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Saturday, February 7, 2015

Teachers of Conscience: Reforms and the "Thinking Curriculum"

Teachers of Conscience Position Paper

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Reforms and the “Thinking Curriculum”

“Education either functions as an instrument which is used to facilitate integration of the younger generation into the logic of the present system and bring about conformity or it becomes the practice of freedom, the means by which men and women deal critically and creatively with reality and discover how to participate in the transformation of their world.”
- Paulo Friere, Pedagogy Of The Oppressed
We have patiently taught under the policies of market-based education reforms and have long since concluded that they constitute a subversion of the democratic ideals of public education. Policymakers have adopted the reforms of business leaders and economists without consideration for the diverse stakeholders whose participation is necessary for true democratic reform. We have neglected an important debate on the purpose and promise of public education while students have been subjected to years of experimental and shifting high-stakes tests with no proven correlation between those tests and future academic success. The tests have been routinely flawed in design and scoring, and do not meaningfully inform classroom instruction. Test scores have also been misapplied to the evaluation of teachers and schools, creating a climate of sanctions that is misguided and unsupportive.
In your first speech as Chancellor, you spoke of the importance of critical thinking, or a “thinking curriculum” in education. We know you to be a proponent of critical pedagogy, part of the progressive education tradition. As teachers, we hold critical thinking and critical literacies in highest regard. As professionals, we resolve to not be passive consumers of education marketing or unthinking implementers of unproven policy reforms. We believe critical thinking, artistry, and democracy to be among the cornerstones of public education. We want creative, “thinking” students who are equipped to be the problem solvers of today and tomorrow; equipped to tackle our most vexing public problems: racial and economic disparity, discrimination, homelessness, hunger, violence, environmental degradation, public health, and all other problems foreseen and unforeseen. We want students to love learning and to be insatiable in their inquiries. However, it is a basic truism of classroom life and sound pedagogy that institutional policies should reflect the values and habits of mind we intend to impart on our students. It becomes incongruous, therefore, to charge our students to think critically and question, while burdening our schools with policies that frustrate teachers’ efforts to implement a “thinking curriculum,” perpetuating historic inequalities in public education.

The “Crisis of Education” and a Crisis of Pedagogy

Business leaders and economists have used reductive arguments to identify a “crisis of education” while branding educational success words such as achievement, effectiveness, and performance as synonymous with standardized test scores. The majority of education policy decisions are now guided by test scores, making standardized tests an indispensable product. Market-based reforms have been an excellent model of corporate demand creation–branding the disease and selling the cure. Stanford education professor Linda-Darling Hammond described policymakers’ mistaken reliance on standardized tests when she wrote, “There is a saying that American students are the most tested, and the least examined, of any in the world. We test students in the U.S. far more than any other nation, in the mistaken belief that testing produces greater learning.”
The narrow pursuit of test results has sidelined education issues of enduring importance such as poverty, equity in school funding, school segregation, health and physical education, science, the arts, access to early childhood education, class size, and curriculum development. We have witnessed the erosion of teachers’ professional autonomy, a narrowing of curriculum, and classrooms saturated with “test score-raising” instructional practices that betray our understandings of child development and our commitment to educating for artistry and critical thinking. And so now we are faced with “a crisis of pedagogy”–teaching in a system that no longer resembles the democratic ideals or tolerates the critical thinking and critical decision-making that we hope to impart on the students we teach.

