December 8, 2010
Calling the city’s reports on teacher effectiveness “misleading and grossly flawed,” lawyers for the teachers union argued that the city has no right to release them with teachers’ names attached.
Attorneys representing the city’s Department of Education, United Federation of Teachers, and several city news outlets made their arguments for-and-against the information’s release in New York’s Supreme Court today. Over the summer, several reporters asked for teachers’ effectiveness scores with names included under the Freedom of Information Law. Though the city initially planned to give reporters the scores, it left the decision in the court’s hands after the union sued to prevent the release of teachers’ names.
Contained in documents called Teacher Data Reports, the scores measure how a teachers’ students performed on state math and reading tests against how a model predicted their students would perform. Though the city and union have agreed to include these scores as a factor in teacher evaluations, they’ve become a lightning rod for criticism as some academics have questioned their reliability.
Arguing before Justice Cynthia Kern, a lawyer for the union said the scores with teachers’ names attached are exempt from disclosure under Freedom of Information law because they are intra-agency documents and because they have the potential to harm teachers, impinging on their right to privacy.
“These reports were to help teachers improve themselves and to help principals,” said union lawyer Charles Moerdler. “If there’s anything that’s intra-agency, it’s that. It isn’t for the purpose of providing fodder for the media.”
Senior lawyer for the city Jesse Levine argued that while the analysis and data that go into producing the reports are considered intra-agency materials and not subject to FOIL requests, the reports themselves are not.
“The statute is very clear: it does not allow us to withhold these statistics and that’s what they are,” Levine said. “They are factual, they are objective, and the numbers speak for themselves.”
Moerdler contested this point, saying that the reports may contain statistics, but the data used to create them is subjective.
“If you look at their Teacher Data Reports, it says this is the predicted score of the person, not the actual score — not a score that is something that is certain,” Moerdler said. “A prediction is not objective. It is layer upon layer of subjective information.”
Moerdler also argued that a deal made in 2008 between then-president of the United Federation of Teachers Randi Weingarten and Department of Education Deputy Chancellor Christopher Cerf that the city would keep the reports private, amounted to collective bargaining. He said that the city had bargained away its right to release the scores with names and that, in the past, when reporters had submitted FOI requests for “all” the data reports, the city had declined to release them with teachers’ names.
Now, the city’s intent to release them with names is “arbitrary and capricious,” Moerdler said.
“The city cannot bargain away the public’s right to those documents,” responded David Schulz, a lawyer representing several news outlets. He also argued that teachers, as public employees, lose their right to privacy when they take jobs working for the government.
After the hearing, Moerdler told reporters that he believes that, outside of the law, there’s a moral problem with the city’s eagerness to release teachers’ names along with their effectiveness scores.
“It’s morally wrong, it’s ethically wrong, to put out libelous material,” he said. “Particularly at this time of the year, you do not go out and hurt people,” he said, invoking the holiday spirit.