In the Matter of Anthony J. Russo, Respondent,v.New York City Department of Education, Appellant.

Brief

N.Y.March 24, 2015

1 The City of New York KATHY C. PARK ZACHARY W. CARTER LAW DEPARTMENT Phone: 212-356-0855 Fax: 212-356-2059 Corporation Counsel 100 CHURCH STREET Email: kpark@law.nyc.gov NEW YORK, N.Y. 10007-2601 January 26, 2015 Andrew W. Klein Clerk of the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Matter of Russo v. N.Y.C. Dep’t of Educ. APL-2014-00279 Dear Mr. Klein: In response to this Court’s November 18, 2014 letter request, this letter brief is submitted on behalf of defendant-appellant New York City Department of Education (DOE). Pursuant to Rule 500.11, DOE notes its position that the certified question presented in this appeal warrants full briefing and argument, because the decision below reflects a mistaken trend in decisions of the Appellate Division, First Department, on a recurring legal issue of tremendous public importance (see infra, at p. 20-21). We understand, however, that the Court may conclude that petitioner’s pro se status makes the case inappropriate for that treatment. In this Article 75 proceeding, the Appellate Division, First Department, by a vote of three-to-two, vacated an independent labor arbitrator’s determination that petitioner Anthony Russo should be dismissed from his employment as a New York City public schoolteacher and remanded the 2 matter for imposition of a lesser penalty. This Court should reverse that ruling, because the arbitrator’s penalty of dismissal is not shocking to one’s sense of fairness-which is the demanding legal standard that must be met before a court may vacate such a penalty as excessive. The First Department’s decision here and others like it have greatly diluted this legal standard, to the detriment of the children who attend the City’s public schools and the parents who entrust the supervision and education of their children to those schools. The record here amply refutes any suggestion that the independent arbitrator’s determination to dismiss Russo is shocking to notions of fairness. After a 22-day hearing, the independent arbitrator found that Russo repeatedly failed to take steps to control improper student behavior in the classroom: he sat passively during multiple occasions while his students viewed pornographic images, ran around, rolled on the floor, banged doors and desks, threw objects, and left the classroom without permission. The arbitrator further found that Russo persistently failed to meet standards of satisfactory instruction over a three-year period, notwithstanding considerable efforts by DOE and an outside consultant to help him improve. Fourteen unsatisfactory observation reports detailed recurring deficiencies in Russo’s performance: among other things, he confused the students; wasted lesson time or rushed through the material; did not adjust his instruction to the students’ individual capabilities; did the students’ work for them; and failed to follow the instructional model required in the school. The DOE serves a critical public mission: educating the City’s public schoolchildren and fostering their development. Where, as here, an independent labor arbitrator has confirmed that a teacher has displayed serious and persistent deficiencies in teaching and controlling his class, so as to warrant his dismissal, the courts may intervene only if the arbitrator’s determination is simply incompatible with basic principles of fairness. When courts freely second-guess an arbitrator’s judgment, as the First Department did here, it undermines the DOE’s ability to monitor teachers for poor performance and disserves the City’s schoolchildren, their parents, and the public at large, all of whom deserve for students to receive quality instruction in an appropriate learning environment. 3 A. Background 1. The New York City Public School System DOE operates the nation’s largest public school system, serving around 1.1 million students, running over 1,800 schools, and employing about 77,000 teachers.1 The body of students is not only extremely large, but also richly diverse in their backgrounds and educational needs. Well over 100,000 students in the City’s public schools are enrolled in special education programs.2 Overall, around 40 percent of students in the City’s public schools are Hispanic, 27 percent are African American, 16 percent are Asian, and 15 percent are Caucasian.3 More than 60 percent of the school system’s students are immigrants or the children of immigrants.4 And nearly eighty percent are eligible for free or reduced lunch assistance from the federal government.5 The DOE’s mission is to provide all of its students with a quality education that helps them to reach their full potential. 2. The Statutory Framework for Independent Arbitral Review of the Discipline of Tenured Teachers Through a series of enactments beginning in the 1970s, the Legislature, with support from teachers’ unions, replaced the prior system of school board control over discipline of tenured teachers with a robust process for 1 New York City Department of Education, http://schools.nyc.gov/AboutUs.htm (last visited Jan. 24, 2015). 2 New York City Department of Education, Statistical Summaries, http://schools.nyc.gov/AboutUs/schools/data/stats.htm (last visited Jan. 24, 2015). 3 New York City Independent Budget Office, New York City Public School Indicators: Demographics, Resources, Outcomes (July 2014), at 11, available at http://www.ibo.nyc.ny.us/iboreports/2014edindicatorsreport.pdf. 4 NYC Coalition for Educational Justice, Looming Crisis or Historic Opportunity? Meeting the Challenge of the Regents Graduation Standards (Feb. 2009), at 12, available at http://annenberginstitute.org/sites/default/files/product/201/files/RegentsDiploma.pdf 5 New York City Independent Budget Office, New York City Public School Indicators: Demographics, Resources, Outcomes (July 2014), at 15, available at http://www.ibo.nyc.ny.us/iboreports/2014edindicatorsreport.pdf 4 independent arbitral review of such disciplinary decisions. In 1970, the Legislature first enacted Education Law § 3020-a to establish uniform procedures for the discipline of tenured teachers. Memorandum Regarding an Act to Amend the Education Law, Bill Jacket, L 1970, ch. 717. Among other things, the original statute required disciplinary hearings to be held before an impartial panel instead of the school board, though the school board initially retained discretion to depart from the hearing panel’s recommendation. See Memorandum from State Attorney General Louis Lefkowitz, Bill Jacket, L 1970, ch. 717. The New York State Teachers Association supported the enactment. Memorandum from New York State Teachers Association (May 1, 1970), Bill Jacket, L 1970, ch. 717. In 1977, the Legislature amended the statute, this time to make the impartial panel’s recommendations binding on the school boards and require a member of the panel to be an independent arbitrator. Educ. Law § 3020-a (as amended by L 1977, ch. 82). The New York State United Teachers endorsed the amendment. See Memorandum from New York State United Teachers (March 29, 1977), Bill Jacket, L 1977, ch. 82. And in 1994, the Legislature amended the statute again to require most hearings to be conducted before a single arbitrator, and to change the standard for judicial review of arbitration awards in § 3020-a hearings from the standard under C.P.L.R. 7803 to the grounds enumerated in C.P.L.R. 7511. Educ. Law § 3020-a (as amended by L 1994, ch. 691). The New York United Teachers supported this amendment too. See Memorandum from New York State United Teachers (July 13, 1994), Bill Jacket, L 1994, ch. 691. In its current form, Education Law § 3020-a prescribes a multi-tiered disciplinary review process that provides teachers with significant due process protections, centering on a hearing before an independent arbitrator. School officials initiate the disciplinary process by filing charges against a teacher and giving the teacher written notice of the charges, the maximum penalty, and the right to a hearing. Educ. Law § 