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2014-2015 Lawsuit: State Education Department's ban on discussing tests violates free speech
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ALBANY, N.Y. Oct. 9, 2014 - New York State United Teachers has filed suit in federal court seeking to invalidate confidentiality agreements the State Education Department requires teachers to sign before scoring state tests, saying the prohibition - with its accompanying threats of discipline, including dismissal, license revocation and criminal prosecution - is an unconstitutional prior restraint on teachers' free speech rights.
The suit, filed Wednesday by NYSUT's Office of General Counsel on behalf of five teachers, charges the State Education Department with violating teachers' First Amendment and Fourteenth Amendment rights by preventing them from speaking out on matters of public concern. The suit charges SED's rules unconstitutionally make teachers' speech conditional on government approval while establishing a "system to police the free exchange of ideas and opinions regarding its compulsory and costly testing regime."
Legal Brief (PDF)
"Teachers must be free to protect their students and speak out when they have concerns about state tests. Instead, they are under a 'gag order' to be silent - and that is hurting children," said NYSUT President Karen E. Magee. "Teachers are the professionals in the classroom. Their voice is essential to robust public debate about the state testing system. If teachers believe test questions are unfair or inappropriate, they should be able to say so without fear of dismissal or losing their teaching license."
NYSUT Vice President Catalina Fortino said, "Free speech is a hallmark of our democracy. The State Education Department's rules violate this basic American right that teachers have to confront their government and speak out on important issues, such as when state tests are flawed or when questions are poorly written or are age- or developmentally inappropriate."
The U.S. Supreme Court has repeatedly noted, as recently as June, that teachers are the members of the community most likely to have informed opinions about educational issues. Thus, their uninhibited speech holds special value in public debate. "It is essential that teachers be able to speak out freely on such questions without fear of retaliatory dismissal," the court said.
In 2014, for the first time, teachers who proctor and administer the state English Language Arts and math exams were prohibited from reading the exams. The only teachers permitted access to the 2014 exams were teachers directly involved in the scoring process and who had to sign confidentiality agreements. The confidentiality agreements require teachers not to "use or discuss the content of secure test materials, including test questions and answers, in any classroom or other activities," including speaking in a public forum as a citizen.
The lawsuit requests that the U.S. District Court, Northern District declare the prohibition on disclosing and discussing the content of state tests to be unconstitutional, and to issue an injunction against the enforcement and implementation of the terms of the confidentiality agreements for state exam scoring. Plaintiffs in the case are five teachers, including four from Spencerport in Monroe County and one from Taconic Hills in Columbia County. All are NYSUT members.
Teachers intervene in lawsuit challenging tenure
ALBANY, N.Y. Oct. 6, 2014 - New York State United Teachers announced today that its motion to intervene in a suit challenging the state's tenure law was granted by state Supreme Court Justice Philip Minardo.
Signed Order (PDF)
The motion - filed on behalf of seven individual teachers and the statewide union - now provides teachers with the opportunity to aggressively defend the state's tenure law, which for more than a century has allowed New York's educators to effectively advocate for students and protected good teachers from arbitrary firing. Equally important, it gives school teachers a real voice in answering this specious attack on public education.
"We will mount a vigorous defense against any attack on this fundamental and vital protection," said NYSUT President Karen E. Magee. "Tenure is an important safeguard to ensuring children receive a quality education by enabling teachers to speak out in the best interest of their students. Tenure is also a critical safeguard to ensuring all students have an effective teacher, protecting academic freedom and providing educators an environment in which they do not have to be in constant fear of unfair firing."
The state's tenure law initially faced two separate legal challenges - Davids v. New York and Wright v. New York. Those cases have since been consolidated before Justice Minardo in Richmond County. The office of State Attorney General Eric Schneiderman is representing New York state.
The teachers' motion states the plaintiffs are attempting "to eviscerate laws that have been carefully designed and continually and rationally refined by the Legislature, over the course of more than a century, to attract and retain qualified, dedicated public school teachers, and to protect them from arbitrary dismissal, in the interest of promoting the best possible education for New York's schoolchildren. The evisceration of these laws would not only damage the professional and legal interest of school teachers, but would impair the right of New York's schoolchildren to a sound basic education."
