Thursday, August 02, 2012

Teachers Unions Go to Bat for Sexual Predators

The system to review misconduct is rigged so even abusive teachers can stay on the job

By resisting almost any change aimed at improving our public schools, teachers unions have become a ripe target for reformers across the ideological spectrum. Even Hollywood, famously sympathetic to organized labor, has turned on unions with the documentary "Waiting for 'Superman'" (2010) and a feature film, "Won't Back Down," to be released later this year. But perhaps most damaging to the unions' credibility is their position on sexual misconduct involving teachers and students in New York schools, which is even causing union members to begin to lose faith.

In the last five years in New York City, 97 tenured teachers or school employees have been charged by the Department of Education with sexual misconduct. Among the charges substantiated by the city's special commissioner of investigation—that is, found to have sufficient merit that an arbitrator's full examination was justified—in the 2011-12 school year:

 *  An assistant principal at a Brooklyn high school made explicit sexual remarks to three different girls, including asking one of them if she would perform oral sex on him.

 *  A teacher in Queens had a sexual relationship with a 13-year old girl and sent her inappropriate messages through email and Facebook.

If this kind of behavior were happening in any adult workplace in America, there would be zero tolerance. Yet our public school children are defenseless.

Here's why. Under current New York law, an accusation is first vetted by an independent investigator. (In New York City, that's the special commissioner of investigation; elsewhere in the state, it can be an independent law firm or the local school superintendent.) Then the case goes before an employment arbitrator. The local teachers union and school district together choose the arbitrators, who in turn are paid up to $1,400 per day. And therein lies the problem.

For many arbitrators, their livelihood depends on pleasing the unions (whether the United Federation of Teachers in New York City, or other local unions). And the unions—believing that they are helping the cause of teachers by being weak on sexual predators—prefer suspensions and fines, and not dismissal, for teachers charged with inappropriate sexual conduct. The effects of this policy are mounting.

One example: An arbitrator in 2007 found that teacher Alexis Grullon had victimized young girls with repeated hugging, "incidental though not accidental contact with one student's breast" and "sexually suggestive remarks." The teacher had denied all these charges. In the end the arbitrator found him "unrepentant," yet punished him with only a six-month suspension.

Another example from 2007: Teacher William Scharbach was found to have inappropriately touched and held young boys. "Respondent's actions at best give the appearance of impropriety and at worst suggest pedophilia," wrote the arbitrator—before giving the teacher only a reprimand. The teacher didn't deny the touching but denied that it was inappropriate.

Then there was teacher Steven Ostrin, who in 2010 was found to have asked a young girl to give him a striptease, harassed students by text, and engaged in sexual banter. The arbitrator in his case concluded that since the teacher hadn't actually solicited sex from students, the charges—all of which the teacher denied—warranted only a suspension.

Michael Loeb, a middle school teacher in the Bronx and UFT member, calls this a "horrible situation," telling me "if you keep these people in the classroom, you are demeaning our profession."

Parents I spoke with described their tremendous fear about what is happening in the classroom. Maria Elena Rivera says her 14-year-old daughter was stalked by one of her Brooklyn high school teachers (who resigned from his position before the Department of Education decided whether to send the case to arbitration). Today her daughter is in counseling, says Ms. Rivera, and doesn't trust anyone: "It so messed her up. I can't protect her."

Local media have begun to get the word out, yet the stories come and go with trifling consequences or accountability. New York City's schools chancellor and districts statewide must have the power to fire sexual predators—and the final say cannot be that of an arbitrator with incentives to lessen the punishment.

Fortunately, state Sen. Stephen Saland has proposed legislation in Albany to do just this, removing arbitrators' final say while still giving teachers due process and the opportunity to appeal terminations in court. But the buck would stop with those officials in charge of our schools and tasked with protecting our kids: the chancellor in New York City, and school districts elsewhere in the state.