For-Profit Standardized Tests as Snake Oil

The keystone of market-based reforms–highly dependent on the mining and misuse of quantifiable data–has been the outsourcing of standardized test production to for-profit education corporations. In New York State, a single British-based corporation, Pearson PLC, manages standardized testing for grades 3-8, gifted and talented testing, college-based exams for prospective teachers, and New York State teacher certification exams. Contracts currently held by Pearson include: $32.1 million five-year contract, which began in 2011, for the creation of English Language Arts and Math assessments; $6.2 million three-year contract in 2012 to create an online education data portal; $1 million five-year contract, which began in 2010, to create and administer field tests; $200,000 contract through the Office of General Services for books and materials.
Pearson’s management of testing in New York has resulted in a series of high-profile errors. In 2012, questions pertaining to an 8th grade ELA passage about a pineapple and a hare had to be thrown out after they were found to be nonsensical. It was also discovered that test questions had been previously used by Pearson in other state exams. In total, 29 questions had to be eliminated from the tests that year, prompting New York State Board of Regents Chancellor Merryl Tisch to comment, “The mistakes that have been revealed are really disturbing. What happens here as a result of these mistakes is that it makes the public at large question the efficacy of the state testing system.” That same year, 7,000 elementary and middle school students were banned from their graduation ceremonies after they were mistakenly recorded as having failed their state tests.
In 2013, a version of the ELA state test for eighth graders contained a reading passage that was included in test prep materials published by Pearson, giving schools that had purchased those materials an unfair advantage. The Teachers College Reading and Writing Project established a website following the 2013 ELA tests to solicit feedback from teachers. Teachers widely criticized Pearson’s interpretation of Common Core standards for the close reading of nonfiction texts. Teachers also cited many instances of poorly worded, confusing, and unanswerable questions as well as widespread reports of students running out of time. Also, in 2013, Pearson made three errors in scoring tests for gifted and talented programs resulting in 2,700 students being mistakenly told that they were ineligible. A month later, a second errorwas found, qualifying an additional 300 students for seats.
Aside from testing errors, Pearson has been accused of violating state law. In December, Pearson reached a $7.7 million settlement with the New York State Attorney General’s office after it was revealed that its charity, the Pearson Foundation, was used to seek an endorsements and donations from the Bill and Melinda Gates Foundation for a series of courses based on Common Core Learning Standards. Pearson intended to sell the courses commercially, profiting from the endorsements.

Standardization and the Privatization of Public Education

The blurring of foundation and corporate purposes has been quite common in the era of market-based education reform. The Broad, Walton, and Bill & Melinda Gates foundations are often cited as the super-funders of the reforms. The Gates Foundation was the primary underwriter for the development of the Common Core State Standards. National standardization is a primary goal of the reforms because it creates an incentive for private investment. The diversity of the American system of education creates disparate markets and reformers are well-aware of the problems it poses for investment.
Educational disparity, not standardization, has been a distinguishing characteristic of the American Education system along with the enduring effects of school segregation and inequality. Standards and learning objectives have varied widely by state and even school district. The educational philosophies and specializations of individual schools are similarly diverse, as are the instructional practices of teachers. There is potential strength in a diverse school system that is also able to provide equitable resources and reconcile the ills of school segregation–a school system that can adapt to the diverse needs of communities at a local level and innovate. But educational diversity makes the widespread adoption of standardized products infeasible. From their inception, Common Core Learning Standards have been heralded as an opportunity for privatization and the standardization of educational products. Bill Gates offered thisexplanation to the National Conference of State Legislatures in 2009:
When the tests are aligned to the common standards, the curriculum will line up as well—and that will unleash powerful market forces in the service of better teaching. For the first time, there will be a large base of customers eager to buy products that can help every kid learn and every teacher get better. Imagine having the people who create electrifying video games applying their intelligence to online tools that pull kids in and make algebra fun.
In a 2011 Op-Ed piece in the Wall Street Journal entitled The Steve Jobs Model For Education Reform, Rupert Murdoch presented a similar perspective:
Everything we need to do is possible now. But the investments the private sector needs to make will not happen until we have a clear answer to a basic question: What is the core body of knowledge our children need to know?
I don’t pretend to be an expert on academic standards. But as a business leader, I do know something about how common standards unlock investment and unleash innovation. For example, once we established standards for MP3 and Wi-Fi, innovators had every incentive to invest their brains and capital in building the very best products compatible with those standards.
In all, 45 states and the District of Columbia have adopted the Common Core standards. Such sweeping national alignment on standardization is unprecedented in an educational system built on state and local control. Federal law prohibits the federal government from prescribing curriculum, so it is uncommon that federal policies would succeed in influencing national standardization and curriculum. However, states eagerly adopted the “voluntary” Common Core standards along with test-centric policies to compete for $4.35 billion in “Race to the Top” federal funding. New York state was awarded the largest portion of the funding at $700 million. Considering that New York City’s annual education budget alone is $24.8 billion, the one-time award of $700 million was a small price for the federal government to pay in order to enshrine Common Core standards, data systems, “value-added” teacher evaluations, and test-centric curriculum in our state education laws.

