Saturday, April 18, 2015

A Tough Sell for Punchy Mike

NYSUT analysis that follows was sent to me via an email list I'm on. I'll preface it with UFT President Michael Mulgrew's commentary on the new legislation from Andrew Cuomo's Heavy Hearts Club Band:

And now all of our hard work is paying dividends. The governor's Draconian agenda has, in large part, been turned back. We want to thank the Assembly and the Senate for standing up for our schools and school communities. 
Read it for yourself and let me know whether you agree. It might look long, but you need to know everything.

NYSUT Preliminary Analysis of S.2006-B/A.3006-B

Effective date – the new APPR will apply in the 2015-16 school year.

Student Performance and Teacher Performance Measures:

-will dramatically increase the weight of state standardized testing, increase use of tests developed or approved by SED or outside vendors in the evaluation system, and increase use of state growth models in evaluations.

-Teachers will not receive a score but instead will be rated using a matrix approach, with two subcomponents – student performance and teacher observations.

-if you receive an ineffective rating in the student performance side of the matrix, you cannot achieve an effective rating overall; the most you can attain is a developing rating.

-if the district and union choose an optional second assessment detailed below, and you receive an ineffective rating on student performance, you cannot receive anything but an ineffective rating overall, a disincentive to choose the optional second assessment.

-For tested teachers, the student performance subcomponent will be:

(1) use of a state growth score


(2) an optional second state-provided growth score on a state-created or administered test or a growth score based on a state-designed supplemental assessment, calculated using a state-provided or approved growth model. The use of the optional student performance subcomponent is subject to collective bargaining, but is limited to the choices in (2) above.

-For non-tested teachers, the student performance subcomponent will be:

(1) a student learning objective consistent with a goal-setting process determined or developed by the commissioner, that results in a student growth score


(2) an optional second state-provided growth score on a state-created or administered test or a growth score based on a state-designed supplemental assessment, calculated using a state-provided or approved growth model. As with the tested teachers, whether to use the optional second measure is subject to collective bargaining.


The state-designed supplemental assessment, that can be used in the optional second student performance subcomponent is defined “as a selection of state tests or assessments developed or designed by the state education department, or that the state education department purchased or acquired from (i) another state; (ii) an institution of higher education; or (iii) a commercial or not-for-profit entity, provided that such entity must be objective and may not have a conflict of interest or appearance of a conflict of interest; such definition may include tests or assessments that have been previously designed or acquired by local districts, but only if the state education department significantly modifies growth targets or scoring bands for such tests or assessments or otherwise adapts the test or assessment to the state education department's requirements.”

This language essentially eliminates any truly locally developed tests or assessments, or other locally developed tools, from the evaluation system.

-Scoring bands and scoring ranges will be set by the commissioner, through regulation.

Prohibited Items:

The legislation expressly prohibits measures of student achievement that are not test-based, such as evidence of student development and performance derived from lesson plans, other artifacts of teacher practice, and student portfolios, use of an instrument for parent or student feedback, use of professional goal-setting as evidence of teacher or principal effectiveness, or any district or regionally-developed assessment that has not been approved by the department.

Independent Evaluators:

The legislation mandates the use of so-called “independent” evaluators, which could result in someone with limited or no knowledge of a teacher, or the school, determining the fate of a teacher or school. Observations will be conducted by both the school building principal, and an outside evaluator, which could either be

-       a trained evaluator from another building within the district,

-       a trained evaluator from another district,

-       or a trained evaluator with no affiliation with any school district.

Collective Bargaining:

-significantly reduces the role of collective bargaining. Student performance measures (formerly the local 20 percent) and observations were previously developed locally, through collective bargaining, to ensure the appropriate measure of student achievement and teacher performance at the district or building level. This is almost entirely eliminated, with SED having new powers to develop evaluation assessments and expanded use of growth scores, set student performance targets and goals, and drastically changes locally developed assessments to a new growth model.

-prohibits use of non-test based measures from being used in the student performance subcomponent, and non-observation measures being used in the teacher evaluation subcomponent.

Collective bargaining was retained in two areas:

-       whether to use a second student performance measure (optional subcomponent),

-       and in the event that the second measure is used, which measure to use.

However, the universe of measures that can be used is limited to state tests or previously selected local measures that the Commissioner modifies. The implementation of the greatly limited teacher observation measures can be bargained.

Ineffective Teachers:

Where practicable, a student cannot be taught by two ineffective teachers in a row. If a school district deems it impracticable to comply, the district must seek a waiver from the department from this requirement. This waiver process will be determined by regulation.