Mr. Saland's initiative has little chance of success without union support—which is hardly assured. "I don't understand how they think this could be a gray area," says Natalie Harrington, who teaches English at New Day Academy in the Bronx. "I worry that if the union goes to bat [against] this, it makes it seem like they will do anything to keep anyone in the classroom."

Michael Loeb still supports his union but says it "treats teachers like interchangeable widgets"—defending all teachers no matter what they have done.

The union has reached a moment of truth. With responsible legislation on the table, the right course of action is obvious. At stake is the safety of kids, the reputation of the unions, and the standing of every good and responsible teacher throughout the state.


Maryland Board of Education seeks racial quotas in school discipline


As a lawyer who used to bring civil-rights cases for a living, I am very disturbed by the Maryland State Board of Education’s proposed rule on race in school discipline...

This proposed rule violates the Equal Protection Clause of the Constitution by pressuring schools to discipline students based on their race, rather than their individual conduct and the content of their character. That is at odds with court rulings like the federal appeals court ruling in People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997), which forbid both racial-balancing, and quotas, in school discipline.

Crimes and infractions are not evenly distributed among racial groups, as the Supreme Court noted in United States v. Armstrong, 517 U.S. 456 (1996). As that 8-to-1 Supreme Court ruling emphasized, there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since such a presumption is “contradicted by” real world data. For example, “more than 90% of” convicted cocaine traffickers “were black” in 1994, while “93.4% of convicted LSD dealers were white.” Crime rates are higher in some ethnic groups than others.

But the Board of Education seems to have forgotten that reality in proposing a rule that would require school systems to discipline and suspend students in numbers roughly in proportion to their racial percentage of the student body, and require school systems that currently don’t do so to implement plans to eliminate any racially “disproportionate impact” over a three-year period. Thus, it is imposing quotas in all but name.

The Board has also seemingly overlooked a federal appeals court decision that ruled that schools cannot use racial proportionality rules for school discipline, since that violates the Constitution’s Equal Protection Clause. See People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997). That court ruling also said that a school cannot use race to offset “disparate” or “disproportionate impact,” and that doing so is not a valid kind of affirmative action.

The proposed rule, COMAR 13A.08.01.21, is found on page 25 of the Report of the Maryland Board of Education: School Discipline and Academic Success: Related Parts of Maryland’s Education Reform. It reads as follows:

A. The Department shall develop a method to analyze local school system data to determine whether there is a disproportionate impact on minority students. B. The Department may use the discrepancy model to assess the impact of discipline on special education students. C. If the Department identifies a school’s discipline process as having a disproportionate impact on minority students or a discrepant impact on special education students, the school system shall prepare and present to the State Board a plan to reduce the impact within 1 year and eliminate it within 3 years. [boldface added]

Thus, the Board seeks to ban “disproportionate impact” – the term for something not motivated by racism that nevertheless unintentionally affects or weeds out more minorities than whites – in school discipline. But it has done so without the qualifications and limitations to that concept that apply in court. The Supreme Court has allowed minority employees to sue over such “disparate impact” in limited circumstances, but it has refused to allow minority students to sue over it. Its ruling in Alexander v. Sandoval, 532 U.S. 275 (2001), said that individuals could not sue under Title VI of the Civil Rights Act for “disparate impact,” only intentional discrimination. Title VI is the federal law that covers racial discrimination in schools and other institutions that receive federal funds. (The Board’s proposed rule is not needed to prevent racism or deliberate discrimination, since there are already several laws banning discriminatory treatment of anyone based on their race, as opposed to disparate impact, that students victimized by racial discrimination can already sue under, like 42 U.S.C. 1981, and Title VI).

The fact that there are disparities in suspension rates between different ethnic groups does NOT prove racism by school officials, or discrimination. For example, in a ruling by Justice Sandra Day O’Connor, the Supreme Court said that it is “completely unrealistic” to argue that minorities should be represented in each field or activity “in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989)). In an earlier ruling, Justice O’Connor noted that it is “unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance.” (See Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 992 (1988).)

