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.
It's starting to take on biblical proportions, this Bloom/Klein thuggery.
This is the second year Veteran Teacher X has been passed over for a teacher fellow.
X is super-qualified for the job: with more than 10 years experience, she’s bilingual and has two permanent licenses for what she’s trained to teach. It seems the newbie might not even hold the right license for the job that should have been X’s. When the announcement was made at a faculty conference that X was going to get a full program this year instead of the day-to-day subbing she was doing last year, everyone broke out into spontaneous applause; some came over to hug her. X had to tell them that she’ll only be filling in for someone on sabbatical this year. She’s still in excess and still an ATR.
Obviously, X is a beloved member of the staff, and obviously, admin's counting the change in his pocket. It wasn't so long ago when an administrator’s job involved continuity, stability, and a nurturing environment for staff and kids. Bet you don't find those concepts in Leadership Academy crash courses.
This just in from Veteran Teacher Z, also an ATR:
"I thought you might want to be made aware, if you aren't already, that the union is no longer grieving against new schools/principals who don't hire the 50% of teachers in the closing schools as is required by the contract."
Much lauded as an English teacher of long standing with not a single letter in her file except for praise, Z took student teachers in under her wings, mentored for years, and prepared (and ran) professional development. The UFT even offered her a job in its Peer Intervention program. Apart from all those credentials, she’s enjoyed a whole other career involving the very theme of a new school they’re creating in her building — and in which she was, astoundingly, not installed.
"And now I find that no one wants me."
Those are the saddest words I’ve heard since I’ve joined the fight for teachers who’ve been thrown into ATR limbo.
"And now I find that no one wants me."
Hers is like so many other ones in the saga of Goliath’s chancellorship. Z’s school is going to close next year, if not sooner. In the past two years, only two of the excessed teachers were able to get jobs in the small schools upstairs, and those were only because of connections.
Not having been called in for a single interview at any of those new ones, Z complained to the union. It arranged for an interview, but too late, of course. Two teaching fellows with no classroom experience or even much familiarity with the school’s theme got the jobs. Z grieved it, and the thing eventually went to arbitration. She says it was a test case, and the UFT lost it. It will now no longer be taking grievances for teachers being excessed out of old schools who apply to new schools in their buildings.
"Most of us are now ATRs, sitting in a room waiting to be sent as a sub to some school or other while the teachers upstairs, all fellows with no experience, are being made to work long hours (with no per session). And I have heard that the halls are insane. There are now eight other schools [here, and save for two people] NONE of them have hired any of us!
"Perhaps you can make others aware of this, how our union is further destroying our contractual rights."
If anyone knows differently about the way things are done in Arbitration World, please tell us. We want to know how far this debacle is reaching, and just how much the union is NOT willing to act on our behalf.
"Something is very, very, very wrong here, and someone needs to tell the story.”
That says it all, and the Davids out here are really trying.
Please send your stories. I’ll post them, and I’ll send them to all Jennifer Medinas and Elizabeth Greens I can find.
Everyone and his uncle knows that the grievance system we had a couple of years ago was dismantled by the present contract.
In its place, a denial at Step I means that the grievant and UFT rep get to face off at Step II against the Chancellor’s rep (who runs the hearing), the principal (most likely phoning in from a remote site), and reps from the district and Human Resources.
At this point the whole thing, which seems pretty much rigged against members in the first place, comes to a complete halt unless the UFT grievance team comes riding in like knights in shining armor to take the case forward to arbitration.
I’ve had an overwhelming urge in recent weeks to re-acquaint myself with Article 22.C of the contract, which constitutes the arbitration process being practiced these days.
The essential points are these:
— A denied Step II doesn't, as mentioned above, go automatically to arbitration;
— You can’t get to the arbitration stage without going through the other steps (obviously), unless it’s a class size or group size issue or for some reason the Chancellor’s office missed the deadline at Step II;
— The notice of arbitration filed by the UFT gives a brief statement of the issue and the provision in the Agreement that’s been violated;
— The panel of arbitrators includes 7 people already agreed upon by the UFT and the Board to serve for renewable one-year terms. There’s a process for not renewing the services of any of these arbitrators at year’s end, and if a replacment arbitrator isn't installed in time, no problem: the same “normal” number of dates have to be scheduled in any case (in another process);
— The parties stipulate the facts beforehand where possible;
— They agree to make expeditious decisions and will not normally file briefs or order transcripts;
— The American Arbitration Association’s voluntary arbitration rules relating to the hearings, fees, and expenses apply;
— The arbitrator can’t go against or modify anything in the contract, cannot make any decision “involving Board discretion” in the contract (unless he feels the Board disregarded something in it, discriminated against the individual, or acted capriciously), and can’t interfere with the Board’s by-laws, etc.;
— The decision the arbitrator is final and the parties must abide by it;
— The arbitrator can determine a remedy, including back pay, but not a monetary penalty;
— The Board agrees to apply the arbitrator’s rulings in all similar situations, and UFT agrees it will bring no new grievances or continue any old ones that are similar to those already resolved by arbitration.
