Campbell Brown Anti-Tenure Lawyer Uses Obsolete Data To Argue Tenure Must Be Abolished

From the WSJ:

Tenure laws are “not a gift to teachers,” Richard Casagrande, a lawyer for New York State United Teachers, told the court. “These laws empower teachers to teach well.”

...

Jay Lefkowitz, representing nine families organized by Partnership for Educational Justice, said granting tenure after three probationary years was like a “rubber stamp” because so few were denied it, and three years was too short a time to tell who deserved the benefit.

He cited a study finding that from 2004 to 2008, legal proceedings to dismiss an ineffective teacher spanned an average of 830 days and cost an average of $313,000.

“Our statutes create a Rube Goldberg-esque system” where it’s nearly impossible to fire a teacher, he said.

Mr. Casagrande said that data was obsolete because the state revised its laws for evaluating teachers in 2012, and created an expedited process for hearing incompetency cases.

With the changes made to the teacher evaluation law and the expedited process for hearings put into place in 2012, it's difficult to see how the anti-tenure forces win a court case on tenure here.

If Cuomo and Tisch get some of the "reforms" they want on teacher evaluations and (including automatically pulling teachers with two consecutive "ineffective" ratings out of the classroom and an expedited incompetency firing process as a result of two consecutive "ineffective" ratings), it further undermines the anti-tenure court case.

And then there's this:

Lawyers for the city and state asked the justice to dismiss the case, saying it was up to the Legislature to revise tenure laws, the plaintiffs had shown no direct injuries caused by bad teachers, and plaintiffs hadn’t described any remedies.

Further, Janice Birnbaum, a lawyer for New York City, said the plaintiffs hadn’t been joined by representatives of all of the nearly 700 districts statewide that would be affected by a change in tenure laws.

I'm not a lawyer, but from the perspective of a layman looking at the case, it seems a little messy on the anti-tenure side.

Why Teacher Tenure Is NOT The Problem In Education

From Dale Hansen:

By concluding that the due process protections afforded to educators under tenure denied students "equal opportunity to achieve a quality education," Judge Treu seems to ignore that correlation does not prove causation.

If tenure unfairly protects teachers, there should be a considerably higher number of teachers fired per year at schools where tenure is not available. The data, however, show that is not the case. Believing tenure is to blame for low termination rates and proving that tenure keeps bad teachers in the classroom are two very different things.

Additionally if Judge Treu believes that tenure results in the retention of bad teachers which leads to an unequal opportunity for students to achieve then he must believe that the counterfactual is true. This means Judge Treu feels that hiring new teachers will lead to equal opportunity for all students because if it doesn't then the correlation between tenure and student achievement is anecdotal.

Unfortunately, data show that new hires are less effective than their more experienced counterparts. Given that 46 percent of teachers leave the profession in the first five years, it should come as no surprise that those individuals that administrators have observed, mentored and granted tenure are more skilled than those fresh out of college.

If teacher tenure was the problem in public education, then states and districts without tenure protections should be at the top of list for test score performance, graduation rates, college attainment rates, etc.

But they're not - the states and districts that are at the top of the performance list are the ones with the highest numbers of unionized teachers who enjoy work protections like tenure.

Corporate reformers don't really care about improving education for children - the attacks on tenure and teacher work protections are all about giving states and districts the tools to slimline their work forces and cut labor costs.

That's it - that's what the fight is about.

NYC Parents Union Files Suit Against City, State Officials Over Tenure/Seniority Rules

From the NY Times:

An education advocacy group on Thursday threw down the first challenge to New York’s teacher tenure laws in the wake of a landmark court decision in California last month finding such laws there unconstitutional.

A lawsuit filed in State Supreme Court on Staten Island argues that the tenure laws violate the State Constitution’s guarantee of a “sound basic education” by making it difficult to fire bad teachers and by protecting the most veteran teachers in the event of layoffs, regardless of their quality. The suit, filed against city and state education officials, names as plaintiffs 11 public school students whose parents belong to a group known as the New York City Parents Union.

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 Mona Davids, the president of the New York City Parents Union, said the suit was modeled on the Vergara case, in which Judge Rolf M. Treu of Los Angeles Superior Court ruled that the tenure laws deprived students of their right to an education under the California Constitution and violated their civil rights. He also ruled that seniority rules requiring the newest teachers to be laid off first, as in periods of economic downturn, were harmful.

The Times article raises some reasons why the tenure suit may not work the way it did in California:

Already, the California Federation of Teachers has vowed to appeal the decision in the case, Vergara v. California. And union leaders, legal analysts and others said it would be difficult to gain any traction on the issue in New York’s judiciary.

 “It is basically unprecedented for a court to get into the weeds of a controversial education policy matter like this,” said Michael A. Rebell, an education lawyer and professor at Teachers College at Columbia University. “Even if a court agrees there is a problem, they are more likely to defer to the legislative branch, which, in New York, has been trying to deal with these complex tenure issues and knows more about the workings of these policies.”

