In the Matter of Anthony J. Russo, Respondent,v.New York City Department of Education, Appellant.BriefN.Y.March 24, 20151 The City of New York KATHY CHANG PARK ZACHARY W. CARTER LAW DEPARTMENT Phone: 212-356-0855 Fax: 212-356-2509 Corporation Counsel 100 CHURCH STREET Email: kpark@law.nyc.gov NEW YORK, N.Y. 10007-2601 February 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. New York City Dep’t of Educ. APL-2014-00279 Dear Mr. Klein: Pursuant to 500.11(e) of the Court’s rules, defendant-appellant New York City Department of Education (DOE) respectfully requests the Court’s permission to submit this letter in reply to the arguments set forth in petitioner- respondent Anthony Russo’s letter brief dated February 10, 2015. DOE believes that this reply will be helpful to the Court in deciding the important issues presented in this appeal. Our opening letter established that the Appellate Division, First Department erred in overturning the independent labor arbitrator’s determination to dismiss Russo from employment as a New York City schoolteacher. As we have shown, the sole criterion for vacating an arbitrator’s penalty as excessive—that the penalty shocks one’s sense of fairness—has not been met in this case. Dismissal was not a shocking step in light of Russo’s serious and persistent deficiencies in teaching and controlling his class over the 2 course of three years, despite DOE’s substantial efforts to help him improve. The First Department improperly second-guessed the judgment of the independent arbitrator who was charged by the Legislature to address the matter in the first instance. The First Department also gave short shrift to DOE’s critical responsibilities to the City’s schoolchildren, their parents, and the public at large to provide an appropriate learning environment that helps students to learn and to reach their potential. Russo’s letter offers no meaningful response to our showing. At the very most, his arguments might raise potential grounds for disagreeing with a few aspects of the arbitrator’s 136-page opinion. But Russo has fallen well short of establishing that the arbitrator’s determination that he should be dismissed is so beyond the bounds of appropriate judgment as to shock one’s sense of fairness. A. Argument 1. The Arbitrator Properly Considered Russo’s Serious Class Management Problems. Russo makes various meritless attempts to downplay the arbitrator’s findings regarding his serious class management problems. First, Russo claims that the fact that there were no charged incidents of student misbehavior relating to the third school year at issue here (the 2010-2011 school year) shows that he dramatically improved his ability to control his classroom (Resp. Letter Br., at 1-2). But his reasoning is flawed. The mere absence of charged incidents in the third year is not proof that Russo’s problems with class management were solved. Indeed, Russo ignores that his class size dwindled over the three- year period, from a complete allotment of 12 students in 2008-2009, down to 7 students in 2009-2010, and all the way down to 4 students in 2010-2011 (Tr. 325). Principal Dominic Zagami attributed this decline to students who obtained private school placements at public expense because their families were not pleased with the quality of education they received in Russo’s classroom (Tr. 324-325). Certainly, the likelihood of class management problems is far lower in a class with 4 students than it is in a class with a complete allotment of 12 students. Thus, the absence of charged incidents of student misbehavior in 2010-2011 does not demonstrate that Russo had gained the ability to control a full complement of students. 3 Moreover, even if reasonable minds could differ as to the import of the absence of charged incidents of student misbehavior in 2010-2011, the arbitrator acted well within his discretion in concluding that Russo’s class management problems were not fully resolved. The record amply shows that on repeated occasions, and even after receiving warnings from administrators, Russo sat passively while his students misbehaved, and misrepresented facts or showed indifference when administrators discussed classroom situations with him (D-8, D-9, D-34, D-51, D-52, D-53, D-54, D-55; Tr. 175-77, 794, 797, 809). Nor did Russo provide affirmative evidence conclusively demonstrating that he had addressed and eliminated his earlier deficits in class management skills. To the contrary, the PIP Plus observer noted instances during the third year when Russo continued to have problems managing his students’ behavior: students left the classroom without permission on several occasions, ate pizza during class, and threw gum into the hallway (D-86, D-88, D-89). Accordingly, the arbitrator had good reason to remain troubled by the evidence showing that Russo displayed an inability to control the classroom. Russo next complains that DOE never presented him with a “proven- effective behavior modification system” to control his students’ behavior (Resp. Letter Br., at 2). But Russo misunderstands the core reason why the arbitrator found his class management skills to be so lacking. Perfection in controlling students’ behavior is not expected; indeed, the challenges of classroom management are well recognized. But the school reasonably expected Russo, at a minimum, to implement the classroom rules, monitor students’ computer use, and call for help when a classroom situation got out of hand. It was Russo’s repeated failure to do these basic things that seriously called into question his ability to handle a classroom. Nor is there any merit to Russo’s argument that he should have been assigned a paraprofessional to help him manage the classroom (Resp. Letter Br., at 34). We already established in our opening letter that Russo never made such a request to DOE, and that in any event, Russo would not have been entitled to a paraprofessional because it was not required by his students’ Individualized Education Plans (IEPs) (App. Letter Br., at 24). Furthermore, as noted, even though Russo was supposed to be assigned up to a full complement of 12 students, Russo’s class had dwindled to 7 students in 2009- 2010 and 4 students in 2010-2011 (Tr. 324-25). Accordingly, the student to teacher ratio was already highly favorable to Russo during those years. 