Cuomo’s Teacher Evaluation Disclosure Law Is a Great Compromise

By Jason Zwara:
As recently as last week, Governor Cuomo had yet to wade into the potential controversy surrounding public disclosure for teacher evaluation ratings. After New York City got caught up in a media firestorm following the full disclosure of teacher ratings, including teacher names, the State has been under pressure to restrict disclosure, especially after a court ruling would mandate full disclosure without an intervening law. On Monday night Cuomo introduced a bill grounded in compromise. On Thursday, the last day of the legislative session, the Senate quickly passed the bill, with the Assembly following suit several hours later; both houses passed the bill by wide margins.
            
The new bill strikes a balance between the two competing interests: allowing parents to be fully informed about their children’s education, while protecting the privacy of teachers and avoiding a media frenzy exploiting the data. With broad bipartisan support, Governor Cuomo’s bills allows parents to become better informed about their children’s education, while still allowing significant public disclosure to promote thorough, meaningful research and analysis.       
Under the new amendment to the State’s educator evaluation law, parents and legal guardians have a right to view evaluation data for individual teachers at the school their child attends, upon request. School districts have the obligation to inform parents of their right to request such information, and a duty to help parents and legal guardians understand the data. One notable shortcoming, however, is that parents would be limited to requesting information only on the teachers in their children’s schools, not in other schools in the district. This limits, for example, parents’ ability to research teachers their child may have in the future.
            
Public disclosure of individual educator evaluations is prohibited. The law makes up for this, however, by requiring districts to release aggregate evaluation data in useful and constructive ways. Districts must release aggregated data in a number of forms, including: 1) broken down aggregate data by grade, and class and subject; 2) by percent of teachers who improved, worsened, or stayed in the same rating category from the previous year; and 3) the annual granting and denial of tenure based on evaluation ratings. NYSED must also release statewide compendiums of aggregate data, broken down by: 1) school district for principals, individual schools for teachers; and 2) by region, district wealth, district need category, student enrollment, type of school, student need, and district spending. This restricted disclosure encourages useful, meaningful analysis of the data, while preventing exploitative, ‘public shaming’ use of evaluation data.
            
All told, Governor Cuomo’s law strikes a good balance: it gives parents full access, should they request it, to evaluation data, allows the public to make adequate use of the data, and prevents another scenario like the one that played out in New York City. With the close of the legislative session, Governor Cuomo should be greatly pleased with the work the State has done with education this term.
The next step must be taken locally. Buffalo must be proactive in setting up procedures for compiling the necessary aggregate data, for educating parents of their right to request evaluation information, for teaching parents what the data means, for verifying parent requests, and for ensuring the data is widely disseminated among the public.

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The October 25, 1979 issue of the New York Law Journal contained the decision of the NYS Supreme Court, Kings County, in Blecher v. Board of Education, City of New York. Justice John A. Monteleone stated:

Petitioner brings this article 78 proceeding to reverse, annul and set aside the order and determination made by respondents on May 30, 1979 and for an order requiring respondents to supply the documents requested.

By letter dated March 5, 1979 petitioner made fourteen requests of respondents for documents and records in their possession pursuant to the Freedom of Information Law ("FOIL") as set forth in Schedule A of said letter (Exhibit A).

By letter dated April 20, 1979 respondents denied seven of the fourteen requests (requests 5, 6, 7, 11, 12, 13 and 14) on the ground that "no such list" is kept and three of the fourteen requests (requests 8, 9 and 10) on the ground that the documents sought were "privileged personal data." (Exhibit B)

By letter dated May 3, 1979 and pursuant to section 6 of the Uniform Rules and Regulations for All City Agencies Pertaining to the Administration of the Freedom of Information Law ("Uniform Rules"), petitioner appealed to the Secretary/Counsel of respondents the denial of the requests made. (Exhibit C)

With respect to respondents' claim that "no such list" is kept in denying requests 5, 6, 7, 11, 12, 13 and 14, petitioner pointed out that the original requests were for an opportunity:

"To review and copy all records that are in the custody, control or possession of the Board of Education or its employees, servants, and agents thereof that relate or refer to, or when appropriate, constitute or pertain in any way to the inquiries set forth on Schedule A annexed hereto..." (emphasis supplied)

Petitioner also pointed out in said letter that the respondent Records Access Officer's response of "privileged personal data" was wrongly asserted for requests 8, 9 and 10

since section 89(2)(c)(i) of FOIL clearly states:

"Unless otherwise provided by this article, disclosure shall not be construed to constitute an unwarranted invasion of personal privacy pursuant to paragraphs (a) and (b) of this subdivision:

i. when identifying details are deleted

By letter dated May 30, 1979 (Exhibit D), the respondents denied petitioner's appeal stating:

"The Public Access to Records Officer has provided information to substantiate the denials of access on the basis of lack of existence of such lists in the forms requested. (Items 5, 6, 7, 11, 12, 13 and 14) and personal and privileged data. (Items 8, 9 and 10)."

