While only persuasive nationally, the now-final Second Circuit ruling settles matters for multiple states within this judicial circuit (New York, Vermont, and Connecticut) but only affects those districts that want to start prohibiting services (probably few, but includes New York City).

Haven’t we been here before? In 1998, the high court declined review of a similar Second Circuit Court of Appeals ruling. And, despite these decisions and others along the way, since 2002 Bronx Household of Faith has been holding services in P.S. 15 in the Bronx. The DOE estimates that dozens of churches now rent space for Sunday services, despite courts approving Chancellor’s Regulation D-180, Section 1(Q), prohibiting the practice. Can this really be the end?

The DOE says so, releasing a statement from a senior city lawyer within hours of today’s decision that declares “Sunday, Feb. 12, 2012, is the last day that churches and other groups can use the schools for worship.”

I am taking that with a grain of salt. This controversy has raged for over a decade and most legal observers thought Bronx Household of Faith had a good chance of winning this latest round. Since the Supreme Court upheld the federal Equal Access Act in Good News Club v. Milford, 533 U.S. 98 (2001), public schools have had to treat secular and religious groups similarly in renting their facilities. As an extracurricular organization, the Good News Club was clearly conducting worship, much as a chess club would pursue its core activity, theorized the court, and, under the First Amendment, schools could not discriminate on the basis of this content.

The Second Circuit, which had sided with the district in Good News Club, clearly again fought against the tide in Bronx Household of Faith, arguing that the DOE could still decide against a church’s regular conduct of services on Sundays. Not that the DOE was required to bar the church, but it could if, in its judgment, the arrangement blurred the distinction between church and state:

 The Supreme Court has never ruled on whether permitting the regular conduct of religious worship services in public schools constitutes a violation of the Establishment Clause, and we reach no conclusion on that question. As discussed above, considering all the circumstances, we think the risk that permitting the regular conduct of worship services in public schools would violate the Establishment Clause is sufficiently high to justify the Board’s adoption of a content restriction that prohibits the performance of such services but does not otherwise limit the expression of religious viewpoints. slip opinion at pp. 32 -33.

Thus the Second Circuit engaged in judicial hair-splitting to reach a conclusion at odds with the controlling Good News Club precedent. So it came as a surprise that the Supreme Court denied the church’s appeal. While creating no binding precedent, the action allows the circuit court ruling to stand, preserving the DOE’s discretion to ban rental of schools for worship.

However, this will not stop the political wheels from turning. Under the Second Circuit’s decision, the DOE can giveth as well as taketh away. So the evangelical community and its allies will likely pressure elected officials, including the mayor, to rescind the Chancellor’s Regulation D-180 ban. It’s been a long time on the books. So long that the mayor might well decide that it’s time to take another look at the rule based on legal precedents and a popular drift away from strong church/state separation.

Recently, Mayor Bloomberg opined on protesters’ right to erect tents in Zuccotti Park. With today’s decision in Bronx Household of Faith, the mayor has yet another chance to put his mark on an important First Amendment issue.

This case for reparations depends not only on elemental fairness and the oft-cited need for improved student outcomes but on mandated Supplemental Educational Services under Section 1116(e) of the No Child Left Behind Act and Academic Intervention Services required by New York State Education Commissioner’s Regulation §§ 100.1(g) and 100.2(ee). If children’s test scores had been properly determined, hundreds of thousands more students would have received extra help. It is insufficient to now say, in effect, “too bad.”

Students were denied their legal right to instructional services because of State policies that were known or should have been known to be deficient. Unfortunately, at least under No Child Left Behind, individuals do not generally have a right to sue the federal government, states, or school districts for noncompliance. But the federal government itself can sue the state, and the state’s attorney general can sue the State Education Department and districts to repair the harm. The state can also address the problem legislatively.

The recent movie “Waiting for ‘Superman’” argues that state governments and school districts constitute a “Blob” that cares more about adults’ concerns than children’s. In October, the State Board of Regents compounded its strategy of denial by voting to suspend its own requirement that districts provide remediation to students lacking academic proficiency. Once again, the State Education Blob undercut its own rhetoric about high standards leading to improved student performance by acting in a manner that subverts progress of our most vulnerable youth. When push comes to shove, the new education elite abandons its civil rights sound bites to reduce its tax bite.

There can be no clearer example of the Blob at work than denying instruction to needy students. The government is directly withholding instructional assistance needed to compensate students for past wrongs. Our children, our future, and our law demand that our leaders make good on their unfulfilled responsibilities to supplement the instruction of those students unfairly denied this entitlement.

Now comes a pronouncement from the New York State Board of Regents and the State Education Department commissioner that higher education will no longer be the sole route to teacher and leadership certification. The Regents, who appoint the commissioner, are themselves appointed by our state legislature, that dysfunctional body more famous for patronage than policy competence.

Not surprisingly, then, the Regents have rejected the fundamental role of independent inquiry in professional preparation in favor of faster, cheaper methods based on proprietary ownership. Whether these programs are run by non-profit, for-profit, or school district organizations, their aim will be to brand grads with a particular skill set, antithetical to preparing able, agile, open-minded professionals for long-term teaching effectiveness.

Though many claims against schools of education depend on phony stereotypes, some criticism is valid. Higher education governance makes it hard to quickly adopt new programs and courses. Its dependence on credit hours toward completion of degree requirements creates a temporal uniformity inimical to more flexible arrangements based on subject content and mastery. But higher education itself has heeded these critiques, responding with a plethora of governance, course, and degree reforms that meet market demands while preserving academic integrity and independence.

Expansion of educator preparation to other providers is simply a political response by SED to a growing constituency of educational entrepreneurs who, often lacking certification themselves, seek clones rather than independent-minded professionals to staff their similarly branded schools. There is nothing inherently wrong with training in such methods, if successful, but state-granted professional certification should guarantee greater flexibility than the ability to teach in a KIPP charter school or to navigate the city Department of Education’s ARIS database.

