Layoffs - Time To Lawyer Up

Okay, so the end game on seniority and tenure is upon us here in NY State - bills to change seniority-based layoffs have been introduced in both the Assembly and the State Senate.

Gotham Schools has the details of the bills - and there are an awful lot of details.

Here they are:

If the bill is passed into law, there will be nine categories of school employees who will be laid off before their peers. Employees who fall into all of these categories would lose their jobs first, followed by those who fall into eight of the categories, and so on down the scale to employees who fall into two categories. If the city finds that it still needs the lay off people after that, the next rung of layoffs will hit teachers and supervisors who are in the first category — those with unsatisfactory ratings.

The categories, in order of layoff priority, are:

1. Teachers and supervisors who have received an unsatisfactory rating in the last five years. If the new teacher evaluation system is put in place before layoffs are carried out, then teachers labeled “ineffective” would be the first to go.

2. Teachers and supervisors who have been fined or suspended without pay in the last five years. This means that teachers who’ve been charged with misconduct or incompetence and have either pled guilty or been found guilty in the last five years would be laid off. For example, the Bronx principal who was found guilty of arbitrarily giving her teachers unsatisfactory ratings and was fined $7,500 would be laid off before another principal. Under the current system, a principal with less seniority would be laid off before her.

3. Teachers and supervisors who have been in the Absent Teacher Reserve pool for more than six months. These are school employees who were forced out of their jobs when their schools could no longer afford them and have not yet been hired by another school. They remain on the city’s payroll while some work in administration and others work as substitute or full-time teachers. Given that it’s rare for schools to excess staff in the middle of the year, the six-month deadline in the law would include most of the teachers in the ATR pool at the present time.

4. Any teacher or supervisor convicted of a crime in the last five years.

5. Teachers and supervisors who have been fined for being chronically absent or late in the last five years. Also includes employees who have been fined for “improper use or recording of leave time.” The terms “chronically absent” and “chronically late” are not defined in the teachers union contract as a set number of days, according to a spokesman for the UFT.

6. Teachers and supervisors who have been the subject of an investigation in the last five years that ended with the charges being substantiated. This covers school employees who have been investigated by the city school district’s special commissioner of investigation, the city school district’s office of special investigations or the city school district’s office of equal opportunity. Having charges substantiated translates to an indictment, but it does not mean that these people have been found guilty.

7. Teachers and supervisors who, by the August 31 of the year in which layoffs take place, have not completed their certification.

8. Teachers who, for two years or more, have been ranked in the bottom 30 percent of teachers based on their students’ test scores. These rankings, which measure students’ progress against a model that predicts what their test scores should have been, cover a small percentage of teachers. Only teachers who teach math and English in grades 4-8 receive teacher data reports.

9. Teachers and supervisors who were not granted tenure after three years, but were put on probation for the year preceding layoffs. Recently, the Department of Education has begun encouraging principals to extend teachers’ probation rather than offer them tenure if they believe the teacher shows promise, but is not yet ready for a lifetime commitment from the city. Anecdotally, I’ve heard from teachers who’ve had their probationary periods extended by one or two years when their schools had a series of new principals, each of whom requested an additional year to get to know her staff.

And we’re not done yet.

If the city lays off all of the teachers who fall into multiple categories, then proceeds to the first category — those with unsatisfactory ratings — but discovers that it only needs to lay off a fraction of these people, then new measures come into play. Employees with the most unsatisfactory ratings in the last five years will be laid off first, followed by those who have been given U-ratings, as they’re commonly known, most recently.

Employees in the Absent Teacher Reserve will be laid off based on how long they’ve been in the pool. And teachers and supervisors who have been convicted of a crime in the last five years will be laid off based on how recent the conviction was. Among those who fall in the low value-added score category, teachers with the lowest scores will be laid off first, unless they teach children with disabilities or who require special education services.

