Fed. Court: NYC Board of Education Discriminated Against Black, Latino Teachers

On February 5, 2012, a U.S. District Court ruled that the New York City Board of Education discriminated against black and Latino educators. This case dealt with certification exams and dismissals of teachers in the 1990s. This case does not deal with the steep decline in percentage of black and Latino teachers in the last decade under mayor Michael Bloomberg and the Board's successor, the Department of Education. Here is the story, covered in Thomson Reuters, reported December 5, 2012, by Nate Diamond: NYC discriminated against black, Latino teachers: court

NEW YORK, Dec 5 (Reuters) - New York City's Board of Education discriminated against black and Latino teachers by requiring them to pass a standardized test that wasn't properly validated to become licensed to teach in the city's schools, a U.S. judge ruled on Wednesday.

The decision by U.S. District Judge Kimba Wood in Manhattan came in a long-running class action. The ruling permits the plaintiffs to seek the appointment of a monitor to evaluate whether the current version of the test has any of the invalid provisions in place from 1996 to 2000.

At the same time, Wood decertified the class of plaintiffs insofar as it was seeking back pay. The decision follows a landmark 2011 ruling by the U.S. Supreme Court in Wal-Mart Stores Inc v. Dukes, which limited the ability of plaintiffs to group together in class actions.

Lawyers for the plaintiffs said Wood's ruling left the door open for teachers who took the test and number in the hundreds if not thousands to seek damages individually or for the court to certify smaller classes.

Wednesday's ruling marked the latest instance of a federal judge taking issue with New York City employment tests. A federal judge in Brooklyn in March ordered the city to pay up to $128.7 million after finding New York City Fire Department exams had "discriminatory effects" on minority applicants from 1999 to 2007.

"These are two major federal court decisions invalidating public employment tests," said Baher Azmy, the legal director at the Center for Constitutional Rights, which represents the plaintiffs in both cases.

Eamonn Foley, a lawyer with the New York City Law Department, in a statement said the judge was correct to decertify the class with regard to its back pay and injunctive relief demands and that the city didn't break the law with regard to its use of an earlier test.

"The city is reviewing its options with regard to the remaining portions of the decision," he said.

FOUR TEACHERS

The lawsuit was filed in 1996 by four teachers -- three black and one Latina -- who claimed that the testing practices of the New York State Education Department and the New York City Board of Education were discriminatory.

To gain permanent licenses, the teachers had to pass the National Teacher Core Battery exam, which the state began using in 1984, and its successor, the Liberal Arts and Sciences Test, introduced in 1993. A newer version of the LAST has been in place since 2000 and wasn't at issue, the decision said.

The lawsuit claimed that white teachers passed at a higher rate than blacks and Latinos and that the exam had a disparate impact. First-time black and Latino takers of the LAST passed at 57.9 percent and 55.1 percent, compared to a 90.25 percent pass rate for whites, the plaintiffs said in a 2003 filing.

Those who failed the exam lost their conditional licenses. As a result, they could only work as substitute teachers and had lower salaries, benefits and seniority, the plaintiffs said.

About 8,000 to 15,000 teachers have suffered demotion, termination, reduced pay and other losses because they failed the tests, according to the Center for Constitutional Rights. The center's Web site did not provide a time frame for that statistic.

The city contended the exam was job-related, but Wood found that the test wasn't properly validated.

In granting the motion to decertify the class related to monetary damages for back pay, Wood said the class could remain intact for the purpose of seeking a court finding that the board violated Title VII of the Civil Rights Act of 1964.

Damages could, though, still be in play, said Joshua Sohn, a lawyer at DLA Piper working pro bono for the plaintiffs. How the damages would be determined will be the subject of a response from the plaintiffs the court requested by Dec. 13.

"(The decision) leaves the possibility to certify subclasses for damages, or we could propose some other framework to get there," Sohn said.

A status conference is scheduled for Jan. 10.

Since the case was filed, it has wound its way through the courts and passed through four judges.

