March 2016 Issue - Receivership
March 06, 2016

Lawsuit targets receivership ruling

Author: By Matt Smith
Source: NYSUT United
NYSUT Vice President Catalina Fortino, left, and Yonkers FT member Lia Council participate in a panel that discussed receivership schools during the NYS Association of Black and Puerto Rican Legislators caucus weekend.
Caption: NYSUT Vice President Catalina Fortino, left, and Yonkers FT member Lia Council participate in a panel that discussed receivership schools during the NYS Association of Black and Puerto Rican Legislators caucus weekend. Photo by El Wise Noisette.

In a legal challenge that could have a far-reaching statewide impact, NYSUT has filed a lawsuit against State Education Department Commissioner MaryEllen Elia, seeking to strike down her November decision giving the Buffalo public schools superintendent authorization to unilaterally impose changes at five persistently struggling city schools.

Filed in Albany County's state Supreme Court on behalf of the Buffalo Teachers Federation, NYSUT is asking the court to declare as unconstitutional a provision of the state's school receivership law that outlines how receivership agreements are negotiated and enforced.

The lawsuit claims Elia's ruling, and the way in which it was carried out, impaired the BTF's collective bargaining agreement with the district. It also claims her ruling was "arbitrary and capricious" and exceeded the commissioner's jurisdiction because it affected staff in schools not designated as "persistently struggling." The union also claims the commissioner's decision denied BTF members their due process rights.

"Buffalo's teachers are dedicated professionals who work with some of our state's neediest students," said NYSUT President Karen E. Magee. "Day in and day out, they are on the front line helping children overcome numerous societal obstacles so they have the chance to succeed. When it comes to enhancing our schools, it is critical that the voice of our teachers is heard."

The lawsuit names as defendants New York State, the State Education Department, Buffalo Schools Superintendent Kriner Cash and the city's board of education.

The union claims that as a result of the commissioner's ruling, Cash bypassed the BTF contract and unilaterally imposed measures such as lengthening the school day and ordering the involuntary transfer of teachers. It also claims the commissioner refused to consider whether Cash negotiated in good faith as required by state statute and regulations. The union also charges that Elia refused to consider proposals put forth by the BTF to improve the persistently struggling schools, including smaller class sizes and intensive math and literacy interventions.

BTF President Phil Rumore said that while Cash ran roughshod over the collective bargaining agreement, the lawsuit is about far more than the BTF contract.

"It is about using child-abusive state tests to mislabel students and schools, even though a governor's task force — on which the commissioner was a member — found them so flawed that it [recommended putting] their use on hold until 2019," Rumore said.

NYSUT noted in court papers that when the state Legislature passed the receivership law in 2015, its intent was to improve student achievement not nullify contracts.

"The focus is on helping students, not hurting teachers," the lawsuit says. "Indeed, the interests of students and teachers are aligned."

NYSUT, meanwhile, is also working aggressively in Albany to repeal the receivership law legislatively, saying that expanding the community schools model is the better approach.

In testimony in early February to Assembly and Senate lawmakers, NYSUT Executive Vice President Andy Pallotta said one year is not nearly enough time to turn around a struggling school and begin addressing the myriad issues facing families living in poverty. Those issues, he said, could be better addressed with wraparound services provided through community schools.

Buffalo is one of the poorest cities in the nation and many of its public schools are located in significantly impoverished areas. Yet, the district is owed $100 million in state aid for the 2015–16 school year. And, over the last several years, the state has underfunded the district by more than $1 billion.

Despite the challenges faced in the district, the overwhelming majority of teachers in the five "persistently struggling" schools subject to Elia's ruling are rated either effective or highly effective.

"The BTF sought and provided studies for initiatives to really support students, such as smaller class sizes," Rumore said. "Not only did the commissioner reject them, she supported district proposals that provided no rationale, nor studies to demonstrate how they would improve student performance. This [ruling] is not about supporting teaching and learning. It is about looking for someone to blame and punish for the state's failures."