State Aid and APPR Plan Approval:

-requires school districts to receive approval for a new APPR plan that complies with the new statute by November 15, 2015, in order to receive their scheduled 2015-16 school aid increase or any increase in state aid thereafter. There was a previously enacted statute to ensure that the most recent approved APPR plans would remain in effect until a new plan is approved by SED. However, this new legislation eliminates these protections and districts will not receive their 2015-16 increase in school aid over their 2014-15 aid levels unless the district has a new APPR plan approved by SED by November 15, 2015.

Existing Collective Bargaining Agreements:

-provides that all collective bargaining agreements entered into after April 1, 2015, must comply with the new APPR law, unless the agreement relates to the 2014-15 school year. The law states that it does not abrogate any conflicting provisions in collective bargaining agreements in effect on April 1, 2015, but that upon expiration and entry into a successor agreement, new agreements must comply with the new law.

However, as noted above, for a school district to receive its school aid increase, an APPR plan compliant with the new APPR law must be agreed to by November 15, 2015. Thus, the school aid linkage virtually eliminates any collective bargaining protection.

Regents and Commissioner Authority:

While many of the new APPR procedures are outlined in statute, the Commissioner and Regents, through regulation adoption, will set scoring bands within subcomponents, and targets for SLOs.

Regulations and guidelines must be adopted no later than June 30, 2015 by the Regents to implement this new APPR system, “after consulting with experts and practitioners in the fields of education, economics and psychometrics and taking into consideration the parameters set forth in the letter from the Chancellor of the Board of Regents and acting commissioner dated December 31, 2014, to the New York State Director of State Operations.” This letter detailed a support for an APPR system with 40 percent of a teacher’s score tied to the state exams.

The commissioner must also establish a process for public comment for the new regulations, and is mandated to consult, in writing, with the Secretary of the U.S. Department of Education, currently Arne Duncan.


-mandates four-year probationary periods for new teachers hired after July 1, 2015, with the requirement that a teacher attain an effective evaluation rating for at least three of the four years. Further, if a teacher achieves ineffective in their fourth year, they cannot achieve tenure.

A board can agree to extend probation by one year for teachers who have not achieved three effectives or who are ineffective in their last probation year.

For teachers who have achieved tenure in another district and have not been dismissed from the other district, they will remain in probationary status for three years, so long as the teacher did not receive an ineffective in their last year at the prior school.


-a school board will now have the “unfettered” right to terminate a probationary teacher for any constitutionally permissible reason, including performance based reasons, during probation without regard to the teachers APPR rating.


-mandates that two consecutive ineffective ratings on APPR will be prima facie evidence of incompetence, rebutted only by clear and convincing evidence.

-a new 3020-b process is outlined, “Streamlined removal procedures for teachers rated ineffective,” which will apply to teachers and principals who receive two or more consecutive annual ineffective ratings.

-mandates that school boards bring 3020-a charges for three consecutive ineffective ratings, with fraud or mistake the only defense available. There is no discretion for a board to not bring charges for three consecutive ineffective ratings.

-A teacher convicted of a violent felony against a child pursuant to penal law section 70.02, when the intended victim was a child, will have their certification revoked.

-3020-a proceedings, brought after July 1, 2015, will be before a single hearing officer. There is no carve-out for Part 83 proceedings.

-For 3020-a proceedings where charges of misconduct constituting physical or sexual abuse of a student are brought, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, which must commence within seven days after the pre-hearing conference and must be completed within sixty days after the pre-hearing conference.

-For 3020-a proceedings, a child witness, under fourteen years of age, may be permitted to testify through the use of live, two-way closed-circuit television, as explained in section 65.00 of the criminal procedure law. The hearing officer must provide the employee with an opportunity to be heard, and determine by clear and convincing evidence that such child witness would suffer serious mental or emotional harm which would substantially impair such child's ability to communicate if required to testify at the hearing without the use of live, two-way closed-circuit television. The hearing officer must also find that the use of such live, two-way closed-circuit television will diminish the likelihood or extent of such harm.

-For all 3020-a cases, hearing officers must further give “serious consideration to the penalty recommended by the employing board,” and if the hearing officer rejects the recommended penalty, the rejection must be outlined in a written determination based on the record.


-adds a new section, section 211-f, to the education law regarding the takeover and restructuring of failing schools by external receivers. It allows the Commissioner, under given circumstances, to place a school into receivership where a receiver will manage and operate the school, subject to annual review by the Commissioner, until such time as the school has improved sufficiently.

-allows for the state takeover in schools;

-27 “priority” schools that have been struggling for more than 10 years would have only one year to dramatically turnaround,


-other “priority” schools would have two years to turn around, until an outside receiver is appointed to control the school.

-New priority schools in 2016-17 are automatically eligible for receivership.

Failing Schools:

After being identified as a “failing school” or “persistently failing school” for a certain period of time, a district may be subject to a performance review by SED which may result in the Commissioner placing the school into receivership.