A class of plaintiffs was certified in 2001 by former U.S. district judge Constance Baker Motley in Manhattan, the second judge to oversee the case after receiving it from Judge Deborah Batts. Following a five-month bench trial in 2003, the judge found the city and state's use of the exam did not violate Title VII.

In 2006, the 2nd U.S. Circuit Court of Appeals reversed Motley's findings. The appeals court tossed the teachers' claims against the state, leaving just the city as a defendant.

Motley died in 2005 before the 2nd Circuit ruled, so the case was later reassigned to Judge Sydney Stein. It was then transferred again, this time to Wood in 2009.

The case is Gulino v. Board of Education, U.S. District Court, Southern District of New York, No. 96-08414.

For Gulino: Joshua Sohn, DLA Piper.

For the New York City Board of Education: Eamonn Foley, New York City Law Department.

Follow us on Twitter @ReutersLegal | Like us on Facebook

SIGNIFICANCE FOR ACTION GOING FORWARD The JD Journal reported December 7 that the decision opens the way for inquiries as to whether current exams contain invalidated portions:

Though the ruling came in favour of the plaintiffs in a class action, and it allows the plaintiffs ways to evaluate whether the current version of the test still contains the invalid provisions used from 1996 to 2000, the judge decertified the class, because it was seeking back pay.

The story in NY1.com.

CITY ON THE HOOK FOR NEARLY $0.5 BILLION
The Bed-Stuy Patch reported December 7 that New York City could be on the hook for $455 million:
"City on Hook For $455M After Judge Rules Bias on Teacher Exam: The city will pay about $455 million in damages to over 2,000 victims."

The affected teachers – anywhere from 2,000 to 3,500 – will not be entitled to back-pay, the judge also ruled.

During a court hearing on Jan. 10, the teachers are expected to discuss the filing of a separate action to seek compensation from the city.

The $445 million payout, a figure projected by the DOE in a 2011 fiscal report, would be more than triple the $128 million that the city will be paying out to minority FDNY applications, stemming from a similar case of entrance-exam discrimination.

ILO Court: NY Taylor Law Violates Worker Rights - Why Won't City Unions Use Ruling?

As noted on August 15, 2012 in Labor Press, an outfit sponsored by several New York unions, the International Labor Organization ruled in November 2011 that New York's Taylor Law, with its punishing fines, violated internationally recognized rights of the 2005 striking Transit Workers Union.
In Marc Bussanich's "ILO Decision May Offer Opportunity for City Labor"> he reported:

A November 2011 International Labor Organization decision ruled, after the Transport Workers Union Local 100 filed a complaint with the ILO in November 2009 after the union struck in December 2005 and was heavily fined, that New York’s Taylor Law banning and penalizing public worker strikes violates fundamental workers’ rights protected by international law. With 200,000 city public workers without contracts, in some cases over five years, the ILO decision would seem to have presented the city’s public sector unions the economic leverage they have desperately needed to win new contracts.

But why will New York City's municipal unions not consider the value of the strike?
A United Federation of Teachers vice-president is on record for chiding some UFT dissidents for their stating the great value of striking.

But why will not the UFT consider that American labor's great gains were achieved because trade unions exercised the option of striking?

What gave us the weekend? The eight hour day? The lunch break? For many of the advances, state and federal law did, but honest historians will recognize that the advances were gained because in the climate of the time strikes were frequent and they demanded that companies and governments bargain respectfully. (Granted, this has often been without respect, as the exceptional US record of employer and governmental violence against strikers will attest.)

If strikes themselves did not accomplish these accomplishments, the threat of them and the building of worker consciousness spurred governments to listen to the lobbying of union representatives in the halls of government.

The profoundly weakened condition of the New York City teacher, with the comprehensive, systematic harassment, weak give-back contracts, and absence of a contract since 2009 are all living testimony to the effect of foreswearing the use of a strike, or any mass action in relation to work-place conditions.

Alas, the problems in New York are not exceptional. One Chicago teacher, Kenzo Shibata, wrote recently in the Huffington Post, "There may be only one way for educators to regain respect in the workplace -- a strike."

