In the United States, there is very little respect for public school teachers and their abilities, and even less respect for tenure rights. For many years, the media painted a picture of a person with tenure as sitting in a classroom asleep, reading a book, knitting, etc, because they had a "job for life".

Politicians and media went on the offensive to end tenure.

One of the biggest changes that were seen in New York City was the criminalization of what the New York City administrators called "incompetency", by setting up a panel of arbitrators and attorneys whose job was to put on trial an educator who forgot a lesson plan, whose skills at engaging students was less than 100% perfect, and/or the educator was not able to control the little angels in his/her class. This group, created in 2007, is called the Teacher Performance Unit ("TPU") and handles all cases where an educator is charged and served 3020-a arbitration papers for incompetent service. The teacher tenure discipline procedures in New York City are horribly illegal, and I mean that literally. In 2003, with the start of mayoral control, the Powers That Be (Mayor Bloomberg and his colleagues) decided to take away the vote for school board members. See:

Editorial: The New York City Department of Education is a Sham and Mike Bloomberg is the Flim-Flam Man

Then the Mayor also discarded Education Law 3020-a, which governs the teacher tenure arbitration hearings, and gave, supposedly, all the duties of the NYC school board the Panel For Educational Policy (PEP) to the Chancellor, so that there would be no Section 2(a) implemented in NYC. Section 2(a) of the Education Law specifically mandates that the PEP hold an Executive Session wherein a vote on probable cause is tallied of the members of the PEP to decide whether there is probable cause to proceed to a hearing for a tenured educator.

This denial of a vote in Executive Session of the PEP has effectively waived the rights of all educators charged with 3020-a specifications, without their knowledge or consent. This is, in my opinion, a violation of the tenured employee's right to due process.

Here is my motion, "Betsy's Motion on Probable Cause in Teacher Tenure Arbitration" (copyright 2009)

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.

What all the characteristics of "incompetency" have in common is that these are subjective judgments and opinions, not facts. (See Elentuck v Green, Supreme Court, Second Appellate Division, 202 A.D.2d 425; 608 N.Y.S.2d 701; 1994 N.Y. App. Div. LEXIS 1956 (1994)). And, this approach to evaluating a performance has, astonishingly, nothing to do with the outcome of that performance, what students learned, and/or what grades/test scores the student received.

I never understood this. if you are saying that a teacher is incompetent, wouldn't the proof be in the results of that teaching, how the students did in June, when final exams or test scores are tallied?

Nope. The TPU attorneys fight this thought with ""not relevant". Some arbitrators agree, and terminate a teacher who forgot a lesson plan, did not post student work in a timely fashion, or did anything else which the administrators say was terrible, negligent, incompetent, harmful, etc.

Under the Danielson Rubric, a set of standards where educators must be perfect in all classes, every day, and every minute, anyone can be found guilty of anything if an arbitrator makes the subjective opinions gathered in 15 minutes into "facts". That is the problem.

I have watched and worked in 3020-a hearings for 14 years, and I am fascinated by the Attorneys for the Department. They try, sometimes successfully, and sometimes not, to argue that any administrator can enter a classroom at any time, unannounced, stay for 15 minutes and draw up a report on the teacher which could get him/her fired, based on what was supposedly seen in the classroom. Principals lie, knowing they will never be held accountable for what they say except if they DONT follow the prepared script.

Under the Danielson Rubric, a set of standards where educators must be perfect in all classes, every day, and every minute, anyone can be found guilty of anything if an arbitrator makes the subjective opinions gathered in 15 minutes into "facts".

The defense at 3020-a consists of arguing bad faith, malice, and budgetary concerns as a way to unravel the lies in the observations. This is hard to do, but doable nonetheless.

Teacher Tenure rights - which in New York State remain public policy - no longer exist if we let this type of "subjective evaluation in order to terminate" to continue.

A useful guide on the evaluation process is below:
"Legal Aspects of Evaluation" by James Rapp, 1985.

And see Teacher Discipline by Katharine B. Stevens, PhD.

Here is the article I posted in 2013:

When a NYC DOE employee is served 3020-a papers, the moment is traumatic. Often, the specifications are false claims of absences which were due to many valid reasons, claims of extreme misconduct and/or incompetency, all created by some attorney at the Gotcha Squad.