More important, the Regents’ policy will distract SED and the public from the Department’s core mission: to set and oversee standards for certification, curriculum, and student performance. Ever since its politicization under former Commissioner Richard Mills, when the state took credit for increasing test scores and graduation rates through dumbed-down tests and looking the other way on bogus credit recovery strategies rather than monitoring district performance and compliance, we have seen a steady decline in SED’s reputation and credibility. This recently reached a new low with the state’s first-round Race to the Top application which neither the commissioner nor Regents seemed to realize was bloated with furniture purchases and high-priced consultants. Steven Brill’s recent New York Times Magazine piece purporting to document “The Teachers’ Unions’ Last Stand” was more important for revealing SED’s deliberate lies designed to secure Race to the Top money. The Regents’ charter initiatives, their commissioning of a study on testing standards, and the expansion of certification providers are less about improving education than diverting attention from its core failures.

If there is a problem with higher education certification — and there is because diploma mills abound — then SED should take steps to improve or eliminate the bad actors that it already supervises, not race to expand the pool. Long the subject of drastic budget cuts and poor spending practices, SED does not have the resources to adequately monitor the work of colleges, school districts, charter and nonpublic schools under its present control, let alone determine if a new category of providers is meeting its obligations.

In his previous campaign for governor, Andrew Cuomo favored putting SED under gubernatorial authority. While his current comprehensive platform, “The New New York Agenda,” fails to specifically address the issue, it states a strong preference for giving the Governor unilateral powers over State government consolidation and reorganization. Cuomo’s call for a new Spending and Government Efficiency Commission and a State Government Reorganization Act provide canny vehicles for further politicizing SED, cited at page 64 as a prime example of organizational chaos. But what difference would it make as long as SED continues its shameful codependent relationship with the state’s political branches, school districts, charter and private schools? In abdicating their fundamental role of independent oversight, the Regents and commissioner have sown the seeds of executive annexation since they have become handmaidens of the very constituencies they were created to constrain.

Housecleaning is in order, but not the kind the new education elite have in mind. With its workforce already substantially reduced and more cuts on the way, SED needs to use its constitutional independence to set standards and monitor district and school compliance with a reduced, essential set of regulations regarding students’ academic performance, health, and safety. SED should be the public’s educational ombudsman, keeping accurate, transparent data so that parents and taxpayers can assess schools’ academic and fiscal activity. If the State Education Department continues to indulge in political distractions from its laughable failures in this mission, it will have squandered its obligations to a public desperately in need of square dealing and educational candor.

But the decision should also be greeted with sadness. That the city should so brazenly violate the letter of the law is contemptible. That the identified schools, hobbled by instructional incompetence or supervisory negligence, will continue to maltreat students is equally appalling.

Mulgrew will be difficult to overturn on appeal. The decision is squarely based on facts admitted by both parties and established law about Environmental Impact Statements, the direct legal precursor to the new requirement for Educational Impact Statements issued by the DOE to justify school closings. Again and again, the court castigates the DOE for its actions, finding “significant violations of the Education Law.”

The DOE posted Educational Impact Statements for each closure on its Web site despite a statutory requirement of hard copy distribution. It unilaterally determined the time, place, and manner of hearings despite the requirement that these proceedings be jointly undertaken with parent bodies. In its arrogance, the DOE even argued that its handling of the procedures was outside court review, an argument not only rejected by the court but ridiculed through a highly unusual footnote pointing out a typographical error in that section of the DOE’s brief. Further, implying that the DOE made initial decisions about which schools to close in bad faith, the court ordered the city to “to re-examine in good faith the various programs in the schools they are preparing to close, and obtain meaningful community involvement, as required by the Education Law.”

This underlying accusation of bad faith on the part of Chancellor Klein and Mayor Bloomberg permeates the opinion. “[The DOE's] very arguments would appear to trivialize the whole notion of community involvement,” the court wrote. Reviewing the mayor’s attempted nullification of statutory obligations he doesn’t like, the decision states, “That entire legislative scheme must be enforced, and not merely the portion extending mayoral control of the schools.” Also scorned is the DOE’s hubris

that the lack of compliance is of a de minimus nature and should be dealt with only prospectively. Furthermore, they suggest that even prospectively, rather than being ordered to comply with the Education Law, they should be permitted to develop their own guidelines for compliance with the statutory requirements, revising the chancellor’s existing regulations.

What will be Mulgrew‘s impact? If reversed on appeal, that will be a new cause for sadness. But even if upheld, it appears that the city’s students, at least in the short term, will still be denied quality education under the rule of law. As of now, the city says it will not only appeal the decision but go forward with high school placements not directly related to the closed schools, continue to place students in the schools created as replacements despite law regulating co-location, and attempt to dissuade students from attending the schools given a reprieve. In plain terms, the DOE plans to let these schools continue to sink, keeping a shell staff and student body for those who didn’t get the message that they are passengers on an educational Titanic.

Which brings us to the enduring question of why these schools have to die. It is possible that each targeted school, individually and thoroughly analyzed, is beyond saving or too difficult to save. Maybe their present and future students (including, according to the court, infants in closed child care programs) would do better elsewhere with little or no adverse impact on other schools. But perhaps aid has been withheld in an intentional, unethical strategy of triage to score political points through headline-grabbing closures rather than the slower, less dramatic work required for true instructional success. Those are the very questions that the DOE failed to address in its sketchy, boilerplate Educational Impact Statements. Those are the questions that deserve good faith answers now.

In its zeal to support charters and other small-school alternatives, the Bloomberg administration has opened the doors of neighborhood schools to entities without community roots, an imposition understandably resented by many already housed there. Though Department of Education capacity estimates tend to be wildly inflated and the space needs of current schools undervalued, there might very well be room for two or more coexisting programs in some buildings. But the mayor’s and chancellor’s heavy-handed actions, treating current occupants like squatters and shunting them aside in favor of preferred institutions, create unnecessary antagonism between students, parents, and administrators.

This resonates with the old New York story of class warfare engendered by developers and landlords clearing out tenants. In schools, issues of gentrification, perceived religious school encroachment on public school space, and redrawing of district and attendance boundaries have long set off political fireworks. There were only sparks when the DOE moved regular public schools into these spaces. But with charters, these sparks are fanned into flames because of their association with moneyed interests and managerial profiteering.