If the city makes its way through this labyrinthine process and still needs to lay off more teachers, the ball rolls into the court of the Board of Regents, who will get to decide what types of teachers are laid of next. The bill contains a measure meant to protect high needs schools — defined as those where 90 percent of students get free or reduced lunch — against being overly burdened by layoffs. It states:

Any such regulations must ensure that in a high-need school the number of staff laid off shall not exceed the percentage of the overall number of positions in the school that represents half of the average percentage of staff laid off citywide.

If the Board of Regents does not come up with a layoff plan within 75 days, individual school principals will get to decide who to let go, using guidance from the city’s school chancellor. A committee of parents, teachers, and administrators is supposed to advise the principal in making this decision. However, if the city decides that it wants to eliminate all the positions within a certain license area (e.g. gym or art), it can overrule the Board of Regents and principals’ decisions.

Gee - this seems like such a simple process to carry out.

Except that of course it's not in the least simple.

In fact, it makes for a tortuous process that is almost wholly subjective at the higher end of the layoffs and is patently unfair at the lower end.

To wit - if you have ever been "u" rated - even unfairly and just once - you're gone.

If you have ever been arrested - say for protesting budget cuts or corporate education policies or even the Iraq war - you're gone.

If you come in at the lower end of the TDR value-added rankings - you know, the ones with 35% margins of error because they're only using two years of data or 25% margins of error because they're only using five years of data - you're gone.

If the chancellor decides to get rid of all art teachers. Or music teachers. Or Spanish teachers. Or gym teachers. Or whatever.

You're gone.

In other words, the rationale for the UFT will no longer exist because the city, your principal or your assistant principal will be able to trump up any old reasons they want to let you go and succeed within a reasonable amount of time.

And keep in mind, in a year or two thanks to President Obama and Race to the Top, we will ALL be subject to ratings by test scores, so every teacher in the city will be subject to getting fired if they are declared "ineffective" two years running.

As I have noted before, you can bet that if these regulations go into place, an inordinate number of senior teachers will be found to be "ineffective" and subject to dismissal every few years.

It will become a regular occurrence every April or so when notices will go out that five or ten thousand teachers are being laid off because the city "needs to cut the budget."

And ALL of those teacher will have fifteen years or more in the system - you can take THAT fact to the bank.

Then, miraculously come July, the city will be able to rehire teachers again because of newly found revenue or an act of God or whatever and teachers - newbies only and TFA's preferably - will be hired to replace the vets let go in April.

Teachers will have NO recourse to any of this except for this:

If and when these regulations go into place and layoff notices are sent out, get yourself a lawyer and sue.

Better yet, get a bunch of teachers together and file a class action.

The rationale for the lawsuit will be that the city is laying off veterans and replacing them with cheaper rookies.

These kinds of lawsuits have been filed in the past.

Back in 1998, DC 37 filed suit against the city for laying off union workers and replacing them with workfare recipients.

That doesn't sound all that different from the city laying off "expensive veteran teachers" and replacing them with "cheaper and younger rookies."

Or perhaps you'll want to file an age discrimination lawsuit against the city for replacing you with a 22 year old Barbie or Ken Asshat4Educator doll.

Or perhaps you'll want to argue that the layoffs have been capricious and arbitrary, especially since the mayor refuses to open the city books and show EXACTLY why the layoffs are necessary, and sue on those grounds.

Or perhaps you'll want to sue because your TDR ranking was calculated using a value-added system that has a 12%-35% MOE which means the city and your school cannot be certain that you really ARE an "ineffective teacher" no matter what the value-added ratings say.

These kinds of discrimination lawsuits based on race, gender, age, or alleged retaliation have become more common since the 2008 Wall Street-fueled financial collapse.

I dunno, I'm not a lawyer and I might be mistaken here, but I see PLENTY of grounds to sue the city, the mayor, the chancellor and a host of others if these regulations are passed and signed into law.

I do know that if I get a layoff notice for ANY reason, I will be seeking legal counsel to find out my options to protect myself and my job.

I suspect that I won't be the only one looking into those options.

No wonder the corporatists were so intent upon limiting litigation - once they've got all the unions busted (and make NO mistake, if these regulations go into place, the UFT IS BUSTED), the only recourse you will have to protect yourself from the oligarchs is litigation.