First Person

Another Blow to Civic Discourse: Almontaser v. NYC Board of Education

Earlier this month, U.S. District Court Judge Sidney H. Stein issued a decision in Almontaser v. New York City Board of Education, 07 Civ. 10444, finding that a principal fired for statements leading to a misleading press report was not protected under the First Amendment.

The decision and the actions it protects are problematic on grounds of law and policy. First is the misapplication of precedent by the District Court, carried over from an earlier opinion and repeated by a Circuit Court ruling in the same case. Second, and perhaps more seriously, is the extent to which the Bloomberg administration continues to push a policy agenda squelching free expression.

Background

On August 5, 2007, New York Post reporter Chuck Bennett interviewed Debbie Almontaser, the interim acting principal of the Kahlil Gibran International Academy, a New York City public school which was due to open the following September. KGIA was the focus of intense public scrutiny for its emphasis on Arab language and culture. Also at issue was an allegation that Almontaser had ties to Arab Women Active in the Arts and Media which had created t-shirts stating “Intifada NYC.”

Asked about her affiliation with AWAAM and the t-shirts during the interview, which was organized and monitored by the New York City Department of Education’s press office, Almontaser denied any connection with the organization and explained she would never affiliate herself with an organization condoning violence. Further, she explained that the root of the word means “shaking off.”

The next day, the Post published Bennett’s story under the headline “City Principal is ‘Revolting.” with a picture of Almontaser captioned, “Furor: The Pro-violence shirt is being defended by Principal Debbie Almontaser.” The story also incorrectly added the phrase “and shaking off oppression” to Almontaser’s statement.

As a result of the ensuing controversy over Almontaser’s misattributed remarks and the paper’s incendiary language, the DOE forced her to resign the interim principal post and, when the permanent position of principal was advertised, quickly passed over her application. Almontaser then sued the DOE (technically, the New York City Board of Education) for retaliatory firing in violation of her First Amendment right to free speech.

Legal Mistake

The courts found that Almontaser lacked First Amendment protection because her remarks took place in the context of her public employment. While the facts above, as described by the District Court, clearly point to the interview as an official duty under the supervision of the DOE, Almontaser claimed that her misreported “intifada” remarks were disconnected from her statements about KGIA and her employment there.

Educators’ political statements on matters of general public interest have long been protected under the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education. But the District and Circuit courts relied on a more recent case, Garcetti v. Ceballos, which held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties.

However, the Almontaser courts failed to acknowledge Garcetti’s explicit exemption for statements related to academic matters. The majority stated, “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” at p. 13. That determination – clearly at issue but ignored in Almontaser — was reached by the Court because of Justice Souter’s clear statement in dissent:

“As for the importance of such speech to the individual, it stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools? . . . Indeed, the very idea of categorically separating the citizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s “object … to unite [m]y avocation and my vocation;” these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract. There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.” at 5, footnotes omitted.

Thus, a strong argument can be made that, despite the context of an official interview like that in Garcetti, Almontaser met that case’s exception by commenting as an educator on a matter of general public interest related to the academic focus of her school. Such a result is consistent with Garcetti and the high value the Constitution places on public discourse in a free society.

Problematic Policy

Even accepting the courts’ mistaken analysis, the firing of a principal for a controversial remark – and here, a remark she did not even make! – is dangerous public policy. By firing Almontaser, the Chancellor (and by extension, the Mayor he works for), has impoverished robust public debate, a core value of a free society.

This is nothing new. The Mayor has shown hostility to unruly voices before. His preventive detention of protestors at the Republican National Convention in 2004 was subsequently met by wholesale dismissal of police charges. He banned the wearing of campaign buttons by teachers, an action upheld in court.

But just because the Mayor can suppress speech, doesn’t mean he must suppress speech. The First Amendment exists to promote a marketplace of ideas and we are the losers when government limits access to unpopular thought.

In the Almontaser case, the Mayor’s famous espousal of principal autonomy is once again exposed as an empty promise that “You can do as you like as long as I like what you do.” Such a philosophy may lead to smooth operational control but the public sector and schools, especially, are the worse for it. Public institutions are fundamentally strengthened by American values of active civic discourse. The courts should pay heed the next time the city puts free expression to the test.

First Person

I’ve spent years studying the link between SHSAT scores and student success. The test doesn’t tell you as much as you might think.

PHOTO: Photo by Robert Nickelsberg/Getty Images

Proponents of New York City’s specialized high school exam, the test the mayor wants to scrap in favor of a new admissions system, defend it as meritocratic. Opponents contend that when used without consideration of school grades or other factors, it’s an inappropriate metric.

One thing that’s been clear for decades about the exam, now used to admit students to eight top high schools, is that it matters a great deal.

Students admitted may not only receive a superior education, but also access to elite colleges and eventually to better employment. That system has also led to an under-representation of Hispanic students, black students, and girls.

As a doctoral student at The Graduate Center of the City University of New York in 2015, and in the years after I received my Ph.D., I have tried to understand how meritocratic the process really is.

First, that requires defining merit. Only New York City defines it as the score on a single test — other cities’ selective high schools use multiple measures, as do top colleges. There are certainly other potential criteria, such as artistic achievement or citizenship.

However, when merit is defined as achievement in school, the question of whether the test is meritocratic is an empirical question that can be answered with data.

To do that, I used SHSAT scores for nearly 28,000 students and school grades for all public school students in the city. (To be clear, the city changed the SHSAT itself somewhat last year; my analysis used scores on the earlier version.)

My analysis makes clear that the SHSAT does measure an ability that contributes to some extent to success in high school. Specifically, a SHSAT score predicts 20 percent of the variability in freshman grade-point average among all public school students who took the exam. Students with extremely high SHSAT scores (greater than 650) generally also had high grades when they reached a specialized school.

However, for the vast majority of students who were admitted with lower SHSAT scores, from 486 to 600, freshman grade point averages ranged widely — from around 50 to 100. That indicates that the SHSAT was a very imprecise predictor of future success for students who scored near the cutoffs.

Course grades earned in the seventh grade, in contrast, predicted 44 percent of the variability in freshman year grades, making it a far better admissions criterion than SHSAT score, at least for students near the score cutoffs.

It’s not surprising that a standardized test does not predict as well as past school performance. The SHSAT represents a two and a half hour sample of a limited range of skills and knowledge. In contrast, middle-school grades reflect a full year of student performance across the full range of academic subjects.

Furthermore, an exam which relies almost exclusively on one method of assessment, multiple choice questions, may fail to measure abilities that are revealed by the variety of assessment methods that go into course grades. Additionally, middle school grades may capture something important that the SHSAT fails to capture: long-term motivation.

Based on his current plan, Mayor de Blasio seems to be pointed in the right direction. His focus on middle school grades and the Discovery Program, which admits students with scores below the cutoff, is well supported by the data.

In the cohort I looked at, five of the eight schools admitted some students with scores below the cutoff. The sample sizes were too small at four of them to make meaningful comparisons with regularly admitted students. But at Brooklyn Technical High School, the performance of the 35 Discovery Program students was equal to that of other students. Freshman year grade point averages for the two groups were essentially identical: 86.6 versus 86.7.

My research leads me to believe that it might be reasonable to admit a certain percentage of the students with extremely high SHSAT scores — over 600, where the exam is a good predictor —and admit the remainder using a combined index of seventh grade GPA and SHSAT scores.

When I used that formula to simulate admissions, diversity increased, somewhat. An additional 40 black students, 209 Hispanic students, and 205 white students would have been admitted, as well as an additional 716 girls. It’s worth pointing out that in my simulation, Asian students would still constitute the largest segment of students (49 percent) and would be admitted in numbers far exceeding their proportion of applicants.

Because middle school grades are better than test scores at predicting high school achievement, their use in the admissions process should not in any way dilute the quality of the admitted class, and could not be seen as discriminating against Asian students.

The success of the Discovery students should allay some of the concerns about the ability of students with SHSAT scores below the cutoffs. There is no guarantee that similar results would be achieved in an expanded Discovery Program. But this finding certainly warrants larger-scale trials.

With consideration of additional criteria, it may be possible to select a group of students who will be more representative of the community the school system serves — and the pool of students who apply — without sacrificing the quality for which New York City’s specialized high schools are so justifiably famous.

Jon Taylor is a research analyst at Hunter College analyzing student success and retention. 

First Person

With roots in Cuba and Spain, Newark student came to America to ‘shine bright’

PHOTO: Patrick Wall
Layla Gonzalez

This is my story of how we came to America and why.

I am from Mallorca, Spain. I am also from Cuba, because of my dad. My dad is from Cuba and my grandmother, grandfather, uncle, aunt, and so on. That is what makes our family special — we are different.

We came to America when my sister and I were little girls. My sister was three and I was one.

The first reason why we came here to America was for a better life. My parents wanted to raise us in a better place. We also came for better jobs and better pay so we can keep this family together.

We also came here to have more opportunities — they do call this country the “Land Of Opportunities.” We came to make our dreams come true.

In addition, my family and I came to America for adventure. We came to discover new things, to be ourselves, and to be free.

Moreover, we also came here to learn new things like English. When we came here we didn’t know any English at all. It was really hard to learn a language that we didn’t know, but we learned.

Thank God that my sister and I learned quickly so we can go to school. I had a lot of fun learning and throughout the years we do learn something new each day. My sister and I got smarter and smarter and we made our family proud.

When my sister Amira and I first walked into Hawkins Street School I had the feeling that we were going to be well taught.

We have always been taught by the best even when we don’t realize. Like in the times when we think we are in trouble because our parents are mad. Well we are not in trouble, they are just trying to teach us something so that we don’t make the same mistake.

And that is why we are here to learn something new each day.

Sometimes I feel like I belong here and that I will be alright. Because this is the land where you can feel free to trust your first instinct and to be who you want to be and smile bright and look up and say, “Thank you.”

As you can see, this is why we came to America and why we can shine bright.

Layla Gonzalez is a fourth-grader at Hawkins Street School. This essay is adapted from “The Hispanic American Dreams of Hawkins Street School,” a self-published book by the school’s students and staff that was compiled by teacher Ana Couto.