Whose school is it anyway? Charter school operator Eva Moskowitz, in her now infamous series of emails with the chancellor over space, argues it is the larger public’s schools, that previously sited schools have no more right to space than her Harlem Success chain of charter schools. While she’s right that public schools are not the exclusive domain of parents and teachers, her political argument is specious. What would this self-described “relentless” advocate for her own agenda do if her desks were heaped in a gym, as she did to the school furniture at PS 123? Even when establishing the highly segregated Eleanor Roosevelt High School for her former Upper East Side constituency, the one-and-only Moskowitz message was clear: Whatever Eva wants, Eva gets, no matter what principles (or principals) get rolled in the process. It is Moskowitz, herself, who ramped up the military metaphor with her calls for “armies of parents” to lobby on HSA’s behalf.

With this attitude by charter operators and the Mayor, attempts at conciliation and legislative solution have failed. Even calls by some charter parents to end divisions over the issue have fallen on deaf ears at City Hall. Legal strategies by the UFT and parents are now in the offing. But a quick-fix administrative strategy, one that resuscitates our flagging separation of powers, remains to be fully investigated.

While the chancellor has discretionary power over siting regular DOE schools subject to new procedural requirements, his power over district-sponsored and non-district-sponsored charter locations should be contested. Charters are publicly funded but privately-organized entities. Their right to occupy public space is arguably regulated by current city contracting mechanisms. To my knowledge, the comptroller’s office has never subjected the DOE to these rules which, at a minimum, require notice and competitive bidding or challengeable reasons for exemption. While DOE-sponsored charters are a gray area, those without DOE sponsorship would seem no different than any other not-for-profit seeking public space through requisite arms-length dealing. The Comptroller is responsible for monitoring, regulating, and approving these contracts.

Simply put, there are rules. Public space, as Moskowitz argues, is public. But the Mayor is not free to give away public space to non-competitive private entities just because he likes the cut of their jib. The substantial subsidy for these private operations revealed last week by the Independent Budget Office should subject them to substantial scrutiny. State legislation mandates public payment of charter expenses on a per pupil basis. But the city’s discretionary decision to pay many charters’ capital costs, as well as other potential subsidies, requires the comptroller’s investigation.

“But there’s so much going on! Look at all the intersecting issues we’re juggling in New York:  school closings, small and charter schools opening or expanding, our Race to the Top application, the Regents proposal expand preparation options, eliminating the charter school cap, another DOE restructuring, teacher merit pay and tenure based on student performance! Isn’t this a great time for addressing the BIG ISSUES in education?!”

No.

Arguably, I feel this way because of deep flaws in most of the above proposals. But it’s not mere opposition that drives my ennui. I like an energized debate over real issues as much as — probably a lot more than — the next person. I was supercharged in my disagreements with the Gates-led small schools movement, cell phone prohibition, and repression of parent and community input under mayoral control. So it’s not that I am unhappy being contrary.

The problem is that current initiatives have almost nothing to do with kids. Today’s politically-driven agenda is concerned more with money and power than education. It bores the hell out of me.

Take the federal Race to the Top competition. Billions of dollars in one-shot stimulus funds are at stake. But the administration’s policy agenda tied to the money — bribes, really — is a litany of warmed-over, unproven or disproven Bush-era buzz words. Accountability, merit pay, data systems, higher teacher quality, charter schools. All sound fine, yet all have been widely tried and have failed to significantly improve student achievement, especially among our low-income, minority, ELL, and special needs students. This isn’t an educational prescription but, rather, an economic and political strategy to jump-start spending and to shore up Obama’s right flank while he fights for health care reform on the left. The “top” that politico-policymakers are racing toward is just too distant from the classroom.

State initiatives are similarly off-target. While talking the talk of higher standards, the Commissioner and Regents have signaled approval of a credit recovery system that is an open door to academic abuse. Not one step has been taken to actually tighten test standards or grading policies, let alone the primary State function of assuring a broad and rigorous curriculum.  Lacking legislative elimination of the charter cap, the centerpiece of New York’s RttT application appears to be an entirely speculative plan to permit organizations outside of higher education to prepare teachers and principals. Such training will no doubt be cheaper, faster, and narrower but will it improve teaching? Who knows? But it gives a politically attractive appearance of doing something and satisfies myriad non-college constituencies, from unions to business to philanthropy.

The City is no better. Every school that Bloomberg closes is his failure, since he has presided over the system for almost eight years. Did converting Robeson High School to small learning communities several years ago improve it? Apparently not, since it is now on the chopping block. Again and again, the Mayor’s strategy of churn and burn has proven of little help to kids yet the political noise it makes masks its substantive silence. Similarly, the shock and awe of his charter school advocacy, proposals for merit pay, and testing monomania cloud the reality that the guy has no idea how to run a school system; every restructuring exposes the vacuity of its predecessor. By his own measures of success, at least four in 10 ninth graders still fail to graduate on time and, if Regents diplomas are set as a low standard, even the grads are often ill-prepared for college and careers. These children are Bloomberg’s educational progeny; they were in elementary school when he took office.  Yet, for all the hoopla, achievement is — at best — only marginally better, following a trend line established before he took office and reflected in other districts besides our own.

There is so much BS in the current debate that I can hardly stand it. I long for the new semester so I can get back to preparing new leaders for real schools. The teacher-student relationship is where the important work takes place. But, as usual, the politicians’ focus is on the sizzle, not the steak.

Replacing schools does not necessarily improve education. In the Mayor’s hands, it has become a shell game that defers instructional problems until they reappear elsewhere, to be met again with a similar reaction. Meanwhile, the often lengthy period of the schools’ decline — until so drastically and unconstructively arrested — has harmed thousands of students.

Until now, the Mayor’s strategy has been largely immune to public opposition. The Department of Education announced its hit list with little or no prior warning, the better to keep critics at bay. The new school governance statute, however, has created a process for notice and hearings that — while imperfect — will subject this year’s target list to formal scrutiny followed by likely approval by the mayor-controlled Panel for Educational Policy. Students, parents, teachers, and their supporters are organizing to reverse the DOE decree.

This is a public scenario that DOE operatives — probably with the best of technocratic intentions — wanted to avoid. School-based opposition was identified as the Achilles’ heel of reform after the failure of Mayor Giuliani’s initiative to have Edison Schools take over a number of failed schools. Families at the schools voted against the move.

But Bloomberg still seems committed to playing a power game despite the new legal landscape and a public increasingly fed-up with his paternalistic mien. His is likely to be a Pyrrhic victory, with his PEP majority ready to work his will but giving rise to increasingly mobilized school communities that will oppose even justified closings.