At the same time all this is going on, Article 22.D says that the Board can continue acting against you until the final decision comes down. Moreover, the UFT can't pursue a grievance on anything outside the contract without your consent (there seems to be a typo in that clause: D.2.: “in behalf”), and you get to retain any rights granted by other protections, like Section 15 of the NYS Civil Rights Law and the State Ed Law.
(Actually, I’m not sure about this last item, because that Section 15 seems to contradict the paragraph in section C.c., which says the arbitrator’s decision is “final”:
§ 15. Right of appeal not to be denied. . . . a citizen shall not be deprived of the right to appeal to the legislature, or to any public officer, board, commission or other public body, for the redress of grievances, on account of employment in the civil service of the state or any of its civil divisions or cities.
But, heck, I’m not a lawyer.)
What really made me look into this whole issue of arbitration more deeply was the an article by Stephanie Mencimer in the March/April issue of Mother Jones called “Don’t Tell it to the Judge,” which gives some background into what she calls an “arbitration trend” in this country.
She says that after the Supreme Court ruled in 1984 that Congress had created a “national policy favoring arbitration,” there was a dramatic increase in mandatory binding arbitration. That’s not our problem here, since we're not dealing here with mandatory anything, but what she says about arbitrators is very disturbing:
Justice Hugo Black once observed [that] arbitrators can be “wholly unqualified” to oversee complicated cases. Indeed, private arbitrators aren’t required to follow the law or established precedent, or even issue written decisions. Many have legal backgrounds, but there is no standard dictating that they be lawyers or credentialed in any way — yet their decisions can’t be appealed.
In a series of decisions, Mencimer says, courts have ruled “that an arbitration decision can stand even if it’s legally wrong and causes ‘substantial injustice.’” Furthermore, “courts shouldn’t review arbitrators’ decisions even when they are ‘wacky,’” and people challenging arbitration awards in court “ought to be sanctioned.” WOW.
If there is a national trend toward arbitration, it doesn't seem to be a positive thing, and we need to be vigilant.
Perhaps UFT management is being deliberately obscure on our grievance/arbitration process, not to mention way short on documentation, so that they can continue to play games and make private deals with the other side. In any case, there’s a whole lot of stuff we’re not being told much about . . .
. . . Like if it’s true what I heard, that the UFT and the Board have to agree on winning roughly the same number of cases.
. . . Like the names of the arbitrators, and their backgrounds. In the past, we used to go up against people we knew: the superintendent and their creepy little hit-people that came into the building from time to time. Tell us some more about these people, on the UFT website if you'd like, and prove to us you’re taking this seriously.
. . . Like the "normal" number of cases that grievance teams in each borough are taking to arbitration, perhaps even broken down by category.
. . . Like if the parties are supposed to stipulate the facts beforehand “whenever possible,” what reasons might there be for not being able to do this.
. . . Like if the parties would “not normally file briefs or order transcripts,” when would doing such things be actually appropriate and called for.
. . . Like when Leo Casey a couple of years ago — having already admitted that the UFT only takes the strongest cases to arbitration because of scheduling restraints (probably to keep the stats higher as well) — defended the UFT’s record of successful results this way:
As a general rule, the UFT has a very strong win rate at arbitration, with victories in well over half of the cases we take. This is considered a very high union success rate within the industrial relations field. Most of the credit for that rate belongs to our UFT grievance department, but it also indicates that the DOE is pursuing cases which should have been settled without arbitration, because the position on their side simply lacked merit. (Oct. 12, 2005):
then it follows that if many of the Board’s cases “lacked merit” way back in 2005, what must it be like now in this current free-for-all, where principals and administrators are having a field day with immoral and improper attacks and are being shamelessly backed by chancellor’s lackeys. Let's hear whether with all the increasingly aggressive, malicious, union-bashing, and possibly discriminatory Board practices going on, the union has started to balk at the limit on the number of cases they can take to arbitration.
. . . And another thing for Casey. He said back on Oct. 4, 2005 that the UFT was attempting to streamline things: "by eliminating a redundant step in the grievance process, in which the superintendent invariably ruled against the grievant, we have made some progress in this area.” Well, I was told by someone in the union only recently that the chancellor’s reps at Step II are ruling against members practically all the time, and that grievants should actually expect denials at that level. So, I’d like an update on the “progress” Casey thought the union was making , with some figures please, because it seems to me we’re just being blown out of the water by a higher level of blowfish.
. . . And lastly, if the arbitrators’ rulings must, as it says in the contract, be carried forward and applied to similar cases now and future, I’d really, really like to see a list of these rulings on the UFT website, so we all can figure out the substance and extent of this new era of post-contractual law.
