On September 15, 2009 I posted an op-ed in response to the "Worst Teachers" article published in the New Yorker magazine and written by Steven Brill. My article:

The Rubber Rooms and the Misinformation of Steven Brill

One of the reasons for my posting this piece on my website and blog was to try to get the NYC BOE Attorney, Dennis De Costa, to ask questions of Lucienne Mohammed relating to her allegations of wrong-doing by PS 65 Principal Daysi Garcia, and get this information into the 3020-a hearing record.

This effort was successful.

A little bit of background into the 3020-a hearing itself may be relevant: arbitrators either are reluctant, or forbid altogether, information about the administrators in the school from which the re-assigned teacher was removed. I heard one arbitrator say at a 3020-a hearing, "I will not hear any information about what the principal did or did not do, as (he/she) is the Supervisor. You must do what the Supervisor asks you to do, and grieve it later." Some arbitrators are less strict about the "dont ask, dont tell" policy of the NYC BOE and what I call the "rubberization" process.

Yet it makes no sense to me that a hearing could be fair if the reasons for a teacher to be observed as "incompetent" are not based on performance, but on some other "fact", and these "facts" or information are not permitted by the arbitrator to be mentioned. A principal who wants to remove a teacher from his/her school can see a 'messy' classroom when indeed the room may be picture perfect; a lesson may take ten minutes too long, says the Principal on the U-rating sheet, but that may not have happened at all; two students may be talking in class about the subject at hand (this is called "accountable talk"), but on the rating sheet the "U" is for deficiencies in classroom management. And so on.

What must be addressed is the visual prism of the Principal when he/she is observing the teacher, and I believe that this information must be allowed into a 3020-a hearing to clarify the record. By the way, as you can see in the information supplied by Ms. Mohammed in her statement about what was happening at PS 65, she signed up for the PIP+ Program, a totally-owned-and-paid-for-by-the-NYCBOE-no-bid-contract thing designed to help Principals. Who said that the program was designed to support the Principal? Executive Director Sandra Kase. Lucienne Mohammed's Peer Observer, who watched her teach and was supposed to help her 'improve', last taught in New York City in 1968 and was never trained in the Workshop Model (the program used at PS 65). The observations proved to be exactly what Principal Garcia asked for: total support for Ms. Mohammed's removal from the school because of incompetence. Watch out for the observers, and try to find out what their visual prism may be. By the way, I filed a freedom of information request of the NYC BOE for the RMC Contract, (see sections #1, #2, and #3) and I was asked to pay $52+ for the document - missing pp. pp. 88 - through 94; 114 – through 183; 187 – through 191; and 221 – through 252. I've appealed.

So, how can the teacher get in to the 3020-a record that the Principal was discriminating against him/her, and this may have been the root cause of the re-assignment? One way is write about the Principal during the 3020-a, and anger the NYC BOE Attorney into forgetting that the hearing is not supposed to focus on anything the Principal has done or may have done in the school building. Another way is o have your Attorney ask questions aboutwhat the Principal was/is doing in the school, and any grievances or special omplaints you may have filed, but this is not always accepted by the arbitrator, as I wrote above.

Another problem is the obvious omission of legitimate statutory procedures for charging tenured teachers inside the charging papers. I refer here to the Education Law 3020-a Section 2(a) used to charge tenured educators with 3020-a charges. In New York City no date appears on the charging papers for the Executive Session because the NYC Department of Education never put the charges up for a vote to the Panel For Educational Policy ("PEP") because the Department did not want the PEP to hold an Executive Session, pursuant to the law. So, what did the NYC DOE do? They simply went around Ed Law 3020-a(2)(a) and allowed Lucienne's principal to charge AND find probable cause for the charges against Lucienne. This is a problem, as I clearly outline in my essay on teacher tenure and probable cause determination:

Betsy's Motion on Probable Cause in Teacher Tenure Arbitration

Tenured teachers brought to 3020-a need to submit a motion to dismiss the disciplinary action because of procedural violations of law which impair their tenure rights to due process as cited in Education Law 3020-a. No Respondent ever waived his/her rights to a hearing on §3020-a charges, which must be presented to the Panel For Educational Policy (PEP) for a vote in Executive Session in compliance with Education Law 3020-a (2)(a).

Yet in the papers served on Respondent, the date of the Executive Session is missing and there is no information on a vote by the employing board on probable cause. An Executive Session is mandated by law and cannot be omitted by fiat of the Chancellor, or by any other law, rule or agreement. There was no Executive Session and the Complainant, the NYC Department of Education, did not comply with Education Law 3020-a.

Therefore, the Arbitrator has no subject matter jurisdiction to proceed with tany case and should immediately withdraw all charges. Alternatively, the Arbitrator should adjourn the hearing of this case until there has been a vote in an Executive Session by the school board and a proper determination of probable cause.

Tenured teachers have a property and liberty right to their jobs, and therefore when there is any penalty that reduces the benefits of these rights, there must be Just Cause.