This warfare could be avoided if the Mayor took a different, more conciliatory tack. What is needed — both legally and instructionally — is to articulate a clear set of standards for determining school closures, with thorough review of actions taken to avoid the disruption attendant to this last resort and the possible impact of closure on other schools.

The Mayor has created a sense that these closures are less than inevitable but, rather, part of a considered strategy to free up space in certain schools for charters and preferred small schools. Rationales for school closure are a moving target. Some are cited for low graduation rates — though other schools, not slated for elimination, are worse. Or the emphasis shifts to enrollment, or application rates, or whatever other metric might appear deficient either currently or over time. The data seem a pretext for closure and, like so many dominoes, set up a new round of schools predetermined for failure.

These actions give the appearance of illegal caprice: the inconsistent application of otherwise rational criteria so that the action is ultimately unpredictable and subject to whim. If indeed there is a hidden, consistent rationale for these decisions, then it is the Mayor’s obligation to reveal it. Keeping the public off-balance through secrecy is deplorable. This is a typical private-sector strategy based on the competitive edge of proprietary trade secrets. The Mayor’s people still haven’t learned that such tactics are inappropriate in a democracy where an informed public is a paramount, legally-enforceable value.

The more objective, transparent, and deliberative process of school closure suggested here has been used successfully in State registration reviews and finds favor in State law. Education Law § 402-a recommends district creation of an Advisory Committee on School Building Utilization six months before a scheduled school closing, with a clear set of factors for committee review. This is a more independent process than the current New York City formula and could profitably supplement it without sacrificing urgency.

So far, though, Mayor Bloomberg has refused to see the writing on the wall. His unexpected announcement shortly before the holidays, of almost two dozen school closures with a quickly scheduled series of required hearings prior to the PEP determinations on January 26 manifests a continued disdain for the spirit of recent statutory changes.

As a result, the Legislature should publicly contemplate buttressing the new but demonstrably ineffective requirements of Education Law §§ 2590-e(21), 2590-f(1)(w), and 2590-h(2-A) with mandatory application of Education Law § 402-a unless the Mayor recognizes that his policy of intentional opacity will no longer be tolerated.

The days of Oz and the application of naked, self-justifying power are over. If the Mayor is right, then he should step from behind the curtain and allow independent review of his decision to close each school.

Mayor Bloomberg’s fuss-and-feathers over use of student performance data in teacher tenure decisions is a short-lived diversion, like his presidential run during a previous lame duck period. Legal authority for his position is questionable and of little practical consequence. At best, under current law, he has one year to try to work his will but no principal’s tenure decision will change based on this new edict. Weakened by his slim re-election margin, Bloomberg’s tantrum is an understandable political strategy to appear politically strong. But our education plight is too important to be distracted by this sideshow.

The mayor invokes that portion of New York State Education Law § 3012-b as added by Chapter 57 of the Laws of 2007 which permits principals to make teacher tenure determinations based on “an evaluation of the extent to which the teacher successfully utilized analysis of available student performance data” and the more elastic “assessment of the teacher’s performance by the teacher’s building administrator.” The law was clarified by Chapter 57 of the Laws of 2008 to prohibit use of student test scores to grant or deny tenure. But even if the earlier version is found to permit use of test data for current tenure evaluations, State Education Commissioner’s Regulation § 100.2(o)(2)(iii) appears to prevent this use unless included in probationary teachers’ “professional performance review plan,” a formal document that must be developed “in collaboration with teachers … selected by the [Chancellor] with the advice of their respective peers.” Collective bargaining issues also exist as a change in the terms and conditions of employment. As a result, it is doubtful that the mayor’s unilateral analysis has much legal weight.

Rather than hastening their exit, the mayor has created a legal loophole for ineffective teachers to remain in classrooms.  What the mayor has actually done is to hand every failing teacher, already on the chopping block based on principals’ prior determinations, a ready argument that his or her tenure was denied on illegal grounds. Principals already know who they want to fire and have developed their own grounds to deny tenure. At best, test scores will provide an additional, controversial excuse. And those who principals want to keep will surely not be fired on the basis of test scores alone. This grandstanding —Bloomberg didn’t even let the chancellor announce the move, so impatient was he to garner public credit — will thus have the reverse effect of its purported intent. The mayor has made martyrs of the system’s dross.

Test scores from the first few years of a teacher’s career are relatively meaningless anyway. Even if some test scores, interpreted correctly, turn out to be valid measures of long term teacher quality, our current three year tenure clock is too short to make that determination. How can a fair evaluation be made from test scores during the first year on the job? Other data such as classroom management, content knowledge, and the ability to improve will be more determinative of retention. So the second year becomes the benchmark to compare to the third year, if the testing calendar allows. But this permits insufficient data for a studied tenure determination. Other measures, especially classroom observations which I strongly encouraged in my last column, are more likely to provide usable information. The mayor seemed to admit as much in his recent Washington speech but continues to give principals too little time to practice what he preaches.

In sum, the mayor has picked the wrong battle. Nonetheless, if he really wants to use student test data to evaluate teachers for tenure, his first step should first be in Albany, convincing legislators to adopt a probationary period of at least five years, effectively extending the period for at will termination and giving slow starters a chance to prove their mettle. Five years’ experience would allow for meaningful, long-term evaluation of teachers’ growth and the justifiable reward of tenure that would follow.

Analyses prepared for Assemblyman James Brennan by legislative aide Shawn Campbell demonstrate that the Bloomberg administration grossly overstates the impact that the reforms have had on New York City’s student achievement. State test scores are tainted by the exams’ designed-in flaws.  Progress Reports’ school grades are malleable, rising or falling according to administration convenience. Graduation rates are untethered from college and career readiness.  They are the end result of suspect strategies called “credit accumulation” and “knowledge management,” not subject mastery and understanding.

But the Mayor has a renewed opportunity to value learning over his well-known data obsession. Like Midas, who confused gold for true wealth, the DOE can redeem the promise of mayoral control by focusing on instruction. A vast literature exists for what works. New funding is promoting necessary research and development. Structural innovations like accountability, teacher merit pay, charter schools, and vouchers show varying, if any, success and, even if effective, have no capacity to directly improve learning. The Mayor’s cheap trick — hands off schools, just measure their outcomes — is an irresponsible abdication of leadership. It betrays his and his Chancellor’s instructional ignorance.