For years, Mayor Mike Bloomberg and the NYC DOE he controls, with the full knowledge and consent of the United Federation of Teachers (UFT) and New York State United Teachers (NYSUT), have pushed out all teachers with tenure who are disabled, too tall, too black, too outspoken, too....something, with "U" ratings which are meaningless. The DOE will, in fact, change all these "U"s to "S" ratings if you irrevocably resign from the DOE within a very short time.

What they dont tell you, the tenured teacher, is that you are already on the "Ineligible/Inquiry List" or No Hire List, so you will never be hired by anyone anyway, whether or not you take the deal and exchange a fake U for an S on your record.

The city has a secret weapon to rub out incompetent teachers — an eraser.
NYPOST
LINK

If a teacher who is deemed a dud agrees to quit or retire before a termination trial, the Department of Education will wipe out all of her “unsatisfactory” or U ratings and — voilà — change them to S for “satisfactory,” thus helping her land a job elsewhere.

In an e-mail obtained by The Post, a DOE lawyer offers the deal to a teacher with U ratings two years in a row, grounds for dismissal.

“The department will provide, upon request, a neutral letter documenting her employment with the DOE and will convert her U ratings to S ratings in the DOE computer system.”

It adds, “Thus if she were to seek employment outside the DOE, her computer employment records would show only ‘satisfactory.’ ”

The teacher is accused of failing to carry out lessons, sloppy record keeping and poor classroom management, among other charges.

Former Chancellor Rudy Crew once called the shuffling of lousy principals from school to school “the dance of the lemons.”

Some educators share a disgust for a likewise dirty deed — the U whitewash.

“They’re making a mockery of the entire system,” a veteran teacher said. “If someone is found incompetent, it should go on their permanent record. The DOE should not be Monty Hall on ‘Let’s Make a Deal.’ ”

Betty Rosa, a member of the state Board of Regents and a former Bronx superintendent, called the document doctoring “unethical . . . a lie.”

But a hearing officer, who recently oversaw many such deals for suspect teachers idling away in departmental “rubber rooms,” hailed the method.

“It saves time, it saves money, and it gets guaranteed results,” he told The Post. “It’s morally right, because New York kids will not have to suffer with a teacher who’s allegedly incompetent. She’s out. She’s gone.”

Future employers, he said, can probe a teacher’s past.

The debate comes as the DOE and the United Federation of Teachers wrangle over a new evaluation system to rate teachers from “highly effective” to “ineffective.”

If they don’t agree by Jan. 17, the city will forfeit $250 million in state funds, Gov. Cuomo has warned.

In the 2010-11 school year, the DOE charged 78 teachers with incompetence, it says. Hearing officers agreed to terminate 18 after long administrative trials. Other teachers kept their jobs with lesser penalties, such as paying a fine or taking a course

But 49 settled and resigned or retired, bringing the total booted to 67.

Last year, the DOE charged 88 teachers with incompetence. It won just 11 dismissal cases but tossed 39 teachers who quit in settlements.

Betsy Combier, a paralegal who helps defend teachers in discipline cases, blasted the backroom maneuvers.

“It says to teachers, ‘We didn’t mean it when we brought you up on charges. Let someone else worry about how bad or good you are. We just want you out,’” Combier said.

But educators grab the deal to avoid the risk of being found guilty, which becomes public record.

A teacher who recently quit in exchange for erasing her two U ratings was accused of weak instruction, a lack of lesson plans and a disorganized classroom.

“She’s looking for work right now — anywhere. She’s going on interviews,” Combier said.

The DOE did not answer repeated requests for comment.

susan.edelman@nypost.com

COMMENTS

Betsy Combier · Advocate/Paralegal at Advocatz · 405 subscribers
The Bloomberg process was set up so that a Supervisor could "observe" a staff member, say he/she is not competent, not "effective", not (blank), and give him or her an unsatisfactory rating without any accountability for whether it is true or not. Then the so-called 'incompetent' is brought to 3020-a, where the same observations are accepted as facts, and boom the teacher is fired. The Gotcha Squad doesn't want to spend time and money giving these people due process, so they dreamed up the settlements in order to get them out faster, while still keeping total control. The goal is to get people out, not evaluate.

