 21252 [Sup Ct, NY County 2011]) (Mulgrew), this court found that it had concurrent jurisdiction with the Commissioner to address the validity of a PEP vote, despite language in EL §§ 2853 (3) (a-5) and 310, citing that a dispute under these sections "may" be directed to the Commissioner.

In a totally different lawsuit between the same parties, concerning class size, Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]) [Mulgrew 2), the Appellate Division, First Department, very recently released a decision which makes findings and reaches conclusions which necessarily require this court to reconsider its earlier interpretation of the EL provisions concerning the SED Commissioner's jurisdiction. This court's earlier analysis was conducted without benefit of controlling or persuasive appellate authority interpreting the relevant EL provisions.

In Mulgrew 2, the Appellate Division found that an action brought to decide a dispute involving Education Law § 211-d should have been brought before the Commissioner before it was brought before the court. The language of the statute was extremely specific as to this point, and so, the Court's determination is not surprising.

EL § 211-d, denominated the Contract for Excellence, is concerned with the allocation of funds to the goal of reducing class sizes in New York City. Reduction of class size was to be accomplished "through creation or construction of more classrooms and school buildings, placement of more than one teacher per classroom, or by other means (Education Law § 211-d [2] [b] [ii])." Mulgrew 2, 2011 NY Slip Op 06088, at *2. The statute provides that "the sole and exclusive remedy' for violation of this paragraph would be a petition to the State Education Department Commissioner, whose decision would be final and unreviewable.'" Id., citing EL § 211-d (2) (b) (ii).

Inasmuch as this is not the section of the EL at issue in the present case, were this all the Appellate Division had held, this court would have no more guidance as to how to proceed in this action than it did previously. However, the Court went on to determine that the plaintiffs in the Mulgrew 2 class size case had also failed to exhaust their administrative remedies in approaching the court in the first instance, even if EL § 211-d (2) (b) (ii) did not apply, because under EL § 310 (7), a statute which lists the issues which "may" be brought to the attention of the Commissioner, the matter was particularly within the expertise of the Commissioner. The Court reflected that EL § 310 (7) "does not provide for exclusive or original jurisdiction," but that, it would be "consistent with the statute's scheme to require those petitioner-organizations whose complaints do not fall under section 211-d (7) to exhaust their remedies under Education Law § 310 (7) before proceeding to court." Id. at *6.

The Court reasoned that:

the issue raised by petitioners is whether the Board of Education improperly utilized funds allocated for the particular purpose of reducing class size to make up for reductions from its other funding sources. Determination of this point falls squarely within the purview of the State Education Department, as it will require review and comparison of budgets, expenditures and funding allocations.

*4]Id.
In the present action, the court is faced with issues regarding how the Department of Education allocates its resources for the purpose of placing new schools within already existing schools, with emphasis on fairness of the allocations. Although, as this court previously found, and the Appellate Division clarifies, there is indeed concurrent jurisdiction over these issues, the determination in Mulgrew 2 appears to show a decided reluctance on the part of the higher Court to take on disputes of this nature. In other words, the Appellate Division's decision makes clear that, in the first instance, disputes of this nature should be heard by the executive branch agency with the relevant expertise, here the State Education Department Commissioner. In short, it appears that the issues raised by the co-location of Success Academy in the Brandeis Campus should be heard in the first instance by the Commissioner, and not by the court. If aggrieved by the Commissioner's final determination, the parties have appropriate remedies at that juncture to seek judicial review of his actions.

III. Conclusion

For the reasons explained above, plaintiffs' motion must be denied, and upon a search of the record pursuant to CPLR 3212(b), intervenor-defendants' informal request for summary judgment granted, and the action dismissed. It should be emphasized that this dismissal does not constitute any factual finding by this court as to the propriety of the planned co-location; rather, the action is dismissed because procedurally, the court finds that in light of Mulgrew v Board of Education (___AD3d___, 2011 NY Slip Op 06088 [1st Dept 2011]), the State Education Department Commissioner should be permitted to exercise his concurrent jurisdiction in the first instance. Upon a final determination by the Commissioner, any aggrieved party may, of course, exercise any right to judicial review it may have by statute.

Accordingly, it is

ORDERED that the Motion Support Office and the Clerk of Court are directed to accept the Notice of Motion e-filed as Document No. 84 as properly filed and to assign this motion an appropriate motion sequence number forthwith and to then file this decision and order as resolving said motion; and it is further

ORDERED that the motion for partial summary judgment brought by plaintiffs is denied; and it is further

ORDERED that, pursuant to CPLR 3212 (b), summary judgment dismissing the complaint is granted to defendants and intervenor-defendants; and it is further

ORDERED that the complaint is dismissed with costs and disbursements to be accorded to defendants and intervenor-defendants as taxed by the Clerk of the Court, upon presentation of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: August 12, 2011_______________________________________

J.S.C.
Footnotes

Footnote 1: Apparently the Motion Support Office has rejected the Notice of Motion. Because of time exigencies, and because all parties were desirous of a prompt resolution of the issues raised, the court agreed to hear oral argument on the motion on the papers filed before it left on vacation on July 21, 2011 notwithstanding the Motion Support Office's rejection of the Notice of Motion and the lack of a motion sequence number being assigned. Because all parties were fully heard on the motion and the court has had an opportunity to review all the enumerated papers, the Clerk of Court is directed to accept the Notice of Motion e-filed as Document No. 84 and to assign this motion an appropriate sequence number forthwith and accept this decision and order as resolving said motion.

Footnote 2:There is a dispute as to whether the Young Adult Borough Center, which is housed at Brandeis, is a "school" or a "program," as discussed infra.

Footnote 3:All parties agree that Steglich 1 has been abandoned as moot.