In Beth Fertig’s excellent new book, Why cant U teach me 2 read?, the WNYC reporter shows most of the Chancellor’s minions avoiding classrooms as they distantly crunch numbers. Her main heroes, besides the indomitable students who persevere amid scholastic chaos, are educators outside the system who rehabilitate its human road kill. They use proven instructional methods like Orton-Gillingham for dyslexic students to move pupils from failure to functionality. The road is tortuous — learning is hard for all, the teachers and the taught — but stands in stark contrast to the self-congratulatory mantra of accountability issuing from those at the top.

DOE headquarters staff at the Tweed Courthouse seem bent on “gotcha” tactics, identifying failing schools based on radar readouts, unconcerned about realities on the ground. Instructional support is outsourced. The main educational job at Tweed is to create untested new schools to replace those that are closed. And closure, in the weird, sad logic of these bureaucrats, is deemed success; a system proud of its ashes.

Lost in this technocratic activity is an important change in principals’ habits during the Bloomberg years. A mountain of evidence suggests that instead of frequent in-class observations, principals now remain in their offices poring over data or in meetings with outside data monitors. Or they are wasting time on the road, traveling to yet more meetings as members of a far flung network of schools.

To those who argue that this evidence is only anecdotal, there are three responses. The first is that total classroom observation time is not measured by the DOE, so that the data’s absence is a product of the DOE’s own disinterest. Second, something’s gotta give! With their aforementioned new duties, principals’ time has been reallocated. From what? From their presence in classrooms, lunchrooms, and schoolyards where the kids and teachers are; where essential, non-quantitative data are gathered by every good principal for staff evaluation and coaching, for face-to-face student contact, for knowing what hasn’t been entered into ARIS, the data system used at Tweed to fashion decisions. Finally, this seems to be a national trend. Even The New Teacher Project, an accountability-friendly organization, decries in “The Widget Effect,” its recent report (which did not include New York in its sample), principals’ failure to make adequate visits to the classrooms of new and developing teachers.

Yale political science and anthropology professor James C. Scott describes in Seeing Like a State how public officials create systems to prioritize desired data, obscuring other potentially useful information.  That is Bloomberg’s hubris.  In depending so much on a monoculture of standardized tests to derive his impressions, he has forgotten — if he ever knew or cared — that test scores don’t equate with rounded learning.  Tests do not measure the true heartbeat of intellectual pursuit.  If the Mayor wants to change education, not merely schools, he will read Fertig’s book and understand that redemption is found only in a commitment to quality instruction.

This prediction probably assures Klein’s job into the next century (with serially-extended term limits and a hefty mayoral investment in cryogenics, it could happen!) but eight years seems enough for the Chancellor, who has a history of short-term jobs and immediate prospects as an internationally-acclaimed education consultant. Also, believe the rumor that Bloomberg traded the Chancellor’s head for the Legislature’s renewal of Mayoral Control and that a new Chancellor will help Bloomberg counter charges of third-term lethargy.

So, probably cursing the chances of anyone listed below (and I deny that intent), who are the likely candidates to become the next Chancellor of the nation’s largest public school system?

Paul Vallas: Vallas has headed school systems in Chicago, Philadelphia, and the Louisiana Recovery School District, where he now works.  A champion of innovative school governance and data-based accountability, he is a nationally recognized education manager. Vallas was Chicago’s budget director before appointment to his schools post by Democratic Mayor Richard Daley, so seems like Bloomberg’s kind of rough and ready technocrat, much in the Klein mold. Additionally, as an outsider, he would reinforce the Mayor’s message of third term renewal.

Christopher Cerf: Fresh from his stint as the Bloomberg campaign’s education point man, Cerf was until recently a trusted Deputy Chancellor under Klein. He is a former executive at Edison Schools and an attorney with superintendent credentials. Like Bloomberg and Klein, he is often condescending and feisty. State Board of Regents Chancellor Merryl Tisch once described him as “the A-word” (pausing to explain she meant “arrogant”). Ethical questions have been raised concerning Cerf’s handling of his Edison stock while working for the DOE and soliciting a charitable contribution from a DOE contractor.

Eric Nadelstern: Nadelstern is a long-serving New York City educator who has risen in the DOE ranks to become Chief Schools Officer, supervising all district superintendents and student support organizations. Formerly the well-respected principal of International High School, he was the original head of Klein’s “autonomy schools” initiative which morphed and grew into today’s Empowerment Schools. Nadelstern has been a loyal lieutenant to Klein, with deputies from his earlier days at Tweed now dotting a number of leadership posts. This is one reason that tea-leaf readers view him as the favorite, should the Mayor choose an insider.

Jean-Claude Brizard: Another life-long educator (not necessarily an advantage), Brizard is the former principal of Westinghouse High School and an expert in one of the third term’s main goals: improving Career and Technical Education, as well as, more generally, secondary education reform. As a Haitian-American, Brizard is the only person of color on this short list. Like Cerf, Brizard is a graduate of the Broad Superintendents Academy, which applies corporate strategies to school district management. He held a number of senior DOE posts, including Executive Director of Secondary Education and, for a short time, Superintendent of Region 6 but seemed to fall out of favor and is currently superintendent of the Rochester, N.Y., Public Schools. This, though, could be an advantage as one of only two listed candidate (the other is Vallas) who has run a big city school district.

Robert Hughes: Hughes is a dark horse but might have his eyes on the prize. He is currently President of New Visions for Public Schools, a widely admired (especially by the powerful Bill and Melinda Gates Foundation) not-for-profit that catalyzed the push for New York City’s small high schools. Hughes was also a plaintiff’s attorney at the beginning of the Campaign for Fiscal Equity law suit that substantially increased State aid to the public schools. If influential members of the New Visions board back Hughes, he could be the city’s next Chancellor.

Assuming Bloomberg is a lame duck, his choice of Chancellor — or a decision to keep Klein — is especially hard to predict. Since the selection of Chancellor need not be approved by the City Council or other body, the choice is largely the Mayor’s alone. So choose from the above or write someone in: The betting window is now open to name the next person responsible for educating over a million of our kids.