Respondents have failed to furnish the information sought under the items requested which are the subject matter of the denial contained in respondents' letter of May 30, 1979. Petitioner contends that the determination of May 30, 1979 by respondents with respect to her FOIL requests was and is illegal in that they wrongfully and in disregard of law denied her requests for records within their possession, custody and control.

It is petitioner's position that she is entitled to access to documents and records that contain the information sought even if the Board never compiled a "list" of the information specifically requested. In support of her contention she cites the case of Gannett Co., Inc. v. County of Monroe, 59 AD2d 309 which permitted "access to those lists and documents which specifically identified employees..." holding that such a result was consistent with the Legislature's declaration "that government is the public's business and the public, individually and collectively and represented by a free news media should have unimpaired access to the records of government."

Petitioner's requests were not for a specific list or lists but for records as set forth in Schedule A attached to her initial request which are reasonably described. (see Dunlea v. Goldmark, 85 Misc. 2d 198, mod. on other grounds, 54 AD2d 446, aff'd 43 NY2d 754)

It is petitioner's contention that respondents' assertion of "privileged personal data" is wrongfully set forth and the respondent board must produce the documents requested under request numbers 8, 9 and 10 which are as follows:

8. All letters Mrs. Wolfe has written in the last ten years which evaluated or commented on a teacher's ability or fitness to teach.

9. Please supply copies of all complaints, either formal or informal, filed against Mrs. Wolfe with the Board of Education, the Commission on Human Rights for the City of New York, or with the United Federation of Teachers in the last ten years.

10. Please supply all correspondence pertaining to the letters or complaints referred to in inquiries 8 and 9.

The cases interpreting both the old and new Freedom of Information Law authoritatively indicate that the respondents must afford petitioner access to the requested documents. The new Freedom of Information Law is broader and more liberal than the previous Law in that, instead of authorizing access to certain enumerated records, permits access to all government records other than those specifically exempted (see Montes v. State of New York, 94 Misc. 2d 972). Under the Freedom of Information Law (section 84), the Legislature set forth its reasoning in enacting the Freedom of Information Law:

"The Legislature hereby finds that a free society is maintained when government is responsive and responsible to the public and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government...

The people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of confidentiality."

Section 87(2)(b) P.O.L., provides that records are exempt from disclosure if they would constitute an unwarranted invasion of personal privacy under section 89(2) of FOIL. Section 89(2)(b) defines an unwarranted invasion of personal privacy as:

"i. disclosure of employment, medical or credit histories or personal references of applicants for employment;

ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;

iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes;

iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency."

The objections provided by subdivisions i, ii, iii and v are not relevant to the objection interposed by respondents. (see Montes v. State of New York, supra)

a) Two conditions must be satisfied before the exemption provided by iv applies:

There must be...

(1) Disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and

(2) such information is not relevant to the work of the agency requesting or maintaining it.

Both clauses must be applicable in order to make the section operative and that when records are relevant to the ordinary work of the agency, this exemption does not apply (see Gannett Co., Inc. v. County of Monroe, supra).

Evaluations of teachers and criticism of their ability or fitness to teach are certainly relevant to the work of respondents (information sought by request 8 of petitioner and are discoverable).

The complaints made regarding this principal and the correspondence relating to same are also discoverable (Walker v. City of New York, 64 AD2d 980; Farrell v. Village Board of Trustees, 83 Misc. 2d 125; Pooler v. Nyquist, 89 Misc. 2d 705). These cases clearly indicate that complaints, reprimands and evaluations contained in a personal file are "final determinations", not exempted by section 87(2)(g) of FOIL.

Evaluations, complaints and correspondence thereon are all either final determinations or documents leading to such final determinations discoverable under FOIL (Pooler v. Nyquist, supra; Westchester Rockland Newspapers, Inc. v. Mosczydlowski, 58 AD2d 234).

Accordingly, the petition is granted. The determination of respondents dated May 30, 1979 is reversed, annulled and set aside. Respondents are directed to give access to petitioner for the documents and records requested and to make them available for inspection and copying at petitioner's expense.

Submit judgment.

paulsobo
paulsobo

How do you tell a bad teacher?

Is it a bad teacher or a bad grouping of kids from troubled kids who have difficulty learning?

Standardized tests cant tell you if the kid has mental/emotional problems, anti-social problems, or ADHD, or autism or lacks discipline.

It has been proven that many of those same kids labelled / accused of such problems switched to parochial, private and/or charter schools and their problems disappeared (those schools arent bound by layers of taxpayer financed socialist/communist buracracy that spend more time promoting liberal utopian dogmas rather than proper socialization).

I wish NYS has a Governor Walker from Wisconsin to take away collective bargaining and tenure and make union members write their own checks for their union dues rather than payroll deduction. I say privatize the whole public school system with school choice and school vouchers. Get the teachers union and civil service unions out of politics and get politicians out of rubber stamping union contracts.

cgrammer19
cgrammer19

So individual students and their parents will be able to get evaluations only for teachers in their own school? That doesn't protect the information at all. What's to prevent crowd-sourcing a comprehensive evaluation database that includes every teacher in the state?

