Breakdown

Breakdown

BY EVA MOSKOWITZ









T

he multiplicity of ills facing our nation’s public schools council’s education committee and, more recently, my role

can depress even the most optimistic. How can we be as founder and executive director of a new charter school. Dur-

hopeful when we have 30 million illiterate children? ing the years I spent as a public school student in the city, my

And it is no longer just the well-being of our poorest time teaching social studies to public school students, and now

children that we need worry about; our top-performing pub- my experience as a public school parent, I have seen a great

lic schools are no match for the international competition. deal. But one of the most striking phenomena I have observed





The ten-foot rule and other fine points of

collective bargaining in New York City

China and India, among others, will finish our lunch if we do is the education industry’s ability to preclude any dramatic

not find a way out of our education quagmire. improvement in the schools. It is a monopolistic structure in

My views on how to solve some of these seemingly which management and labor have colluded for the better part

intractable education problems have been informed by two of four decades to protect the interests of adults over those

experiences: my four years as chair of the New York City of children. The labor agreements signed by both public





24 E D U C AT I O N N E X T / S U M M E R 2 0 0 6 www.educationnext.org

forum









officials and labor leaders, governing every aspect of New York teacher cannot be paid more, or less, than any other teacher

City public schools, profoundly inhibit our ability to improve at the same level of seniority, regardless of the particular

public education. The complicity between management and teacher’s talents and effort or the difficulty of recruiting a

labor must end if we are to improve learning and teaching and teacher for a hard-to-find position such as math or sci-

have a chance at competing in the global economy. ence. The right to hire or not to hire a teacher is limited by

I do not oppose some of the commonly proposed solu- teachers’ “transfer rights,” which gives them first choice on

tions to our education failures. I support universal pre–K, a place in another school. The right to fire a teacher is lim-

reduced class size, year-round schooling, and career ladders ited by teachers’ “retention rights” and a complex and

for teachers. Money matters, terribly. Just look at first-rate pri- lengthy set of due process procedures. Assistant principals

vate schools: in New York City parents spend between $20,000 have similar rights.

and $40,000 per child, and they do so for a reason. In short, although principals are supposed to be the CEOs

But if we don’t end the collusion among those in power, of their schools, they have little control over their manage-

more money won’t matter. The problem with the Soviet Union ment teams. Hiring, firing, promoting, setting compensation,

was not its leaders or its employees; it was the closed, uncom- determining work hours and assignments, setting require-

petitive economic system that stifled innovation. We have the ments and expectations: these powers, taken for granted in

Soviet equivalent in our schools; it’s a system that shuns com- most organizations, are, for all practical purposes, outside the

petition and thwarts change. But in America it’s the collective purview of a principal.

bargaining agreements that are the This is as true for maintenance as

glue keeping the monopoly together. for instruction. The school custodian

I came to these conclusions about presides over his (there were no

the school system and the negative The teacher union women at the time of my hearings)

effects on it of the labor agreements own domain, even though it is the

after spending three months read-

ing and rereading the long and com-

contract is more same building that the principal is

supposed to run. The school custo-

plex union contracts for teachers, dian has his own budget (computed

principals, and custodians in prepa- than 200 pages from a complex set of rules and algo-

ration for five days of public hearings. rithms that factor in the size of the

In my capacity as chair of the educa- long; with the building and amenities like pools,

tion committee, I also produced what escalators, and gyms) and hires his

amounted to Cliffs Notes of these

documents (see sidebar). The public

side agreements own staff, which does not technically

work for the city. The custodial staff

can now turn to three slim volumes doesn’t work for the principal, who

(approximately 20 pages each) to and laws that must get permission from the custo-

understand the different work rules dian to keep a building open beyond

and fundamental provisions of the supplement it, the regular school day.

contracts instead of having to plow Many custodians are quite entre-

through more than 1,000 pages of

fine print.

it grows to 600. preneurial, but the system’s incen-

tives tend to channel this entrepre-

neurial spirit in directions that are

The Long and Longer of less than optimal, for taxpayers at

Union Contracts least. Since a principal has no power to fire a custodian, the

The teacher union contract is more than 200 pages long; with best way for a principal to get rid of a bad custodian is to give

the various side agreements and state laws that supplement him high marks so that he can transfer to a larger building,

the terms of the contract, it grows to 600. These pages deter- where, according to the contract, he automatically earns

mine nearly every aspect of what a teacher does, and does not more money. Thus is incompetence rewarded. By the same

do, in a New York City school, and what can and can’t be done token, to keep a good custodian, a principal will give him

to them. For example, a high-school teacher in New York City mediocre marks, penalizing competence. Think of it as the

cannot be asked to teach for more than 3.75 hours per day. Peter Principle on steroids: custodians are promoted from