A “failing school” generally is one in the “lowest achieving 5 percent” of schools under the state’s “accountability system” for at least three consecutive years or identified as a “priority school” for such period.

A “persistently failing school” generally is one in the “lowest achieving public schools in the state” for 10 consecutive school years. There are two ways of being found to be a “persistently failing school,” each with its own look back. Such “persistently failing schools” either have been “priority schools” during that period starting in 2012-13 school year or a “school requiring academic progress year 5, 6 or 7 or a “school in restructuring” for each applicable year from the 2006-07 school year to the 2011-12 school year. Special act schools are excluded.

Path to Receivership:

The path to receivership differs slightly for “persistently failing schools” and “failing schools.”

For schools identified as “persistently failing,” the local district shall continue to operate the school for an additional year provided that there is an approved intervention model or comprehensive education plan in place. The superintendent in this case shall have all the powers of a receiver. At the end of the year SED will conduct a performance review to determine whether the designation of persistently failing should be removed, the school should remain under control of the superintendent, or the school should be placed into receivership. But if the district makes “demonstrable improvement” it shall remain under district operation for another year, subject to annual review, with the same three possible outcomes, one of which being placed in receivership.

For schools identified as “failing schools,” the local district shall continue to operate the school for an additional two years provided there is an approved intervention model or comprehensive education place in place. The superintendent in this case shall have all the powers of a receiver. At the end of the two-year period SED will conduct a performance review to determine whether the designation of persistently failing should be removed, the school should remain under control of the superintendent, or the school should be placed into receivership. But if the district makes “demonstrable improvement” it shall remain under district operation for another year, subject to annual review, with the same three possible outcomes, one of which being placed in receivership.


The district must notify parents that a school may be placed into receivership and hold a public meeting or hearing for the purpose of discussing the performance of the school and the construct of receivership.


A “community engagement team” will be established by the district upon designation as failing or persistently failing. This must include community stakeholders such as principal, parents, teachers, staff, and students. The team will develop recommendations and solicit public engagement. The team will present its recommendations “periodically” to the school’s leadership and the receiver.

Appointment of a Receiver:

Upon determination by the Commissioner that the school will be placed in receivership, the school district shall appoint an independent receiver, subject to approval of the Commissioner.

The receiver will manage and operate all aspects of the school and develop and implement a school intervention plan, considering recommendations of a community engagement team.

The receiver may be a non-profit, another school district, or an individual.

The receiver will have the power to supersede any decision, policy or regulation of the district that conflicts with the school intervention plan.

The receiver will have authority to review proposed school district budgets and modify them to conform to the school intervention plan.

The receiver will contract with the Commissioner and be paid by SED, unless there is an open administrative staffing line at the district and the receiver will be taking on the responsibilities of that position, in which case the receiver will be paid by the district.

School Intervention Plan:


The receiver will create a school intervention plan. Before developing plan, the receive shall “consult with” local stakeholders including the board of education, the superintendent, the principal, teachers assigned to the school and their collective bargaining representation, administrators assigned to the school and their collective bargaining representative, parents, social service and mental health agencies, students as appropriate, career and workforce development programs as appropriate, pre-k programs as appropriate, representatives of local higher ed as appropriate and the “school takeover team.”


In creating the plan, the receiver shall consider the recommendations of the “community enragement team,” include provisions intended to maximize the rapid academic achievement of students at the school, ensure the plan addresses school leadership and capacity, school leader practices and decisions, curriculum development and support, teacher practices and decisions, student social and emotional developmental health, and family and community engagement. The receiver shall base the plan on the findings of any recent diagnostic review or assessment and student outcome data including, student achievement growth data based on state measures, other measures of student achievements, student promotion and graduation rates, achievement and growth data for subgroups, and long-term and short-term suspension rates.


The receiver must include the following in the plan: measures to address social service, health and mental health needs of students in the school and their families in order to help students arrive and remain at school ready to learn, provided that this may include mental health and substance abuse screening; measures to improve or expand access to child welfare services and, as appropriate, services in the school community to promote a safe and secure learning environment; measures to provide greater access to career and technical education and workforce development services provided to students in the school and their families, in order to provide students and families with meaningful employment skills and opportunities; measures to address achievement gaps for English language learners, students with disabilities and economically disadvantaged students; measures to address school climate and positive behavior support, including mentoring and other youth development programs; and a budget for the school intervention plan.


The plan must include measurable annual goals with respect to student attendance, student discipline including short-term and long-term suspension, student safety, student promotion and graduation and drop-out rates, student achievement and growth on state measures, progress in areas of academic underperformance, progress among subgroups, reduction of achievement gaps, development of college and career readiness, parent and family engagement, building a culture of academic success among students, building a culture of student support and success among faculty and staff, using developmentally appropriate child assessments from Pre-K to 3, and measures of student learning.

