order in the court (updated)

Judge rules that city must reinstate staff at turnaround schools

Lawyers for the UFT spoke to reporters about the union's short-term court victory outside of New York State Supreme Court today.

Legal battles between the city and the United Federation of Teachers are typically long, drawn-out affairs. Not today.

In just 40 minutes this afternoon, Judge Joan Lobis of the New York State Supreme Court made up her mind about the city’s request to suspend an arbitrator’s ruling in the UFT’s favor while she considers the city’s formal appeal. There will be no restraining order, Lobis ruled.

That means that hiring and firing decisions that have been made at 24 struggling schools that the city was trying to overhaul will be reversed. The Department of Education will have to reinstate hundreds — and possibly thousands — of teachers and administrators cut loose from the schools as part of the “turnaround” process.

“They no longer have an excuse for not complying with the arbitrator’s award,” Ross said about the city.

Asked by reporters about the education department’s immediate plans for allowing the teachers to reclaim their positions, Deputy Chancellor Marc Sternberg said, “Talk to the law department.”

The city’s top lawyer, Michael Cardozo, said in a statement that he was confident that Lobis would side with the city as the case moves forward.

The hearing was a first step in the city’s appeal of a ruling handed down two weeks ago by an arbitrator who found that the city’s hiring and firing decisions — a key aspect of the Department of Education’s turnaround plans — violated the city’s contract with the teachers union.

The city is arguing that the arbitrator overstepped his bounds and wants the entire decision overturned. But today’s court appearance dealt only with the question of whether the city could avoid reversing the hiring decisions before Lobis considers the broader appeal later this month. Her ruling means that it cannot.

To win an injunction, plaintiffs have to prove two things: that they would suffer “irreparable harm” while their case is pending and that they have a strong likelihood of ultimately winning their case.

Lobis said today that she didn’t find the department convincing on either point.

A city lawyer said holding up the turnaround process for any amount of time would “thwart” efforts to improve the schools. “This would undo everything the DOE has done thus far to improve these schools,” said the lawyer, Maxwell Leighton.

But Lobis questioned what harm would really befall the department if it must roll back its efforts for the few weeks before she considers the merits of its request to overturn the arbitrator’s ruling. If the city ultimately wins its case, she said, it could just tell teachers that their reinstatements had been reversed again.

“Maybe you’d have to rescind some letters. How is that irreparable harm?” Lobis asked.

That seems to be a unlikely possibility. The main plank of the city’s appeal is that the arbitrator, Scott Buchheit, did not actually have jurisdiction over the hiring processes.

Lobis pointed out that the department had agreed to let Buchheit rule on whether the staffing issue should be subject to arbitration at all, and he said that it was.

“Just because he said it doesn’t mean it’s true,” Maxwell told the judge.

City and union lawyers went before Lobis in late May after the unions sued to stop staffing processes underway at the 24 schools, and at her urging they agreed to have an independent arbitrator hear and rule on the case.

That decision alone makes the city very unlikely to win an appeal, according to a city attorney who specializes in labor relations.

“The courts place great deference on a decision made by an arbitrator, so the arbitrator can make decisions without fear of being overruled,” said Steven Landis. “If an agreement has been made to arbitrate, the court says, ‘Arbitrate it, don’t come to me.'”

What will happen tomorrow at the schools is not yet clear. But after the hearing concluded, a top union lawyer, Adam Ross, said union officials would “immediately” initiate conversations with the city about reinstating teachers and administrators who were told they could not return to their schools.

City officials did not immediately say whether they planned to engage in those conversations.

“Our goal is to turn around these failing schools and help our students succeed. We appreciate the judge setting an expedited schedule to hear our challenge to the arbitrator’s decision so that we can meet that goal,” Cardozo said in his statement. “The judge also made it clear that she wants to consider the case fully. We believe that, after she reviews our papers, she’ll conclude that the arbitrator was wrong.”

state of the union

New York City teachers union braces for Supreme Court ruling that could drain money and members

PHOTO: Patrick Wall
UFT President Michael Mulgrew (standing) met with teachers during a school visit in 2014.