Nor can a teacher be asked to help supervise a lunchroom jobs they can’t do to those they can’t do even better.

or study hall, help special-education students on and off the As with other New York City school employment contracts,

bus, help college applicants prepare their transcripts, score myriad work rules limit the activities of a custodian. However,

city-wide tests, or write truant slips. One New York City the custodians aren’t complaining. Thus they sweep, but they





www.educationnext.org S U M M E R 2 0 0 6 / E D U C AT I O N N E X T 25

The Crib Sheet

During the hearings I conducted for the The School Day Steps for Giving a Teacher a

New York City Council in November of The school day is 6 hours and 40 min- Poor Performance Rating

2003, I prepared summary notes of the utes, except for schools that have Under the contract, a principal can give

thousand-plus pages of union contracts extended their school day. During that an unsatisfactory (“U”) rating to a

dictating the education parameters of day, middle-school and high-school teacher at the end of any school year,

our public schools. Following are teachers can be programmed to teach with or without providing interim feed-

excerpts from my notes (with refer- for no more than five periods per day back or support. Typically, however, a

ences to page numbers in the appropri- (approximately 3.75 hours) and for no principal may first informally speak to

ate contract): more than three consecutive teaching a teacher who has performance prob-

periods (approximately 2.25 hours). lems and suggest ways to improve, per-

Salary of Custodians Elementary-school teachers teach haps through counseling memos “or

Custodians are entitled to keep what- slightly longer, a 4.5-hour portion of other non-disciplinary means” (p. 128

ever money they do not spend from the day (pp. 20, 26). and Memorandum of Agreement). The

their annual lump-sum allotment, up to principal’s authority to do so is limited,

a “Maximum Permissible Retainage” Making an Exception on Teacher however.

(MPR) of around $85,000. There are Salary A principal may also seek a formal

exceptions to this limit: Although most teachers are paid based conference with the teacher or attempt

“Custodial Engineers employed in on their position and seniority, excep- formal peer intervention (p. 132). This

buildings of 247,000 square feet and tions are possible when responsibilities process is repeated as often as the prin-

above, as of November 1, 1994, who exceed ordinary duties. But a higher cipal deems necessary and can spare the

receive an outstanding performance salary cannot be set until: time to do it. If these steps fail, the

rating of an average of 4.00 on a 1–5 teacher eventually receives a “U” rating.

scale shall be exempt from the MPR 1. An audit is conducted; After a teacher receives a first “U”

limit…” (p. 8). 2. The Division of Human Resources

rating, the teacher cannot transfer to

“Any Custodial Engineer who trans- reviews the audit;

another school and must be offered

fers to a school over 247,000 square 3. The UFT (United Federation of

professional development to improve

feet after December 31, 1995, shall be Teachers) is consulted;

performance. If problems persist, the

4. The chancellor approves the salary;

eligible to be exempt from the MPR cycle of documenting problems contin-

and

after a new and separate evaluation ues and, if no improvement occurs by

5. Any disagreement is arbitrated (pp.

period where he must receive an over- the end of a second year in the class-

64–65).

all average rating of 4.00” (p. 9). room, another “U” rating is given.

— Eva Moskowitz









don’t vacuum. This particular rule created a big problem peeling. Why? Because the contract says custodians cannot be

because the chancellor mandated “reading rugs” in all elemen- asked to paint above ten feet. The painters union has another

tary-school classrooms so that children could sit on the floor. collective bargaining contract … which is another story.