Unlocking Investment: Public Tax Dollars and Private Vendors

With Common Core standards “voluntarily” endorsed by a large market of 45 states, education corporations are “investing” as foretold by Gates and Murdoch. New York State recently spent $28 million in Race To The Top federal taxpayer dollars to have four companies develop Math and English Language Arts curriculum. $14 million of the $28 million was awarded to a company called Common Core Inc. to develop Common Core aligned math curriculum. The curriculum was incomplete at the start of the 2013-2014 school year. Although the curriculum was designed for New York, its Common Core-based content is applicable to all states that have adopted the standards, making it possible for the company to resell its content to other states.
The Bill and Melinda Gates Foundation has taken further steps to make public education, and education tax dollars, accessible to corporations by mining student data. The Gates foundation, with co-sponsorship from the Carnegie foundation, spent $100 million to create InBloom, a cloud database to store student’s private data with the hope that it would become the clearinghouse for mining data across Common Core invested states. Nine states, including New York, originally agreed to participate, but amid privacy concerns, all of the states except New York have withdrawn. In November, twelve public school parents filed a lawsuit seeking a restraining order to prevent student data from being uploaded. The State Superior Court heard the case on January 10, 2014.

Common Core Reforms and Skirting Democracy

Common Core is a privately funded and privately managed initiative, despite being branded as a “state-led effort” involving “content experts, teachers, researchers and others.” The design and the adoption of the standards lacked adequate public involvement and was not subjected to legislative oversight. Despite claims of college and career readiness, the standards remain experimental–there is no guarantee of future success. The most significant flaw in the design process was the exclusion of early childhood education experts. Edward Miller and Nancy Carlsson-Paige reviewed the committees formed to write and review the Common Core standards and found that not a single early childhood teacher or expert was involved. They also noted that public comments on the standards were redacted and do not reflect strong objections from early childhood educators and researchers. For example, in 2010, more than 500 early childhood professionals signed the Joint Statement of Early Childhood Health and Education Professionals, which stated:
We have grave concerns about the core standards for young children now being written by the National Governors Association and the Council of Chief State School Officers. The draft standards made public in January conflict with compelling new research in cognitive science, neuroscience, child development, and early childhood education about how young children learn, what they need to learn, and how best to teach them in kindergarten and the early grades.
The statement raised concerns that Common Core would lead to a new series of standardized tests for younger grades, which they characterized as “unreliable and inappropriate.” At the beginning of the 2013-2014 school year, parents at Castle Bridge Elementary school in Washington Heights refused to have their children subjected to a series of new standardized tests based on the Common Core. Parents wrote, “To the city and state Departments of Education: testing K–2 children is not acceptable and developmentally inappropriate, excessive, and destructive.”
Castle Bridge’s act of civil disobedience is a logical response to a state Education Department that has proven obstinate to dissenting opinion while, themselves, pursuing policies that skirt the democratic process. Letters have been written, petitions signed, and forums held, but there have been few signs of democratic representation. In reference to a dissent-laden listening tour, State Commission John King concluded, “I think the debate about whether we need higher standards is a settled debate. It is really a question of how do we continue to support people through the implementation.” In other words, the state’s adoption of Common Core along with its accompanying tests and curriculum–the Board of Regent’s choice package of “higher” albeit untested standards–is a settled debate, and teachers are expected to be dutiful implementers.