Jeff Kaufman · 89 years old
You have only a part of the story. What about supposed "U" rated teachers who are hired back to the DOE under different licenses? Or teachers who agree to transfer to becoming an ATR in exchange for the removal or guarantee that a U rating will disappear. In a large system you would always expect to find anecdotal evidence of wheeling and dealing but a large part of the U rating system is institutionally corrupt. When you can be given a U rating for reasons other than being unsatisfactory you can see how deep the corruption is. I fear whatever new evaluation system is in place as the hidden schemes will be more deeply embeded.

Joel Moss · Top Commenter
You constantly write about a teacher evaluation system by Jan.17 or all that state funding will be lost. So what, N.Y. won the ridiculous Race to The Top funding a couple of years ago and no one really knows what happened to the money nor is there any evidence it improved education in any way.You constantly blame the UFT for wanting a fair evaluation system, but the mayor and his cronies want a system which relies on state test scores when many teachers in the system are not involved in state wide testing in language and math. How are they to be judged?
In a system in which your mayor, supposedly in charge of education, compares the UFT to the NRA there is no real chance for fair agreement on anything.

Carol Wolf · Mason Gross School of the Arts
It takes two years of full-time study to earn a teaching credential, at a cost of about $20K, and then there's that year of teaching for no pay under a mentor. So, during that time no one notices that the teacher isn't competent? And can you promise that this evaluation system won't be used simply to cashier a teacher (say, the ones that have made it to the top of the pay scale)? That's what the tenure system was created for: to keep administrators (who make three times the salary, by the way) from firing experienced teachers because they now cost more money to pay. Or simply because they were annoyed by them. Schools full of cowed teachers, wow, who thinks that is a good idea?

Got a teacher you don't like? Load her class with all the worst kids (it's called a "loaded class") and then charge her with not keeping order, and being incompetent because she doesn't teach them anything. This system is ripe for abuse. Guess why tenure was such a good idea when it was put in place?

So, okay, if this is such a good idea, where is the equivalent evaluation system for doctors, lawyers and other professionals? Police, for example? Or, hey, I know, how about school administrators, and Congressmen? I know there's some kind of secret law these days that you can't even look at evaluating bankers, not even when they commit egregious fraud. But hey, we sure can beat up on the teachers!

So, under this kind of system, what kind of people are going to enter this former "profession" now?

Vincent Powell · Top Commenter
It's the system set up by teachers unions. if in fact incompetency was fired at will....like so many other jobs, then no rubber rooms, no administrative trials. Money spent on this foolishness would go toward educating our youth. And as the unions have always said..."its for the children".

Doreen Meyer · Top Commenter · Servite HS Detroit, MI
I've seen this happen not in schools, but in hospitals...where subpar nurses and doctors get shuffled around and edged out with the promise of an 'adequate' rating...and this was in an 'open shop'. It really has nothing to do with unions, but with the incompetence of supervisors, administrators (and their supporting boards of directors) who have neither a clue about how to examine workers nor how to document problems so that they'll 'stick' at termination. Without that, litigation begins...union or not. What we need is more training and 'gumption' in the upper echelons, which would get them out without 'bargains'.

Michael Reed · Top Commenter · Owner/ President at Self-Employed Consultant/Writer
Doreen - Doesn't make sense. Why would "open-shop", at-will employers (incompetent or not) shuffle around subpar med-pros? If there's no penalty for firing, what is their motivation - cash bribes or something? It seems they would be doubly motivated to fire because of potential legal liability to their business/employer and being held personally responsible & liable too? Please explain.

Doreen Meyer · Top Commenter · Servite HS Detroit, MI
Despite having an 'open-shop' hospitals are risk-averse. Physicians, particularly, will litigate terminations or 'lockouts' as being damaging to their 'good name' or as a 'trade restriction.' It takes a tremendous amount of documentation; most hospitals don't want this information to potentially end up in an open court, as it may also open them up to liability for continuing an MD whose practice has been known to be subpar. Nurses will also litigate, and often know where institutional secrets are 'buried', giving them leverage. It does sound as if they should be able to terminate at will, but they don't.
Good administrators--ones who know how to handle the process with little to no 'fallout'--are few and far between. Such actions are also usually highly 'political' and require a high level of skill and commitment to pull off.

Peter Goodman · Indiana University
Between 80-90% of cases in the civil and criminal courts are resolved through a plea bargain, why should teacher discipline cases differ... accusations do not mean a finding of guilt...

