Legal Battle

Legal challenge to tenure clears hurdle, union vows to fight back

PHOTO: Jessica Glazer
Mona Davids (left) is a plaintiff in a lawsuit challenging New York's job-protection laws for teachers.

The battle against teacher tenure in New York City took one step forward on Thursday after a Staten Island judge allowed opponents’ challenge to the city’s workplace protections for educators to proceed.

The judge denied motions filed by the city, state and the teachers unions to dismiss a lawsuit challenging labor protections afforded to public school teachers, including tenure. If legal challenges to the city’s tenure policies are eventually successful, it could have major implications for tenure policies around the country.

The decision was hailed by the plaintiffs and by television journalist-turned education activist Campbell Brown, who has supported the legal challenge.

“This ruling is a major victory for New Yorkers, especially for parents and students,” Brown said in a statement.

The suit, Davids v. New York, asserts that New York’s teacher tenure review process is too short and should be lengthened from three years to five years; that the system of organizing teacher layoffs but the principle of “last in, first out” should be abandoned; and that the dismissal process for weak teachers should be streamlined. The workplace protections given to teachers, the plaintiffs contend, shield incompetent teachers from being fired and degrade the quality of education to many of the state’s students.

But teachers unions, along with officials from the city and state departments of education, challenged whether the group of parents bringing the suit had standing to file the legal action, and whether the courts, rather than the state legislature, should decide which workplace protections should be granted to teachers.

Judge Philip Minardo said the plaintiffs’ arguments around teacher tenure were strong enough to merit moving toward trial, and that the courts were the proper venue for review of state education policy.

The state teachers union called Thursday’s decision disappointing, but not unexpected, and said it plans to appeal Minardo’s decision.

“NYSUT anticipates taking this meritless attack on fairness and due process to the appellate division immediately,” the union said in a statement.

If an appeal is filed, it would further delay a trial.

In his January budget proposal, Gov. Andrew Cuomo asked for concessions that mirrored some of the changes plaintiffs in the lawsuit have been demanding. In exchange for additional funding for public schools, Cuomo asked the legislature to lengthen the time a teacher works before earning tenure from three to five years and expedite the teacher discipline process.

But Cuomo’s policy push offered little solace to named plaintiff and vice president of the New York City Parents Union Sam Pirozzolo.

“The governor may be committed to reform but he has to negotiate with the legislators and the unions and the lobbyist. He has obstacles,” Pirozzolo said.

Lawmakers in Albany pushed back against Cuomo’s proposals this week. The Assembly proposed a budget with $830 million in additional school funding, but without Cuomo’s concessions.

poster campaign

How one Memphis student is elevating the conversation about school discipline

PHOTO: Laura Faith Kebede
Posters created by junior Janiya Douglas have amplified student voices about the culture of White Station High School in Memphis.

Now in her third year of attending a premier public high school in Memphis, Janiya Douglas says she’s observed discipline being handed out unevenly to her classmates, depending on whether they are on the college preparatory track.

PHOTO: Laura Faith Kebede
From left: Janiya Douglas and Michal Mckay are student leaders in Bridge Builders CHANGE program.

“We’re heavily divided in an academic hierarchy,” said Janiya, a junior in the optional program for high-achieving students at White Station High School. “It’s obvious students are treated differently if they are in traditional classes.”

Janiya also has observed racial disparities in how students are disciplined, and the state’s data backs that up. White Station students who are black or Hispanic are suspended at significantly higher rates than students who are white.

Frustrated by what she’s seen, Janiya took her concerns last Friday to the hallways of White Station and hung 14 posters to declare that “our school doesn’t treat everybody equally.”

By Monday morning, the posters were gone — removed by school administrators because Janiya did not get prior approval — but not before other students shared images of some of the messages on social media.

Now, Janiya is seeing some fruits of her activism, spawned by her participation in Bridge Builders CHANGE, a student leadership program offered by a local nonprofit organization.

In the last week, she’s met with Principal David Mansfield, a school counselor and a district discipline specialist to discuss her concerns. She’s encouraged that someone is listening, and hopes wider conversations will follow.

The discussions also are bringing attention to an online petition by the education justice arm of Bridge Builders calling for suspension alternatives across schools in Memphis.

White Station often is cited as one of the jewels of Shelby County Schools, a district wrought with academic challenges. The East Memphis school is partially optional, meaning some students test into the college prep program from across the county.

But Janiya and some of her classmates say they also see an academically and racially segregated school where students zoned to the traditional program are looked down upon by teachers. Those students often get harsher punishments, they say, than their optional program counterparts for the same actions.

“Our school doesn’t treat everybody equally. A lot of groups aren’t treated equally in our school system,” junior Tyra Akoto said in a quote featured on one poster.

“If we get wrong with a teacher, they’ll probably write us up. But if a white student was to do it, they’ll just play it off or something like that,” said Kelsey Brown, another junior, also quoted in the poster campaign.

A district spokeswoman did not respond to questions about disciplinary issues raised by the posters, but offered a statement about their removal from the school’s walls.