Judge Desmond Green in the Richmond County Supreme Court ruled in the case of Rosalie Cardinale that:
“New York State created the public school tenure system guaranteeing continued employment to tenured teachers by statute and therefore created a property right in a tenured teacher's continued employment. (See Education Law§§§ 3012, 3012- a, 3020, Holt v. Board of Educ. Of Webutuck Cent. School Dist., 52 NY2d 625 [1981], Matter of Abromvich v. Board of Educ. of Cent. School Dist. No. I of Towns of Brookhaven & Smithtown, 46 NY2d 450 [1979]). Where a property right in continued employment exists, such as New York's tenure system, the recipient of such a right may not be deprived without due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).

New York State guarantees a tenured teacher's due process rights to continued employment by statute requiring that "no (tenured teacher) ... shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement ... " Education Law § 3020.

The statutory procedural process afforded to teachers with tenure under Education Law §3020-a requires:
The filing of charges "in writing and filed with the clerk or secretary for the school district or employing board during the period between the actual opening and closing of the school year for which the employed is normally required to serve. Education Law§ 3020-a(l)
"Within five days after receipt of charges, the employing board, in executive session, shall determine, by a vote of a majority of all the members of such board, whether probable cause exists to bring a disciplinary proceeding against the employee pursuant to this section." Education Law § 3020-a(2).

Where an employing board determines probable cause exists for discipline the tenured teacher shall receive: "a written statement specifying (i) the charges in detail, (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing or that will be sought by the board if the employee is found guilty of the charges after a hearing and (iii) the employee's rights under this section, shall be immediately forwarded to the accused employee " Id.
Green summarized his conclusion that there was a procedural error of law:

“Hearing Officer Lendino conducted the Education Law § 3020-a hearing based on unproven assumptions that the delegations of duties and responsibilities from the office of the Chancellor to subordinate administrators occurred in compliance with the relevant statutory authority.”

It is clear that a decision of an Arbitrator who proceeds without getting a signed waiver of a Respondent shows bias against the Respondent and an excess of authority that is not sanctioned by any statutory authority.

The requirements of NYS Education Law §3020-a, under which tenured personnel may be disciplined for "just cause" are absolute and require that before charges can be brought against a tenured educator, the school board [PEP] must:
a. Determine that there is "probable cause" for the proceeding with charges by a majority vote by the Board.

b. Make this determination within 5 days of the charges being filed with the Board.

c. Ensure that the decision to proceed with the charges is not frivolous, arbitrary, capricious or discriminatory.

On September 17, 2009 Lucienne Mohammed went to day 37 of her 3020-a hearing and she was cross-examined by NYC BOE Attorney, Dennis De Costa of the BOE "Gotcha Squad". I was there for the afternoon.

Evidently when Lucienne and her Attorney Mr. Cavallero walked into the hearing room, Mr. De Costa had my article on the table before him. All of his questions to Ms. Mohammed were about the actions of Principal Garcia, based upon what Lucienne had sent to me for my posting online.

Mr. De Costa wanted to know if, indeed, Principal Garcia discriminated against Ms. Mohammed and another staff member (whose hearing was not completed, but at which Ms. Mohammed testified), and Ms. Mohammed was asked how, and when this discrimination took place. The possible motives of Principal Garcia to remove Lucienne Mohammed from her job at PS 65 for reasons OTHER THAN the actual performance of Ms. Mohammed were brought to the table and put into the record. This was my goal in writing the article.

The impossibility of "proving" incompetence in the hearing room at 51 Chambers Street is clear to anyone who attends these hearings. A good teacher is someone who knows the subject he/she is assigned to teach, and who transfers this content knowledge in an "appropriate" and "educationally sound" way - please excuse my use of these general terms, but my point is, both "appropriate" and "educationally sound" are based on the students you have in your class. Thus, arbitrators placed in the position of deciding cases of incompetence must try to understand the school culture and the specifics of the classroom of the teacher whose case is being heard. James A. Gross, author of the book "Teachers On Trial" puts it this way:

"This study has demonstrated that decision makers' conceptions of the way things ought to be and beliefs about the way things presumably are - unchecked and unverified by empirical evidence about the way things actually are - often lead to unjust decisions about teachers' conduct and performance and to outcomes that are detrimental to teaching and learning. Injustice and inefficiency will persist as long as policy makers and decision makers operate without sufficient evidence."
(p 110)....and,

"This study has revealed the serious inequities that result when decision makers operate without objective standards or reliable evidence concerning the educational conseqences of various teacher behaviors both in and outside of the classroom. Of course, educational reform involves matters of productivity and performance as well as equity, and the objective should be to maximize learning and teacher effectiveness in ways consistent with justice and equity for teachers, students, and administrators."
(p. 111).

I recommend that you beg someone for this book, or buy it yourself.

Of course in Lucienne Mohammed's case no one knows what the decision of Mr. Jay Siegel will be after the closing on October 27, 2009, but for now, the record is clear that Principal Daysi Garcia may have had a motive to make Lucienne Mohammed appear to be "incompetent" when indeed she was - and is - not.