Ron Archetti · Top Commenter
Peter Goodman - The difference is that I'm not paying the defendants in civil and criminal courts to educate my children nor do I trust them with my child's care. It is exactly that kind of twisted mentality which you display with that ignorant comment that is the problem.

Park Windsor · Top Commenter
Can't wait till Bloomberg is over his ill gotten 3d term.

Glenda Barker · Top Commenter
As if this is the first lie told by these people... just get rid of them. They do more harm, then good.

Denise Fryburg · Top Commenter · Hunter College
Teachers are being given U ratings for just that reason, to make them resign. It has little to do, in most cases, with performance, but how much they make. No one should buy into this.

Robert Dunn · Top Commenter · Fordham University
This is just like the Catholic Church recycling pedophiles. If a teacher is not proficient, passing them off to another district is a disservice to the families of the next school.

Michael Reed · Top Commenter · Owner/ President at Self-Employed Consultant/Writer
Catholic Church and Peds? How about the NEA/AFT Peds with Teaching Certificates who get passed on by Schools to others? I've seen it twice that I'm certain of, and probably more often when it was better covered-up. News is full of both male and female teachers who've abused their students in mulltiple districts for years.

Ron Archetti · Top Commenter
As an employer, I would now be suspect of ANY applicant that listed the DOE under previous employment on their résumé. Hiring any one of them would be like buying a pig-in-a-poke.

William Lee · Top Commenter
What a system. These "unsatisfactory" teachers can now go somewhere else to "teach". This is what's wrong with unions - always protect the bad members.

Paul Girgenti · Top Commenter
we need to start firing them for failing our children.

Baz Clark · Works at University of Pikeville
Too bad common sense isn't!

Pua Tokumoto
As a retired school principal I can honestly say that an excellent teacher is the biggest indicator of a child's success in school. We are with a child at least 6 hours a day, five days a week, in a structured environment. This is powerful and a great teacher can influence a child sometimes much more than a parent.
Unfortunately, poor teachers hurt not only children but good teachers as well. I've had experience with the union trying so hard to get rid of really poor and incompetent teachers to no avail. Teachers who were passed around from school to school. Teachers who took up a good chunk of my resources when trying to change behavior by sending them to workshops, had mentor teachers work with them, etc. The school districts know this to be so true yet strong unions are there to back them up. We need teachers unions to work for the child as well as for the teacher. The unions must realize that the public is sick and tired of incompetent teachers who are still allowed to "teach" and yet students are not learning. We are headed for disaster as a country unless the unions work with the school district in upgrading the caliber of teachers. Most teachers want to teach and play a strong role in the lives of children.
Work with the school district to keep great teachers and kick out the poor teachers. Our kids deserve no less.

Michael Reed · Top Commenter · Owner/ President at Self-Employed Consultant/Writer
Gotta' love this! NYC is chicagoing! They bribe Education Professionals (NEA/AFT members) into leaving with a promise of passing them on to some other unsuspecting sucker school district with falsified documentation. How nice, how professional and who is being held accountable for this fraud?

Peter Hirsch · Port Washington, New York
I'm sure this was a concession to the Teacher's Union, the most Evil Union On The Planet. Creates the most waste and disfunction of any organization known to Man.

Scott Manlin · Subscribe · Managing Member at Bonvivino Capital, LLC
Gotta love government

Abul Rahman · Rutgers University - College Avenue Campus
Sick

Cindy Right · Subscribe · Top Commenter
They'll just get a job at another school.....just passing the buck again. Libtards will never let anyone fix a problem.....evil butt holes.

Jan Snipes · Las Vegas, Nevada
Doesn't this just perpetuate the problem? This is why good administrators who work to change poor teachers are made out to be the bad guys.

Valerie Hofheins · University of Phoenix
...and then those teachers apply to CCSD..

Katherine Walden · Works at I'm retired
I'm one of those teachers, Val. I had a terrible eval my very first year in Prospect, and I was terrible. When I got hired I told them that it was my first year and that I would need help. I got nothing but a bad evaluation. They changed it to a satisfactory one after I agreed to not return. So when CCSD hired me, I was that teacher. But, I got better. I had help--Vandolah, Christine Jannette, Jan Snipes, even you, Val. Teachers need help being better.

Charlie Riley · Top Commenter · Electronics Supervisor at Uncle Sam
They will qualified to teach honors classes in Chicago or Detroit.