"The misguided focus by the anti-union forces and their wealthy corporate backers on this essential due-process right - a right that is the very foundation of America's justice system - is little more than a distraction from what helps children most: recruiting and retaining quality teachers and providing resources that ensure all students have the opportunity to succeed," Magee said.
Due Process Rights for Teachers Also Safeguard Students
ALBANY, N.Y. July 28, 2014 — New York State United Teachers President Karen E. Magee released the following statement today in response to a lawsuit challenging due process rights for New York’s teachers:
“This is a politically motivated attack against every dedicated teacher in New York state. We are highly confident the courts will reject this attack as entirely without merit. We welcome the opportunity to expose the many lies and misrepresentations about tenure laws and establish, once and for all, the plain truth: Tenure is an absolutely necessary safeguard for teachers, for students and for quality public schools.
“Tenure means teachers can speak freely and strongly on matters of public concern. Tenure ensures that teachers have the freedom to teach effectively and the liberty to oppose policies or cuts that harm students. Teachers can partner with parents against inappropriate standardized testing and question Common Core precisely because they don’t have to fear reprisals for doing so. Tenure guarantees that caring and dedicated educators can continue to advocate with parents for what’s best for students.
“Before Campbell Brown’s cable TV show was canceled, its slogan was ‘No Bias, No Bull.’ Yet Campbell Brown is slinging both with abandon. She and her wealthy supporters seem to think that if teachers could be fired for any reason at any time, student achievement in high-poverty schools would miraculously soar. That ignores the enormous, well-documented challenges facing students and teachers in high-poverty communities. Pervasive, grinding poverty and chronic underfunding burden students in too many of our cities and poor rural communities. Homelessness, violent crime, overcrowded classrooms, students working to learn English and chronic budget shortfalls are among the outside influences — beyond the control of teachers — that unquestionably impact student achievement. It’s sensationalistic and unsupportable to say that tenure is the problem.
“Lost on the wealthy elite who attack teachers is that the very same decades-old rules governing tenure and seniority safeguard teachers’ rights in fully funded, high-achieving districts where nearly every single student graduates and is accepted to college. Tenure protects all teachers from nepotism, favoritism, discrimination, patronage and other forms of arbitrary dismissal. At its heart is the American value that one is innocent until proven guilty.
“When allegations of incompetence or misconduct arise — against a teacher or anyone else — such allegations shouldn’t be automatically assumed to be true. Rather, evidence should be carefully and quickly examined, and then ruled on impartially. Due process is the foundation of our judicial system. Similar safeguards are in place to ensure police officers, firefighters and other public servants at the state and local levels cannot be arbitrarily dismissed based on allegations or for politically motivated reasons.
“New York’s tenure law has been streamlined in recent years to address concerns that due process hearings took too long and cost too much. In 2012, the state required all disciplinary hearings to be completed within a reasonable 155 days. Most times, cases are resolved before then. Innocent, effective teachers are returned to work and those who are guilty or ineffective are removed. New York’s teacher evaluation law provides a framework to identify teachers who are struggling and provide them with additional support, while acknowledging that, in rare cases, some teachers may not improve and must be removed in an expedited process from the classroom.
“Seniority rights are there for a reason. NYSUT fights vigorously for adequate and equitable funding for all public schools, and layoffs should always be an absolute last resort. When layoffs are completely unavoidable, however, New York must have a fair, objective process that doesn’t rely on subjective judgment or whim. A system based on seniority, which has served New York state fairly and objectively for a century, guards against abuses by those who would use ‘layoffs’ as another way to terminate those who advocate too fiercely, are older or are at the top of the pay scale.
“Those bankrolling this assault on teachers and reasonable protections against injustice have no interest in providing every child with a quality public school education. If they did, they long ago would have joined parents, teachers and unions in fighting for the resources all children need. This suit is just another attack on public education and on working people by wealthy elitists who stand to profit from privatizing public schools. It is telling that Brown refuses to identify her donors.
“NYSUT will fight this attack in the courts and in the court of public opinion, for our members and for the schoolchildren our members teach and advocate for every day.”