The receiver “shall” convert schools to “community schools” to provide expanded health, mental health and other services to the students.

In addition, the receiver “may” expand, alter or replace the curriculum and program offerings, including

(i)                     the implementation of research-based early literacy programs, early interventions for struggling readers and the teaching of advanced placement courses or other rigorous nationally or internationally recognized courses, if the school does not already have such programs or courses;

(ii)                    (ii) replace teachers and administrators, including school leadership who are not appropriately certified or licensed;

(iii)                   (iii) increase salaries of current or prospective teachers and administrators to attract and retain high-performing teachers and administrators;

(iv)                   (iv) establish steps to improve hiring, induction, teacher evaluation, professional development, teacher advancement, school culture and organizational structure;

(v)                    (v) reallocate the uses of the existing budget of the school;

(vi)                   (vi) expand the school day or school year or both of the school;

(vii)                 (vii) for a school that offers the first grade, add pre-kindergarten and full-day kindergarten classes, if the school does not already have such classes;

(viii)                (viii) in accordance with paragraphs (b) and (c) of this subdivision, to abolish the positions of all members of the teaching and administrative and supervisory staff assigned to the failing or persistently failing school and terminate the employment of any building principal assigned to such a school, and require such staff members to reapply for their positions in the school if they so choose;

(ix)                   (ix) include a provision of a job-embedded professional development for teachers at the school, with an emphasis on strategies that involve teacher input and feedback;

(x)                     (x) establish a plan for professional development for administrators at the school, with an emphasis on strategies that develop leadership skills and use the principles of distributive leadership;

(xi)                   and/or (xi) order the conversion of a school in receivership that has been designated as failing or persistently failing pursuant to this section into a charter school.

-Upon designation of a school as failing or persistently failing, tenure and seniority rights are modified. Two ineffectives at any time in the teacher’s career defeats seniority rights of that teacher. The teacher with the lowest APPR rating is laid off first. Seniority is only used to break ties.

The receiver “may” abolish all teacher positions and require them to re-apply. The receiver shall define new positions for the school aligned with the school intervention plan.

For hiring teachers, the receiver shall convene a staffing committee including the receiver, two appointees of the receiver and two appointees selected by the school staff or their collective bargaining unit. The staffing committee will determine whether former school staff reapplying for positions are qualified for the new positions. The receiver shall have full discretion regarding hiring decisions but must fill at least 50 percent of the new positions with the most senior former staff whom the committee deems qualified.

Remaining vacancies filled by receiver in consultation with staffing committee. Anyone not rehired placed on a PEL*. Teachers rehired maintain prior status.

*(Editor’s note: This is a Preferred Employment List for Layoff.  It does not apply to New York City where State Law 2588 describes layoff by citywide seniority in licence only.)

In order to maximize the rapid achievement of students, the receiver “may request” that the collective bargaining unit representing teachers negotiate a receivership agreement modifying the applicable collective bargaining agreements. Bargaining is to conclude in 30 days with ratification within 10 days.

Any unresolved issues will be resolved by the Commissioner within 5 days. For failing but not persistently failing schools, there is an option for a AAA conciliator prior to the Commissioner.

Within 6 months of the receiver’s appointment, a final school intervention plan must be submitted to the Commissioner for approval.

The plan shall be for a period of not more than three years. During that time any additional components or goals must be approved by the commissioner.

The receiver shall make quarterly progress reports.

The Commissioner will evaluate each school with a receiver annually.

If the school is not meeting its goals, the Commissioner may modify the plan.

Upon the expiration of a plan, the commissioner shall evaluate the school and determine either to renew the plan, appoint a new receiver, or take the school off the failing school list.


Beginning with the 2016-17 school year, all holders of a professional teaching certificate, or Level III Teaching Assistant certificate will now be required to complete 100 hours of continuing education and leader education every five years. These certificate holders will also be required to register with SED every five years to prove they have met these requirements. A teacher may not practice unless these requirements are fulfilled. In addition, all certificate holders will be required to register with SED every five years even though the new continuing education provisions only apply to holders of professional teaching certificates or Level III Teaching Assistant certificates.

The allowable activities which qualify for these 100 hours are determined by SED and the department is directed to “issue rigorous standards for courses, programs, and activities.” Districts may collectively bargain more hours if they so choose. The activities are supposed to “promote the professionalization of teaching and be closely aligned to district goals for student performance.”

The current regulatory requirements for holders of the professional certificate must complete 175 hours of professional development and holders of the Level III Teaching Assistant certificate must complete 75 hours every five years in order to maintain certification. These requirements are replaced by this new 100 hour requirement.
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