3020-a(2)(a). If a teacher requests a hearing, the matter goes to independent arbitration. In New York City, the arbitrator is selected from a permanent rotational panel of independent labor arbitrators that have been jointly agreed 5 upon by the teachers’ union and DOE. See United Federation of Teachers Collective Bargaining Agreement, Art. 21(G)(2).6 The arbitrator holds a pre-hearing conference, during which the teacher may file motions and make discovery requests. Educ. Law § 3020-a(3)(c). Thereafter, during the § 3020-a hearing, the teacher may be represented by counsel, and is afforded the ability to subpoena and cross-examine sworn witnesses and the opportunity to testify on his or her own behalf. Educ. Law § 3020-a(3)(c). At the teacher’s request, the arbitrator may also consider the extent to which the school made efforts to remediate the teacher’s performance. Educ. Law § 3020-a(4)(a). After reviewing the evidence, the arbitrator assesses the validity of the charges. Educ. Law § 3020-a(4)(a). If the arbitrator sustains any or all of the specifications, the arbitrator determines the appropriate measures to be taken by the school board. Educ. Law § 3020-a(4)(a). The available penalties include a written reprimand, a fine, suspension without pay, and dismissal. Educ. Law § 3020-a(4)(a). The arbitrator then issues the arbitration award in a written decision that details the findings of fact and conclusions on each charge and the penalty. Educ. Law § 3020-a(4)(a). Judicial review of the arbitrator’s determination is limited to the grounds set forth in C.P.L.R. 7511. Educ. Law § 3020-a(5)(a). 3. The Record of the Arbitration Here Russo started teaching for DOE in 1989 (Hearing Transcript [“Tr.”] 2564; Arbitrator’s Award [“A.”] 11). After just one year of teaching, Russo took seven years of unauthorized leave (Tr. 2568-71). In 1998, he returned to DOE and taught as a substitute teacher for the next four years (Tr. 2089). In September 2003, he was hired to teach special education at a DOE high school, where he stayed until January 2005 (Tr. 2089). From January 2005 until September 2005, he taught special education at a DOE elementary school 6 Education Law § 3020-a(3)(b) generally provides for the matter to go into arbitration under the auspices of American Arbitration Association. However, the statute also permits this process to be modified pursuant to collective bargaining between the teachers’ union and DOE, as was the case here. See Educ. Law § 3020(1). 6 (Tr. 2090-91). In September 2005, Russo began teaching a third grade special education class at P.S./I.S. 377 (Tr. 320, 2091). It was not until 2006, after receiving satisfactory ratings as a probationary teacher for three years, that Russo obtained tenure status (Tr. 2093-94). In 2008-2009, Russo was assigned to teach a self-contained 12:1 special education class comprised of fourth, fifth, and sixth graders who were functioning two or three years below grade level (see Tr. 125, 2096-98). For three consecutive years, Russo taught the same class with the same group of students (Tr. 324, 648-49). Russo’s class started with 12 students, but dwindled to 7 students in 2009-2010 and 4 students in 2010-2011 (Tr. 325). The school principal, Dominic Zagami, attributed the decreasing class size to students who obtained private school placements under the Individuals with Disabilities Education Act (IDEA) because their families were not pleased with the quality of education provided in Russo’s classroom (Tr. 324-25). In each of those three years, Russo received unsatisfactory ratings based on his inadequate classroom management and instruction skills (DOE’s Exhibit [“D-”] 21, D-23, D-25). When Russo administratively appealed the unsatisfactory ratings for the 2008-2009 and 2009-2010 school years to the Office of Appeals and Reviews, the ratings were found to be substantiated (Tr. 434-36; D-22, D-24). In 2011, DOE filed eight specifications against Russo (D-1). The specifications alleged that he “neglected and disregarded student health, safety and well-being”; failed to properly manage his classroom; committed corporal punishment; failed to adequately engage his students in instruction; failed to attend mandatory faculty meetings; failed to effectively plan and execute lessons; failed to submit, properly draft, and implement Individualized Education Plans (IEPs) for his students; and failed to follow professional development recommendations (D-1). Russo exercised his right to a § 3020-a hearing, which was held over 22 days before independent labor arbitrator Lawrence Henderson. During the hearing, Russo was represented by counsel. The hearing record is extensive, with more than 2,600 pages of transcripts and over 100 exhibits. Nine witnesses testified for DOE; Russo was the sole witness for his case. After reviewing the evidence, the arbitrator found Russo guilty of seven specifications (A.135). The arbitrator found, among 7 other things, that Russo repeatedly failed to take steps to control improper student behavior in the classroom and was unable to meet DOE’s standards of satisfactory instruction over a three-year period, notwithstanding substantial efforts to remediate his inadequate teaching skills. The arbitrator dismissed the specification concerning corporal punishment (A. 36-38), as well as certain other allegations concerning specific incidents (A. 135). The evidence relevant to the sustained allegations is summarized below. a. Russo’s Passivity in the Face of Multiple Occasions of Student Misbehavior On numerous occasions, school administrators found Russo sitting passively while his students misbehaved and broke school rules by viewing pornography, rolling on the floor, banging doors, throwing objects, and jumping around, among other things. A letter was placed in Russo’s file regarding each incident (D-8, D-9, D-34, D-51, D-52, D-53, D-54, D-55). Significantly, Russo declined to testify about some of the more serious incidents, such as when his students viewed pornography, rolled around on the floor, held the door back to prevent another student from entering, and left the classroom without permission (A. 18, 19, 27). i. Incident where students viewed pornography The record showed that, on June 3, 2009, the students viewed pornographic images on a school computer while Russo was setting up his lesson approximately ten to twelve feet away (D-11, D-34; Tr. 1425-27). An assistant principal who saw the images, Yazmin Perez, described them as “a woman’s body, breasts exposed, private body parts” (Tr. 192). DOE witnesses testified that teachers are supposed to walk around to make sure that students are using computers appropriately (Tr. 194-95, 1142), because the filters used by the school are unable to block all inappropriate content (Tr. 195, 1141-42). Moreover, in the previous month, Principal Zagami had already warned Russo about monitoring his students’ school computer use after he caught Russo’s students viewing a music video with inappropriate images and lyrics (D-34). 8 ii. Incidents where students rolled on the floor, threw objects, banged doors, jumped around, and hit others with an umbrella The record further disclosed many incidents where Russo failed to address his students’ rowdiness in the classroom. On October 23, 2008, Assistant Principal Perez witnessed students running around the classroom and throwing objects at each other while Russo sat passively at his desk (D-9; Tr. 175). When Assistant Principal Perez asked Russo what was going on, Russo yelled, with hand and body gestures, “Are you talking to me? Are you talking to me? Why don’t you ask them? . . . It is obvious what is going on” (Tr. 175-76; D-9). When Perez asked Russo why he did not call security pursuant to school protocol to address the chaotic situation, Russo claimed that the classroom phone was not working (Tr. 177). Yet when Perez checked the phone, it had a dial tone (Tr. 177). In addition, on September 14, 2009, Assistant Principal Schneider saw a student banging on the classroom door because another student was holding the door back (Tr. 794; D-51). Later that afternoon, Schneider saw two students rolling on the classroom floor while another student ran around them (Tr. 797; D-51). Both times, Russo did nothing to intervene (D-51; Tr. 794, 797). On September 29, 2009, Assistant Principal Schneider saw “[k]ids jumping around, banging chairs [and] desks, [and] throwing things at each other,” while Russo did nothing (Tr. 806-07; D-54). When Schneider asked Russo why he was not teaching, Russo said he was just then about to start, even though he should have already been 15 minutes into his lesson (D-54; Tr. 807). Assistant Principal Schneider further noted that the desks were covered in paint and crayon marks, and that debris was scattered on the floor (D-54). And on October 28, 2009, Assistant Principal Schneider saw a student hitting another student with an umbrella in Russo’s class (D-55). When Schneider asked Russo to explain the incident, Russo merely responded, “Right, he’s not supposed to do that” (Tr. 809). 