The Voices of Dissent

In April of 2013, Veteran teacher Gerald J. Conti, a social studies teacher at Westhill High School in Syracuse, New York, became fed up with playing the role of dutiful implementer and submitted his letter of resignation. In the letter, he cited Common Core and incessant high-stakes testing as creating an “atmosphere of distrust” and a “dramatic and rapid decaying of morale.” He concluded, “After writing all of this I realize that I am not leaving my profession, in truth, it has left me. It no longer exists.” In a letter to her 8th grade students, veteran 8th grade teacher, Ruth Ann Dandrea, described the 2012 New York State ELA test as “a test you need to fail.” In characterizing the pedagogical dilemma teachers find themselves in as test administrators, she addressed her students directly: “Continue to question. I applaud you, sample writer: When asked the either/or question, you began your response, “Honestly, I think it is both.” You were right, and you were brave, and the test you were taking was neither.”
Another educator, Carol Burris, has been consistent in her dissent from market-based reforms. She is Principal of Southside High School in the Rockville Centre School District and was named Educator of the Year in 2010 and High School Principal of the Year in 2013 by the School Administrators Association of New York State. In response to the outcomes of the 2013 state tests, she and seven of her colleagues wrote an open letter to parents and children of New York State that was co-signed by 545 principals and 3,000 additional supporters. The authors wrote candidly about what is known and unknown about the state testing program.
Please know that we, your school principals, care about your children and will continue to do everything in our power to fill their school days with learning that is creative, engaging, challenging, rewarding and joyous. We encourage you to dialogue with your child’s teachers so that you have real knowledge of his skills and abilities across all areas. If your child scored poorly on the test, please make sure that he does not internalize feelings of failure. We believe that the failure was not on the part of our children, but rather with the officials of the New York State Education Department. These are the individuals who chose to recklessly implement numerous major initiatives without proper dialogue, public engagement or capacity building. They are the individuals who have failed.
That same coalition of principals wrote a scathing critique of the Annual Professional Performance Review legislation (APPR), which based principal and teacher evaluations on student’s test scores using value-added modeling. The letter was signed by 1,539 principals, over one third of all principals in New York State, along with over 6,100 supporters.
We, Principals of New York State schools, concluded that the proposed APPR process is an unproven system that is wasteful of increasingly limited resource. More importantly, it will prove to be deeply demoralizing to educators and harmful to children in our care. Our students are more than the sum of their tests scores, and an overemphasis on test scores will not result in better learning.
A group of eight “Teachers of The Year” in New York wrote a separate letter to the Board of Regents, voicing similar concerns:
It is with sadness, pain and frustration that we write this letter. We, the undersigned New York State Teachers of the Year, are deeply concerned about recent changes to the State Education Department’s Annual Professional Performance Review system. These changes, while politically popular, will neither improve schools nor increase student learning; rather, they will cause tangible harm to students and teachers alike.
Carol Burris initiated a petition to Governor Cuomo and the state legislature calling for a moratorium on high-stakes testing. The letter received 14,100 signatures.
We, the undersigned, support higher standards that are reasonably designed, implemented with care, and accompanied by the resources schools need to achieve them. The New York State testing program has undermined the implementation of higher standards, by creating a test-driven environment that does not serve our children well. High stakes testing continues to waste precious taxpayer dollars and student learning time. It is time to say, “no more”.
Many educational researches have been highly critical of market-based education reforms. Distinguished education professor Linda Darling-Hammond has authored numerous articles pointing to the harm that reforms have done to the teaching profession, including “Value Added Evaluation Hurts Teaching.” She cited studies from the National Research Council, the RAND Corporation, and the Educational Testing Service that recommend against using standardized test scores in the form of value-added modeling to make high-stakes decisions about students, teachers, and principals. In April 2013, The Economic Policy Institute released a report titled “Market-oriented education reforms’ rhetoric trumps reality,” which examined reforms in Washington D.C., New York, and Chicago. The authors concluded that reformers in those cities had made false claims regarding rising test scores and had failed to deliver on promises to close the widening achievement gap. They concluded that the practical impact of reforms had, in some cases, undermined stated objectives.
As discussed in this report, increasing the science, technology, and engineering components of STEM education to produce more engineers and computer programmers is difficult when raising reading and math scores assume such high priority, and thus crowd out other subjects. The same is true of other higher-order critical thinking and creativity required to forge productive workers and good citizens; attaching high stakes to tests that assess basic skills all but guarantees that more complex learning falls by the wayside.
The report’s authors wrote that market-oriented reforms are “no match for the complex, poverty-related problems they seek to solve.” They explained that the reforms have harmed students that have historically been marginalized in publics education.
It is students in under-resourced schools, who have lost literature and poetry to vocabulary drills and seen their curricula stripped of art, music, and physical education to make room for increased test preparation, who are most likely to see their schools shuttered when their test scores do not rise quickly enough.
The Consortium on Chicago School Research at the University of Chicago studied the effects of school closures on displaced students. One of the underlying beliefs of market-based reform is that test scores will spur competition among schools and that subsequent under-enrollment and under-performance will justify school closures. Students in under-performing schools will have the “choice” to attend higher-performing schools. Researchers found that, of the schools closed in Chicago between 2001 and 2006, only 6 percent of displaced students were able to attend schools that had test scores in the top quartile. In addition, researchers found that student’s test scores dropped with the announcement of school closings and that the effects on their learning in subsequent years was neither negative nor positive. In 2013, Chicago slated 54 schools for closure, the largest group of schools to be shut down in recent history.
In the February 2012, distinguished education historian Diane Ravitch expressed her indignation at New York State’s decision to release teachers’ value-added ratings by writing an article titled “How To Demoralize Teachers”:
No one will be a better teacher because of these actions. Some will leave this disrespected profession—which is daily losing the trappings of professionalism, the autonomy requisite to be considered a profession. Some will think twice about becoming a teacher. And children will lose the good teachers, the confident teachers, the energetic and creative teachers, they need.
Diane Ravitch was one of 1,100 professors to sign an open letter to the New York State Board of Regents calling for an end to the state’s over reliance on high-stakes testing.
As lifelong educators and researchers, from across the State of New York, we strongly oppose New York State’s continued reliance on high stakes standardized testing in public schools as the primary criterion for assessing student achievement, evaluating teacher effectiveness, and determining school quality.
In October, 121 children’s book authors and illustrators sent a letter to President Obama expressing their concern over high-stakes testing. Among them, Maya Angelou, Judy Blume, and Jane Yolen:
We the undersigned children’s book authors and illustrators write to express our concern for our readers, their parents and teachers. We are alarmed at the negative impact of excessive school testing mandates, including your Administration’s own initiatives, on children’s love of reading and literature. Recent policy changes by your Administration have not lowered the stakes. On the contrary, requirements to evaluate teachers based on student test scores impose more standardized exams and crowd out exploration.