4 As for the class management incidents that occurred during the 2008- 2009 and 2009-2010 school years, Russo asserts that his attorney forced him not to testify about some of those incidents at the arbitration (Resp. Letter Br., at 3). To the extent that Russo now seeks to provide his own version of events as to those incidents, those facts were not before the arbitrator and are thus beyond the scope of this Court’s review. See Acme Bus Corp. v. Bd. of Educ., 91 N.Y.2d 51, 56 (1997) (noting the general rule that the Court will not consider material outside of the record). In any case, even if this Court were to consider the version of events that Russo now presents in his letter brief, it would not help him. Russo does not seriously dispute the arbitrator’s findings that he acted passively during the incidents in question. For example, regarding the incident where students viewed pornographic images in the classroom, he admits that he did not regularly monitor his students’ computer use (Resp. Letter Br., at 4-5). Russo claims that the students wanted to be “adult-like,” and so Russo in turn wanted to “treat them like adults” (Resp. Letter Br., at 4-5). Yet Russo’s account itself demonstrates a failure to understand the teacher’s role: Russo’s students were not adults; they were fourth, fifth, and sixth graders with special educational needs. And we already showed in our opening letter that teachers are supposed to monitor students’ computer use regularly, and that just a month before this incident, 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 (Tr. 194-95, 1141-42; D-34). Thus, Russo’s newly presented account of events, even if it were properly before the Court, would not justify his failure to monitor his students’ computer use during the pornography incident, let alone provide any basis to disturb the arbitrator’s factual findings or the arbitrator’s judgment as to penalty. Finally, in a misguided effort to cast his demonstrated pattern of deficiencies in class management as an anomaly in the context of a broader teaching career, Russo continues to insist that he had at least 18 years of satisfactory ratings as a teacher (Resp. Letter Br., at 5). But as we already showed in our opening letter (App. Letter Br., at 23-24), Russo’s own testimony at the hearing undermines any claim that he had received 18 years of satisfactory teacher ratings or even that he had taught full time for 18 years. Russo testified that he started teaching at DOE in 1989, but then took seven years of unauthorized leave and also taught as a substitute teacher for another four years (Tr. 2568-71, 2089). Consequently, Russo had only taught full time 5 for around seven school years before he received the three consecutive years of annual unsatisfactory ratings that are well supported in the record here. Accordingly, there is no merit to Russo’s attempts to second-guess the arbitrator’s findings as to his class management problems. 2. The Arbitrator Properly Found That DOE’s Efforts to Remediate His Deficient Teaching Performance Were Valid. Russo also presses several baseless challenges to the arbitrator’s findings regarding the validity of DOE’s efforts to remediate the persistent deficiencies in Russo’s teaching performance. Russo first argues that DOE’s remediation efforts failed to address his core weakness: creating proper lesson plans from the Teachers College materials (Resp. Letter Br., at 2-3, 7, 9-16, 19-25, 34-36). Without citing any support, Russo suggests that he should have received at least 20 consecutive days of hands-on, individualized assistance to create 20 reading workshop lessons and 20 writing workshop lessons (Resp. Letter Br., at 13-15, 19). Yet this has never been the standard for valid remediation, and such a standard for sufficient remediation would greatly strain DOE’s resources. Russo’s unreasonable standard for remediation underscores the soundness of the independent arbitrator’s ruling. Further, evidence shows that DOE expended substantial efforts to help Russo improve his lesson-planning skills. In arguing that these efforts were not adequate, Russo points to the arbitrator’s finding that the record was not sufficiently developed by DOE as to the specifics of the support provided by the English Language Arts (ELA) developer—an outside educational consultant from Teachers College of Columbia University (Tr. 394). The arbitrator found that the ELA developer, which was one of the several avenues of remediation provided to Russo, did provide him support (A. 120)—indeed, Russo testified that he met with her at least twice during the 2010-2011 school year (Tr. 2272). But the arbitrator also found that the record was unclear as to how often Russo met with the ELA developer or how much support (A. 120). Russo greatly overstates the significance of these findings in the overall context of the extensive record that was before the arbitrator as to DOE’s remediation efforts. The record shows that any support from the ELA developer was peripheral to the primary forms of remediation utilized