9 iii. Other incidents showing Russo’s failure to enforce classroom rules Additional incidents further demonstrated Russo’s inability to enforce classroom rules. On September 15, 2008, two students left Russo’s classroom without permission to get help for another student, who tried to cut herself with a blade (D-8; Tr. 164, 213-15). Russo failed to follow proper protocol in that he failed to call security once a safety issue arose (D-8, Tr. 164-66). On September 16, 2009, Assistant Principal Perez observed that Russo’s students were excessively exiting the classroom for bathroom breaks (D-52, Tr. 799- 801). And on September 18, 2009, Assistant Principal Schneider witnessed Russo’s students breaking the rules by eating and drinking during class, even though Schneider had previously warned Russo that food was not permitted (D-53; Tr. 802-05, 911-13). b. Russo’s Deficient Teaching Performance Evidence also revealed numerous and persistent shortcomings in Russo’s teaching performance. Fourteen formal and informal observation reports over three years-executed by several different supervisory observers-rated Russo’s teaching performance unsatisfactory and detailed various deficiencies in his teaching (D-2, D-3, D-4, D-14, D-15, D-16, D-17, D-18, D-20, D-45, D- 46, D-47, D-48, D-49). During many of the observations, there were no more than two to four students in the class (D-4, D-20; Tr. 112, 373, 386, 399, 735). The administrators opined that minimal or zero learning took place during these unsatisfactorily rated lessons (Tr. 91, 104, 360, 370, 382-83, 407, 731, 768). Recurring complaints from the various senior educators who personally observed Russo’s class were that he confused the students (D-2, D-3, D-14; Tr. 101-02, 350-51), wasted lesson time or rushed through the material (D-15, D- 16, D-49; Tr. 76-77, 365, 367, 375-76, 780-81), did not adjust his instruction to the students’ individual capabilities (D-2, D-4; Tr. 119-20, 126, 815-16), failed to follow the established curriculum (D-3; Tr. 99), failed to prepare adequate bulletin boards (D-47, D-49; Tr. 84, 729, 785), and did the students’ work for them or corrected their mistakes without explaining to them why their answers were wrong (D-15, D-16; Tr. 376, 419). In fact, during two lessons, the students did little more than copy off the board or from their textbooks (D-14, D-18; Tr. 351, 360, 399). Once, Russo 10 presented an entirely different lesson than what was discussed during the pre- observation conference, without telling the administrator conducting the observation that he was changing the lesson (D-48; Tr. 773-75). During that same lesson, Russo narrated several elongated and redundant scenarios in aimless fashion (D-48). Another time, he violated school protocol during an in- class writing assessment: even though he was not supposed to help the students, he reviewed spelling with them for ten minutes in the middle of the assessment and talked with them about what to write (D-17; Tr. 389-90). There was another incident where Principal Zagami saw Russo’s students watching a SpongeBob SquarePants cartoon during class (D-32; Tr. 527). During another observation, Principal Zagami was also disturbed that Russo matched a child with a book far beyond his reading level and refused to switch to a more appropriate book (Tr. 416-17; D-20). While the child was struggling and turning red, Russo just repeatedly told him, “I know reading is tough for you” (Tr. 416-17). Russo seemed unaware that his actions were reinforcing to the child that he was not a good reader (Tr. 417). Other instances illustrated that Russo made little effort to motivate and interest the students. During one visit, Principal Zagami found Russo sitting at the white board staring into space (D-38, D-39), while all three students were talking with each other instead of learning (Tr. 557-58). Russo told Principal Zagami that he had distributed an article about recycling, but the students refused to read it (D-38; Tr. 557). Yet when Zagami asked a student read the article to him, he was able to engage her in a conversation about the article; in fact, as he was getting up to leave, she asked if he would come back again and read with her soon (D-38; Tr. 557). During other observations, Russo failed to address students who were playing with their wristwatches, fooling around with pencils, and sleeping (D-15, D-16; Tr. 366-67). Another primary criticism in the observation reports was that Russo failed to adhere to the designated teaching model that all P.S./I.S. 377 teachers are expected to follow in their lessons, known as the Teachers College Reading and Writing workshop model (Tr. 56, 315-16). The basic concept of the workshop model is for teachers to demonstrate the lesson to the students, and then for the students to practice the lesson independently during class (Tr. 78- 79, 315-16). Under the workshop model, teachers begin with a 10 to 15 minute “mini-lesson” (Tr. 352). The “mini-lesson” has a specific structure that 11 includes: (1) the “connection,” which connects that day’s lesson with prior lessons; (2) the “teaching point,” which explains the objective of that day’s lesson; (3) the teacher’s demonstration of the new strategy, followed by the students’ “active involvement,” which allows students to try it before going off on their own; and (4) the “link,” which explains how the strategy applies their reading and writing skills (D-46; Tr. 61-62, 352-55). The students will then work on their own to practice the lesson, while the teacher confers with the students in small groups or individually (D-46; Tr. 88-89). The “share” is held at the end of the lesson, when the students reconvene and the teacher follows up on the mini-lesson with the students (Tr. 62-63; D-46). The reports repeatedly described how Russo failed to follow the workshop model: he was either missing key components in his lessons or did not execute them effectively (D-2, D-3, D-4, D-14, D-45, D-46, D-47, D-48; Tr. 100-01, 104-05, 355-56, 726, 740, 759-62). Russo failed to make a connection to earlier classes, did not effectively demonstrate the writing or reading strategy, and did not have a clear teaching point or effectively convey it to the students (D-2, D-3, D-4, D-14, D-45, D-46, D-47, D-48; 100-01, 104- 05, 726, 740, 759-62). Other lessons did not provide students with sufficient opportunity to practice the strategy or include a “share” session at the end (D- 45, D-47, D-48; Tr. 77, 355-56, 740). In his testimony at the hearing, Russo disagreed with these criticisms of his teaching. He insisted that the students were actively engaged (Tr. 2143, 2237-38), that he was following the curriculum in his own way (Tr. 2161), that he kept his voice low when conferencing with the students so that the administrators may not have heard him (Tr. 2344-45), and that he incorporated the components of the workshop model (Tr. 2185, 2226-27, 2353-54, 2369-75, 2382-84). c. Russo’s Failure to Comply with Other Duties The record shows that Russo also missed two mandatory faculty conferences in December 2009 and February 2010 (D-29; Tr. 509-10). In 12 addition, he