Correction: An earlier version of this post stated that Robert Hughes is seeking state certification. He is not.

A major criticism of Mayor Bloomberg’s schools leadership has been his failure to consult parents regarding his education policies or to revise those policies in the wake of parent opposition. According to a recent article in Downtown Express, “Bloomberg said parents need only be involved in the micro issues of their child’s education, like the child’s attendance, behavior and grades.” Beyond that, the Mayor suggested that parents could have “influence through the city councilmembers and mayor they elect.” Comptroller William Thompson released a report last May suggesting his own views on “Parent Influence on Local School Governance.”

Notwithstanding the Mayor’s remarks, a broad legally-mandated constellation of parent organizations exists to directly influence decision-making beyond the individual child. Federal law calls for extensive parent power in shaping school, district, and state Title I policies. Recent amendments to the New York State Mayoral Control statute require 32 District Community Education Councils and 3 Citywide Councils for High Schools, Special Education, and English Language Learners. The State Education Department requires School Leadership Teams and District Leadership Teams, which must include parents, to be directly involved in school-based planning and shared decision-making. A recent New York State Commissioner’s Decision held that the city’s parents were being illegally denied their mandated role in comprehensive educational planning. Chancellor’s Regulation A-660 mandates a robust system of Parent Associations, P.A. Presidents Councils, and a Chancellor’s Parent Advisory Council. It is incumbent upon all administrators, from assistant principals to the Mayor himself, to respect the letter and spirit of this strong legal orientation toward parent partnership not only in pedagogical decisions regarding individual children but in school and district policy-making and implementation.

But any parent who has had a playground run-in knows that we each have different — often strongly different — views toward child rearing. So it is impossible to describe a single parent opinion regarding schools. That is one problem with the school system’s fallacious parent surveys and, just as wrong-headed, for anyone to claim representation of a single parent voice.

The conundrum of how to structure parent voices — plural — beyond the classroom is especially difficult in an urban setting because of the geographic, demographic, and numeric diversity that make our city such a vital social cauldron. As a public good, schools belong to everyone. Fundamentally, all citizens have a right to determine how their tax dollars are spent by investing their vote in elected representatives who, in turn, have sovereignty over the public weal. Parent control of school policies, perhaps a straw man invented by those inimical to a strong parent role, would thus be as exclusionary and self-defeating as would any other proposal for unelected dominance by a single, limited constituency.

That is why parent organizations such as Community Education Councils, exclusively a parent domain (students are non-voting members), can not and should not have more than an advisory role. Selected by school Parent Association officers, these volunteers simply do not adequately represent the full range of public education stakeholders, however important their informed input may be.

Further, recent legislative activity seems to pit parent against parent, weakening rather than strengthening our evolving system of parent leadership. For example, the Citywide Council on High Schools now must include representation from the Citywide Council on Special Education and the new Citywide Council on English Language Learners. But members of the CCHS (I am a past President) already include several parents whose children have special needs, are limited English proficient, or both. Are those parents to defer to the designee from those other councils? It is the responsibility of all council members to represent their entire constituency, not just their own child’s needs. Specialized representation of this sort is contrary to principles of American democracy and plays into the hands of those who would atomize rather than unite parent interests.

Finally, parent power must be wrested from the deadening grip of over-regulation. Parents are not usually lawyers and should not be forced to become experts at parliamentary procedure. Too many parent meetings become bogged down in arcane and ultimately destructive disputes about procedure rather than substance. Parents’ lack of political sovereignty should release them from undue procedural mandates. What procedural mandates exist should be read to strengthen parents’ otherwise weak voices against more powerful institutional interests rather than to set parent against parent in an embarrassing pecking frenzy over the remaining political crumbs.

This tension between unity and pluralism in parents’ role is appropriate in our complex system of school governance. Especially in New York, where most voters do not have children in the public schools, parents provide a uniquely informed constituency for everything from testing policies to school siting decisions. Parent opinion should not be assumed to be correct or even uniform, but, amid the cacophony of their multiple voices, policy makers ignore parents at their — and more importantly, students’ — peril.

The graduation time bomb brings two issues into stark relief. The first, difficult enough to absorb, is that every year over 10,000 more New York City residents will enter the job market (college largely off-limits to them) without even the entry-level requirement accorded by a high school diploma. The second is the diminished meaning of current Regents standards and the political pressure for further decline in order to accommodate this explosion of almost-grads.

Increased Regents standards have been on the state agenda for many years, as documented by the February 2009 New York City Coalition for Educational Justice report, “Looming Crisis or Historic Opportunity?” That study and State Education Department data reveal that not only are about a third of 4-year diplomas “Local” (excluding IEP and GED diplomas which are not exit degrees) but that the percentage rises to almost 40% for students graduating in 6 years. None of those students would graduate under the new standard.

These dire numbers mask a greater tragedy about to befall Latino and Black students. The New York City Department of Education states that currently Black students have a 55% graduation rate and that 40% of these students earn only a Local Diploma. The graduation rate for Latinos is slightly lower, with the ratios similar to Black students’. By comparison, graduation rates for White and Asian students, while still inadequate, approximate 75% with Local Diplomas amounting to 12% for Asians and 15% for Whites. Since these data record 4-year rates and Black and Latino students disproportionately take 5 or 6 years to graduate, when Local Diploma rates are highest, the final cohort figures are likely to be even gloomier. Overlapping rates for English language learners (40% overall, over 50% of these Local Diplomas) and students in special education (25% graduation, 70% Local) are even more dismal.

This impending disaster is dispiriting enough. But it merely reveals the more dire problem: that our children are graduating without the subject mastery necessary for college and careers. Regents diplomas are subject to the same strong suspicion that they, like other state tests, are subject to substantial score inflation. Erik W. Robelen recently reported in Education Week about “Questions Raised on New York Test System’s Reliability,” citing GothamSchools’ Aaron Pallas and researchers Daniel Koretz and Diane Ravitch. Steve Koss, a former New York City math teacher, has published telling critiques of the key Regents Math A and Algebra exams. All of the critiques echo widespread dissatisfaction with the exams’ scaled scores, in-school grading, and “unraveling” of specific test administrations.

