This is the first post under the new site, EducatorFightsBack.org. As I stated before, protectportelos.org was more of a site relating to my fight with corruption and workplace bullying, and acted as a shield. I naively called it Protect Portelos, not knowing the extent of the abuses that happen within our NYC education system. As I continue to teach during the day, as my primary job, this new site will help with my unofficial part-time job of teaching and supporting educators. The previous site was a shield, and this one will be a sword. I hope to work with educators and share their stories of pushing back against a machine that works to destroy careers rather than support them.
Stopping the “Gotcha” Freight Train that is coming for your career
We continue to hear from so many great teachers who, for some reason or another, are targeted. There are many common themes and tools used when an educator is targeted. This post specifically looks to help derail and stop the subjective observation freight train. It’s the most popular tool used by an unscrupulous supervisor, or, and this is important to understand, by a supervisor who is forced to push an agenda from a higher authority. The reason observations are the most popular tool is that it is very subjective. They can come in, write whatever they want about what they did, or did not, observe and you’re stuck trying to fight the untruths. You fight them in rebuttals letters. You fight the untruths to an appeals committee. Perhaps you even have to prove what actually happened to a 3020-a termination hearing arbitrator, or a judge in an Article 75 or 78 proceeding.
Fighting falsified reports is definitely not an easy task if you suck at documenting. I italicized suck, because I wanted to emphasize it and stress it is important to sharpen your documenting skills if you want to survive. If you are in the way of this “Gotcha Express Train” and do not document well, then I am telling you now, “Your days are numbered.” Maybe you’ll make it a few more months, or perhaps another year, but without the proper tools you pick up here, you will be terminated, forced to resign or discontinued.
In the last year or so I have been doing a lot of reading. No, not romance novels, but rather a ton of observations reports sent to me by teachers. Almost as interesting and suspenseful. In addition, I have been reading Rating Appeal transcripts and court papers regarding ratings being fought by teachers. (What? It interests me and is more real than reality shows.) There are many common themes and I wanted to share them here as we work on rebutting them when they happen to you.
RECORD OBSERVATION First, the best thing you can do, to fight falsified observation reports, is to record the actual observation. Yes, you read that right. Audio record the entire observed lesson! Educators who are proactive about defending their career have had much success with this legal tactic. Now when I say legal, I specifically mean in NY as we are a “single consenting party” state. This means that at least a single party, involved in the conversation, needs to know that it is being recorded. That party can be you and that conversation can be your lesson. Check your state’s laws.
What about the students? Parent consent? The NY evaluation law states that a teacher can opt to have their observation video recorded. At no point does it discuss obtaining permission to audio/video record students. You are taking it a step down and only using audio and not video.
In the past, our UFT Solidarity caucus and I have shown people that there are an abundant amount of free voice recording apps that you can install on your phone. Now I understand that it might not be easy to whip out your phone, look for the app and then click record, as a supervisor is standing there with a clipboard during a lesson. You can have the app saved on your homescreen and your phone readily available, such as laying on your desk. I’m not saying it is easy. I’m just saying you have to figure out a way to do it. Another solution teachers have been sharing with us are these awesome flash drive recorders. They are super inconspicuous and have really come down in price. I recently spoke with a probationary teacher who has it on her lanyard with her DOE ID and keys. In comes AP Gina Gonnagetyou and “click” the flash drive is pressed and recording.
Try and spend at least more than $20, but you do not have to spend over $100. Trust me, you have to invest now or pay a lot more later.
“OK, I recorded, now what?” So remember this is about rebutting falsified reports. Oftentimes, you can’t really use the recording unless a report comes in with false information. At that point, you have a choice: a) indicate that you recorded, and furnish proof via transcription excerpts or b) still use information from the transcription, but only hint that you might have recorded. For example, a supervisor once stated, in their falsified observation report “Students were not answering any of your questions regarding inferences.” to which a teacher rebuttal was written stating “You indicated that no students were answering questions. However, at about 15 minutes and 37 seconds into the lesson, when I asked the question, Donavin answered ‘My inference is that the picture was taken in the fall because of all the leaves on the ground.’ I found that to be a suitable response as he used prior knowledge.”
See what happened there? The teacher gave just enough information to not only contradict the false statement, but also hint that they might have recorded, without actually coming out and saying it. Now the supervisor will be scratching their head thinking “Uh is Mr. Smith a robot? How did he remember that when it happened two weeks ago?” A series of these recording referenced rebuttals is sometimes enough to put a gotcha supervisor on notice and derail that freight train. “Watch out for this one. She documents. Onto a weaker educator we want to get rid of because they are too expensive or too vocal.” This is the stuff the UFT reps won’t tell you. In fact, they discourage it.
More school supervisors, and their respective DOE legal counsel, are catching on. They will try to say “I do not consent to being recorded.” as if that has any legal bearing in NY State. Here is what one school actually handed out at the beginning of the year.
OK, a few things. First, I completely understand the effect of having a school full of employees, walking around recording, has on school atmosphere. It’s almost like fishing for tuna and catching dolphins. There are unwanted collateral negative effects, but this environment of mistrust began with a horrible agenda to lie about observations. Secondly, this memo above is a scare tactic and there are cases indicating that an employee cannot be disciplined when an employer directs the employee to not exercise their right.