Education Doublespeak and the Marketing of Common Core Reforms

We have included a few examples of the efforts of parents, teachers, principals, researchers, and authors to enter into a democratic debate on market-based reforms. Appointed education leaders who have traveled the revolving door of private foundations, charter school initiatives, and corporate consultancies, have stifled democratic debate by marketing their reforms with the same tenacity that they have used to divert public funds to the corporate vendors and monied circles that they owe their positions to. The marketing is grounded in doublespeak. Words like success, achievement, rigor, and 21st Century Learning are touted so often by reformers that their substance becomes obscured. In the paradigm of market-based reform, students’ achievement on for-profit bubble tests is the only metric for claiming success. The pathway to so-called “success” is so narrow, therefore, that policymakers, parents, teachers, and principals have been lulled into compliance.
Policymakers who invest in the data sheets of testing corporations are heralded as paving the way for “21st Century Learning.” Principals who organize their school’s curriculum around testing data will be labeled “bold school leaders” and escape sanctions. Teachers who implement pre-packaged test-centric curriculum and view children through the lens of testing data will keep their jobs. Parents who accept corporations as educational gatekeepers will comply with testing to preserve their child’s chances of promotion or a desired school placement. In such a system, high-stakes tests become a deity of manufactured educational opportunity rather than a tool for fostering teaching, learning, and human development. It is a system dependent on compliance, measured predictability, and public tax dollars for private profit.

The Consequences of a School System That Devalues Teachers

We are acting on our conscience, built on years of experience teaching young people. In reaction to this position paper it is likely that some will characterize our choices as a betrayal of high standards, an endorsement of “watered-down” curricula, or cynically as an attempt to escape teacher evaluations and “accountability.” In a different national climate, the character and credibility of individuals who leveled those charges would be questioned. Regrettably, the denigration of teachers has become commonplace among proponents of market-based reforms, with little forethought as to the regrettable consequences that come to a school system that devalues its teachers. Teachers are motivated and guided daily by students, which is a type of accountability that is seldom understood by policymakers who have not devoted their careers to teaching. We are skilled curriculum developers and it is our ability to create curriculum that is standards based, yet responsive to our students, that distinguishes us as professionals.
Critics may view us as irresponsible for dismissing Common Core tests without proposing an “alternative” to take its place. Parents may ask, ‘But don’t we need a way to know how our students measure up?’ Historically, the use of standardized tests for the purpose of ranking and sorting students has acted to reproduce and normalize inequality rather than challenge it. Standardized testing depends on a reductionist logic that falsely attributes test scores to innate ability or merit on a “level playing field.” The claim that standardized tests can act as a tool or benchmark for addressing inequality contradicts its theoretical underpinnings and historical applications. Nicholas Lemann, Dean of Columbia Graduate School of Journalism, aptly stated, “Tests tend to reproduce, not upend, social hierarchies. Everybody is always looking for the test on which people from different races and classes do the same, but it doesn’t exist.”
Teachers assess students daily to inform instruction and curriculum design. Without assessment, teachers would be adrift in their relationships with students. There are numerous, more refined assessment tools and observation techniques at our disposal. Some schools use collectively designed Performance Based Assessment Tasks, portfolio-based assessments, roundtable presentations of student work to a panel of judges, or various long-term interdisciplinary assessments to measure students’ strengths, weaknesses, and growth. Schools that use these methods of assessment typically point to their flexibility, authenticity, real-world applicability, and to the high level of student and community buy-in and engagement they elicit as benefits. These types of assessment are particularly valuable in more accurately assessing English Language Learners, students with disabilities, and students with “test anxiety.” It is through flexibility in assessment and our strong relationships with students that we come to know them as learners. The possibility for diverse assessment tools will not diminish with the exclusion of unrefined and misapplied for-profit Common Core tests. In the end, this is not a debate over whether or not students will be assessed, but rather whom policymakers trust with knowing students and planning for their learning. Policymakers can choose to outsource that responsibility to the inept data-factories of education corporations, or support teachers in assessing students in authentic ways and developing quality curricula. Teachers are by no means a panacea for the societal ills that we have outlined in this position paper, but when faced with a classroom of creative and inquisitive minds, one cannot help but feel hopeful that some measure of societal change is possible.