repeatedly failed to timely update and submit IEPs7 for his students as required under the IDEA (D-27, D-37; Tr. 1047-48, 1064-65), even though all teachers were provided with a calendar listing the due dates and given reminders (Tr. 1042). Further, Russo kept using information from prior IEPs instead of updating them to reflect current student levels (Tr. 1039-40). d. Russo’s Request for a Different Class During the first part of the 2009-2010 school year, Russo insisted to Principal Zagami that the students were against him and expressed his preference to teach a common branches class-in other words, a general education class as opposed to a special education class-the next year (Tr. 642, 648-49). Zagami was unable to grant the request because Russo was not hired to teach under his common branches license (Tr. 647-48, 682). Zagami testified that for Russo to work under his common branches license at P.S./I.S. 377, Russo would have needed to go through the human resources department, and it was the principal’s understanding that Russo never took this step (Tr. 682- 83). Principal Zagami further testified that, in any event, he would not have agreed to the reassignment, because his experiences with Russo led him to have “zero confidence” in Russo’s teaching abilities (Tr. 694). e. Remediation i. The extensive efforts of the school’s educators and administrators, as well as an independent private consultant, to help Russo improve As soon as it became evident that Russo was in danger of receiving an annual unsatisfactory rating, the school set up tailored plans of assistance for Russo in March 2009, October 2009, and November 2010 (D-12, D-13, D-19). The plans of assistance prepared for Russo by Principal Zagami included 7 An IEP is a written statement that explains the child’s present level of performance, sets annual and short-term goals for improvement, and describes the educational supports and services that will help the child meet those goals. M.H. v. N.Y. City Dep’t of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (internal citations and quotation marks omitted). Schools can be cited for out-of-compliance IEPs, which can be a basis for parents to sue a school for failing to provide their child with proper services (Tr. 1048). 13 specific goals and measures intended to help him improve his teaching, such as weekly submission of lesson plans for review, formal and informal observations, demonstrations by other teachers, and weekly meetings with school administrators (D-12, D-13, D-19). Administrators testified that Russo had the opportunity to provide input into the activities and structures set forth in his plans of assistance (Tr. 334, 342, 410-11). Russo was warned that the plans of assistance were in place because he was at risk of receiving an annual unsatisfactory rating (D-12, D-13, D-19, D-27, D-31, D-32, D-37 ). In accordance with the plans of assistance, DOE provided Russo with extra observations beyond those required for tenured teachers, who are ordinarily given two formal observations per year (Tr. 279, 328). Each formal observation was preceded by a pre-observation conference (Tr. 55), during which the administrator who was going to conduct the observation went over his or her expectations with Russo and discussed the lesson plan (Tr. 56, 327). And all of the formal and informal observations were followed by a post- observation conference, during which the administrator explained any concerns, recommendations, and areas for improvement (Tr. 58, 327-28). Principal Zagami also had six P.S./I.S. 377 teachers “push into” Russo’s classroom to help improve his teaching (see Tr. 982-84, 1005-06, 1011-1013, 1120-22, 1128-32, 1408-28). A teacher “pushes into” the classroom by observing and assessing the situation, providing assistance, and sharing any insights that might help the struggling teacher (Tr. 458-59). Zagami testified that the staff members chosen for this duty “were the strongest folks we had” (Tr. 459). Zagami also assigned a special education teacher to model lessons and demonstrate proper teaching skills for Russo (Tr. 962-64). In addition, the IEP teacher Adriana Galvan testified that she had offered her help to Russo and that she would often assist him by sitting in on IEP meetings with parents or reviewing incomplete portions of his IEPs (Tr. 1065). Along with fellow teachers, various school administrators personally invested their efforts to help Russo improve his performance. Principal Zagami testified that “[e]very time [Russo] was given an unsatisfactory rating, [he and Russo] had lengthy conversations about how he could come back stronger, how he could still turn this into a win for the kids and for himself” (Tr. 377). Indeed, Zagami stated, “I would have to say that in my entire experience as an instructional leader, that this has been my greatest challenge . . . . Because I’ve never come across a colleague that required this amount of support” (Tr. 568). 14 Assistant Principal Sheldon Schneider also testified about the assistance he had offered Russo, stating, “[W]henever Russo asked for something, I gave it to him, and he had all the assistance I could possibly give him” (Tr. 836). And the record showed that Assistant Principal Perez, in particular, had spent much time and energy to help Russo. She testified that she modeled lessons and writing workshops for Russo; indeed, at one point she routinely modeled lessons for three to four weeks (Tr. 94-95, 133-36; D-6). Moreover, Perez made herself available to assist Russo whenever he requested it; indeed, if she was busy during school hours, she met with him after school (Tr. 106-07). Perez testified that she “really, really wanted so much . . . to help Mr. Russo,” but unfortunately his teaching was unable to meet satisfactory standards (Tr. 197). Russo’s final plan of assistance during the three-year period at issue included support from an independent outside company with expertise in professional development and assessment of teacher performance. At Principal Zagami’s recommendation, Russo participated in the PIP Plus Program, which is operated by a private vendor jointly selected by DOE and the teachers’ union, the United Federation of Teachers, to provide peer observations for teachers who are at risk of disciplinary charges being filed against them (D-26; Tr. 35). From October 19, 2010 to March 31, 2011, Dan Eisenstein-a former special education teacher-served as Russo’s PIP Plus peer observer (D-83, D- 92). Eisenstein worked with Russo to develop individualized plans for his professional development (D-83, D-84; Tr. 1181-1198). As an impartial observer, Eisenstein conducted six observations, after which he met with Russo to provide guided feedback and specific recommendations (Tr. 1179-80). He also provided Russo with detailed observation reports describing positive and negative aspects of Russo’s lessons (D-86-91, 92; Tr. 1301-1372). Eisenstein also helped Russo rearrange the bookcases in his classroom, organize the cubbyholes, and put up posters to make Russo’s classroom environment more conducive to learning (Tr. 1465-66). He introduced Russo to various classroom management strategies such as the behavior checklist and commendation system (Tr. 1382), and gave him articles from respected organizations and journals that explained effective teaching methods and IEP writing (Tr. 1383). He further provided Russo with standard lesson rubrics to serve as guides to planning and executing effective instruction (D-92). He also helped Russo write developmental lesson plans by starting the process with him (D-92; Tr. 2001, 2004). 