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Regional Archives The Altamont Enterprise, December 2, 2010

Worona tells school leaders: Learn the law

By Zach Simeone

School leaders need to be informed about new laws in order to protect themselves, their faculty, and their students.

So says Jay Worona, attorney for the New York State School Boards Association.

“In essence, districts have a whole bunch of newfound responsibilities they didn’t necessarily have before,” Worona told The Enterprise this week. He has been making rounds at school districts across the state and recently spoke to local rural school leaders at the invitation of Berne-Knox-Westerlo. A change in State Education Law has created a new system for evaluating faculty, and a new county law has made cyberbullying illegal.

“What I was trying to impart by going through cases is that districts, regardless of if they’re rural or litigious, they’re better off knowing what litigations there might have been in the past,” said Worona, “so they can place themselves in a position not to relive someone else’s past. You never know what might happen in your own district,” he said.

He talked about the dilemmas faced by schools when addressing behavior that occurs off-campus, one prevalent example being cyberbullying.

On Nov. 8, the Albany County Legislature passed a law that makes cyberbullying illegal. While the law does not directly address schools, the topic came into the public eye as a result of cyberbullying among students around the nation, which has led to suicides in some cases.

“If you’re in a district that doesn’t have a history of being litigious, that’s great,” Worona said this week, “but that doesn’t mean that, if there’s an act where someone feels wronged, that they’re not going to bring a lawsuit, and you’re in a very vulnerable situation if courts haven’t come up with a decision or a definitive rule on where we need to go. And, if there’s a case where we’re not following clear precedent, we’re in an even worse situation.”

Worona also talked about legislation adopted on May 28 by the New York State Assembly, which amended the State Education Law by including a new system by which teachers and principals are evaluated, while also creating the opportunity for these employees to appeal that evaluation. While the new system has intent to expedite the typically lengthy and expensive process required to remove a tenured employee, it contains potential roadblocks, Worona said.

Value added?

The amendment to the State Education Law creates a system by which, in the 2011-12 school year, teachers in grades four through eight of the common branch courses, English, and math, and the principals at the schools where these classes are taught, will be evaluated.

The evaluation is “20-percent based on student growth on the state assessments or other measures of student growth prescribed by the state, and 20-percent based on other rigorous and comparable measures of student achievement that are locally established consistent with standards prescribed in the commissioner's regulations, with student performance in the 2010-2011 school year used as the baseline,” the law reads. “The remaining 60 percent of the score must be based on other locally selected measures, developed through collective bargaining, consistent with standards prescribed in commissioner's regulations.”

In the 2012-13 school year, this new system will apply to all teachers and principals. And, as soon as the Regents, who govern education in the state, develop a value-added growth model, the portion of the evaluation to be based on state assessment measures of student growth will increase from 20 to 25 percent.

Upon completion of the evaluation, a teacher or principal might receive a rating of “ineffective.” Should a teacher or principal be deemed “ineffective” two years in a row, the new law says that the district can expedite the process to remove the employee. The process, which has long been onerous and expensive despite attempts to streamline it, must begin within seven days of the pre-hearing conference, and be completed within 60 days after the pre-hearing conference. The law also removes the employee’s option for a three-member panel, limiting him or her to a single hearing officer.

“It’s seeing the glass half full,” Worona said of the expedited process, “which is great, but it’s not an accurate picture of how it’s going to happen.”

The devil lies in the details of the appeals system, he explained.

“In the law, they don’t set up a process that has a certain time limit as to when that appeal has to be finished; it’s all going to be collectively bargained,” said Worona. “Let’s say you’re in the middle of appealing what you think is an unfair evaluation, and I want to proceed against you in a teacher disciplinary proceeding, I can’t do so until we have resolved your appeal. But, what happens if the process goes on for a really long period of time?”

A 3020-a proceeding, as it is named after the section of law, can cost a district hundreds of thousands of dollars, and will take, on average, 520 days, Worona said. So, even with the expedited 3020-a process, if there is no time limit on the appeals process, districts could end up spending as much time and money as they had on the average 3020-a proceeding.