A Call to Preserve Public Education

We have observed a groundswell of teachers fighting to preserve the dignity of their profession from the damage done by market-based reforms. We now turn to you, Chancellor Fariña, to see what you are willing to stand for. We have observed a tendency on the part of school leaders and policymakers sympathetic to our position to decry an “obsession with high-stakes testing” yet accept for-profit testing as an inevitability of schooling. We find that position to be unsettling and counterproductive because it denies educators agency in shaping education policy. We are often cautioned to wait, that education fads come and go, and that the “pendulum” will swing the other way. We understand you to be a student of history and as such you know that it is people’s actions rather than the passage of time that brings about change. You were quoted as saying “Life is a series of tests in many ways,” and we believe that the most transformative of those tests will be the ones that test moral courage. We make it our profession to prepare students for those moments that will require them to think critically and take bold action. Maxine Greene defined freedom as “the capacity to surpass the given and look at things as if they could be otherwise.” We are asking you to critically evaluate the given and consider whether or not you will join us in seeing it otherwise.

Eric Palmer: For Standards, Not Testing

Eric Palmer

I hate testing not standards

Where the hell have you been?
Pardon my language, but I do want to ask this to those of you who are vehement about how bad lots of testing is and how horrible high stakes tests are. I have hated all the testing and the Big Test for twenty years now.  Where were all of you?  Why didn’t you ever join me?  This testing mania has been around for decades and now suddenly you figure out that it’s bad for kids? And why do you blame it on Common Core?
A little history.  We have had high stakes testing for about twenty years now.  I was teaching when Colorado adopted the Big Test, the ColoradoStudent Assessment Program.  The governor at the time was sure education would improve if we had a Big Test For All To Take.  I was outspoken at the time that the test was unnecessary and bad for students. The governor and a congressman who was a big supporter of the test were persuaded to take the 11th grade test.  The governor refused to have his test scored; the congressman said he hoped his test would be shredded.  I was livid and I wrote a guest column for the paper: how valid is the test if very successful people can fail it?  It must measure something that doesn’t matter in life.  And what a waste of time and money!  This was 15 YEARS BEFORE COMMON CORE.
My district purchased test prep packets and we were supposed to go through them for the month leading to the Big Test.  Students and teachers got seriously stressed at CSAP time. I felt the packets were not the best use of instructional time and, in defiance, never used them.  (My students test scores were as high or higher than my peers who used the packet in fear of the big test.) This started 15 YEARS BEFORE COMMON CORE.