A few dozen labor leaders gathered recently at the the headquarters of New York City’s 187,000-member teachers union to hear a cautionary tale.

In a glass-walled conference room overlooking downtown Manhattan, United Federation of Teachers President Michael Mulgrew settled into a chair facing a colleague from Wisconsin. He asked the state teachers union president, Kim Kohlhaas, how her members have fared after an aggressive rollback of labor’s bargaining power there.

She described rampant teacher turnover, fewer job protections, and ballooning insurance and pension costs. In short, a union’s worst nightmare.

For the UFT, Wisconsin is a harbinger of what could result from a Supreme Court case known as Janus, which revolves around the ability of public unions to collect mandatory fees. Oral arguments begin on Feb. 26, and the decision, which is expected in a matter of months, could dramatically alter the landscape for unions across the country.

The impact will be felt especially by the UFT, the largest union local in the country. If the court rules that teachers are not required to pay for its services, the union is likely to shed members and money — a war chest that has allowed the UFT to be a major player in New York politics and to secure robust benefits for its members.

“This is dangerous stuff we’re getting into now,” Mulgrew told Chalkbeat. “They’re trying to take away people’s ability to come together, to stand up and have a voice.”

While the case deals with different issues than Wisconsin’s anti-union policies did, New York City labor leaders say the limits on their membership and funding would weaken their ability to fight against further restrictions on their organizing and bargaining power.

In anticipation of the ruling, union leaders have reportedly already considered downsizing their operations. And they have undertaken a preemptive information and recruitment campaign to hold onto members — who, soon, may be free to choose whether to keep supporting the union financially.

“Much as I oppose Janus, it’s kind of a wake up call for entrenched union leadership,” New York City teacher Arthur Goldstein blogged recently. “People need reasons to pay, and it’s on leadership to provide them.”

At issue is whether public unions can continue to charge “agency fees,” which are payments collected from people who are not members. Sometimes called a “fair share” fee, it is meant to help unions cover the cost of bargaining contracts that cover all workers, regardless of whether they are union members. Only a fraction of New York City teachers currently opt out of the union and pay the agency fees rather than dues — but experts expect many more teachers could leave the union if the Supreme Court bans the fees.

Mark Janus, a government employee in Illinois, is challenging the fee on the grounds that it violates his right to free speech. The Supreme Court deadlocked on a similar case in 2016 after the sudden death of Justice Antonin Scalia. With Neil Gorsuch now on the bench, observers expect a conservative-leaning court will side with Janus. If that happens, workers covered by unions — including the UFT — will be able to opt out of paying the fees that help keep the unions in operation.

“What that means is there will be a lot of teachers — potentially a lot of teachers in New York — who do not invest in the union,” said Evan Stone, co-founder of the teacher advocacy group Educators for Excellence. “There will be potential growth in free riders who are benefiting from the work of the union without contributing to it.”

That’s why the UFT is kicking into action. The union has trained scores of members to knock on doors and talk to fellow teachers about the case. In about two months, the union estimates its members have knocked on 11,000 doors, sharing stories about how the union has helped them and hoping to convince teachers to keep financially supporting the work, even if the courts decide they’re no longer required to.

Union leaders are also launching “membership teams” in every school. Tasked with “building a sense of unity,” the union is asking the teams to engage in personal conversations with members, and plan shows of support for the union. Stone said his organization is organizing focus groups across the city to inform members about the case.

New York City teachers automatically become union members. They pay about $117 a month in dues, while social workers, paraprofessionals, and members in other school roles pay different amounts. Members can also choose to contribute to a separate political fund, which the union uses to lobby lawmakers and support union-friendly candidates.

About 2,000 educators opt-out of the union and pay agency fees instead — which are the same amount as regular dues, according to a UFT spokesman.

Ken Girardin, who has studied the potential fallout of Janus for New York’s unions as an analyst for the right-leaning Empire Center for Public Policy, said the number of agency-fee payers is low compared to other unions. But the Janus case could change that.