Employers Who Terminate Employees for Recording May Face Legal Challenges
Given the legal challenges, there is significant legal risk in implementing a broad policy that prohibits employee recordings and taking adverse employment actions against employees for such activity. Of greatest concern is the consistent position that the administrative review board has taken under various whistleblower statutes that terminating an employee for secretly recording conversations in furtherance of opposing unlawful practices is protected activity. However, the recent decisions before the NLRB also make implementation of such policy likely to result in entanglement in legal actions before the NLRB. For these reasons, we do not recommend instituting a policy or practice that generally prohibits recordings in the workplace.
—By James M. McCabe, Troutman Sanders LLP
You should also know that falsified reports tear at the ethical fibers of our education system. We shouldn’t have to deal with any of this, but then again if we lived in a perfect world, this blog wouldn’t have to exist. If you really want to push back, take the false report, the rebuttal and the lesson transcript and attach it to a Moral Character complaint with the NYS Education Department. (Read this on making a complaint uftsolidarity.org/moralcharacter)
“You mention transcripts of recording. How do I do that?” So there are a few ways. One is that you can go back and play the whole audio and transcribe it yourself by pausing and typing. Another way is playing it and only taking the segments you think are important and transcribing just those. Lastly, you can pay someone to do it. Transcriptionhub.com is a site I hear many are using. They charge anywhere from .75 cents/minute to more depending on the turnaround time. Since you are paying by the minute, you might want to only send them the parts you want. Remember BACK UP everything. Again, see UFT Solidarity’s Educator Survival Guide on documenting and backing up.
Question everything. Pick apart their observation reports.
“Grouping” and “Higher order thinking questions” are words commonly used when a supervisor attacks a teacher using observations. If there is a book on “How to conduct gotcha observations” then I bet these words are in it, because we see it so often. A supervisor comes in for fifteen minutes and says they did not hear any “higher order thinking questions” and saw “no grouping” and claim it was an ineffective lesson. It’s easy for them and a lot of work for you to prove otherwise.
“When I observed your lesson, your students were not grouped.” or “You placed your students into groups, but it was not evident on why you chose these groups.” – Developing or Ineffective
With these terms and any other terms, you should try to turn the tables. Meaning, ask them how they would have grouped the students. “Well, they’re your students. I don’t know their levels.” EXACTLY!!!
I know of a teacher who was in their supervisor’s office every week with a notepad asking for support. It drove the supervisor crazy.
“AP Gonnagetyou, I was wondering if you could meet with me to review all my student’s work, test scores and other data to figure out the best grouping. Also, is there a document that states we must group, or that grouping is mandatory? I just don’t remember being grouped as a student and I found my education to be more than quintessential. In addition AP Gonnagetyou, I found all these professional development sessions on these dates. Do you authorize me to attend?”
Don’t sail against the wind. Use the wind. I know of a teacher who constantly emails their administrators to go to PDs that correspond to alleged deficiencies found in their lessons. The administration declines verbally in the hallway, not wanting to put it in writing. This awesome teacher then memorialized the verbal declination in a follow-up email. “AP Gonnagetyou, as per our conversation in the hallway this morning, you stated that I could not attend any PD on ‘Planning and Preparation,’ correct?”
What is a “higher order thinking question” anyway?
Some teachers told me “Questions that are not easy, where the answer is not right in front of you.” or “What if this happened instead….?” or “What would you do if…?”
Use questions that are embedded into the lesson at certain points during instruction and provide opportunities for students to be challenged. However, let’s say you did this and the supervisor says you didn’t. Then what? See where that recording comes into play again?
Also use some of these methods that came straight from a NYCDOE professional development:
Use the law. Not enough quote New York State Education Law 3012-d (educatorfightsback.org/3012-d) when fighting observations. Copy and paste excerpts. AP Gonnagetyou, and their DOE lawyer, will love when you quote it in a rebuttal or email. For example:
“AP Gonnagetyou, NYS Education Law 3012-d Section 1 states that I am supposed to have “differentiated professional development.” However, I am only given school-wide PD and sometimes PD for all school ELA teachers. I really think I would gain a lot from specific PD geared to the deficiencies you alleged to have seen in my lessons.”
Try using Elentuck vs Green in your rebuttal. Mention that retired teacher Harvey Elentuck attempted to obtain copies of observation reports through the Freedom of Information Law and was prevented because “The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance.” www.leagle.com/decision/
Former NYCDOE General Counsel Courtenaye Jackson-Chase, Esq., and Ron LeDonni agreed with the findings of the appellate judicial panel that there are no “statistical or factual tabulations or data” in observation reports.
VERY IMPORTANT: If you do get to an appeal, it’s very important you place on the record as much evidence as possible and have them note your objection if the hearing officer blocks evidence. If you lose and you file an Article 78 in court, they can dismiss evidence you did not raise during the appeal. You can contact ghnylaw.com for more information.
You should also file an APPR complaint on the UFT website here. www.uft.org/teaching/complaint-form
Oh, one last thing. This is what the UFT APPEAL document looks like if you want to appeal your end of the year rating. It’s good to see what it looks for so it is in place when you are ready. Remember, the UFT will only take 13% of Ineffective ratings to Chancellor’s appeal if it is due to harassment, but anyone with an Ineffective can take the appeal to a three person panel.
You get the theme here? I hope this post can help you derail that “Gotcha Freight Train” so you can continue educating students.