(The condition of teachers being at the end of their rope is why the Chicago Teachers Union is considering a strike. A Chicago Teachers Union member will speak next week at a MORE event in NY on the issues the CTU teachers are facing.)

Great John Liu DOE Audits: School Space Estimates --w/ UPDATE; Use of ATRs

New York City Comptroller John Liu has made some important audits in the past few weeks, as regard to the New York City Department of Education's measurement of the use of school space (lest we use the word, "assessment") and the city's use of teachers in the Absent Teacher Reserve (ATR).

First was the audit of the use of ATRs.
See Phylissa Cramer's "Comptroller’s audit criticizes city’s handling of ATR pool" at Gotham Schools.
Quick summary, from lede of the story:

The Department of Education could potentially be doing more to help teachers whose positions have been eliminated find new jobs.

That’s one conclusion of an audit conducted by Comptroller John Liu of the DOE’s efforts to help members of the Absent Teacher Reserve, the pool of teachers whose jobs were lost to budget cuts, enrollment changes, or school closures. The audit concluded that the vast majority of ATRs — 95 percent — are working full-time in teaching jobs, but that the department doesn’t maintain data sufficient to conclude whether its efforts to help the teachers find permanent positions are paying off.

Then, there was his audit of the New York City Department of Education "Blue Book" estimates of the use of school space. As the Daily News explains, "The book is used to help determine what neighborhoods need more school buildings as well as space-sharing arrangements."
Gotham News reported:

To evaluate the city’s success at ensuring accurate Blue Book data [calculations of school space use], Liu’s office analyzed entries for 23 schools and found that space assessments for 10 percent of all rooms were incorrect in a way that affected the school’s overall capacity.

The quick summary (from Gotham Schools) of his findings:

The newest audit examines the city’s “Blue Book,” which contains space estimates for each school building. The DOE and the School Construction Authority use the Blue Book to guide how many students can be placed in a school, and how many schools can fit into a building. Critics, including members of the City Council, say Blue Book numbers don’t always reflect reality — for example, suggesting that an additional class could fit into an art room — and that decisions based on them can leave schools crunched for space.

This story has some relevance to teachers, since it relates to how much space the city allots to schools and the measure of capacity utilization. Under utilization is one of several measures by which the city justifies closing or scaling back some schools' operation or student enrollment.
See the full Phyllisa Cramer story at Gotham News.

See the full Rachel Monahan story at the New York Daily News.

UPDATE:
Mr. Data Mayor (Bloomberg) really is the fraud when it comes to numbers and managing resources in the New York City schools. He just can't anything right.
New from the United Federation of Teachers (UFT) website is: UFT survey finds nearly 7,000 oversize classes as NYC school year opens: An estimated 250,000 students spending all or part of each day in overcrowded classrooms"

The number of classroom teachers has fallen as class sizes have risen. Based on the system’s records, this fall there were 73,784 classroom teachers, compared with 76,127 in 2010; 77,784 in 2009 and 80,649 in 2008.
. . . .
Because arbitrators’ rulings are enforceable in court, the system generally lowers class sizes as hearing dates approach. However, because the hearings are scheduled over a number of weeks, some large classes remain so for weeks; the contract also permits certain exceptions, meaning that some classes remain oversize the entire semester.

NYT blogger points out curious coincidence of teacher "Rubber Room" stories

Sharon Otterman at the New York Times City Room blog drew attention,
in "A Teacher Terror Alert Phenomenon?"
to United Federation of Teachers president Michael Mulgrew's contention
that there is a curious timing of the recent spate of teacher reassignment center / "rubber room" stories when there is negative news about the New York City Department of Education.
While Otterman dismisses the idea of a conspiratorial campaign, one must note the New York Post is the biggest peddler of salacious teacher news, and that the Post even more aggressively than Bloomberg or Klein pushes core concepts of the education de former agenda. They do not need to be prodded by Joel Klein and company at Tweed Courthouse.
Otterman's disclaimer aside, she did a great job of pointing out uncannily convenient timing of the salacious stories to deflect general indignation over the path of the NYC Department of Education.

