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31st December
2004

First Published in The New York Sun, December 31, 2004

By Andrew Wolf

Contrary to popular belief, the greatest impediment to the reform of public education in New York was not the old Board of Education bureaucracy, nor is it the teachers union contract. Far more damaging is the power that educrats have themselves ceded through the settlement of various lawsuits going back generations.This practice is emerging as an underestimated crisis.

These consent decrees are the reason why tens of thousands of New York’s most at-risk children are lured into the linguistic ghetto of the bilingual education program. A settlement of a prior lawsuit is the reason why a disproportionate amount of education funding goes to special education programs that generate more jobs than positive outcomes. Consent decrees are the reason why misbehaving, even dangerous, students can avoid the discipline necessary to maintain order in our most troubled schools.

Rather than fight these crippling mandates, the Bloomberg administration has agreed to even more restrictive settlements. These, like the others, undermine his ability to reform the system.
Earlier this year, the Department of Education settled a lawsuit that ended the perfectly reasonable practice of advising students over the age of 18, so far behind that it is unlikely they will graduate, to seek alternative strategies such as a General Equivalency Diploma program. Since students always had the right to stay in school to age 21 and can’t be discharged without parental consent, what was the problem?

Just last week, the department settled a case brought by Charlie King, the lawyer best known as Andrew Cuomo’s hapless running-mate for lieutenant governor in the one of the lamest statewide political campaigns ever. Mr. King charged that the department was out of compliance with the school transfer provisions of the No Child Left Behind law. In a technical sense this is true, but the provisions are such that every other large American city has also found compliance impossible.

The reason is that the definition of what constitutes a “failing school” is unrealistically broad, soon to include virtually every one.Schools not eligible for NCLB funding can never be considered failing schools,no matter how low the scores.Last year, many New York children were transferred from “failing” schools with larger numbers of children in poverty to 100 other “failing” schools with slightly lower numbers of children eligible for free lunch.

Even the numbers used to define a school’s eligibility for NCLB funds make no sense. In the Bronx last year, a school needed 69% of its students on free lunch in order to qualify.In Yonkers, the figure is 10%. Because all New York City is considered one school district, children can be transferred anywhere within, but not beyond. A child attending a “failing”school in the northeast Bronx community of Baychester can be bused an hour to Queens, but never to Pelham Manor in Westchester, just five minutes from home.

Other children were transferred to schools that haven’t made the “failing” list simply because they were recently created.This includes schools recently reorganized where little has changed but the school’s number.

A school is also considered “failing” if fewer than 95% of its students took a standardized test, even if the school still met targets if the absent children were factored in as zeros.

“Failing” schools will also be defined by the poor performance of subgroups such as special education, English language learners, and ethnic groups. The rules for special education students are particularly troublesome. Children whose individual education plans acknowledge that their disability severely limits their performance could be considered failures even if they exceed this professionally developed goal. Thus, schools will be added to the “failing”list because students acknowledged as unable to achieve grade level can pull down the entire school.

Many schools in the city have been burdened with disproportionate numbers of special education students,while others had these programs removed for curious reasons. In one instance, the poor record of a principal, the spouse of a wellknown politico, was enhanced by the elimination of the school’s special education programs. Others forced to carry this burden thus “take the hit” for a favored principal.

The school transfer provision is not just so convoluted as to be meaningless, it is also destructive. Last year, 7,000 students were transferred, wasting $20 million in transportation expenses. This is money down the drain. In receiving schools, including many in great distress themselves, the transferees have caused severe overcrowding and diminished the educational opportunities of thousands of other children.In marginal neighborhoods in the outer boroughs,these are often among just a few remaining schools with any degree of ethnic diversity. Putting them at risk will cost the mayor thousands of votes in communities he must win.

Chancellor Klein knows all of this, which is the reason he correctly resisted the wholesale transfers.Settling with Mr.King,nothing more than an opportunistic politico looking to score cheap headlines, is another instance in which the authority of the chancellor and now the mayor is diminished. The chancellor, an accomplished lawyer, should have been able to tie a hack like Mr. King in knots.

The mayor and chancellor should have held firm, and supported thoughtful legislation suggested by Rep. Anthony Weiner to give cities breathing room while the president and Congress fix the problem of an otherwise good law.

© 2004 The New York Sun, One, SL, LLC. All rights reserved.

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