Tuesday, April 17, 2012

Misunderstanding the point of unions . . . .

The New York Times has a story up regarding all the teachers who have committed gross misconduct in the classroom, but who have--by the hook and crook of unions and arbitrators, it would seem--been allowed to keep teaching:

A health teacher at a high school in Manhattan, joking about life for homosexuals in prison, forced a male student to bend over a desk, lined up behind him to simulate a sex act, then quipped, according to an Education Department investigative report, “I’ll show you what’s gay.”

A high school science teacher in the Bronx who had already been warned about touching female students brushed his lower body against one student’s leg during a lab exercise, coming so close that she told investigators she could feel his genitals through his pants.

And a math teacher at a high school in the Bronx, investigators said, sent text messages to and called one of his female students nearly 50 times in a four-week period and, over the winter holidays, parked himself at the McDonald’s where she worked.

The New York City Education Department wanted to fire these teachers. But in these and 13 other cases in recent years in which teachers were accused of inappropriate behavior with students, the city was overruled by an arbitrator who, despite finding wrongdoing, opted for a milder penalty like a fine, a suspension or a formal reprimand.

This is always fun stuff, because any one or all of these teachers may have done whatever they've been accused of . . . .

But the real point of the story is to bash the union representation and arbitration system that protects teachers in the New York City schools:

“As I was reviewing these cases, I said, ‘Huh? How could this person go back to the classroom?’ ” Mr. Walcott said in an interview Thursday. “It’s very frustrating. Definitely my hands are tied because the arbitrator made a ruling, because I would not have put these people back in the classroom.”
Unfortunately, this story reflects a profound misunderstanding of the purpose of unions, arbitration, and due process, the explication of which will not make me popular with many libertarians, even though it is clearly founded in the sanctity of contract.

And (not surprisingly) the major culprits in these perceived miscarriages of justice will include the same bureaucrats now hollering "foul" and the Federal Department of Education . . . .

As easy as it is to write a sensationalize story about individual misconduct, there are three realities that the NYT does not face:

1.  The arbitrators almost certainly found against the school district because district officials failed to follow their own due process guidelines, not because they condoned or coddled the behavior.

An arbitrator does not have a completely free hand; he or she must make a ruling that is consistent with the existing collective bargaining agreement (contract) between union and management.  That contract will spell out in detail the steps (the due process) that management must take to investigate and ajudicate potential infractions.  Too often (far far too often) there is a belief on the part of management (specifically HR types) that if the person is really, really guilty, they don't have to worry with all the niceties of contractual process.  They will omit steps, or they will do them in haphazard fashion, depending on outrage at the image of a teacher brushing up against a student to carry the day.

The problem here is that the union is not just charged with representing employees, but protecting the contract.  If management is allowed to set the precedent that contractual due process can be avoided, aborted, ignored when the person is "really really guilty," then management has also acquired the ability to do so when the person is just "really really annoying" or "somebody we don't happen to like."

I have sat in rooms too many times (both with my own union and as a consultant) and pointed out to management types that their failure to follow the rules that their bosses agreed to will scuttle their case.

They then get very offended, and accuse me of covering up for poor behavior, and try to tell me that I am responsible for putting an offender back in the classroom.

No, I tell them.  I'm not.  The administrator who failed to do his or her job in following the contract in an open-and-shut case is the person who failed the students at risk.  It is there responsibility to follow the contract; mine to enforce it.

You can tell by the arbitrators' rulings in these cases that (a) they believed the teachers had committed infractions, but that (b) the district had failed to follow due process.  In that case the arbitrator has two choices, and two choices only.

First, the arbitrator can decide that the individual is innocent of the charges, which makes due process questions moot.  This plainly did not happen in these cases.

The alternative is that the arbitrator may believe the individual to be guilty of all or part of the charges, but that there have been significant due process violations.  In that case, the arbitrator is more or less bound to reduce any consequence in proportion to how badly the administrative investigation has been compromised.  Because the arbitrator is duty bound to weigh all decisions and actions against the collective bargaining agreement . . . .

This means, frankly, that the due process violations in these cases must have been quite severe in order to merit even a partial reversal by the arbitrator.

2.  The Federal DOE has changed the rules, complicating the arbitrator's role.  The DOE "Dear Colleagues" letter of 4 April 2011 required schools to reduce the standard by which they judged guilt in sexual harassment cases.  Schools (under threat of losing all Title IX funding) are forbidden to use the traditional standard--"Clear and convincing evidence"--and must now use a lesser standard--"Preponderance of the Evidence."

Preponderance of the Evidence means exactly that--50.000001% of the evidence suggests that it was "more likely than not" that an event occurred as described.  This standard does not even require the investigator to have "a firm moral conviction" that such abuse occurred.

This has caused many administrative investigations to become incredibly sloppy, and there is a tendency to stop the investigation and move on to the application of penalties even before all the evidence is in.  Arbitrators with whom I have spoken do not like this standard, because it has too much tendency to allow conviction of the innocent along with the guilty.

And here's the wrinkle:  because preponderance of the evidence was mandated by the Feds, not the contract, the institution may be required to use that standard but arbitrators don't have to.  And in many cases there is language in collective bargaining agreements that provides (or at least implies) stronger protections for the accused.  So arbitrators are legally able to utilize the clear and convincing evidence standard (which many do, even when they are unwilling to admit it).

Nobody wants child molesters working in our schools, any more than anyone wants terrorists blowing up those same schools.

But there has to be a limit to the power of governmental agencies to ignore their own  rules, and in the current public education system only the unions and arbitrators are providing those limits.

One last note:  arbitrators' rulings are binding, but they can be challenged in court.  That in all these cases the NYC schools did not choose to do so is telling:  it means that the arbitrators' decisions contain sufficient detail about due process abuse that the school system is unwilling to go into a public courtroom and defend its conduct.

1 comment:

Dana Garrett said...

So we are talking about 16 cases over several years and no accounting in the newspaper article of the number of teachers who were fired during the same time period. Sounds like a case of selective evidence citation to me.