Pakter --he's back --in the Rubber Room, unfortunately

This will provide, WE HOPE, a wee bit of an antidote to the agenda-driven Steven Brill piece in the New Yorker in the summer of 2009.

The Financial Times of London has reported on the farcical events that sent veteran New York City teacher to one of the NYC Department of Education teacher reassignment centers, also known as "rubber rooms."
Click to the above article for the trials and tribulations of veteran teacher David Pakter, as told by FT's Cian Traynor, published, January 2, 2010.
(The FT does not permit cutting and pasting of its content.)

NY1 features some of the more favorable coverage of some NYC schools issues

It has come to my attention,

that the New York City local cable news station, NY1, has some of the more sympathetic coverage of some issues in New York City education.

In just the last few days, the station has addressed activists' suit re police abuse of protesters' civil liberties, "Group Claims NYPD Violated Protest Rights," Sunday, January 24, 2010,

Without Paul Robeson, Many Students Will Have Their Needs Unmet.

Despite Low Grad Rate, Student Comes To School's Defense.

While they reporters are not going as deep into the issues as the bloggers have, and I must note that the station quotes the NYC DOE and that given that their lies are so deep and loaded that they require voluminous rebuttal, the station is addressing the stories with more depth than the New York Times does.

It is refreshing to hear students themselves defend the schools and their teachers, in contrast to the usual outlets (that merely run press conference announcements or mayoral pronouncements) and far too-many pundits (and probably too many people that you have personally met) believe that Joel Klein is a phenomenal genius, performing the greatest education miracles of all time.

WCBS TV to interview rubber room plaintiff attorney, Mon 1/26

Major Breaking Education News

History will be made by CBS Channel 2 Television News
When: Monday 11 PM
Where: Channel 2, CBS, NYC

Who: Legendary News Reporter
Pablo Guzman
Interviews:

Attorney Dr. Joy Hochstadt, Esq.
Representing and with:
David Pakter
[some others]

See FIRST PERSON INTERVIEW : THE FINANCIAL TIMES OF LONDON
http://www.ft.com/cms/s/2/4f8c4a1c-ef66-11de-86c4-00144feab49a.html
What: Lead Plaintiffs in major Federal Class Action Lawsuit
seeking to permanently close
New York City's infamous "Rubber Rooms"

Why: Because the Public has the right to know that such abominations
should NOT exist in a Free Democratic Society

This Monday (January 26, 2010) 11 PM WCBS-TV Special News Report
will be followed by a full extended News Special
that will be posted on the CBS News Website on the Internet at the end of the week.

The so-called NYC Dept of Education "Rubber Rooms"
are places spread around New York City
where NYC Teachers are "disappeared",
sometimes for years, on trumped up charges.

While a small number of these Teachers should be removed,
Most teachers in the "Rubber Rooms" ended up there
Because the NYC Dept of Education decided they were allegedly "too old",
Or were earning "too high" salaries,
Or because they were Whistle-blowers who reported,
Widespread corruption and waste of Tax Payer money,
As well as the breaking of Federal Civil Rights Laws.

Watch the Monday night CBS Special News Report at 11 PM

Watch the Extended Pablo Guzman Interviews on
CBS News Internet Website later in week.
WCBS-TV News in New York City deserves much credit
for being the first TV News Program in America
To expose the Truth about New York's "Rubber Rooms"

This is Education News History
No one can afford to miss this News Special Report

Please post, circulate and tell your friends.

Poll: Which workplace TV show does you school remind you of?

In an more immediate sense, the physical structure of our schools reminds us of films such as "Up the Down Staircase" or the threats from students bring "The Blackboard Jungle" to mind. Or the quest for respect, as in "To Sir With Love," only the real world teacher's quest for respect from administrators, not just the Sidney Portier character's search for peace between students.