15 ii. Russo’s insufficient progress despite the efforts at remediation Despite substantial remediation efforts, Russo continued to show little progress. Beyond the fourteen unsatisfactorily rated lessons and multiple incidents of poor class management, evidence showed that Russo did not cooperate with various aspects of the plans of assistance. In spring 2009, Russo did not submit lesson plans for certain subjects (D-32). And the lesson plans that he did submit were not aligned to the established curriculum (D-32). Moreover, in December 2009, when Schneider twice requested Russo to provide evidence of student work as required under his plan of assistance, Russo was unable to do so (D-37, D-58). Schneider had explained to Russo that he expected to see writing notebooks and folders containing drafts, revisions, and edited and published pieces with Russo’s feedback; math folders containing assessments; reading logs; and conference notes for students (D-58). But when Schneider reviewed the notebooks, he saw that Russo had merely stapled his lesson teaching points into the students’ notebooks (D-37; Tr. 552). Russo later submitted a letter admitting, with deep regret, that the students did not do the assigned work based on his review of the students’ notebook and folders (D-59). Schneider was troubled, because it was already halfway through the school year (see Tr. 830). Russo thus received annual unsatisfactory ratings for the 2008-09, 2009- 2010, and 2010-2011 school years (D-21, D-23, D-25, D-33, D-40, D-41). These ratings were preceded by meetings and letters giving Russo notice that he was in danger of receiving an unsatisfactory annual review (D-28, D-29, D- 31, D-32, D-34, D-35, D-36, D-39, D-37). There were some notes of encouragement given during the three-year period. For example, Russo received two isolated satisfactory ratings for lessons performed in December 2008 and January 2010 (D-31, Respondent’s Exhibit [“R-”] 8), alongside his fourteen unsatisfactorily rated lessons. Moreover, the negative observation reports were not one-sided. During one of the last observations in the three-year period at issue, Assistant Principal Perez acknowledged Russo’s attempts to model the lesson and make connections to prior lessons (Tr. 114). But she ultimately concluded that “there was a breakdown with the execution of the lesson” and gave it an unsatisfactory rating: among other things, Russo still failed to demonstrate the lesson effectively or engage the students, and he did not provide individualized 16 instruction based on their varying needs (Tr. 114-15). Perez was concerned, because Russo had been a teacher for several years, received so much support, and been with the same group of students for three years (Tr. 114-15). This was also a lesson that she had discussed with Russo on several occasions during and after school, and that he had planned and drafted several times (Tr. 114). Likewise, Eisenstein’s reports from the PIP Plus Program included a few notes of encouragement: during a November 5, 2010 observation, Eisenstein noted that Russo was enthusiastic about the material and attempted to explain concepts in more than one way, directed his students to focus on the assignments, and properly encouraged a student to use an appropriate-level book (D-86). And during a March 23, 2011 class observation, Eisenstein commended Russo for using an interesting handout to engage the students, complimenting a student, and keeping the lesson moving along (D-91). At the same time, the reports also noted persistent problems in Russo’s teaching. Eisenstein’s final report concluded that Russo’s performance was unsatisfactory in the core responsibilities of his instructional job performance (D-92). The report described many serious issues that remained: Russo did not improve sufficiently in supervising students, adjusting instructions based on the students’ varying needs, communicating effective teaching points, following the workshop model, and enforcing classroom rules (D-92; Tr. 1386-89). Indeed, Eisenstein testified that Russo did not change much during their time together, although he began to use more handouts (Tr. 1389). At the hearing, Zagami expressed his deep disappointment over Russo’s failure to improve. In Zagami’s view, “[T]here would have been no finer moment for our learning community than addressing these needs and making them strengths for Mr. Russo, because that would have truly been concrete evidence of what we say we are, which is a community of learners that collaborate, support each other, and seek out the best that each of us has to offer” (Tr. 567). f. Arbitrator’s Decision and Penalty In a 136-page decision, the arbitrator detailed his findings regarding the sustained allegations described above. The arbitrator found that the record demonstrated Russo’s incapability to provide a valid education in an appropriate learning environment for his students (A. 133-36). 17 The arbitrator credited the testimony of the DOE witnesses, who testified consistently with contemporaneous reports (A. 23, 31, 41, 56, 60, 64, 67, 70, 77, 87, 112), and discredited Russo’s testimony, noting that it was often vague, unfocused, and delivered in a fast and excited pace (A. 48, 52, 67, 70, 77, 94). Moreover, the arbitrator found it noteworthy that Russo declined to testify about various incidents, such as when his students viewed pornography, rolled around on the floor, held the door back to prevent another student from entering, and left the classroom without permission (A. 18, 19, 27). Nor did Russo submit written responses to dispute the observation reports (A. 46, 54, 90-91). The arbitrator also found that DOE provided Russo with valid remediation in the forms of observation reports, plans of assistance, lesson plan reviews, assistance by fellow teachers and administrators, and annual performance reviews (A. 123). The arbitrator further found that denying Russo’s request for reassignment to a regular class did not constitute proof that remediation was deficient or that the DOE was setting him up for disciplinary action (A. 120-21). The arbitrator further noted that it was clear from the testimony of school administrators that they wanted Russo to succeed and had spent a lot of time over three consecutive school years working with him to improve his teaching (A. 121). The arbitrator also considered Russo’s participation in the PIP Plus Program to be a valid form of remediation (A. 123-131). With respect to Russo’s various criticisms of Eisenstein’s service as his peer observer, the arbitrator noted that Eisenstein had reached the same conclusions as DOE as to the core deficiencies in Russo’s teaching and emphasized that Eisenstein’s service was being considered in the context of remediation, and not for establishing the specifications against Russo (A. 131). In light of his findings regarding Russo’s teaching performance, and his continuing poor performance despite the significant extent of DOE’s efforts at remediation, the arbitrator determined that dismissal was the appropriate penalty (A. 135-36). 4. This Article 75 Proceeding Russo filed a petition styled as an article 78 petition in the Supreme Court, New York County, which the court treated as a petition under article 75 of the C.P.L.R. because it sought to vacate an arbitration award. The Supreme 18 Court (Wright, J.) dismissed the petition on the DOE’s motion (Appendix 163- 64). The First Department, in a three-two decision, reversed the lower court’s dismissal of the petition and remanded for the imposition of a lesser penalty. Matter of Russo v. N.Y.C. Dep’t of Educ., 119 A.D.3d 416 (1st Dep’t 2014). In doing so, the majority did not dispute any of the arbitrator’s fact findings regarding the specifications, but found that the penalty of termination was shocking to one’s sense of fairness. Id. at 418. The majority relied on Russo’s prior satisfactory record before the three consecutive years of unsatisfactory performance, and noted that Russo’s inadequate performance was directed toward the same group of students. Id. at 418. Further, the majority faulted DOE for denying Russo’s request for a transfer, or at least for an aide to be assigned to his class. Id. at 418. A two-justice dissent, authored by Justice Sweeny, noted that the findings on the specifications involved serious shortcomings that were more than just an inability to manage a difficult group of students. Id. at 420-22. The dissent further noted the arbitrator’s finding that DOE had made substantial efforts to remediate Russo, who nonetheless continued to fall short of