This has left John Garvey, a former City University dean, to conclude that “there is no clear standard for high school student achievement on the Regents exams that could even be compared with a standard for college readiness.” His Annenberg Institute study, “Are New York City’s Public Schools Preparing Students for Success in College,” found that only 7.5% of high school graduates had taken all the recommended high school courses considered necessary for college preparation and that 70% of students entering CUNY’s community colleges require remedial courses since they fail placement exams in reading, writing, or math.

Look around. The bomb has already exploded. For all the talk of accountability, we are living in a city without honest educational standards. Even those with diplomas are often hard-pressed to function according to commonly accepted levels of college and career readiness. With appropriate elimination of the Local Diploma and pressure on new Education Commissioner David Steiner to end the politicized upward drift of test scores, the reality of this devastation should become clearer.

Picking up the pieces and rebuilding will be the number one education job of the next mayoral term.

The DOE memo, if implemented, would improve instruction, graduation, and career possibilities for the city’s approximately 130,000 students with IEPs, the “individualized education programs” that federal law mandates for students with disabilities.  But DOE commitment to these recommendations is uncertain since the report reads less like a trusted expert’s focused analysis and more like an aide’s synthesis of progressive positions with an eye to mayoral politics.

The progressive perspective is at least in part represented by “Educate! Include! Respect!,” an April 2009 report by the ARISE Coalition, a broad coalition of parents, educators, and advocates brought together by Advocates for Children of New York.  I am a member of ARISE but the opinions expressed here are my own.  ARISE calls for 15 specific “action items,” citing recommendations of many other recent reports.  Two of these predecessor works are especially notable since they, like the DOE memo, were commissioned by Chancellor Klein: a 2005 “Comprehensive Management Review and Evaluation” by Thomas Hehir and a 2008 report by the Council of Great City Schools.  The CGCS study specifically addressed issues in District 75, the “Citywide Special Education” district that serves students with the most serious handicaps.  So far, however, none of these studies seem have gained traction with the Mayor or Chancellor, whose leadership is vital if the long-standing problems of special education detailed by ARISE, Hehir, and CGCS are to be remedied.

While the above documents describe a series of possible reforms to address this poorly-served population, I deviate from their common wisdom in two important respects.  The first is the recommendation (and, so far, the only one implemented by the Chancellor) for a cabinet-level special education post.  The second is the continued existence of District 75.

The DOE memo states that both Hehir and CGCS recommend “a direct report to the Chancellor.”  While acknowledging arguments to the contrary, it arrives at the same conclusion which seems tacitly accepted by ARISE’s response to the memo.  This position is wrong as a general organizational strategy and, particularly, in the closed circle of current DOE decision-making.

Special education is a continuum within the broad spectrum of public school instruction.  This is not only promoted by federal requirements providing special needs students with mainstreaming opportunities in the “least restrictive environment” but by recognition that many students with disabilities spend only part of their day receiving special instruction, often in a mainstream class, and others receive only incidental special education services such as testing accommodations and related services (speech therapy, physical therapy, and the like) without ever being materially separated from their “gen. ed.” classmates.

To separate these and other students with and without IEPs from the responsibility of all top DOE managers is to continue the marginalization of these students and their parents.  This is particularly the case under Chancellor Klein who grants disproportionate power to a few intimates.  In that environment, a Deputy Chancellor-level advocate for Special Education and English Language Learners (hardly a felicitous combination except in the mind of someone with but superficial knowledge of either) is likely to be political window dressing rather than a real driver of institutional change.

Similarly expedient is the reports’ uniform recommendation to maintain District 75.  Dismantling the District is the third rail of special education politics since, though long a segregated instructional mediocrity, parents fear disaster if their severely handicapped children become the responsibility of larger organizational structures.  And those structures – non-District 75 schools, community school districts, and the Department as a whole – have historically shunned responsibility for these students, by definition those most difficult to educate.

But the time has come to break with this obvious failure and the insidious institutional culture that breeds it.  By every measure, District 75 lags not just because its students have special needs but because it has been treated as an educational backwater, rife with income and racial bias.  Wealthier parents, usually White, frequently opt out of District 75 schools through their ability to secure private placements for their children, often at public expense.  Notable is the following chart, adapted from the CGCS study at p. 72, showing widespread racial disparities, particularly the disproportionate number of Black and Hispanic students labeled with the highly subjective designation “emotionally disturbed” (CGCS does not break down its data for Asian, Native American, or Pacific Islander students):

These students are the least likely to graduate, are subject to high rates of suspension despite legal protections, and are the most likely to drop out.  Even their egregiously low levels of performance are probably inflated by DOE graduation data that has incorrectly counted so-called IEP diplomas as exit credentials and, as detailed by the Public Advocate, the failure to count as drop outs large numbers of disabled students who prematurely leave school.

While report after report emphasizes District 75′s poor record of performance and the failure of the present administration to bring it into the mainstream of reform efforts, each succumbs to the politically popular notion that District 75 should remain apart.  But as most clearly and prominently noted by the CGCS report, the only one which specifically studied that District and its students’ needs, the DOE must “reform and integrate the currently bifurcated system of services for students with disabilities into a universal and seamless design.”  Amen to that.  Parents need to be reassured that inclusion in the mainstream structure will strengthen, not diminish, their children’s instructional and career futures.

This is just the tip of the iceberg when it comes to addressing the ills of special education in New York’s public schools.  In addition to chronic problems of timely, appropriate evaluation and placement and below-par services, reports are surfacing of changed IEPs in small schools, failure to hire required related service providers under the current job freeze, the absence of students with disabilities in charter schools, inadequate funding under the DOE’s budget formula, and the instructional vacuity of many Collaborative Team Teaching classrooms.  These and other issues require urgent scrutiny and resolution by the administration.  Educators, advocates, and technocrats have spent years exploring the subject.  Substantive action, not electoral posturing, is now required.

The decision and the actions it protects are problematic on grounds of law and policy. First is the misapplication of precedent by the District Court, carried over from an earlier opinion and repeated by a Circuit Court ruling in the same case. Second, and perhaps more seriously, is the extent to which the Bloomberg administration continues to push a policy agenda squelching free expression.