Many racial disparities in suspension rates are clearly NOT the product of discrimination. For example, Asians generally have lower infraction and suspension rates than whites and other ethnic groups, but no one would suggest that Asians are racially favored by school officials. Indeed, on occasion, school officials have discriminated against them: school officials in Philadelphia recently turned a blind eye to attacks on Asian students by African-American students in some of the city's schools, resulting in a federal investigation of the school system. In past generations when racism was more common, East Asians suffered extreme forms of discrimination by government officials, such as the California Supreme Court's turning Chinese immigrants into legal non-persons in the 1850s (it said they could not even testify in court, essentially creating an open season on their lives and property) and the federal government's internment of Japanese-Americans in the 1940s.

The Constitution does not forbid “disproportionate impact” or “disparate impact.” The Supreme Court made that clear in Washington v. Davis, 426 U.S. 229, 248 (1976), where it noted that it cannot be denied “that a whole range of tax, welfare, public service, regulatory, and licensing statutes” are “more burdensome to the poor and to the average black than to the more affluent white,” yet they are still constitutional.

The fact that a higher percentage of black students are suspended than whites in most schools is not, for the most part, the product of racism by school officials, but rather reflects greater infraction rates tied to lamentable factors like poverty and single-parent households. As a scholar at the Brookings Institution points out, “children who spend time in single-parent families are more likely to misbehave, get sick, drop out of high school and be unemployed.” As the National Center for Health Statistics notes, while most whites and Asians are born to two-parent families, most blacks and Hispanics are not. See National Vital Statistics Reports, Vol. 60, No.2: Births: Preliminary Data for 2010 (Nov. 17, 2011).

Since infraction rates are typically higher among such minority groups, their discipline and suspension rates are naturally higher as well, even if that is bureaucratically defined as “disproportionate impact.” This is a reflection of unpleasant realities, not school officials’ racism. Preventing such discipline will only cause more disorder and violence in the schools, especially in predominantly black schools, thus harming the very disadvantaged people the Board of Education seeks to help. Students are commonly victimized by members of their own race and peers of the same ethnicity. So watering down discipline for members of a racial group does not help that group. The fact that black students have been shortchanged by the larger society is not a reason to add insult to injury by depriving them of an orderly school environment and effective school discipline, or subjecting them to the “soft bigotry of low expectations.”

Pressure to discipline minorities and whites in numbers proportional to their percentage of the student body may also lead to other forms of racial discrimination in discipline, such as needless suspensions of white and Asian students for technicalities that would result in nothing more than a warning for a black student.

Writing in the Summer 2006 edition of the Manhattan Institute’s City Journal, educator Edmund Janko explained how informal pressure from bureaucrats to suspend students in numbers proportional to their race (what Maryland’s Board now seeks) led him to engage in unfair racial discrimination against students, such as suspending white students for conduct that “would mean, in cases involving minority students,” merely “a rebuke from the dean and a notation on the record or a letter home”:

More than 25 years ago, when I was dean of boys at a high school in northern Queens, we received a letter from a federal agency pointing out that we had suspended black students far out of proportion to their numbers in our student population. Though it carried no explicit or even implicit threats, the letter was enough to set the alarm bells ringing in all the first-floor administrative offices. . .

There never was a smoking-gun memo . . . but somehow we knew we had to get our numbers “right”—that is, we needed to suspend fewer minorities or haul more white folks into the dean’s office for our ultimate punishment.What this meant in practice was an unarticulated modification of our disciplinary standards. For example, obscenities directed at a teacher would mean, in cases involving minority students, a rebuke from the dean and a notation on the record or a letter home rather than a suspension. For cases in which white students had committed infractions, it meant zero tolerance. Unofficially, we began to enforce dual systems of justice. Inevitably, where the numbers ruled, some kids would wind up punished more severely than others for the same offense.