Our schools exude farce, pathos, irony, tragedy, scandal. The comedies in the poll at right come to mind as I think of the ... challenges ... as I put it, delicately, of working in New York City (NYC) public schools / the Board of Ed / the Department of Education.

Your vote in this online poll and your comments are most welcome.

Flash leak of teacher contract negotiations: UFT to cave in on ATRs

News flash on the contract negotiations between the United Federation of Teachers and the New York City Department of Education:

The UFT is inclined to give in on the ATR (Absent Teacher Reserve) issue, in order to secure a four percent salary increase in the next contract. The leaked word is that the union would accede to the termination (firing, dismissal) of teachers who could not find permanent assignments after six months.

NYCorE's Political Education and Mobilization (PEM) work group

Join NYCoRE’s Political Education and Mobilization (PEM) work group as we launch our educator political education series for the 09-10 school year. Through these forums we will interrogate the ways in which current education reforms are aligned with corporate-thinking and how deeply these reforms shape our work lives, the lives of our students and the local community.
First up, Obama & My Classroom.

What are some of the major elements of Barack Obama’s (& Arne Duncan's) education platform? How does this federal discussion affect the lives of teachers, students, and families in the New York City Public school system? What are the political ideologies that support this stance? How might we, as educators, respond? These are just some of the questions we will be looking at during this first gathering.

Join us, and please invite other interested educators and concerned community members.
Wednesday, Oct. 28th
5 – 7 pm
CUNY Graduate Center 365 5th Ave. (@ 34th St.) [Transit info at Education Activism box at right.]
Room 5409 Please bring ID.For information or to RSVP, contact Edwin -edwin@nycore.org

TJC's flyer on the UFT, the ATR crisis and the mayoral election

The Teachers for a Just Contract has been doing good work as a caucus competing with the Unity Caucus which dominates officer positions in the United Federation of Teachers. They (along with ICE) have a competing candidate (James Eterno) for UFT president in next year's UFT president election.

They have offered serious critical analysis of New York City's Absent Teacher Reserve ("ATR") crisis, which the Unity Caucus conceded to with the 2005 contract. Before we share the TJC flyer on the UFT and the ATR crisis, let's discuss the ATR issue. The 2005 contract gave away seniority transfer rights. This was a dream-come-true for the city, for the city could pursue its ageist (or at long employment service)-cleansing of the teacher ranks. With the closing down and breaking apart of schools, the Department of Education was able to eliminate the people that it considered bad: the veteran teachers. The city not only preferred younger, cheaper teachers, it castigated the thoughts, teaching methods and energy of veteran teachers as out-of-date, old-school, un-progressive, worn, tired and so on.
The teachers that seemed too expensive or out of sync with the new ideas of pedagogy were rejected in the new pools of teachers in the restructured schools. The rejected teachers became the ATRs. Thus, the ATR scheme worked hand in glove with the restructuring of schools.

STRATEGY ON ATRs, THE LOCAL SCENE
The buzz on the web is that scorned teachers should alert the local chapter leader and petition for placement on the school's teacher rolls. This is a trap, for while the ATR teacher would be getting a bona fide position and would be on the good side of Joel Klein and media-fed public opinion, the ATR teacher that secured the teaching position would be on the principal's bad side from the start. The principal would have a potential grudge against the teacher: the principal would see the ATR as forced on him/her, as dislodging her choice for a newer, "fresher-thinking" teacher. And the older ATR teacher could find him/herself the target of principal wrath with letters-in-the-file, negative observations and the like.
HOW SHOULD THE UNION PROCEED?
Here is where the top-down power and a top-down strategy is safer: the union could demand an audit of the schools. The union, the city, the chancellor have put a public face that the ATRs must be placed, and that there must be a freeze on the outside hires.
Yet, we all know that the reality is that the principals (particularly those trained in the Leadership Academy), inculcated with seven years of Klein-driven anti-established teacher thought, have been hiring novice teachers, ahead of ATR teachers, often at schools where there are seasoned (ATR) veterans in the same license area that are working at office-work assignments instead of teaching actual classes.
Let's see if Interim Acting United Federation of Teachers President Michael Mulgrew has the moxie. Will he force an audit of the DoE's hiring patterns; will he force the placement of the seasoned veteran ATR teachers, or will he ignore the issue and let the city take the initiative?