by DOE to address Russo’s lesson-planning skills. Among other things, the plans of assistance provided for the weekly submission of lesson plans for review (D-12, 6 D-13, D-19); school administrators discussed Russo’s lesson plans during pre- observation conferences (Tr. 56, 327); Assistant Principal Yazmin Perez—a former literacy coach with substantial experience in providing professional development support in language arts instruction—personally helped Russo draft at least one lesson plan in addition to providing him with other individualized assistance (see Tr. 106-07, 2380-81); and the PIP Plus observer helped Russo start the process of writing lesson plans (D-92; Tr. 2001, 2004). As already noted in our opening letter (App. Letter Br., at 12-13), the arbitrator validated these remediation efforts. The record further suggests that Russo himself did not find the ELA developer essential to his remediation: even though Russo had the opportunity to provide input into the services set forth in his plans of assistance and knew that he was at risk of annual unsatisfactory ratings, he never asked for support from the ELA developer to be included in his plans of assistance (Tr. 334, 342- 43, 410-11). Nor did he ever advise Principal Zagami that the ELA developer was not meeting with him regularly (A. 80). And Russo’s attorney referred to the ELA developer only in passing during his closing argument before the independent arbitrator (Exh. 25 to DOE’s Cross-Motion to Dismiss the Amended Petition, at 7). Accordingly, there is no merit to Russo’s present characterization of the ELA developer as being vital to his remediation or central to this case. And to the extent that Russo contends that the lesson review process was essentially a “farce” because the plans were not reviewed and returned to him (Resp. Letter Br., at 20-25), Russo again disregards the arbitrator’s amply supported factual findings. Russo neglects to mention the arbitrator’s finding that he did not always submit his lesson plans for review (D-32). Moreover, although the arbitrator noted that the record did not contain a lot of detail about DOE’s review of the lessons, the arbitrator specifically found that the evidence was sufficient to show that the lesson plans were indeed reviewed and discussed with Russo (D-32, D-37, D-39, D-45, D-57, D-58). Russo’s arguments on this point are thus meritless. Russo next complains that he was deprived of the opportunity to participate in the Peer Intervention Program (PIP) (Resp. Letter Br., at 26). PIP is different from PIP Plus, although both programs seek to help teachers with their classroom performance. PIP provides teachers with confidential, non-evaluative assistance from trained colleagues. See United Federation of Teachers Collective Bargaining Agreement, Art. 21(I). By contrast, PIP Plus 7 provides for observations conducted by an independent, outside observer, and such observation results may be used as evidence in a § 3020-a hearing. See id. at Art. 21(J). Russo did not argue before the independent arbitrator that DOE failed to afford him the opportunity to participate in PIP. Nor did he submit any evidence showing that DOE improperly failed to inform him about the program. Indeed, what we do know shows that information about PIP was readily available to Russo—he even cites the very collective bargaining agreement provisions explaining that teachers are entitled to participate in PIP. Russo therefore cannot blame DOE for his failure to participate in PIP. In any event, Russo’s arguments about PIP do not render the arbitrator’s determination to dismiss Russo shocking to notions of fairness—the record shows that Russo received multiple forms of assistance from school administrators and colleagues and from a private consulting firm, and the arbitrator found that DOE’s efforts at remediation were sufficient. Russo also mistakenly argues that he was never given a “final chance to succeed”—he claims that he was entitled to another evaluation by DOE following his participation in PIP Plus. He is wrong. Contrary to Russo’s contention, the collective bargaining agreement does not state anywhere that DOE is required to conduct another evaluation after the conclusion of the PIP Plus program, particularly where, as here, the PIP Plus observer finds that the teacher continues to display significant teaching deficiencies. And this approach makes sense, because PIP Plus already affords a teacher who is at risk of serious disciplinary action with impartial observations by an independent observer. There is no good reason to compel school personnel to conduct yet another evaluation of an underperforming teacher, where the PIP Plus observer finds that significant deficiencies in the teacher’s performance remain evident upon the conclusion of PIP Plus. And in any event, on March 22, 2011, when Russo was nearly finished with his participation in PIP Plus and just nine days before the PIP Plus observer submitted his final report, DOE conducted a formal evaluation of Russo’s reading lesson and rated it unsatisfactory (D-20; Tr. 414-33). Thus, in every important sense, Russo did receive a chance to show that he had remedied his teaching problems through his participation in PIP Plus—and he failed. Accordingly, there is no basis to overturn the independent arbitrator’s finding that DOE’s remediation efforts were valid. B. Conclusion Because the arbitrator's factual findings are rational and supported by the evidence, and because Russo's dismissal did not shock one's sense of fairness, this Court should therefore 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 8 Respectfully submitted, ~~ Kathy Chang Park Assistant Corporation Counsel