When he learned that the custodians wouldn’t clean them, the A final twist to the already contorted custodian incentive

chancellor and the deputy mayor were forced to negotiate a system can be found in the “custodian trust fund,” a term of

“rug cleaning policy.” Unfortunately, those long and com- some amusement once you understand how it functions.

plex negotiations (memorialized in a two-page, single-spaced According to the contract, if the custodian can maintain his

memorandum of understanding) turned out to be for naught building to a standard that he judges satisfactory, without using

because the contract protected custodians’ right to limit their all of his budgeted funds, he can simply keep the remainder.

cleaning responsibilities. You’d be amazed what a custodian would consider satisfac-

Other limitations abound. A personal favorite of mine is tory in these circumstances.

the ten-foot rule, which I learned about when I asked why Unfortunately, perverse incentives such as these are not lim-

school walls frequently seemed to be painted only to a certain ited to teachers and custodians. School principals, whose union

height; above that line and on the ceilings, the paint was often contract is a slim document (150 pages) by New York City union





26 E D U C AT I O N N E X T / S U M M E R 2 0 0 6 www.educationnext.org

forum

BREAKDOWN MOSKOWITZ







standards, also work by rules that reward uniformity before about compensation can be asked by schools subject to the

excellence. Principals are paid in lockstep, regardless of their teachers contract. The contract preordains every decision

performance, abilities, or even the size of the school they over- about compensation that a school leader would want to

see. Their agreement also spells out in mind-numbing detail make. Those givens can only be changed every few years

the circumstances under which a superintendent can relieve a when the contract is up for renegotiation and when the

principal of his or her responsibili- mayor and the president of the

ties. Tenured principals have to do United Federation of Teachers

something truly egregious to be fired. (UFT) complete their political

The process for removing a principal dance.

begins with sending letters of com-

If the custodian While employment contracts

plaint to the personnel file, any and all make it almost impossible to redesign

of which can be appealed by the prin- can maintain his a traditional school around the needs

cipal. The process, if successful, can of students, we can do that redesign

take as long as 150 days, which is most building to a at our charter school. Harlem Success

of a school year. By the same token, kids will have a school day of 8 hours

even small procedural details in the and 40 minutes, compared with 6

contract can have profound effects

standard that he hours and 40 minutes in the tradi-

on the operation of a school. Princi- tional public schools, because we

pals and assistant principals, for judges satisfactory, determined that that was the amount

instance, are not required to notify of time the kids needed. In an effort

superintendents in advance of their without using all to determine our core competencies,

retirement, a circumstance that can we are asking whether it makes sense

create significant disruptions.You can to have extracurricular activities,

“retire” in the middle of the year and

his budgeted funds, such as supplemental sports and art

head off to Bermuda, as my son’s prin- classes, taught by the school’s teach-

cipal did, without any penalty or he can keep the ers or contracted out to nonprofit

deduction from the pension. groups who may offer these services

Remarkably, while the school sys- remainder. at reduced prices and provide higher-

tem purports to hold children to a quality services. Even seemingly small

standard of excellence, principals can decisions such as the number of min-

be removed only if they engage in utes for science instruction cannot be

“persistent educational failure.” Intermittent failure or per- made in traditional public schools because they are fixed by

sistent mediocrity is perfectly acceptable. the contract. At Harlem Success, we determined that our kids

need 60 minutes for science labs, rather than the 50-minute

periods prescribed by the union contract, and so they got

The Way Out them.

Recently I had the opportunity to begin seeing things from As we have been thinking through all the education

a slightly different perspective. As a legislator, I looked at the questions, I am struck by the fact that we couldn’t even be

language of the labor agreements and concluded that their posing these questions if we were constrained by the labor

provisions impede our ability to educate children. Now, as the contracts governing the regular public schools. Our hands

director of a school, Harlem Success, I see that the major edu- would be tied by the contracts and by the powerful prece-

cation questions cannot even be asked within the confines of dents that enshrine them in stone even in the face of so-called

labor agreements. negotiations. There is no doubt in my mind that we will be

At Harlem Success, for instance, we know that our most able to do a far better job educating our students because

important resource is our teachers, so we have extensive we are free from these constraints. That is important to

internal discussions about how to pay them in a way that me, not least of all so that I can keep my job. My one-page

most benefits our kids. We are asking whether a teacher with contract, which I negotiated and drafted myself, states: “I will

three years of experience should be paid more than a teacher serve at the pleasure of the Board as an at-will employee.”

with two years of experience. What about someone with 20

years of experience? In determining salaries, should we Eva Moskowitz, former member of the New York City Coun-

place as much value on five years spent at another school as cil and chair of its education committee, is executive director

five years spent at our school? None of these questions of the Harlem Success Charter School.





www.educationnext.org S U M M E R 2 0 0 6 / E D U C AT I O N N E X T 27