their teaching standards. Id. The dissent therefore would have deferred to the arbitrator’s judgment and held that the dismissal of Russo was not shocking to one’s sense of fairness. Id. at 422. By order dated October 30, 2014, the First Department certified its decision for review by this Court pursuant to C.P.L.R. 5713. B. Argument 1. The Independent Arbitrator’s Determination that Russo Should Be Dismissed Is Not Shocking to One’s Sense of Fairness The First Department erred in overturning the determination of the independent arbitrator, who reasonably imposed the penalty of dismissal after finding that Russo displayed a continuing pattern of incompetence in his instruction and supervision of the children in his class over a three-year period, notwithstanding DOE’s considerable efforts to help him improve. The grounds for overturning an arbitrator’s decision are narrow. See C.P.L.R. 7511 (b). Where, as here, the parties have submitted to compulsory 19 arbitration, the arbitrator’s decision “must have evidentiary support and cannot be arbitrary and capricious.” City Sch. Dist. of the City of N.Y. v. McGraham, 17 N.Y.3d 917, 919 (2011) (citing Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 223 (1996)); Lackow v. Dep’t of Educ., 51 A.D.3d 563, 567 (1st Dep’t 2008). The sole criterion for vacating a penalty as excessive is whether it is “so disproportionate to the offenses as to be shocking to the court’s sense of fairness.”8 Lackow, 51 A.D.3d at 569; see also Pell v. Bd. of Educ., 34 N.Y.2d 222, 233 (1974). For a penalty to be shocking, it must be so grave in its impact that it is disproportionate to the incompetence of the individual, or to the risk of harm to the agency or general public. Pell, 34 N.Y.2d at 234. Far from being shocking to one’s sense of fairness, Russo’s dismissal was entirely appropriate in light of the arbitrator’s findings that he displayed continuing incompetence in controlling his classroom and educating his students, despite extensive efforts from numerous other educators to help him improve. This Court has emphasized that, in reviewing a penalty for excessiveness, the courts must keep in mind that it is the public agency, not the courts, that must answer to the public regarding the effectiveness of its operations. See Pell, 34 N.Y.2d at 235. This point applies with special force here: DOE has a critical public mission-indeed, one of the most critical missions-to provide the City’s schoolchildren with quality instruction in an appropriate learning environment. In discharging this mission, DOE must answer to children, to their parents, and to the public. And at the heart of DOE’s mission is ensuring teacher quality-the most important school-related factor that influences student performance. See Eric A. Hanushek, The Economic Value of Higher Teacher Quality, 30 Econ. Educ. Rev. 466, 467 (2011); William L. Sanders & June G. Rivers, Value-Added Research & Assessment Ctr., Univ. of Tenn., Cumulative and Residual Effects of Teachers on Future Student Academic Achievement 5-6 (1996). The disciplinary review 8 Although courts have assumed that the “shocking to one’s sense of fairness” standard applies to arbitration awards in teacher discipline cases, there is a serious question whether that is correct following the 1994 amendments that expressly limited judicial review of arbitration awards under Education Law § 3020-a to the grounds set forth in C.P.L.R. 7511. See Educ. Law § 3020-a(5)(a). Excessiveness of a penalty is not one of the grounds set forth in C.P.L.R. 7511. Because we did not present this issue to the courts below, we do not raise it here, but rather reserve the point for a future case. 20 process is vital to achieving this goal, because it is the process by which DOE identifies poorly performing teachers, makes efforts to help them improve, and dismisses those who are beyond remediation. But this process becomes unworkable when courts freely second-guess arbitrators’ disciplinary decisions through a watered down application of the “shocking to one’s sense of fairness” standard, as the First Department did in this case. The standard of judicial review should also take into account that the Legislature has enacted robust procedures for independent review of disciplinary matters involving tenured teachers by labor arbitrators. These procedures, endorsed by teachers’ unions, afford many protections to teachers and are specifically designed to command great deference to the independent arbitrator’s decisions in the process of judicial review. DOE takes the question whether to pursue discipline of a teacher very seriously, and the independent arbitration procedure constitutes a further layer of review that precedes any final determination. In fact, teacher dismissals are relatively rare. Reports show that in the 2012-13 and 2013-14 school years, DOE filed 826 cases seeking some form discipline against tenured educators for misconduct or poor performance (out of a pool of about 58,000 tenured teachers).9 Of those filings, 496 of the cases had been resolved as of July 2014, and arbitrators had imposed a penalty of dismissal as to only 40 educators-23 for poor performance, and 17 for misconduct.10 Although arbitrators have been quite restrained in imposing the penalty of dismissal in Education Law § 3020-a cases, the First Department and trial courts within it have nonetheless rather freely overturned such determinations. See, e.g., Matter of Polayes v. City of N.Y., 118 A.D.3d 425 (1st Dep’t 2014); Matter of Brito v. Walcott, 115 A.D.3d 544 (1st Dep’t 2014); Matter of Mauro v. Walcott, 115 A.D.3d 547 (1st Dep’t 2014); Matter of Guzman v. City of N.Y., 110 A.D.3d 581 (1st Dep’t 2013); Rubino v. City of N.Y., 106 A.D.3d 439 (1st Dep’t 2013); Matter of Riley v. City of N.Y., 84 A.D.3d 442 (1st Dep’t 2011); Matter of Fox v. N.Y.C. Dep’t of Educ., 2014 N.Y. Misc. LEXIS 1882 (N.Y. Sup. Ct. Apr. 9 See Leslie Brody, Educators Fined, Not Fired, Wall St. J. (Jul. 27, 2014), available at http://www.wsj.com/articles/new-york-city-teachers-in-disciplinary-cases-more-often- fined-than-fired-1406510985. 10 Id. 21 23, 2014); Haubenstock v. City of N.Y., 2014 N.Y. Misc. LEXIS 2691 (N.Y. Sup. Ct. June 16, 2014) (appeal pending); Matter of Esteban v. Dep’t of Educ. of the City Sch. Dist. of the City of N.Y., 2013 N.Y. Misc. LEXIS 4112 (N.Y. Sup. Ct. Sept. 16, 2013) (appeal pending); Matter of Suker v N.Y. City Bd./Dept. of Educ., 2013 N.Y. Misc. LEXIS 3298 (N.Y. Sup. Ct. Jul. 25, 2013) (appeal pending); Matter of Gabriel v N.Y.C. Dep’t of Educ., 2009 N.Y. Misc. LEXIS 6177 (N.Y. Sup. Ct. Sept. 10, 2009) (all annulling arbitral determinations of dismissal in § 3020-a cases). These decisions show a trend of diluting the “shocking to one’s sense of fairness” standard that reaches far beyond this case. Here, the record shows that the arbitrator’s decision to dismiss Russo was not reached lightly and is not shocking to one’s sense of fairness. The determination was the culmination of multiple layers of review, including 22 days of hearings featuring ten live witnesses and held pursuant to the arbitration procedure prescribed by the Education Law. And the record amply supports the arbitrator’s findings regarding Russo’s continuing incompetence over the three-year period at issue. Russo repeatedly failed to take steps to control improper student behavior in the classroom: on multiple occasions, Russo sat passively while his students viewed pornographic images (D-11, D- 34; Tr. 1425, 1427), ran around (D-9, D-51; Tr. 175), rolled on the floor (D-51; Tr. 797), banged doors and desks (D-54; Tr. 806-07), threw objects (D-54; Tr. 806-07), hit another student with an umbrella (D-55; Tr. 809), consumed food and drink during class (D-54; Tr. 911-13), and left classroom supervision without permission (D-8; Tr. 164, 213-14). Certainly, no learning was taking place during these incidents. Moreover, the students’ rowdiness during some of these incidents posed a significant risk to their well-being and safety. And notably, these incidents occurred even after Russo was repeatedly warned by administrators