Why Observation Reports Should Not be Used To Terminate a Tenured Employee by Betsy Combier

In New York City, teacher tenure is public policy. Tenure gives an employee the right to a due process arbitration hearing on his/her job before anyone can terminate or discipline him/her. A tenured person is not an employee at will.

Tenure matters, because in all parts of the world right now are people, good people, who should be in the classroom teaching but are not, because an administrator, parent, child, or other person has lied about the character or job performance of the teacher in order to get the employee fired or removed from his/her job. Children need to know that their teacher is there, ready to be with them all day. Children need to trust this relationship and the person who will replace their parent or guardian every day. That's why tenure matters.

The first tenure statute in New York state was enacted in 1897 — 70 years before public-sector unions had a right to bargain here — in recognition of society’s deep interest in safeguarding its teachers from unfair firing and political pressure. But current trends in employment in the United States dictate a very different approach to hiring/firing in educational settings. The current trend is to apply a business model of education, where the employer must get rid of 10% of the weakest links in the production line in order to stay viable. This line of reasoning was promoted by GE CEO Jack Welsh, in his book “Winning”:
"To attract the right personnel, Welch instituted a strategy that earned him the moniker "Neutron Jack" and made him a favorite ally of Mike Bloomberg and former Chancellor Joel Klein. Walsh had GE cut all businesses in which the company could not dominate the market in first or second positions. Next, he had managers fire the bottom 10% of GE employees, while he fired the bottom 10% of management. Welch's housecleaning cleared away layers of bureaucracy that had built up at the organization and made way for a quicker flow of ideas."

Unfortunately, I see harm in this approach, because under the umbrella of getting rid of 10% of the workforce, every employee fears for his/her job on a daily basis, thinking that he/she will "be next". Mayor Mike Bloomberg believed in this and tried to implement this management strategy in 3020-a proceedings, and that is where we are at now.

The New York City Department of Education has given administrators the right to go after anyone who they feel is subpar, or slows down the assembly line of the widgets' education. (students = products)

For the most part, Bloomberg failed because tenure rights are public policy in New York State, and Bloomberg was frustratingly blocked from his goal of getting any and all teachers, Guidance Counselors and school staff considered subpar for any reason by a member of the administration, out of his/her job. The general public and certainly those who work on 3020-a arbitration hearing have, over the past few years, become concerned that the pendulum has begun to swing in the direction of the Department in their effort to get teachers out of their schools and their jobs despite public policy and the mandate of tenure law to have a fair hearing and make sure the charged employee has due process. These proceedings are still controlled by Education Law 3020-a, and employees charged under this law must be given a full hearing if requested, so arbitrators must seek the facts a case, not simply the opinions of the administrators, in order to honor and protect tenure rights of the accused.

In order to get what he wanted in terms of removing as many teachers as possible from the classroom, Mayor Bloomberg, as the new titular head of the NYC Department of Education renting large spaces to hold "bad" teachers. These "Teacher Re-assignment Centers" or "rubber rooms" were, from 2002-2010, dumping grounds for anyone who was accused of anything, no questions asked. I was fortunate in that I snuck into the largest room at 25 Chapel Street at the invitation of the educators there, in 2003, and stayed all day asking the people there why they were in the room doing nothing. No one knew why. Randomly, a reassigned teacher would be served charges, and the charges were that he/she was the most incompetent teacher that ever lived or he/she was a child abuser. Whichever crime you committed, you were on your way to being terminated for it. Truth and facts don't matter.

Indeed, the charging process in NYC was altered to accommodate the "quick termination" rule that was never written down. In 2015 I obtained the video of Carmen Farina describing how it worked. See my post "The 3020-a Arbitration Newswire: Digging Up The Garbage On the UFT/DOE Partnership of Harm For Charged DOE Employees" posted on my blog NYC Rubber Room Reporter
in May 2016. Education Law 3020-a states that there must be an Executive Session of the NYC School Board, the Panel For Educational Policy, wherein the members vote on probable cause for the hearing arbitration to proceed. Bloomberg did not want this to happen, so this Section of the Ed Law was ignored. I wrote an essay on this, which I present at all my tenure hearings:

"Betsy's Motion on Probable Cause in Teacher Tenure Arbitration"

A decision at employment arbitration must not rest on malicious prosecution and/or the dislike of an administrator for an employee. But the NYC Department of Education would like you to think that observations, which are subjective nonfinal opinions, can, indeed, be the sole basis for removing an employee from his/her job due to the nebulous concept known as "incompetence". How does an observation prove incompetence? Sorry, it doesn't work for me. I don't get it.

An observation by an administrator is supposed to be a helpful part of the evaluation of a teacher's performance and intervention and remediation should not come as an afterthought. From a historical perspective, teachers/administrators have helped teachers before anyone asked them. It was called collegial support and camaraderie. Today, the buzzwords are different, and classrooms are hostile arenas filled with misinformation from administrators of pedagogical errors and with hidden agendas from administration, peers, and parents.

Elentuck v Green

Even the most elaborate procedural safeguards in a statutory or contractual disciplinary system are useless if a teacher's conduct is measured against subjective standards, as done in an observation.

