filling in the blanks

Arbitrator: City used "circular reasoning" to justify turnarounds

Mayor Michael Bloomberg’s testimony before an arbitrator drove one nail into the coffin of the city’s plans to replace or rehire teachers at 24 “turnaround” schools.

Last week an arbitrator determined that the city violated the city’s contracts with the teachers and principals unions when it moved to replace staff members at the schools. This afternoon the arbitrator, Scott Buchheit, released a detailed explanation of why he ruled the way he did.

The city was trying to use hiring procedures set for closing schools and their replacements. But the unions argued that the turnaround plans were “sham closures” that would not result in new schools. Instead, they argued, the city was unfairly using contractual provisions about “excessing” to remove teachers and administrators it deemed unsatisfactory.

In upholding the unions’ grievance, Buchheit at times turns Bloomberg’s and other city officials’ words against them.

He quotes a 2011 memorandum written by the Department of Education’s chief financial officer, which said, “excessing is not a permissible way to deal with unsatisfactory teachers.”

Yet city officials said they intended to do just that from the start of the turnaround process, Buchheit determined.

When he first announced the turnaround plans during his State of the City Address in January, Bloomberg “repeatedly made clear that the DOE’s new plan concerning the 24 (then 33) schools was based upon the desire to change staffing in the classroom,” Buchheit writes. He quotes Bloomberg saying, “Under this process, the best teachers stay; the least effective go.”

The arbitrator notes that Bloomberg has frequently expressed his distaste for the current process for shedding teachers from schools that are contracting, which is based on seniority, not job performance. “Suffice it to say that at the arbitration hearing the Mayor reaffirmed his dislike,” Buchheit writes.

Buchheit emphasized that he was not passing judgment on the value of the city’s plans for the schools, which State Education Commissioner John King approved in late June. And he said nothing in his decision would prevent the city from continuing with portions of the plans that do not involve using the hiring rules that take effect when schools are closed.

Those rules, outlined in a clause in the teachers union contract known as 18D, call for closing schools to set up hiring committees to review current teachers who apply for jobs at the replacement schools. According to 18D, the committees must hire back at least half of them of the qualified applicants from each school. City officials and school administrators began carrying out 18D procedures in the 24 schools last month with the understanding that the arbitrator could ultimately reverse it.

Department of Education officials had said they were confident that King’s approval of the reform plans would prove that the 24 schools were truly being closed. But Buchheit said King’s decision did not necessarily mean the schools were being closed and replaced with new schools. “New,” he said, typically means “never existing before,” which would not be the case for the 24 schools.

“The evidence here establishes that much would remain the same in the 24 new schools,” he wrote, including the schools’ buildings, student populations, courses, partnering organizations, and, for 18 of them, their principals. He also noted that many of the schools’ new names would still contain the old names, such as August Martin High School, which would change to “The School of Opportunities at the August Martin Campus.”

Deputy Chancellor Marc Sternberg also suggested that the school closings were inauthentic, the arbitrator concludes, when he wrote in a memorandum to principals shortly after Bloomberg’s speech explaining that their schools would be closed “as a technical matter.”

For the schools to be truly new, Buchheit says, much would have to change, including their overall educational visions and leadership. Instead, the biggest change the city cited was the planned staffing change — but that change could only happen, he notes, if the schools were new.

“The DOE cannot use the end result of Article 18D being invoked as justification for why it is permitted to invoke 18D,” Buchheit writes. “I cannot adopt this circular reasoning for the purposes of contract interpretation.”

On Monday, Bloomberg said the city would appeal Buchheit’s ruling because the arbitrator had not yet explained his rationale. But after reading the opinion, city attorney Georgia Pestana said the city will not withdraw its appeal, which it filed in State Supreme Court on Monday. “The arbitrator clearly exceeded his authority,” she said.

The city had argued that the unions’ grievances were not arbitrable at all. In his opinion, Buchheit rejects each of the city’s three arguments for why the grievance should not be subject to binding arbitration.

Buchheit’s full decision is below:

talking it out

At NAACP hearing on charter school moratorium, foes and fans find common ground

PHOTO: Cassi Feldman
Nyla Jenkins, a first-grader at KIPP STAR Harlem College Prep Charter School

When the NAACP called for a moratorium on charter schools last fall, the group’s president and CEO Cornell Brooks said the group wanted a “reasoned pause,” not a “doomsday destruction” of charters.

Still, it ignited a firestorm among charter school supporters and sparked a series of hearings nationwide, the last of which was held Thursday in New York City. But rather than a heated debate, the panelists and public speakers took pains to find common ground.

“We cannot have a situation where schools are pitted against each other,” Randi Weingarten, president of the American Federation of Teachers, told the packed auditorium at Harlem Hospital Center.