Background

On August 5, 2007, New York Post reporter Chuck Bennett interviewed Debbie Almontaser, the interim acting principal of the Kahlil Gibran International Academy, a New York City public school which was due to open the following September. KGIA was the focus of intense public scrutiny for its emphasis on Arab language and culture. Also at issue was an allegation that Almontaser had ties to Arab Women Active in the Arts and Media which had created t-shirts stating “Intifada NYC.”

Asked about her affiliation with AWAAM and the t-shirts during the interview, which was organized and monitored by the New York City Department of Education’s press office, Almontaser denied any connection with the organization and explained she would never affiliate herself with an organization condoning violence. Further, she explained that the root of the word means “shaking off.”

The next day, the Post published Bennett’s story under the headline “City Principal is ‘Revolting.” with a picture of Almontaser captioned, “Furor: The Pro-violence shirt is being defended by Principal Debbie Almontaser.” The story also incorrectly added the phrase “and shaking off oppression” to Almontaser’s statement.

As a result of the ensuing controversy over Almontaser’s misattributed remarks and the paper’s incendiary language, the DOE forced her to resign the interim principal post and, when the permanent position of principal was advertised, quickly passed over her application. Almontaser then sued the DOE (technically, the New York City Board of Education) for retaliatory firing in violation of her First Amendment right to free speech.

Legal Mistake

The courts found that Almontaser lacked First Amendment protection because her remarks took place in the context of her public employment. While the facts above, as described by the District Court, clearly point to the interview as an official duty under the supervision of the DOE, Almontaser claimed that her misreported “intifada” remarks were disconnected from her statements about KGIA and her employment there.

Educators’ political statements on matters of general public interest have long been protected under the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education. But the District and Circuit courts relied on a more recent case, Garcetti v. Ceballos, which held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties.

However, the Almontaser courts failed to acknowledge Garcetti’s explicit exemption for statements related to academic matters. The majority stated, “We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.” at p. 13. That determination – clearly at issue but ignored in Almontaser — was reached by the Court because of Justice Souter’s clear statement in dissent:

“As for the importance of such speech to the individual, it stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools? . . . Indeed, the very idea of categorically separating the citizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s “object … to unite [m]y avocation and my vocation;” these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract. There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.” at 5, footnotes omitted.

Thus, a strong argument can be made that, despite the context of an official interview like that in Garcetti, Almontaser met that case’s exception by commenting as an educator on a matter of general public interest related to the academic focus of her school. Such a result is consistent with Garcetti and the high value the Constitution places on public discourse in a free society.

Problematic Policy

Even accepting the courts’ mistaken analysis, the firing of a principal for a controversial remark – and here, a remark she did not even make! – is dangerous public policy. By firing Almontaser, the Chancellor (and by extension, the Mayor he works for), has impoverished robust public debate, a core value of a free society.

This is nothing new. The Mayor has shown hostility to unruly voices before. His preventive detention of protestors at the Republican National Convention in 2004 was subsequently met by wholesale dismissal of police charges. He banned the wearing of campaign buttons by teachers, an action upheld in court.

But just because the Mayor can suppress speech, doesn’t mean he must suppress speech. The First Amendment exists to promote a marketplace of ideas and we are the losers when government limits access to unpopular thought.

In the Almontaser case, the Mayor’s famous espousal of principal autonomy is once again exposed as an empty promise that “You can do as you like as long as I like what you do.” Such a philosophy may lead to smooth operational control but the public sector and schools, especially, are the worse for it. Public institutions are fundamentally strengthened by American values of active civic discourse. The courts should pay heed the next time the city puts free expression to the test.

What is credit recovery? The term is sometimes used technically to denote a formal program, such as summer school, with specified content, attendance, and assessment requirements. But the term is widely applied to any effort to help students pass courses that they would otherwise fail because of incomplete or below-standard work. These students substitute the extra work for regular assessments by writing a paper, taking a test, or providing some other evidence of proficiency in a narrow course topic.

Under the new state policy, schools would need only create a committee (which would not include the student’s teacher) to approve a student’s customized credit recovery plan for a course. The same committee would then review evidence of student proficiency once the plan was completed. The State does not require minimum class attendance or proof that the plan addresses all subject matter deficiencies. If a teacher says a book report suffices to show proficiency, the committee would not need to inquire beyond the teacher’s word. No record of how many courses a student passed using CR would be maintained. There would be no monitoring of assignments’ rigor or the frequency of CR’s use by teachers, schools, or the system as a whole.

What is the problem, though, with giving students a second chance at passing or completing a course by filling in the gaps?  First, without standards, there is no way to determine whether credit recovery assignments actually fill those gaps. Second, a course is more than the sum of its parts. For example, a student might fail a test in one unit of geometry and possibly another but if he or she understands other basic geometric concepts, they will likely pass the course. Course failure demonstrates significant overall deficits in factual and conceptual knowledge that a single assignment or mini-course can not erase. But passing the course will mean a lot to the student’s, the teacher’s, and the school’s appearance of success.

Helping students over the hump through credit recovery is not limited to New York City. Nationally, education publishers including Plato and Pearson sell credit recovery kits. But the DOE’s emphasis on data-based accountability, particularly high school credit accumulation and graduation, seems to have resulted in an explosion of credit recovery in New York. Schools are under tremendous pressure, through school report cards’ A-F rating, to produce progress in these metrics.

Credit recovery is a direct route to helping students and schools achieve the 10 credits each year that serve as the DOE’s benchmark of success. Then, with passing grades and a little luck on the Regents — often obtained through narrow and repeated test preparation — students are on pace to graduate. For hundreds of school principals, looking over their shoulders to stay ahead of the peer group against which they are measured, this is a matter of professional life and death. If one principal looks the other way on credit recovery in their schools, others are penalized for more rigorous standards. This race to the bottom will now be officially sanctioned by the State, urged on by Chancellor Klein.

If we do not reject this new policy proposal, more children will seem to be succeeding in high school and more will seem to be graduating with college- and job-readiness. But this will be a mirage. We will be gaming the system for students and administrators alike. We will be saluting proxies rather than real academic achievement.

The Board of Regents needs to put an end to this charade by rejecting this mockery and re-establishing high academic expectations for our youth.

David C. Bloomfield heads the Educational Leadership Program at Brooklyn College, CUNY and is an elected parent member of the Citywide Council on High Schools. He is the author of American Public Education Law.