Thus, observations are meaningless for purposes of discipline. Any observation report basically informs an arbitrator of nothing except that an administrator/evaluator liked/did not like what he/she saw. If there is any bad faith then the subjective views must be discarded as invalid. What a person, let's say a principal, filled with malice "sees" can be far different from the reality of what the student or teacher is actually doing.

Facts matter, and according to the kings County Supreme Court and the Second Department Appellate Division, there are no facts or statistical data in observations, only nonfinal opinions. (See Elentuck v Green, 202 A.D.2d 425; 608 N.Y.S.2d 701; 1994 N.Y. App. Div. LEXIS 1956, 1994)

Observation reports are not public or business records and cannot be the sole evidence used to support any penalty at an employment arbitration hearing dealing with incompetency. I have written about this and stated it at all the 3020-a hearings I work on. Opinions of a person whose goal is to get an employee terminated cannot be validated without student outcomes, results, data. A claim of “incompetency” must have supporting information that proves students in Respondent’s class did not learn what they were supposed to learn,.

Yet in NYC, the Department of Education attorneys ignore this, and state that any student outcomes are "irrelevant". The only information an arbitrator needs, these attorneys say, is what they see in the observation, and whether or not the teacher had a good lesson plan (or a Guidance Counselor wrote a timely assessment of the child(ren)).

Any school administrator who sees that an employee is, according to what they "see", subpar, is given the right to create whatever papers they need to terminate this employee. It's a simple straight line: you don't like an employee and believe this employee to be a nuisance, so you use observations to create a paper trail and get the employee terminated. What is so frightening is that no one holds the administrators accountable for making up "fake news", and the UFT/NYSUT does not stop this from occurring, either.. In fact, the rubber rooms were invented to keep those "subpar" employees out of their schools so that the administration and the Department's legal services could create the necessary paperwork to "prove" that the employee is guilty of incompetent service. In this scenario the employee is guilty and must prove his/her innocence - exactly the opposite of the law and due process.This is not tenure support, folks, this is employment at will.

The opinions of an administrator who wants the Respondent removed from the school cannot be the only determining factor in any termination hearing nor in handing down penalty. As Arbitrator Joel Douglas wrote in Matter of Great Neck U.F.S.D. v M.H. (SED #5,043, July 20, 2008, Hearing Officer Joel Douglas):

“The record demonstrates that for a teacher to be charged with incompetence, and for the Specifications to be sustained, the teacher must fall below the minimum level of the competency expected of a reasonable teacher…That the Respondent did not live up to (her Supervisor’s] expectations does not de facto establish a degree of incompetency…."

Arbitrators must not decide 3020-a cases only on hearsay, either. N.Y.C.
Arbitrator Josh Javits ruled in a decision (Woda, SED file #10, 831):
“It would be unacceptable to accept the hearsay evidence of an individual as conclusive proof of an allegation over the live testimony of a teacher with fourteen (14) years of teaching. The Respondent has the right to confront and challenge the testimony of her accuser, and to have the accuser’s credibility tested. Absent this right, the Hearing Officer cannot accept that hearsay evidence alone satisfies the Department’s burden of proof with respect to this issue.”

In DOE v. Rykman, SED File No. 17,731 (Bluth, 2012), at 49, Arbitrator Bluth wrote:
“It is well established that a disciplinary charge pursuant to Education Law 3020-a cannot be sustained when the only evidence to support a charge is uncorroborated hearsay.”

Certainly any of the phrases such as "failures in the nature of incompetent and inefficient service, neglect of duty, unwillingness and/or inability to follow procedures and carry out normal duties, and engaging in misconduct" do not define the word "incompetency" itself, although some forms of "misconduct", "unwillingness", "insubordination", etc., can be classified into categories of "unprofessional" or "improper" behavior within a properly made argument and context.

The above cited vague definitions used to clarify standards of conduct have been applied to other vague concepts such as maintaining "professionalism", and providing an "environment conducive to student learning". These subjective-relative ideas have no standard upon which to rely, leaving a void as to what penalty, if any, should be given which would be "adequate" under the circumstances presented.

Elentuck makes clear that that lesson observations are not “statistical or factual tabulations of data".
Significantly, if material such as lesson observations is non-factual, as Elentuck specifically held, observations are of little value to a 3020-a hearing on incompetency.

Observations are solely subjective.

Why Tenure Matters
Teacher tenure is under attack in New York state and nationwide. In July 2014, two lawsuits were filed — Davids v. New York and Wright v. New York — that claim New York's tenure laws deprive students of their right to a sound basic education. The lawsuits specifically attack the tenure process, the use of seniority in layoffs, and the three-year probationary period for new teachers, which they claim is too short. Former news anchor Campbell Brown, fronting for a shadowy group calling itself the Partnership for Educational Justice, is bankrolling the Wright case. Brown, who won’t disclose her financial backers, makes the unsupported claim that tenure is responsible for low student achievement.
The New York state lawsuits were filed after a lower-court ruling in the case of Vergara v. California gutted that state’s tenure laws. NYSUT attorneys believe the California ruling will be overturned on appeal — but meanwhile it has emboldened copycat suits across the country. Bankrolled by the wealthy elite and anti-union forces, these attacks represent an all-out assault on the fundamental labor rights of working people.