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In New York, teachers can earn tenure after a three-year probationary period, which city school officials can extend for another year, and often do. That represents one big difference with California, where teachers can win tenure after 18 months, and even before being certified.

Once granted, tenure in New York does not afford any advantages in pay or job assignments. Its most important benefit, in the eyes of teachers’ unions, is protection against indiscriminate, unjustified or politically tinged hiring and firing.

“Tenure doesn’t protect bad teachers,” said Carl Korn, a spokesman for New York State United Teachers, the statewide union, adding that its lawyers are “already gearing up” to defend tenure in court. “It allows good ones to fight for what students need.”

State education officials say that a new teacher evaluation law, which assigns teachers one of four grades each year, will make it easier to fire teachers who repeatedly get poor marks, although very few did so in the first year that the law was in effect.

“With that evaluation system, the teachers who get promoted, the teachers who stay, would be the teachers who are high performing,” Gov. Andrew M. Cuomo said when asked last month about the Vergara case.

Timothy Daly, the president of the New Teacher Project, which has advocated changes in the way teachers are hired and fired, agreed that the new evaluation system could help remove bad teachers in New York, in contrast with California, which he said had “a very outmoded system for evaluating teachers.”

Daly does think challenges to seniority have a better shot here in NY State than a tenure challenge.

I wrote something similar a few weeks back, when a story surfaced saying reformers were going to go after teacher tenure, seniority rules and pay scales:

New York laws are different - it takes longer to get tenure, in NYC many teachers never get tenure at all and some have to wait well over the mandated three years to get it.

In addition, the APPR teacher evaluation system allows districts to fire teachers who come up "ineffective" two years in a row.

The argument that was used in California - "grossly ineffective" teachers cannot be fired without a long cumbersome process - doesn't hold water here.

So the deformers are looking to broaden the case, adding seniority rules around layoffs and performance pay to the mix.

They may be able to craft an argument around seniority, but I have a difficult time seeing them craft one around performance pay.
 
I'd like to see the judge in New York who agrees that students' civil rights have been violated because their teachers are ineligible for merit pay.

Often these deformers exist in a deform echo chamber where they say stuff that makes sense to everybody in their little circle, but once they get outside that circle, people look at them like they're crazy.

Arguing that students' civil rights have been violated because their teachers aren't eligible for merit pay is one of those cases. 

I maintain the same thinking on this issue today - I think APPR and the longer probationary period before tenure put a severe crimp in any tenure challenge mounted in the NY courts.

The performance pay challenge is insane - "Judge, children are having their civil rights trampled upon because their teachers are not eligible for performance pay."

Yeah, good luck with that challenge.

Seniority rules will be the challenge that we'll have to watch going forward.

One of things we're starting to see, however, is that deformers are looking like they're going to throw as many challenges against the courthouse wall to see if any stick.

I'm not a lawyer, but my sense is, the wider you make the cases, the more likely they are to get tossed.

So it will be interesting to see how this all ends up.

One thing I do know - none of this has anything to do with the quality of education children get.

If they wanted to fix that, they'd lower class sizes, stop the Endless Testing regime, and cease handing out Common Core homework that makes both children and parents cry.

Michael Rebell On The Irony Of Campbell Brown

From State of Politics:

Michael Rebell, a veteran education advocate, expressed doubt during an interview on CapTon last night that an effort to duplicate the results of a California lawsuit that overturned teacher tenure laws in that state will be equally successful here in New York.

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Rebell was co-counsel for the plaintiffs in the Campaign for Fiscal Equity case, which successfully maintained that New York was shortchanging New York City public school kids when it came to providing enough funding to assure their constitutional right to a sound, basic education.
Now, Rebell is suing the state yet again over inequity in education funding – this time as executive director of a new organization called the Campaign for Educational Equity.

Former CNN anchor-turned-education reform activist Campbell Brown recently announced that her organization is providing support to six families in New York who plan to challenge teacher tenure laws in court.

Rebell said he finds it ironic that Brown and others – many of whom have accused judges of “activism” when they rule in favor of fiscal equity cases – are now involved in lawsuits that ask the court to be “much more involved in educational policy than I have ever asked for.”

Brown and her ilk care nothing for the children in public schools.

They care only about busting the teachers union and making teaching into a right to work profession.

WSJ: Campbell Brown Is Aiding Parent Group For Tenure/Seniority Lawsuit

Not a surprise:

A new advocacy group is helping parents prepare a challenge to New York's teacher tenure and seniority laws, contending that they violate children's constitutional right to a sound basic education by keeping ineffective teachers in classrooms.

Campbell Brown, a former CNN anchor who has been a critic of job protections for teachers, launched the group, Partnership for Educational Justice, in December. She said six students have agreed to serve as plaintiffs, arguing they suffered from laws making it too expensive, time-consuming and burdensome to fire bad teachers.

