October 1, 2008

Get out your reading glasses

I think people should know more about the lawsuit in the works against the DoE and Joel Klein, personally and in his capacity as chancellor.

Everyone who reads this blog regularly will know why I’m writing about this, but I’m happy to repeat it:

Kleinworld’s assaults on teachers’ careers, due process, the contract and various civil codes have gone too far. Some people are stepping up to the plate.

On Aug. 8th, Joy Hochstadt filed a petition in State court seeking the overturn of 3020-a decision she received on the grounds that she was denied due process. In fact, the law itself may deny due process.

In the incompetence cases she has witnessed, Hochstadt can document an orchestrated and partially fabricated judicial procedure lasting more than a couple of years that has barred certain witnesses and denied prior observation reports.

Hearing records (those are the transcripts of the voice tapes) have been edited before being transmitted to the teachers. Too many people who have gone through the process, she says, remember things differently from what's in the final transcripts, and they have notes to contradict them. But the sheer volume of these documents makes it impossible to identify, much less rebut the changes in the short period allowed to respond, just 10 days. People have to match all their notes and all the Court's rulings with the thousands of pages of written record.

Hochstadt wants the judge to strike the entire law (3020-a), which means that there'd be no way to discipline a tenured teacher until the legislature sat down and drafted a new one. Teachers must be part of this re-drafting, to ensure fairness in the selection of arbitrators (the DoE and the respondent would each choose one, and these together would select a third) and that all parts of just cause get proved, not just the trivial specifications that the present law calls for. In other words, you’d have to prove:
— That the conduct was had to be shown to be disruptive or dangerous to the operation of schools;

— That the employee had been warned not to repeat the behavior (unless the offense was criminal, quasi-criminal or shocking to most people),

— That the entire faculty was treated equally for similar infractions,

— That the fine or other penalty was in line with other arbitrator-awards in similar circumstances,

— That the punishment was not too harsh for the infraction,

— That trivial subjective complaints could not be included,

Hochstadt would add three additional stipulations:
— That the school was in compliance with all regulations related to the charges (e.g., no incompetence charges could stem from observations in out-of-license or oversized classes),

— That the charges could only be proved by a standard of clear and convincing evidence, not just a preponderance of it, or that attorney-advocates had to go to Court if intervening rulings against the respondent were biased, and

— That before a U could be issued or a charge of incompetence be leveled, peer reviewers observations were made and made part of the record or file. Failing this, the 10 day statute of limitations in the law could be stricken, in which case it would be like any other arbitral award with 90 days to file.

To say this makes a whole lot of sense is an understatement, and I can’t for the life of me see why our union management hasn’t already taken steps to counteract this judicial aggression against the members — unless, Weingarten wants to make sure her collaboration in getting rid of teachers remains codified in law.

Here is more of Hochstadt’s thinking, in her own words:
Each proceeding requests something from the Court called “relief.” What I am asking for is to set aside or vacate the decision (the “arbitral award”) of the arbitrator.

I must make the legal case that the Court should do that based on what other Courts have said and done in similar circumstances for each fact I allege in my case. So far I have presented only alleged facts and a number of laws I believe were violated, but have not cited cases and rulings in other cases to prove my points. Relevant to the 3020-a charges are these questions:
Was 3020-a as enacted followed or violated?

Was the "Just Cause" standard as long used in employment decisions used appropriately?

Did the arbitrator show bias against me?

Was the arbitrator corrupt?

Did the arbitrator exceed her powers?

Did the arbitrator or counsel violate my rights to equal protection of the laws or due process vis-a-vis other teachers? As the actors are state employees, the 14th Amendment of the US Constitution protects me from denial of equal protection of law and denial of due process.
To answer these questions legally, I must use the facts I alleged in the petition to analyze how they would have been treated using the reasoning of the judicial decisions of other cases applying the law and the prior reasoning to my facts [editorial remark: don't be ashamed if you have to read that sentence again]. Therefore, I cite cases where the law was applied to similar facts in a way I'd like them to be applied to my facts. I also distinguish those facts from my facts (i.e., show how it is not a comparable situation) when another court reached a judgment on a point that goes contrary to the way I'd like the Court to view my own facts.

I expect to cite (i.e., give the name of the case and the place it can be found — Court, volume and page) for dozens, if not 100 or more cases in my memo of law to guide the Court as how the law should be applied. A trial Court must apply the law the way its own appellate and highest Court of Review has ruled. (It is optional but persuasive to apply the rulings of Courts in other appellate divisions or states.)

Also, when petitioners are pro se (without an attorney) the memorandum of law is optional. The court attorneys are supposed to do this for you. But arguing the law is just like a debate: each person must be versed in all the precedents and then best use those facts to persuade. Each pro se should research his case and write a first-rate memo of law to support his case if they hope to win. Each court has a library to use and librarians to help.

(Joy Hochstadt can be reached at her office, 300 Central Park West, New York, NY 10021. Tel. 212/580-9930. Email: joy.hochstadt.pc@gmail.com)

Don't you find this interesting? Pertinent? Thorough?

Even if you answered yes, it's time for a drink.


  1. I don't know Joy H. but I do know she had a tough arbitrator and is known to terminate many teachers. I wish her well as a lawyer.

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