HERE IS THE TJC FLYER ON THE UFT AND THE ATR CRISIS, which touches on the union's neutrality in the mayoral race.
CLICK ON THE FLYER PAGES TO DOWNLOAD THE FLYER.

NYC teachers: Beware of the new PIP+ !

New York City's Department of Education and the United Federation of Teachers have established the Peer Intervention Program to assist teachers that have received two unsatisfactory, or “U” ratings in a row. (The principal wants the teachers out of the school and the profession.) The PIP observers observe the teachers for ten weeks.

The are several problems of grave concern to the teachers under review in the new version of the Peer Intervention Program. PIP has changed from the original program format. The new program is the “PIP+” program. In the new design of PIP+ there are aspects of secrecy, of non-transparency, that work against the teacher, and in favor of the principal.
The intent of the original PIP program was to provide teachers with an opportunity for growth. Experienced teachers could be trusted to work in confidence with teachers, and as aides with the teachers. Under the original PIP program teachers would be spared the risk of being observed by an administrator for the period of months that the teacher was being observed by the PIP observer.

In the new PIP+ program, the PIP+ observers do not show the observations to the teachers, instead, they only show their reports to the principals. The observations only are revealed to the teachers when they are charged at the 3020-a hearings (incompetency hearings, to strip teachers of their teaching license). These observations are used as ammunition against the teachers, as part of the charges against them in the 3020-a process. The teachers have been told that if they do not participate, this will be used against them as act of insubordination at the 3020-a proceedings.
The PIP+ observers write things about the teacher that might not even be true. The teacher will not have any defense. One PIP+ observer told a teacher that she was an ideal teacher, that she did not actually understand why the observed teacher was being subjected to the program. However, the observer wrote in her report that the teacher was incompetent in performing her lessons.
The observers have the appearance of being independent outside observers, but they are being hired by and paid by Department of Education. There is a known case in which a principal called a PIP observer, asking her to come in, to observe a teacher. The observer testified under oath that she had never been in the school before. However, the teacher in question hired a private-eye to find the truth. The investigator uncovered that the PIP observer had previously been in the school, that she had lead a professional development session at the school.

The conclusion that teachers and their advocates should draw from these details is that a teacher should not sign up with the PIP+ program. Teachers that are pressured to sign up with PIP+ should ideally say, “I don't want to say anything or participate in anything that could wrongly jeopardize an assessment of my performance. I need to know that what actually happened in the classroom is going into the observation report.”

WNYC's Beth Fertig reports on how NYC teachers want less mayoral control

New York City teachers are chafing under mayoral control.

WNYC radio's (820 AM, 93.9 FM) Beth Fertig reported on how New York City teachers are reacting to mayoral control.

NEW YORK, NY February 05, 2009 —City teachers are sending a strong message to Albany: They want the law granting Mayor Bloomberg control over city schools to be weakened when it comes up for renewal this June. WNYC's Beth Fertig has more.

REPORTER: Delegates to the United Federation of Teachers voted overwhelmingly for a proposal to strengthen community involvement in the schools. The union wants to reduce the number of mayoral appointees to the existing panel on educational policy. Armando Blasse of PS 67 in Brooklyn calls it a good compromise.

BLASSE: It applies accountability. There are checks and balances involved in the whole situation.

REPORTER: But Patricia Pan, who teaches in Queens, says the mayor would still have too much power.

PAN: There isn't any educator going to be on the panel and there isn't going to be any parent representative on the panel either.

REPORTER: The politically powerful union hopes to influence state lawmakers with its proposal. But Mayor Bloomberg has said that strong leadership is essential to reforming the schools, and that weakening his involvement would take the city back to the days of the old board of education. For WNYC I'm Beth Fertig.

Click here, to hear the MP3 podcast on her news report: