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

Why the phrase ‘with fidelity’ is an affront to good teaching

PHOTO: Alan Petersime

“With fidelity” are some of the most damaging words in education.

Districts spend a ton of money paying people to pick out massively expensive, packaged curriculums, as if every one of a thousand classrooms needs the exact same things. Then officials say, over and over again, that they must be implemented “with fidelity.” What they mean is that teachers better not do anything that would serve their students’ specific needs.

When that curriculum does nothing to increase student achievement, it is not blamed. The district person who found it and purchased it is never blamed. Nope. They say, “Well, the teachers must not have been implementing it with fidelity.”

It keeps happening because admitting that schools are messy and students are human and teaching is both creative and artistic would also mean you have to trust teachers and let them have some power. Also, there are some really crappy teachers out there, and programs for everyone are often meant to push that worst-case-scenario line a little higher.

And if everyone’s doing just what they’re supposed to, we’ll get such good, clean numbers, and isn’t that worth a few thousand more dollars?

I was talking with a friend recently, a teacher at an urban school on the East Coast. He had been called to task by his principal for splitting his kids into groups to offer differentiated math instruction based on students’ needs. “But,” the principal said, “did the pacing guide say to differentiate? You need to trust the system.”

I understand the desire to find out if a curriculum “works.” But I don’t trust anyone who can say “trust the system” without vomiting. Not when the system is so much worse than anything teachers would put together.

Last year, my old district implemented Reading Plus, an online reading program that forces students to read at a pace determined by their scores. The trainers promised, literally promised us, that there wasn’t a single reading selection anywhere in the program that could be considered offensive to anyone. God knows I never learned anything from a book that made me feel uncomfortable!

Oh, and students were supposed to use this program — forced-paced reading of benign material followed by multiple-choice questions and more forced-pace reading — for 90 minutes a week. We heard a lot about fidelity when the program did almost nothing for students (and, I believe quite strongly, did far worse than encouraging independent reading of high-interest books for 90 minutes a week would have done).

At the end of that year, I was handed copies of next year’s great adventure in fidelity. I’m not in that district any longer, but the whole district was all switching over to SpringBoard, another curriculum, in language arts classes. On came the emails about implementing with fidelity and getting everyone on the same page. We were promised flexibility, you know, so long as we also stuck to the pacing guide of the workbook.

I gave it a look, I did, because only idiots turn down potential tools. But man, it seemed custom-built to keep thinking — especially any creative, critical thought from either students or teachers — to a bare minimum.

I just got an email from two students from last year. They said hi, told me they missed creative writing class, and said they hated SpringBoard, the “evil twin of Reading Plus.”

That district ran out of money and had to cut teachers (including me) at the end of the year. But if they hadn’t, I don’t think I would have lasted long if forced to teach from a pacing guide. I’m a good teacher. Good teachers love to be challenged and supported. They take feedback well, but man do we hate mandates for stuff we know isn’t best for the kids in our room.

Because, from inside a classroom full of dynamic, chaotic brilliance;

from a classroom where that kid just shared that thing that broke all of our hearts;

from a classroom where that other kid figured out that idea they’ve been working on for weeks;

from that classroom where that other kid, who doesn’t know enough of the language, hides how hard he works to keep up and still misses things;

and from that classroom where one kid isn’t sure if they trust you yet, and that other kid trusts you too much, too easily, because their bar had been set too low after years of teachers that didn’t care enough;

from inside that classroom, it’s impossible to trust that anyone else has a better idea than I do about what my students need to do for our next 50 minutes.

Tom Rademacher is a teacher living in Minneapolis who was named Minnesota’s Teacher of the Year in 2014. His book, “It Won’t Be Easy: An Exceedingly Honest (and Slightly Unprofessional) Love Letter to Teaching,” was published in April. He can be found on Twitter @mrtomrad and writes on misterrad.tumblr.com, where this post first appeared.

First Person

What I learned about the limits of school choice in New York City from a mother whose child uses a wheelchair

PHOTO: Patrick Wall

As a researcher interested in the ways online platforms impact learning and educational decision-making, I’ve been trying to understand how New York City parents get the information to make a crucial decision: where to send their children to school.

So for the past six months, I’ve been asking local parents about the data they used to choose among the system’s 1700 or so schools.

I’ve heard all sorts of stories about the factors parents weigh when picking schools. Beyond the usual considerations like test scores and art programs, they also consider the logistics of commuting from the Bronx to the East Village with two children in tow, whether the school can accommodate parents and children who are still learning English, and how much money the parent-teacher association raises to supplement the school’s budget.

But for some families, the choice process begins and ends with the question: Is the building fully accessible?

The federal Americans with Disabilities Act requires public buildings constructed after 1992 to be fully accessible to people in wheelchairs. However, most New York City public school buildings were constructed prior to that law, and high construction costs have limited the number of new, fully accessible buildings.

As a result, a shocking 83 percent of New York City schools have been found non-compliant with the ADA, according to a two-year federal Department of Justice investigation whose findings the city Department of Education largely disputes. Recently, the city’s Office of Space Management has begun surveying buildings for full accessibility, but more work remains to be done.

One parent’s struggle to find a school suitable for her son, who has a physical disability but no cognitive issues, illustrates what a major role accessibility plays in some families’ decision-making.

Melanie Rivera is the mother of two and a native New Yorker living in Ditmas Park in Brooklyn’s District 22 who shared her story with me — and gave me permission to share it with others. Here is what she told me, in her own words:

My son Gabriel is seven years old. He was born with a condition called arthrogryposis, which affects the development of his joints. His hips, knees, and feet are affected and he has joint contractures, so his legs don’t bend and straighten the way most people’s do. In order to get around, he uses a combination of crutches and a wheelchair.

Before I had my differently-abled son, I was working in a preschool for children with special needs. The kids I worked with had cognitive developmental disabilities.

Despite my professional experience, I was overwhelmed when it was my turn to help my child with different abilities navigate the public school system. I can only imagine the students falling by the wayside because their parents don’t have that background.

When I was completing my son’s kindergarten application, I couldn’t even consider the academics of the school. My main priority was to tour the schools and assess their level of accessibility.

There are only a couple of ADA-accessible schools in my district, and there was no way of indicating on my son’s kindergarten application that he needed one. When we got the admissions results, he was assigned to his zoned school – which is not accessible.

I entered lengthy and extensive mediation to get him into an ADA-accessible school. At that point, I knew I would just have to take what I could get. For families whose children have special needs, “school choice” can ring hollow.

The process of finding any accessible school was a challenge. The DOE website allows families to search for ADA-accessible schools. But the site describes most schools as “partially accessible,” leaving it up to parents to call each school and say, “What do you mean by this?”

When I called the schools and asked, “Are you a barrier-free school?” the staff in the office didn’t know what the term meant. They might reply, “Oh yeah, we have a ramp.” I’d have to press further: “But can you get to the office? Can you get to every floor in the building?” The response was often, “Oh, I don’t know.”

Even the office staff didn’t know. But for my son’s sake, I needed to know.

Gabriel deserves the full range of academic and social experiences. So every day I make sure he’s learning in the least-restrictive environment — from the classroom, to phys ed, to field trips.

I believe the Department of Education also wants to make schools accessible and to place students with different abilities in settings where they’ll flourish, but the current system is not equipped to follow through on those good intentions. While I see gradual changes, I still know that if I don’t find the best placement for my son the system definitely won’t.

At the school level, administrators should know the details of their own school’s accessibility. Teachers should learn to include children with different abilities in their classrooms. Such a commitment means recognizing the value of inclusivity — not viewing accessibility as something ADA says you must do.

Before I had Gabriel, I never thought about accessibility. I never looked at street cutouts or thought about how to enter a store with steps. We’re probably all guilty of perpetuating exclusion at one point or another.

Recognizing that will allow us to change the status quo. It will allow every individual with a physical disability to fully participate in the public school system.

Claire Fontaine is a researcher at Data & Society, a research institute in New York City focused on social, cultural, and ethical issues arising from technological development. Kinjal Dave is a research assistant at Data & Society. You can read more about their project, which seeks to better understand the ways in which diverse New York City parents draw on school performance data, online dashboards, and school review websites when researching schools for their children.