to enforce classroom rules and to call security if a class situation got out of hand (see D-34; Tr. 177, 911-13). Evidence also showed that Russo consistently failed to meet standards of satisfactory instruction. Over the three-year period at issue, he received fourteen unsatisfactory-rated observation reports, executed by several different supervisory observers (D-2, D-3, D-4, D-14, D-15, D-16, D-17, D-18, D-20, D- 45, D-46, D-47, D-48, D-49). The reports detailed numerous recurring shortcomings in Russo’s teaching. School administrators found that his efforts to follow the Teachers College workshop model were either non-existent or inadequate (D-2, D-3, D- 22 4, D-14, D-45, D-46, D-47, D-48; Tr. 100-01, 104-05, 355-56, 726, 740, 759- 62). School administrators also observed that Russo confused the students (D- 2, D-3, D-14; Tr. 101-02, 350-51); wasted lesson time or did not pace the lesson properly (D-15, D-16, D-49; Tr. 76-77, 365, 367, 375-76, 780-81); did not adjust his instruction to the students’ differing levels (D-2, D-4; Tr. 119-20, 126, 815-16); did not adhere to the established curriculum (D-3; Tr. 99); failed to prepare adequate bulletin boards (D-47, D-49; Tr. 84, 729, 785), did the students’ work for them (D-15, D-16; Tr. 376, 419); and failed to engage the students in instruction (see D-15, D-16, D-38, D-39; Tr. 366-67, 557-558). Significantly, the administrators testified that very little or no learning took place during these unsatisfactorily rated lessons (Tr. 91, 104, 360, 370, 382-83, 407, 731, 768). Russo also repeatedly failed to timely update and submit IEPs for his students as required under the IDEA (D-27, D-37; Tr. 1047-48, 1064-65). He also kept using information from prior IEPs instead of updating them to reflect current student levels (Tr. 1039-40). Importantly, Russo’s teaching problems persisted even after DOE made considerable efforts to help him improve. In each of the three years, DOE implemented plans of assistance that were tailored to Russo’s needs (D-12, D- 13, D-19). The plans of assistance included specific goals and measures designed to help him improve his teaching, such as weekly submission of lesson plans for review, formal and informal observations, demonstrations by other teachers, and weekly meetings with school administrators (D-12, D-13, D-19). The school administrators further described making ardent efforts to improve Russo’s teaching performance (see Tr. 106-07, 377, 836). Moreover, during the final year, Russo received extensive support from the PIP Plus program-an outside company endorsed by DOE and UFT to help teachers who are at risk of disciplinary charges (D-26; Tr. 35). To be sure, Russo did receive two isolated satisfactory ratings over the three-year period for lessons performed in December 2008 and January 2010 (D-31; R-8). One of the later unsatisfactory-rated observation reports also noted some progress-namely, that Russo was making attempts to follow the Teachers College workshop model (D-4, Tr. 114). And the impartial PIP Plus observer offered notes of encouragement to Russo, commending him for his enthusiasm, use of interesting handouts, and attempts to engage the students (D-86, D-91). More broadly, however, the PIP Plus observer’s final report noted several serious and persistent deficiencies and concluded that Russo was 23 unsatisfactory in the core responsibilities of his instructional job performance, and the observer testified that Russo’s teaching did not change much over the period that he observed Russo (D-93; Tr. 1389). On the record as a whole, the arbitrator soundly concluded that the minimal improvements indicated were outweighed by the overwhelming evidence demonstrating that serious deficiencies in Russo’s performance remained, even after he had received broad and intensive support for an extended period of time. Based on these findings, it is not shocking to notions of fairness that the arbitrator concluded dismissal was the appropriate step. 2. The First Department Majority Failed To Apply The Proper Standard of Review In addition to improperly diluting the “shocking to one’s sense of fairness” standard, the First Department majority also failed to defer to the arbitrator’s well-supported factual findings. Although the majority purported to leave intact the factual determinations of the arbitrator, it did not actually do so. Rather, under the guise of evaluating the appropriateness of the penalty imposed, the majority relied on facts rejected by-or not even presented to- the arbitrator. The majority also drew its own conclusions from the evidence, instead of properly deferring to the arbitrator’s sound reasoning. a. The majority wrongly relied on facts rejected by the arbitrator The majority erroneously made its own factual findings in its efforts to minimize Russo’s shortcomings as a teacher. As a starting point, the majority asserted that Russo had a “spotless 18- year record,” 119 A.D.3d at 418, presumably based on the arbitrator’s finding that Russo started teaching at DOE in 1989. But closer review of the record reveals that Russo was not even teaching full-time throughout the entire 18- year period, or even for most of that period, let alone receiving annual satisfactory ratings for his teaching performance. Russo testified that he took seven years of unauthorized leave from 1990 until 1997 (Tr. 2568-71), and that he taught as a substitute teacher for another four years from 1998 until 2002 (Tr. 2089). Accordingly, the record firmly refutes the majority’s finding that 24 Russo was a “21-year veteran with 18 years of satisfactory ratings.” 119 A.D.3d at 419. As another example, regarding the incident where students viewed pornography in class, the majority found that Russo “had a right to expect” that the computer filters would block all inappropriate sites. But that is not what the arbitrator found, and it has no support in the record. DOE witnesses testified that teachers are supposed to walk around to make sure that students are using the computer appropriately (Tr. 194-95, 1142), because the filters are unable to block all inappropriate content (Tr. 195, 1141-42). Moreover, just a month before this incident occurred, Principal Zagami had already warned Russo about monitoring his students’ school computer use after he caught them viewing a music video with inappropriate images and lyrics (D-34). Because Russo did not even testify about the pornography incident, the arbitrator acted well within his discretion in crediting the testimony of DOE witnesses. The majority also went beyond the arbitrator’s findings in opining that DOE should have granted a request by Russo for an aide or assistant. 119 A.D.3d at 417, 418. First, nothing in the record suggests that Russo ever made any request for an aide or assistant. Russo never testified or submitted any evidence suggesting that he requested an aide to be assigned to his classes. Second, and in any event, the majority erred in faulting DOE for failing to provide Russo with an aide, even assuming that he did make such a request. The majority inaccurately states that the assignment of an aide “was the usual practice for classes of special education students.” Id. at 417. To the contrary, the assignment of extra staff members in a special education classroom is dictated by the students’ needs, as determined pursuant to federal law. Accordingly, DOE will assign another paraprofessional if it is required by the particular students’ IEPs, which was not the case for the students in Russo’s class. The majority also made much of the fact that DOE denied Russo’s request to teach a different class, 119 A.D.3d at 418, but the majority ignored the abundant evidence in the record showing the reasons that DOE denied this request. The record does show that during the first part of the 2009-2010 school year, Russo expressed a preference to teach a common branches class the next year (Tr. 642, 648-49). But Zagami credibly testified that he was unable to grant the request because Russo was not hired to teach under his common branches license (Tr. 647-48, 682). For Russo to work under his 25 common branches license at P.S./I.S. 377, Russo would have needed to go through human resources, but he never took this step (Tr. 682-83). In any event, even if Russo had taken the required steps, it would not be shocking to notions of fairness for DOE to decline to reassign Russo to a new and different teaching position. Principal Zagami reasonably testified that his experiences with Russo left him with “zero confidence” in Russo’s teaching abilities (Tr. 694). More broadly, mandating that DOE accommodate reassignment requests as part of its teacher remediation efforts would be burdensome, because openings often are not available in other positions or classes. And DOE should not be compelled to accommodate those requests: if DOE hires a teacher to fill a certain position, then DOE-like any employer- should have every right to expect the teacher to meet qualifications for that position, which Russo persistently failed to do. In addition, the majority improperly opined that the remediation efforts “proved unsuccessful at least in part because the advice given was neither consistent nor adequately targeted.” 