July 10, 2012
Legal battles between the city and the United Federation of Teachers are typically long, drawn-out affairs. Not today.
In just 40 minutes this afternoon, Judge Joan Lobis of the New York State Supreme Court made up her mind about the city’s request to suspend an arbitrator’s ruling in the UFT’s favor while she considers the city’s formal appeal. There will be no restraining order, Lobis ruled.
That means that hiring and firing decisions that have been made at 24 struggling schools that the city was trying to overhaul will be reversed. The Department of Education will have to reinstate hundreds — and possibly thousands — of teachers and administrators cut loose from the schools as part of the “turnaround” process.
“They no longer have an excuse for not complying with the arbitrator’s award,” Ross said about the city.
Asked by reporters about the education department’s immediate plans for allowing the teachers to reclaim their positions, Deputy Chancellor Marc Sternberg said, “Talk to the law department.”
The city’s top lawyer, Michael Cardozo, said in a statement that he was confident that Lobis would side with the city as the case moves forward.
The hearing was a first step in the city’s appeal of a ruling handed down two weeks ago by an arbitrator who found that the city’s hiring and firing decisions — a key aspect of the Department of Education’s turnaround plans — violated the city’s contract with the teachers union.
The city is arguing that the arbitrator overstepped his bounds and wants the entire decision overturned. But today’s court appearance dealt only with the question of whether the city could avoid reversing the hiring decisions before Lobis considers the broader appeal later this month. Her ruling means that it cannot.
To win an injunction, plaintiffs have to prove two things: that they would suffer “irreparable harm” while their case is pending and that they have a strong likelihood of ultimately winning their case.
Lobis said today that she didn’t find the department convincing on either point.
A city lawyer said holding up the turnaround process for any amount of time would “thwart” efforts to improve the schools. ”This would undo everything the DOE has done thus far to improve these schools,” said the lawyer, Maxwell Leighton.
But Lobis questioned what harm would really befall the department if it must roll back its efforts for the few weeks before she considers the merits of its request to overturn the arbitrator’s ruling. If the city ultimately wins its case, she said, it could just tell teachers that their reinstatements had been reversed again.
“Maybe you’d have to rescind some letters. How is that irreparable harm?” Lobis asked.
That seems to be a unlikely possibility. The main plank of the city’s appeal is that the arbitrator, Scott Buchheit, did not actually have jurisdiction over the hiring processes.
Lobis pointed out that the department had agreed to let Buchheit rule on whether the staffing issue should be subject to arbitration at all, and he said that it was.
“Just because he said it doesn’t mean it’s true,” Maxwell told the judge.
City and union lawyers went before Lobis in late May after the unions sued to stop staffing processes underway at the 24 schools, and at her urging they agreed to have an independent arbitrator hear and rule on the case.
That decision alone makes the city very unlikely to win an appeal, according to a city attorney who specializes in labor relations.
“The courts place great deference on a decision made by an arbitrator, so the arbitrator can make decisions without fear of being overruled,” said Steven Landis. “If an agreement has been made to arbitrate, the court says, ‘Arbitrate it, don’t come to me.’”
What will happen tomorrow at the schools is not yet clear. But after the hearing concluded, a top union lawyer, Adam Ross, said union officials would “immediately” initiate conversations with the city about reinstating teachers and administrators who were told they could not return to their schools.
City officials did not immediately say whether they planned to engage in those conversations.
“Our goal is to turn around these failing schools and help our students succeed. We appreciate the judge setting an expedited schedule to hear our challenge to the arbitrator’s decision so that we can meet that goal,” Cardozo said in his statement. “The judge also made it clear that she wants to consider the case fully. We believe that, after she reviews our papers, she’ll conclude that the arbitrator was wrong.”