White Station is known for “enabling student voice and allowing students to express their opinions in various ways,” the statement reads. “However, there are protocols in place that must be followed before placing signs, posters, or other messages on school property. Schools administrators will always work with students to ensure they feel their voices are heard.”

PHOTO: @edj.youth/Instagram
Members of the education justice arm of the Bridge Builders CHANGE program

To create the posters, Janiya interviewed about two dozen students and had been learning about about school discipline disparities as part of the Bridge Builders CHANGE program.

State discipline data does not differentiate academic subgroups in optional schools. But white students in Shelby County Schools are more likely to be in an optional school program and less likely to be suspended. And statewide in 2014-15, black students were more than five times as likely as white students to be suspended.

White Station reflects those same disparities. About 28 percent of black boys and 19 percent of black girls were suspended that same year — significantly higher than the school’s overall suspension rate of 14 percent. About 17 percent of Hispanic boys and 7 percent of Hispanic girls were suspended. By comparison, 9 percent of white boys and 2 percent of white girls were suspended.

Shelby County Schools has been working to overhaul its disciplinary practices to move from punitive practices to a “restorative justice” approach — a transition that is not as widespread as officials would like, according to Gina True, one of four specialists implementing a behavior system called Positive Behavior Interventions and Supports, or PBIS.

“The whole goal is to not get them suspended, because we want to educate them,” said True, who met this week with Janiya and several other students from Bridge Builders. “When students are cared for emotionally, they perform better academically. As counselors, that’s what we’ve been saying for years.”

Janiya acknowledges that she didn’t follow her school’s policy last week when hanging posters without permission at White Station. But she thinks her action has been a catalyst for hard conversations that need to happen. And she hopes the discussions will include more student input from her school — and across the district.

“Those most affected by the issues should always be a part of the solution,” she said.

Correction: April 10, 2017: A previous version of this story said Janiya put up 50 posters at her school. She designed 50 but actually posted only 14.

a 'meaningful' education?

How a Colorado court case could change how public schools everywhere serve students with special needs

Dougco headquarters in Castle Rock (John Leyba/The Denver Post).

The U.S. Supreme Court on Wednesday grappled with the question of what kind of education public schools must provide students with disabilities, hearing arguments in a case that originated with a complaint against a suburban Denver school district and that could have profound implications nationwide.

The case involves a student diagnosed with autism and attention deficit/hyperactive disorder. His parents pulled him out of his Douglas County elementary school, saying he wasn’t making enough progress and the district’s response was lacking.

They enrolled the boy in a private school for children with autism and asked the district to reimburse them for the tuition, arguing their son was due a “free appropriate public education” as required by the 1975 Individuals with Disabilities Education Act.

The law spells out the requirements states must meet to receive federal money to educate special-needs students. The district declined, saying it had met the standard of the law.

The family eventually filed a lawsuit against the district. Lower courts all sided with the district, reasoning that it had provided the child “some” educational benefit — the standard cited in the federal statute at issue.

Lower courts across the nation have varied in their definition of the proper standard. The high court arguments Wednesday centered on whether “some” benefit was good enough, or whether special-needs students deserve a more “meaningful” benefit.

Jeffrey Fisher, an attorney for the boy’s family, told the justices that as a general rule, individualized education plans for special education students should include “a level of educational services designed to allow the child to progress from grade to grade in the general curriculum.”

Throughout the arguments, the justices expressed frustration with what Justice Samuel Alito described as “a blizzard of words” that the law and courts have used to define what’s appropriate for special needs students.

Chief Justice John Roberts said regardless of the term used, “the whole package has got to be helpful enough to allow the student to keep up with his peers.”

Neal Katyal, an attorney for the school district, argued that providing children “some benefit” is a reasonable standard.

“That’s the way court after court has interpreted it,” he said. “It’s worked well. This court shouldn’t renege on that.”

Ron Hager, senior staff attorney for special education at the National Disability Rights Network, attended the oral arguments Wednesday and said he was optimistic the lower court’s ruling would be overturned.

He said if the Supreme Court does overturn the federal Tenth Circuit Court’s ruling and requires a higher standard, it won’t necessarily come with major financial costs for school districts. Instead, he said, it will nudge them to be proactive and provide teacher training and intervention services early on instead of waiting until problems — and the expenses associated with them — snowball later.

Marijo Rymer, executive director of the Arc of Colorado, which advocates on behalf of people with intellectual and developmental disabilities, said she was heartened to see the case advance to the Supreme Court. Establishing a clearer standard on what constitutes a fair and appropriate education for students with disabilities is a civil rights issue, she said.

“It’s critical that federal law, which is what this is based on, be reinforced and supported, and the court is in the position to deliver that message to the nation’s schools and the taxpayers that fund them,” Rymer said.

Both Hager and Rymer acknowledged that even if the Supreme Court establishes a new, higher standard, it could be open to interpretation. Still, they said it would send a strong message to school districts about their responsibilities to students with disabilities.