Many panelists said the problem wasn’t school choice, but the fact that too many parents felt compelled to seek alternatives to struggling district schools.

“If you go into communities where education is working, you don’t see people scrambling around, trying to figure out what school to put their child in,” said Lester Young, a member of the state Board of Regents. “We have communities in New York City right now where parents say there is not one middle school I can place my child in. Now, that’s the issue.”

Still, many of the speakers also acknowledged problems with charter schools, particularly in states where the laws governing them are more lax than they are in New York.

“We want to make sure that those schools are going to accept students that have special needs,” said Rebecca Pringle, vice president of the National Education Association. “We want to make sure that we do not create separate systems that are unequal.”

The charter school advocates on the panel seemed to agree that some charters weren’t working. They were quick to denounce for-profit charters, for instance. “For-profit operators have no business in education,” said Katie Duffy, CEO of Democracy Prep Charter School. Our children “are not assets and liabilities and they shouldn’t be treated as such.”

Rafiq Kalam id-Din II, who founded a charter school in Bedford-Stuyvesant, spoke about the need for more schools like his, founded and staffed by black and Hispanic community members. Without naming names, he called out charter schools that believe “if you don’t sit a certain way, you can’t learn” or are using suspension as a “first response” rather than a last resort.

“Criminalizing the behavior of our children — there should be a moratorium on that,” he said.

But it was Nyla Jenkins, 7, a first-grader at KIPP STAR Harlem College Prep Charter School, who drew the most applause of the night when she took the microphone and declared herself a junior lifetime member of the NAACP. “Let’s find a solution for all of us,” she said.

Building Better Schools

IPS broke its own rules to work with a for-profit charter operator. Now it’s having second thoughts.

PHOTO: Scott Elliott
Donnan Middle School was taken over by the state and handed off to be run by Charter Schools USA in 2012. The school now includes an elementary school in partnership with Indianapolis Public Schools.

An unusual partnership between a for-profit charter operator and Indianapolis Public Schools could be on the rocks.

That’s because during its first year of operation, Emma Donnan Elementary School students had some of the lowest test scores in the district and did not make significant gains from the prior year — landing it on the shortlist for district intervention.

If scores are not good this year or in 2018, the district might terminate its contract with Charter Schools USA to operate Donnan, according to Superintendent Lewis Ferebee.

“They struggled in last year’s performance,” he said. “They did not perform at our standard.”

Florida-based CSUSA began managing three Indianapolis schools, including Emma Donnan Middle School, after the schools were taken over by the Indiana State Board of Education six years ago. In 2015, they opened Donnan Elementary as an IPS innovation school in the same building as the middle school. The district is responsible for the school’s — so far low — test scores, but the staff are employed by the charter operator, which handles daily operations.

IPS suspended a policy against working with for-profit operators when it agreed to work with CSUSA to launch Donnan Elementary. The move was intended to give the district more involvement in a building that otherwise would be state-controlled and give CSUSA a chance to work with students earlier. Middle schoolers at Donnan often enroll far behind grade level.

Eric Lewis, a senior official with CSUSA, said the organization is “thrilled to be in partnership” with IPS, and he is not concerned about pressure from the district to improve test scores because “we always intend to improve.”

CSUSA operates 77 schools across the country, many of which also have struggled academically. In the six years since Indiana handed management of three IPS schools over to the charter-manager, those schools have not shown significant improvement.

In recent years, CSUSA has appeared poised to expand in Indiana, but earlier this week the Indiana Charter School Board canceled charters for two schools that were expected to be managed by CSUSA because the company had stopped communicating about its plans.

IPS board members have been skeptical of Donnan Elementary’s progress in the past, but they were relatively quiet during a presentation from CSUSA at their meeting Thursday. (Innovation schools must present their progress to their board twice a year.)

Board member Diane Arnold said the report, which included information on enrollment and scores on tests used to track student progress throughout the year, showed more improvement than the last report school leaders presented to the board.

She is cautiously optimistic Donnan will improve with support.

“We kind of pushed the envelope to give them the elementary school,” she said. “My expectation is we should see results. … And I am hopeful.”

But it’s unclear what help the school will get from the district to improve test scores. Lewis said he did not “have any sense” of what resources the district could provide the school through its new intervention process, but “we look forward to partnering with them.”

Board president Mary Ann Sullivan said she was concerned that Donnan appeared on the list of low-performing schools, and she is relying on the staff overseeing innovation schools to track its progress.

“When we have partners … their purpose is to improve student achievement, and (if) that doesn’t happen, then yes, we will absolutely intervene in those schools,” she said. “We are going to be looking for accountability.”