SCOTUS Ruling: Harris v. QuinnHarris v. Quinn dealt with the issue of whether employees who benefit from union representation can be required to pay their fair share of the cost of that representation. In New York State, "fair share" for public unions is referred to as "agency fee."
Click HERE for a supplement prepared by NYSUT Legal Counsel concerning questions about the Supreme Court ruling in Harris v. Quinn
NYSUT calls delay on consequences a necessary first step
ALBANY, N.Y. June 19, 2014 — New York State United Teachers today said it anticipates passage of a bill now before the Legislature that would establish a two-year moratorium protecting teachers from some of the worst consequences of the State Education Department’s flawed roll-out of the Common Core standards, an essential step toward fixing what’s wrong with the system.
“Hitting the ‘pause button’ on high-stakes consequences for teachers — as we’ve done for students — is a necessary step toward reducing over-testing and restoring our focus on teaching and learning,” said NYSUT President Karen E. Magee. “Parents and teachers agree that it will take time to fix what’s wrong with the system. That message is resonating today at the state Capitol.”
She said Governor’s Program Bill 56, introduced as Assembly Bill 10168, now under consideration by the Legislature, will “provide a very important ‘time out’ that protects teachers from being unfairly penalized as a result of the rushed implementation of the Common Core. The state test scores that have been deemed invalid and unreliable for students would be deemed invalid and unreliable for penalizing teachers. Basic fairness prevails.”
Magee expressed confidence this approach would pass muster with the U.S. Department of Education, which has signaled it would grant waivers under the Race to the Top program to states that delay using Common Core test results in teacher evaluations.
Magee said parents and teachers agree the 2010 teacher evaluation law put too much emphasis on standardized testing and data collection, while failing to properly recognize that teaching is an art that cannot be quantified by a standardized test or a one-size-fits-all evaluation system. She emphasized that teachers welcome fair evaluations, especially those from trained administrators who focus on professional learning, improving instruction and better addressing students’ individual needs. “Teachers have always been evaluated annually. Those evaluations will continue — as they should,” Magee said.
NYSUT said it appreciates the constructive dialogue with the Assembly, Senate and Gov. Andrew Cuomo that is advancing an outcome that will benefit students and their teachers.
NYSUT Vice President Andrew Pallotta said, “We must continue these discussions about fixing what’s not working. That has to include reducing over-testing and recognizing that a student is not a test score — and neither is a teacher."
NYSUT seeks to challenge legality of property tax freeze legislation
ALBANY, N.Y. June 6, 2014 - New York State United Teachers has filed a motion seeking to amend its 2013 legal challenge to the property tax cap to include a challenge to the recently enacted property tax freeze. The motion argues that the two laws, which operate in unison, deprive taxpayers of their constitutional right to determine local school funding levels, and that the challenge to both laws should be decided together.
NYSUT's motion is now before state Supreme Court Justice Patrick McGrath. If the judge agrees, NYSUT's case against both the tax cap and tax freeze credit program will be combined and heard at a later date.
NYSUT's motion reads, in part: "The tax freeze, in essence, financially incentivizes school districts and voters to stay within the cap. It also effectively punishes districts, voters, taxpayers and school children in districts where school boards and voters exercise their constitutionally protected right to exceed the cap, by denying tax credits to otherwise eligible taxpayers in such districts. This is done without regard to the current funding effort of the district or the current educational achievement or needs of the district's school children."
NYSUT President Karen E. Magee said it is clear the tax freeze credit program and tax cap are intertwined. Both, she said, violate the state constitution.
"Public schools are still reeling from budget cuts. The tax freeze program is a gimmick that dangles a check in front of taxpayers as a carrot to go along with the cap's stick," Magee said. "Both the so-called property tax freeze and tax cap undermine local control and only worsen the already devastating funding gap between low and high wealth school districts."
NYSUT Executive Vice President Andrew Pallotta said the property tax freeze credit only deepens the pain caused to students and their schools by the tax cap. "It further coerces school districts into abiding by an undemocratic and unconstitutional tax cap that is harming public education and denying students the programs and services they need," he said.
New York State United Teachers is a statewide union with more than 600,000 members in education, human services and health care. NYSUT is affiliated with the American Federation of Teachers, the National Education Association and the AFL-CIO.
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