NYSUT is mounting an aggressive and vigorous defense of tenure both in the courts and the court of public opinion.

What’s really important

New York state is widely recognized for its exemplary teaching force and has earned high marks for its rigorous standards and credentialing requirements — typically ranking among the nation’s top ten. Tenure is just one of the safeguards New York state has put in place to ensure every student has an effective teacher. A teacher must earn tenure after three years or more of effective teaching, oversight and evaluation. A teacher then is entitled to a fair hearing before being fired — a basic due process right. Focusing on a due process right that is used by a very few is a distraction from what must be our main priority: ensuring every child has an effective teacher. We need to focus on what helps students the most: recruiting and retaining quality teachers and providing the resources to help every child succeed.

Three key points about tenure

New York state’s rigorous teaching standards provide many safeguards that ensure children have good teachers. Tenure is one of them.

Tenure is a safeguard that ensures good teachers can speak up for what students need.
Tenure is a safeguard that protects good teachers from unfair firing — a basic due process right.
Tenure is working in New York state. The process has been reformed to be faster and more cost efficient, with most cases now resolved within five months. Meanwhile, New York state’s many safeguards for teacher quality ensure that its teaching force is among the best credentialed, most effective in the nation.
Tenure is a safeguard that ensures good teachers can speak up for their students.

Tenure helps safeguard children's right to an effective education because it provides teachers freedom to advocate for their students without fear of reprisal. Because tenure exists, teachers in New York state can speak out freely on issues such as over-testing, cuts in academic programs, elimination of art, music and language and inappropriate placements for students with disabilities.
Without tenure, working under the constant threat of arbitrary firing would have a chilling effect on a teacher’s professional judgment and create an environment that would erode, not enhance, educational quality.
There is no evidence that teachers’ employment rights have anything to do with student achievement. Teachers in the wealthiest districts have the identical due process and seniority rights as teachers in the poorest districts — yet students in wealthy districts have much higher graduation and college acceptance rates. The real factor contributing to these differences in achievement is poverty.
Students in our poorer districts have the greatest educational needs but are given the least resources, with our richest districts spending 180 percent as much on education as our poorer districts do.
Tenure is essential in empowering teachers to make the case that all students deserve an effective education — not just those who happen to be the children of hedge-fund millionaires. Attacking tenure, and seeking to make teachers vulnerable to being fired at will is a smokescreen for failing to tackle the real reason why students struggle: poverty.
Blaming tenure for low student performance is as illogical as it is inflammatory.
Student safety is paramount and it is safeguarded under the state’s tenure laws. Teacher-supported changes to the law in 2008 mean that any teacher, tenured or not, will automatically lose both job and teaching license if guilty of certain sexual offenses — without recourse to a hearing.
Blaming low-student achievement on teacher tenure —a meritless claim not supported by any evidence — is like blaming the due process granted to police officers for crime or blaming the due process granted to firefighters for fire.
If the wealthy elite truly cared about advancing student achievement they would partner with parents and teachers to achieve state budgets that provide equitable funding for all schools. They would oppose the state's tax cap, which worsens constraints on local communities. Instead, the wealthy elite and corporate forces are missing-in-action in these critically important battles. Teachers and parents stand together in calling for a renewed focus on learning and for the resources our students need to be prepared for college and career.
Tenure is a safeguard that protects good teachers from unfair firing — a basic due process right

Though it's been on the books for more than a century, New York state's tenure laws remain wildly misunderstood. Tenure, simply put, is a safeguard that protects good teachers from unfair firing. Once a teacher is granted tenure — a right that must be earned after three years or more of service, oversight and evaluation — a teacher cannot be fired without a fair hearing. Tenure does not mean a job for life. It means simply that a teacher has the right to a fair hearing on charges that could end a career. This is fundamental due process — an American value enshrined in our Bill of Rights and one that is not reserved only for the wealthy elite.
Tenure must be earned. It is not automatic. During a teacher’s three-year probation, school officials carefully evaluate that teacher's job performance. Upon completion of that evaluation, the local school board then votes whether to grant tenure — which simply means the teacher cannot be fired without a fair hearing.
Tenure is a safeguard that protects teachers’ civil rights. Tenure ensures good teachers cannot be fired for reasons of race, gender, age, religion, handicapping condition or sexual orientation. It ensures that good teachers cannot be fired because of cronyism or local politics. It ensures they cannot be fired for pregnancy. Before tenure was in place, teachers could — and did — lose their jobs for arbitrary and politically motivated reasons, or for no reason at all.
Seniority rights, which like tenure are a fundamental employment right, ensure that when layoffs are unavoidable, they are conducted fairly and objectively. A system based on seniority guards against abuses by those who would use ‘layoffs’ as another way to fire those who advocate too fiercely for their students or are at the top of the pay scale.
The obscene, profit-motivated attacks on the rights of working people in places like California and New York are why America no longer has the world's largest middle class. Fundamental rights for workers are essential to a decent standard of living in New York state. And fundamental rights for teachers are essential to fairness and defending what students need.