Girardin looked at what happened after Michigan enacted a “right to work” law, which forbid mandatory agency fees. The result: The Michigan Education Association, among the state’s largest unions, saw a 20 percent drop in dues and fees. Among full-time teachers, membership declined by 18 percent.

Girardin estimates an equivalent decrease in New York would mean the state’s teachers unions would take a $49 million hit annually. The UFT relies on dues and agency fees for about 85 percent of its $185 million budget, according to federal documents.

“It means they’d have to make up a course change,” Girardin told Chalkbeat, referring to the potential impact of the Janus decision. “They would have to treat their members like customers instead of people who are going to pay them regardless.”

Behind the scenes, the union is reportedly making contingency plans to deal with the potential budgetary fall-out. The New York Post recently cited unnamed sources who said union leadership is considering reducing the staff at some of its borough offices and cutting back on discretionary spending.

Girardin said public-sector unions in New York have already begun to fight for state legislation that would make it harder for members to drop out — a potential work-around in case the court sides with Janus.

Some UFT members say the threat of Janus is already being felt. The union recently voted down a resolution to support Black Lives Matter after leadership said it was a divisive issue at a time when the union can’t afford to lose members, according to an NY1 report.

Rosie Frascella, a Brooklyn high school teacher who helped organized Black Lives Matter at School events across the city, said she was disappointed in the leadership’s decision. But despite those internal disagreements, she said the threat posed by Janus should compel all teachers to speak out in support of their unions.

“You need to be in a union because it protects your right to teach,” she said. “And it stands up for our students and it creates the schools our children deserve.”

after parkland

As Trump doubles down on call to give teachers guns, the growing #ArmMeWith movement offers an alternative

Counselors, time, diverse classroom libraries, money — these are some of many things American teachers say they need in their schools instead of guns.

The pleas are coming via a social media hashtag, #ArmMeWith, that has spread quickly this week as teachers grapple with the aftermath of last week’s school shooting in Parkland, Florida.

Some lawmakers and advocates — including President Donald Trump — have responded to the shooting by arguing that teachers should be armed. That idea has drawn scorn from educators who argue that more guns in schools would make students less safe and do little to address the underlying issues that contribute to violence in schools.

Now thousands of those educators are offering an alternative, using a template that two teachers shared on Instagram on Tuesday. Olivia Bertels and Brittany Wheaton already had substantial social media followings when they asked others to join them in starting a movement.

“My friend @thesuperheroteacher and I think that we should find more practical solutions than giving teachers guns,” Bertels wrote on her post with the template, where she asked to be armed with school supplies. “I hope you’ll take the same stance.”

More than 5,000 people so far have done exactly that on Instagram, and the hashtag is also trending on Twitter, bringing educators together in a cross-country conversation.

“I wish we didn’t have to do this,” wrote one Texas teacher, HowsonHistory, in a comment on a Rhode Island teacher’s post. “But am so glad that so many teachers are. Maybe soon we will be listened to.”

Here are some of the posts that have caught our eye.

“We, the teachers, have a few ideas.”

“#armmewith not guns, but counselors who do not double as test administrators and more than one overbooked, crowded therapist option for families with Medicaid and social workers without overloaded caseloads.”

“#armmewith the liberation of our students, a microphone to speak out against the policies you make from people who aren’t teachers, resources to empower our children, and love to keep our babies safe. We refuse to be armed with guns. #teachingwhilemuslim”

“Because there are so many other things to be arming ourselves with that will do more good than harm. I choose to #armMeWith kindness not violence and teach my students to do the same #jointhemovement”

“I took my first teaching job the year Sandy Hook happened. And the thing is, in that year and in all the years I have been a teacher since, I have stood in my classroom too many times and wondered where I would put my children if someone came into my classroom with a gun. I have stood on playgrounds and in hallways with dozens of students and wondered what would be the best action to take. I have sat through too many of my lunch breaks with my colleagues hashing over the best strategy for protecting our students. There has to be change. Teachers and students deserve to work and learn in peace. #armmewith #thingsteachersshouldnothavetosay”