“From a public policy perspective, this isn’t reform; the opposite of reform has been achieved,” Worona told the local crowd; he added this week, “What it ends up doing is precluding the district from proceeding against the employee when the person is not engaging in conduct that is appropriate for children.”

When asked about the law this week, Assemblyman John McEneny, who was re-elected last month, said that this detail is counterproductive.

“If the basic [3020-a] process is accelerated, the same degree of acceleration should be allowed for the appeal process,” McEneny told The Enterprise. “And I think that’s something that needs to be looked at…There’s no point in cancelling out a reform with a complication that basically negates any of the good that would come out of it. There have been exceptions of these kinds of actions being dragged out interminably, and I think everyone, including teachers, wants to see that stopped.”

Worona said that school superintendents, which he termed “a tightknit group,” should come to an agreement on collective bargaining strategies.

“The teachers’ union is very united in how it guides its local unit, and the best strategies to collectively bargain; a lot of the time, management is not in a similar position; they just do what’s right for the district in general,” he said. “The theory would be that, if one superintendent is saying the decision should come through him, and another is saying that it should be a much more convoluted process, the negotiators for the teachers might say, ‘Joe Schmo in the other district said it was fine to go through this whole process in another district, why can’t you?’ But, if superintendents in different districts were united in what they were willing to agree to at the bargaining table, they’d have a sense of what’s the best way to fulfill their obligations.”

Web-based bullying

Last month, the Albany County Legislature passed a law illegalizing cyberbullying in Albany County, making it an unclassified misdemeanor punishable by a fine of up to $1,000, and up to one year in prison.

Earlier this year, Suffolk County on Long Island and Rensselaer County adopted similar laws with the same consequences.

Such county laws cannot control school policy, however.

The new Albany County law defines cyberbullying as “any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the Internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs, disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.”

Worona visited Nassau County, Long Island on Wednesday to speak about cyberbullying.

Juxtaposing this law with the First Amendment right to free speech leads to a gray area, he told The Enterprise.

“An argument could be made by kids’ saying, ‘I’m at home, I’m on my own time, minding my own business,’” said Worona. The deciding factor in a First Amendment case is whether or not the district can show that a student is being “materially disruptive,” he said.

“In our jurisdiction, we know two things,” Worona went on. “If what the kid does at home ends up being very disruptive at school, they say they’re going to bring a bomb to school and blow up the school, that would put kids in a position of not wanting to go to school; they’d be fearful, the faculty would be fearful.”

This, he said, is an example of punishable behavior.

“Where it gets murky is if the kid is doing something like mocking kids, or mocking the school district; that’s where they might be protected,” said Worona.

The need to show material disruption comes from the Tinker Standard, set by a case from the 1960s when students John Tinker, his younger sister Mary Beth Tinker, and their friend Christopher Eckhardt, were suspended for wearing black armbands bearing the peace symbol to their school in Des Moines, Iowa in protest of the Vietnam War. The United States Supreme Court held that the Tinkers and Eckhardt were not disruptive in a way that overstepped their freedom of speech.

“In these cases, whether it be wearing a black armband, or whether it be saying something disruptive at school, the constant was that it was based on whatever effect it was having in connection to the school,” Worona said. “When kids are doing stuff at night that evidences a form of disruptive conduct that threatened other kids or the district, even though there’s only a virtual connection to the school, we have certain rights to be able to discipline them, because kids could be frightened to go to school.”

Albany County’s cyberbullying law was initially introduced in July by Legislator Brian Scavo.

“Let’s face it, the Internet is the wild wild West; it was never my intent to go after anyone’s rights,” said Scavo this week. “This is about the Internet predators who prey on young children, or the bullies who attack and harass kids on the Internet.”

But the burden of proof, he said, is on the victim.

“If it’s a clear violation for the law, it will be enforced, and that’s up to the local police and the [District Attorney’s] Cyber Crimes Unit,” said Scavo.

Of cyberbullying, Worona concluded, “The best way to look at this is prevention mode — educating parents, educating staff, and that’s where we need to put our eggs in one basket.”

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