119 A.D.3d at 419. The arbitrator made no such finding. And indeed, the specific instance of purportedly inconsistent advice cited by the majority is refuted by both the record and the arbitrator’s findings. In noting Russo’s contention that the assistance he received from assistant principals was “uncoordinated and often contradictory,” the majority described an instance where Russo received help designing a lesson from one assistant principal, but ultimately received an unsatisfactory rating for the lesson after it was observed by another assistant principal. Id. at 417-18. The majority assumed that this meant that the two assistant principals had applied different standards or displayed differing views as to what constitutes satisfactory teaching, but the arbitrator actually found that Russo conducted a different lesson from the one that was discussed in the pre-observation conference, and also did not execute that lesson properly Thus, the arbitrator credited the testimony of Assistant Principal Schneider-the administrator who observed the lesson and rated it unsatisfactory-that Russo had discussed a different lesson during his pre- observation conference with Schneider and did not ever inform Schneider that he was going to change the lesson from what they had discussed to one he had planned separately with Assistant Principal Perez (Tr. 773-74; D-48). Schneider testified that, if Russo had told him that he was going to change the lesson, Schneider would have held another pre-observation conference to review the new lesson (Tr. 774-75). The arbitrator found that Russo’s 26 substitution of a different lesson for the one discussed at the pre-observation conference without notifying Schneider was “beyond comprehension,” especially given that Russo was on the “cusp” of getting an annual unsatisfactory review by this point (A. 73). The majority improperly ignored this finding and further assumed, contrary to the record and without any support, that Russo had followed Perez’s guidance in conducting the lesson that Schneider rated to be unsatisfactory. The record showed that even if Russo received help from Perez in planning the lesson, he did not properly execute the lesson in question, and that he also spent part of the class narrating several elongated and redundant scenarios in aimless fashion (D-48). The majority further asserted that the workshop model required at P.S./I.S. 377 “made no provisions for students with learning disabilities,” 119 A.D.3d at 417, but that is of little moment on the record here. Principal Zagami testified that the workshop model works for all students, including those in special education (Tr. 355). Assistant Principal Schneider also testified that the basic concepts in the Teacher’s College material should be taught to special education students, although they might have be communicated differently depending on the students’ needs (Tr. 946). To the extent that any modifications needed to be made for Russo’s special education students, Russo received much support from other administrators who reviewed his lesson plans, provided suggestions, and modeled lessons for him, and was given the opportunity to observe the lessons of fellow special education teachers who were effectively implementing the workshop model. The majority therefore exceeded the scope of its authority by relying on its own factual findings. b. The majority improperly drew its own conclusions from the evidence The majority further exceeded its authority by inappropriately drawing its own conclusions from the record, instead of deferring to the arbitrator. Even if reasonable minds might have differed as to the proper penalty here, such difference of opinion does not suffice as a basis for vacating the arbitrator’s award, provided that the award is not shocking to one’s sense of fairness. City Sch. Dist. of the City of N.Y. v. McGraham, 17 N.Y.3d 917, 920 (2011). Moreover, having seen and heard the witnesses, the arbitrator was in a far superior position to decide the appropriate penalty. See id.; Ash v. N.Y.C. Bd./Dep’t of Educ., 104 A.D.3d 415, 420-21 (1st Dep’t 2013). 27 The majority asserted that Russo improved his management of the class over the three-year period, because most of the incidents in which Russo failed to control the class occurred during his first and second years with the class. 119 A.D.3d at 419. But the arbitrator had a sound basis for concluding that Russo’s class management problems remained. The record contained multiple incidents where Russo did not even try to do anything when confronted with student misbehavior; he was often just sitting passively at his desk. Russo was not new to teaching and had no excuse for failing to take any action. Russo did not even testify about some of the more significant classroom management incidents, and thus failed to acknowledge or explain the seriousness of those incidents. Accordingly, the arbitrator reasonably determined that the mere absence of incidents in the third year was not proof that Russo had resolved his class management problems, and that allowing Russo to continue as a public school teacher would have posed risks to his future students. The First Department majority also said that the quality of Russo’s instruction had improved. But the arbitrator rationally concluded that Russo’s limited improvement was not sufficient to show that he was fit to teach students. Indeed, Russo continued to receive unsatisfactory ratings for his lessons, despite receiving substantial help, and the final report from the independent PIP Plus observer concluded that Russo’s teaching remained deficient in core areas. Here, too, the majority erred in substituting its own judgment for that of the arbitrator. c. The First Department’s decision impairs DOE’s ability to hold teachers accountable for persistent poor performance Affirming the First Department’s decision would frustrate DOE’s critical mission to provide a quality education for the City’s schoolchildren. The First Department’s decision impedes DOE’s efforts to monitor teacher performance by raising the bar even higher as to what must be shown before a teacher may be removed. And where DOE has already expended substantial efforts to remediate a teacher who is still unable to meet standards of satisfactory instruction, there is not much left that DOE can do. Allowing such teachers to remain at their job unfairly disserves the interests of the City’s schoolchildren-many of whom have no alternatives for obtaining a quality education. The independent arbitrator’s decision to dismiss Russo is not “shocking to one’s sense of fairness” under any appropriate understanding of these words. C. Conclusion For the foregoing reasons, this Court should reverse the First Department's order and reinstate the arbitrator's determination as to penalty. Richard Dearing Chief, Appeals Division of Counsel cc: Anthony Russo, prose 28 Respectfully submitted, Kathy Chang Park Assistant Corporation Counsel