I had my son opt out of the Big Test.  I felt it wasted a week of his life, had no instructional value, and told teachers nothing about him that they didn’t already know. This was 10 YEARS BEFORE COMMON CORE.
My district added MAP testing two times a year, DRA testing two times a year, and a district-created writing assessment four times a year.  I gave the first writing assessment and realized that it had no instructional value so I never gave it again.  I was prepared to use the “asking forgiveness is easier than asking permission” defense, but no one ever noticed.  I was livid again.  Why all this testing?  No one can keep up with it!  This started 8 YEARS BEFORE COMMON CORE.
I was teaching 8th grade when the district added the EXPLORE test.  The EXPLORE test predicts how well kids will do on the PLAN test which predicts how well kids will do on the ACT test which has almost no predictive value about how well kids will do in college.  I was an outspoken critic.  More money wasted, more instructional time gone, no information that I didn’t already have.  This started 4 YEARS BEFORE COMMON CORE.
Where was the outrage all of this time?  Why was I the only voice against non-stop testing, test prep, and the Big Test?  If you think this is a Common Core issue, you are way wrong. If you hate the Common Core because of testing, you are way off base.
Are people making money from new tests? Probably, but I never hear a peep from you about the insane SAT or ACT preparation industries. Are there glitches in the new online tests? Of course, but at least testing is finally getting into the 21st century instead of looking exactly like the Iowa Test of Basic Skills I took half a century ago (46 YEARS BEFORE COMMON CORE!). But still, I agree: this testing mania is insane!
And here is the mind-blowing part: I don’t hate the Common Core State Standards.
For some time now, I have been asking haters to tell me exactly which standard they don’t like. You don’t like “Determine the main idea of a text; recount the key details and explain how they support the main idea?” You don’t like “Gather relevant information from multiple print and digital sources, using search terms effectively; assess the credibility and accuracy of each source; and quote or paraphrase the data and conclusions of others while avoiding plagiarism and following a standard format for citation?” You don’t like “Adapt speech to a variety of contexts and tasks, demonstrating command of formal English when indicated or appropriate?” Well then, tell me exactly which ones need to be tossed out? NOT ONE PERSON HAS EVER ANSWERED THIS QUESTION. Only a fool sees things in black and white; all good or all bad; everything or nothing. Aren’t there some good ideas here?
More history. When I started teaching, I was told to teach language arts. I had some ideas of things to do, but I never had a clear idea of what the end result was supposed to be. I was told to assign book reports and teach topic sentences and other things, but everyone was weak on where we were all supposed to be headed. I would not have minded at all someone saying, “At the end of this year, see if you can get kids to recognize and correct vague pronouns (i.e., ones with unclear or ambiguous antecedents).” Ah, that’s what appropriate for this age! That’s my goal. We’ll shoot for that.
And that is all a standard is.
No drama.
No all or nothing.
No “I hate Bill Gates.”
And definitely no “But testing is horrible!!!!”
I am happy that after twenty years, people are joining me on the Too Much Testing Bandwagon. I am seriously disappointed, however, that people can’t see a distinction between a standard and a test. And I am shocked at the number of folks who haven’t figured out that you can have standards and not have ridiculous amounts of tests. They do not logically have to go together. You can (and should?) hate testing but not standards.

Monday, February 2, 2015

Michael Goodwin: Everyone knew about Silver, but no one cleaned it up

So when is Andrew Cuomo being charged?

Betsy Combier
NY State Governor Andrew Cuomo With Sheldon Silver (right)

Back in 2004, when Assembly Speaker Sheldon Silver blocked passage of the state budget with a series of bizarre objections, a frustrated Gov. George Pataki confronted him: “Who is your client?’’ the governor demanded.
The showdown made headlines because of the clear insinuation that Silver, a Democrat, was using his official power to serve a private customer and enrich himself. That it took nearly 11 long years for prosecutors finally to make a case along those very lines reveals both the complexity of Silver’s alleged scams and Albany’s rotten pay-to-play culture.
The Empire State’s capital is corrupt to the core, and has been for a very long time. Virtually nothing happens there that isn’t driven by self-dealing. It is a cesspool unworthy of respect or trust and now stands naked in disgrace.
The roster of convicted crooks is approaching 40 public officials, but Silver’s case is unique. As speaker for 20 years, he was at the center of every piece of legislation written and every taxpayer dollar collected and spent. He ruled the Assembly like a private fiefdom, and, governors notwithstanding, he was called the most powerful man in the state for good reason.
Nothing moved without his say-so, and according to the federal charges, he turned that power into personal wealth. He “monetized public office,” Manhattan US Attorney Preet Bharara said, adding that Silver “amassed a tremendous personal fortune” of at least $3.8 million through kickbacks and bribery.
One series of charges says he traded $500,000 in taxpayer money for more than $3 million in private gain. He allegedly took cash from a state slush fund and gave it to a doctor, who referred asbestos cases to a law firm that illegally split its share of medical settlements with Silver.