I remember one case in particular. It was near the end of the day, and the early-session kids were heading toward the exits. . .The boy was a white kid, tall, with an unruly mop of blond hair. He was within 200 feet of the nearest exit and blessed freedom. But he couldn’t wait. The nicotine fit was on him, and he lit a cigarette barely two yards from me. I pounced, and within 20 minutes he was suspended—for endangering himself and others.

Janko’s article is aptly titled, It Still Leaves a Bad Taste, and is available  here. His disturbing and unpleasant experience may be mild compared to what Maryland teachers and principals will experience if the proposed rule, COMAR 13A.08.01.21, is adopted in its current form. The federal agency that pressured Janko is the Education Department’s Office for Civil Rights (OCR) — where I used to work as a lawyer. Its disparate-impact regulations — which are of dubious validity in banning any kind of disparate impact at all, after the Supreme Court’s 2001 decision in Alexander v. Sandoval barring lawsuits against practices with a disparate impact — never purported to require school systems to eliminate all racially “disproportionate impact,” the way the Maryland Board of Education apparently seeks to do in school discipline through the proposed rule. Its rules never reached all statistical disparities.

Moreover, even if a school’s policies’ did have a meaningfully “disproportionate impact,” the school only needed to demonstrate to OCR a “substantial legitimate justification for its practice,” to keep using it. See Ga. State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). No such common-sense exception for educational justifications is spelled out in the proposed rule. In short, Janko discriminated as he did because of bureaucratic dictates that were far less extreme than what may result from COMAR 13A.08.01.21. This is far more extreme. If the proposed rule is adopted in its current form, discrimination far worse than what Janko recounts will occur in Maryland’s schools.


Men can wear skirts at Oxford University as academic dress code is changed to 'meet needs of cross-dressing students'
For centuries, the sight of Oxford students in their distinctive academic gowns has been as familiar  in the city as its dreaming spires.

But the ancient university has been forced to rewrite its traditional dress code – to avoid upsetting transgender students.

From next month, men will be allowed to wear skirts or stockings to exams while women can choose suits or white bow ties.

Under the old regulations, male students were required to wear a dark suit with dark socks, black shoes, a white bow tie, and a plain white shirt and collar beneath their black gowns when attending formal occasions such as examinations.

The dress code is strictly enforced by the university's authorities, which have the power to punish students deemed in breach of the rules.  Punishments range from fines to rustication – the suspension of a student for a period of time – or expulsion, known as 'sending down'.

However, the university's council, headed by Vice-Chancellor Andrew Hamilton, has dropped any distinction between the sexes by deleting all references to men and women.

While students are still required  to dress appropriately for formal occasions and exams, they no longer need to ensure their 'sub-fusc' – the clothes worn with full academic dress – is distinctive 'for each sex'.

The reforms were introduced following a campaign by the student union, which argued that transgender students, including transvestite or 'gender confused' men and women, could face punishment if they wore 'inappropriate' dress.

Jess Pumphrey, the union's Lesbian, Gay, Bisexual, Transgender and Queer executive officer, said the change would make a small number of students' exam experiences 'significantly less stressful by eliminating the need for trans students to cross-dress to avoid being... disciplined during their exam'.

She said there was 'an active  transgender community' in Oxford, and every member she had spoken to 'had found sub-fusc, under the old regulations, to be stressful'. But one unnamed law student told the university newspaper Cherwell: 'This seems a bit unnecessary. It only applies to a tiny percentage of the student population and it seems unlikely that a trans student would really be confronted about what they are wearing.'

Former students also voiced their concerns about the change. Ann Widdecombe, who graduated from Lady Margaret Hall in 1972, said: 'If men want to prance around in skirts, that is entirely up to them.

'In my day, it would have been unthinkable – men were men and women were women, and we dressed accordingly. But I think the university is just saving itself from a silly row, and from that point of view I'm on their side. Why go courting a silly row when they don't need one?'

A spokesman for Oxford said: 'The regulations have been amended to remove any reference to gender, in response to concerns raised by Oxford University Student Union that regulations did not serve the interests of transgender students.'


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