The preparations to challenge the state's tenure laws this summer follow a landmark ruling in California earlier this month. Los Angeles Superior Court Judge Rolf M. Treu struck down the state's laws on tenure, dismissal and seniority, saying they disproportionately saddled poor and minority students with incompetent teachers. Evidence that ineffective teachers hurt learning, he wrote, "shocks the conscience."

California unions that intervened in the case, Vergara v. California, said they would appeal, and legal analysts predicted the ruling would inspire similar suits around the country.

Carl Korn, spokesman for New York State United Teachers, said his union believes the Vergara decision will be overturned, and the facts are different in New York than in California. While he said that New York's new evaluation system has flaws, it aims to bolster teacher quality. 

"The system is designed to help all teachers improve, and for those who struggle or don't belong in the system, to remove them in an expedited hearing," he said. 

Michael Mulgrew, president of the United Federation of Teachers in New York City, said by email: "It is a shame so many so-called 'reformers' can't find a way to do something that would actually help students, teachers and schools."

Ms. Brown wants a verdict in her group's case to spur legislators to come up with better education policies. "My hope is this would be a wake-up call to politicians who failed to solve these problems for years," she said. 

Her team has been meeting with parents to find plaintiffs. One is Jada Williams in Rochester, who wrote a seventh-grade essay complaining about teachers who she said gave no real instruction and failed to manage unruly students. Her mother, Carla, said in an interview: "When a child in class is educationally neglected, that's a criminal act."

David Welch, the Silicon Valley entrepreneur who financed Students Matter, the advocacy group that filed the Vergara suit, has given Ms. Brown guidance, and came to a meeting of about 30 people at her apartment in April to discuss it, she said. A mother of two children in private school, Ms. Campbell said she gave seed money to the Partnership for Educational Justice. She declined to disclose other donors. She has applied for nonprofit status.

Jay Lefkowitz, a senior partner at Kirkland & Ellis, is leading the New York case pro bono. Mr. Lefkowitz, a former deputy assistant to President George W. Bush, fought for Wisconsin's school vouchers and prevailed through the U.S. Supreme Court.

Mr. Lefkowitz said "it boggles the mind" that in the New York education system the vast majority of teachers were rated effective or better last year even though 69% of students in grades three through eight didn't pass state proficiency tests.

"The system lacks integrity and students are being forced to pay the price," he said. Unions often note that many factors affect learning, such as poverty and parent involvement.

Mr. Lefkowitz said he plans to challenge statutes mandating that during budget cuts, districts must dismiss the newest teachers first, with no consideration of their performance. Unions have long argued that without seniority rules, districts would lay off more highly paid veterans to save money.

He said he will also challenge what he said are overly complicated disciplinary procedures that dissuade administrators from trying to revoke tenure; some of these cases have cost hundreds of thousands of dollars in legal fees. 

Union officials emphasize that tenure doesn't guarantee a job for life, but enforces due process to shield teachers from arbitrary firings, nepotism and vindictive bosses. A district may seek to revoke tenure if a teacher gets two bad annual ratings in a row. 

Mr. Lefkowitz plans to argue teachers are granted tenure before it is clear they deserve it. In New York, teachers generally get tenure at the end of three years of acceptable service, but principals can add another probationary year. 

In the California case, the plaintiffs brought an equal-protection claim, arguing that a disproportionate share of bad teachers end up in schools serving disadvantaged students. 

The New York constitution says children have a right to a "sound basic education." Mr. Lefkowitz plans to argue that laws leading to the retention of ineffective teachers hurt students no matter what their background. He said he plans to file the suit in New York Supreme Court in Albany.

I've dealt with some of this before in a post which you can see here.

I think the plaintiffs in this case will have a more difficult time getting the verdict they want because 

a) tenure takes longer to get in NY - many teachers are taking 4 or 5 years before they are getting it in NYC - and many teachers never get tenure at all and just leave the system and

b) APPR effectively ended tenure protections - teachers can be fired two years running if they're rated "ineffective"

The plaintiffs can argue that it costs millions to fire so-called "bad teachers" all they want.

Under APPR, it takes two years of "ineffective" ratings to fire teachers - something that is easily engineered the way the system was devised by the state.

Reformers can also claim that 69% of students were less than proficient on the state exams, so 69% of teachers must be less than effective all they want as well.

That argument is easily countered by the moves the governor and the Legislature made to acknowledge how awful the CCSS implementation was, something that directly affected the state test scores, as well as all the publicity surrounding the SED artificially setting the new CCSS test bar a lot higher than the one for the old tests.

I don't think Campbell Brown and her merry men and women in reform are going to have as easy a time in this kind of suit as the reformers had in the initial Vergara case hearing.

But that doesn't mean they're not going to try.