BuffaloEmigrant
BuffaloEmigrant

I've been a big supporter of Governor Cuomo and admire his ability to get things done. However, his lone weakness has been his Education policies. Whether it's through his lack of knowledge on this issue, or his poor advisers, Governor Cuomo has fallen into the trap that plagues a lot of the Education debate in this country. Much of the Education policy in this country is being written by people with no experience in Education, and this do not know the realities of Education today. The battle Commissioner King has waged with the Buffalo Public Schools in recent months has only confirmed this.

The first myth is what Jason alluded to earlier: teaching is not an easy profession. I know this just from my student teaching experience. It is more than just 7:30 am-3pm talking to students and having hall duty, and summers off. There are many hours that go into the profession outside of school time. Whether it's grading papers, developing units, organizing curriculum, advising clubs, communicating with parents, professional development, etc. All this, by the way, comes with very little gratitude. This generation of parents wants to be their child's friend, so if they're not doing well in school, it's the teacher's fault. No wonder they've gotten pummeled in recent years.

Second myth: Teaching is a science/should be run like a business. Teaching, first and foremost, is an ART. There are a few "wrong" ways to do it, but there are so many right ways, and what's effective is usually up to the discretion of each individual. What works for one student doesn't for another. This recent trend of basing everything around data and standards does two things: 1) Take the creativity out of teaching and basing everything around a test, and 2) Turns students into numbers instead of human beings.

Third myth: Charter schools are the solution to all educational problems/Public schools = bad. There are some wonderful charter schools out there, there are some public schools that are poorly run. However, this is not a black and white issue. I think this is the Governor's biggest downfall, jumping on the Charter bandwagon and having a commissioner who's background is ENTIRELY based in charter schools. The truth is, most charters are run by companies with no experience in education and some are even worse off than their public counterparts. Look at Stepping Stone as just one example of that. Furthermore, their schools are often inflated by not allowing special education students into their schools, which is completely discriminatory, and if a public school tried that, they would be harshly punished. I'm not dissing charter schools completely, but they are not the golden savior to the Educational crisis in this country.

Finally, the reality is that not every student is ready for college immediately after high school, if ever. Some students need time to grow and mature, some are better off going to work or at a trade school. It's not a crime to fall into that latter category.

While I know Governor Cuomo has the best intentions, he's surrounding himself with advisers who know very little about Education. Fewer politicians and more educators need to be making those decisions.

warrenavenue
warrenavenue

Jason Zwara - You are obviously an intelligent person but your lack of knowledge or experience in education takes away any credibility that I or many others can give you. Also working for Buff ReformEd would imply that there is a slant to your literature....

Similar to Katie and Hannya, you might be smart but I find it to be insulting that those lacking legitimate experience in education think that they should be the ones writing about how to improve it...

grad94
grad94

agreed.

i'd have more respect for public evaluations if administrators had to share theirs as well, since decisions imposed from above are one of the most significant factors that teachers cannot control.

and how about two-way or 'round robin' evaluations? i've heard of these in at least one educational workplace. supervisors evaluate employees and employees evaluate supervisors. different criteria, of course, but same process.

LouisTully
LouisTully

Good advice. Maybe there would actually be jobs available.

Raymgi
Raymgi

Mr. Zwara might have been an educational attorney, but his post shows a lack of perspective regarding what is really being done to teachers. Perhaps because they're an easy target, after all welfare moms are passe, teachers have been branded public enemy number one. And such "compromises" like the one Mr. Zwara praises tacitly endorses a strategy of proposing extremist measures, then pulling back on one's original proposal to look like a great compromiser. Sadly, it's the teachers once again who are taking it on the chin.

Every teacher believes evaluation is necessary, but the current scheme is impractically convoluted and unfairly evaluates teachers on factors beyond their control. Why not grade dentists on how their patients' teeth hold up over time? Or doctors on how healthy their patient are over time? You say that a dentist can't make his patient brush and floss every night? You say a doctor can't maker her patient take the full complement of her patient's medicine, exercise and eat nutritionally? Well, teachers can't ensure their students get enough sleep, come to class, and do all their homework. Teachers can't ensure that their classes don't include 5 special ed students, 4 kids who go out for speech, 3 who leave the classroom for extra reading help and 5 who miss class time for extra math help. How easy for principals and administrations to set-up teachers they don't like, or teachers high on the payroll for failure by "stacking" classrooms.

As for the "compromise" Zwara lauds, with the myriad modes of communication today, let alone good old fashioned over-the-fence chatter, it's folly to think that a teacher's grade, that teachers' privacy is being respected in any way, shape or form.

The reality is that teaching, an occupation requiring SIX years of education with a salary much lower than the public is made to believe, is being targeted. Having taught in the public schools for ten years, I have recently advised many young people to never consider education as a career. From what I hear, the drumbeat of teachers at every level is sending the same, sensible message to today's youth.

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