Assembly Speaker Sheldon Silver (center) is driven by federal agents to federal court on Jan. 22.Photo: AP

Other charges involve a separate law firm, which paid Silver $700,000 over a period of years for helping developers lower their property taxes. That, says Bharara, meant Silver “was on retainer” to the developers.
Not once, prosecutors say, did Silver actually do any legal work. He was paid only for using his public power to help the law firms and their clients.
It’s only a slight stretch to say that Silver did most of his alleged thieving in plain sight. Most of the outside money, if not its sources, was publicly disclosed. The taint was screechingly obvious, yet nobody did anything about it.
Pataki’s 2004 challenge about a private client was prophetically on target, but no prosecutor had the guts to follow the money. Perhaps a belief that he was immune led Silver to get greedy — and sloppy. His outside income grew by leaps and bounds, reaching nearly $1 million in some recent years.
Gov. Andrew Cuomo certainly had an instinct for the truth and a great chance to reveal it. His Moreland Commission was focused on Silver’s ties to law firms when the governor abruptly shut it down in a deal with Silver and others. Bharara picked up where the panel left off, but remains furious at Cuomo and continues to probe his actions.
At the very least, the governor owes New Yorkers a serious explanation. I was a persistent advocate of the Moreland panel, and when he appointed one in June 2013, Cuomo told me in an interview he was “as serious as a heart attack” about rooting out corruption.
He boasted that he stocked the panel with “top-shelf law enforcement people” so that any dirt could lead to swift criminal charges. He promised it would trace campaign donations, legislation and pork-barrel spending to connect the dots to corrupt quid pro quos.
“It’s going to be a real follow-the-money investigation,” he said then. “We want to see who gives you money, the legislation you introduce and your member items.”
He was onto something big, but pulled the plug prematurely when lawmakers, who had fought the panel’s subpoenas, agreed to toothless ethics rules. It was the biggest mistake of Cuomo’s first term, and now his second term begins with a scandal.
Neither he nor we should think the last shoe has dropped. The 35-page federal complaint has several loose ends, including any connections to Silver’s repeated squashing of tort-law reforms, and cooperating witnesses may have the goods on other crooked officials.
Then, too, Silver is hardly a tough street brawler willing to shuffle quietly off to prison. He’s a 70-year-old pol who, if he sees no way out of his jam, will sing like a canary.
That would certainly please Bharara, who acts like a man with an appetite for more red meat.
“Our unfinished fight against public corruption continues,” he vowed yesterday. “You should stay tuned.”
He can count on that.

10 Mistakes Lawyers Make in Arbitration

ADVOCATZ follows a 3020-a strategy which at all times is respectful of the parties involved.

Betsy Combier

Top Ten Mistakes Lawyers Make In Arbitration And Tips on How to Avoid Them!

By Phil Cutler
Cutler Nylander & Hayton PS
1191 Second Avenue
Seattle, WA  98101
Philip E. Cutler © 2011

For over 20 years I have presided over or participated as a panelist in hundreds of arbitrations.  Those experiences have shown me the good, the bad and the ugly.  Quite frankly, there are many more seriously egregious mistakes I have seen lawyers make; it was difficult to pare this list down to 10.

#10 – Play Games:  Engage in Cheap Games and Discovery Abuse; ContinueGamesmanship During the Hearing

Arbitration is no more a macho gladiator contest than litigation, though some lawyers (and their clients too, unfortunately) seem to believe that gamesmanship – hardball tactics, obfuscation and delay – is the way to win cases.  Though they are wrong, they nonetheless:

  • refuse to stipulate to anything
  • object to practically everything, especially any proposal made by opposing counsel
  • refuse to extend professional courtesies to opposing counsel
  • insist on unbridled discovery rather then thoughtfully analyzing their client’s and the opposing party’s legitimate discovery needs and putting together a discovery plan that largely meets everyone’s needs
  • schedule depositions unilaterally and/or refuse to adjust the schedule to accommodate witness’s or opposing counsel’s legitimate needs
  • lard responses to written discovery with lengthy and generally worthless (and usually unfounded) boilerplate objections
  • unreasonably delay providing documents or information
  • suddenly “discover” key exhibits during the hearing
  • reactively object to nearly all exhibits offered at the hearing by the other side
  • whether at depositions or the hearing, lodge objections to examination questions that are largely specious, generally for the sole purpose of interrupting the flow of the case
  • are coy about scheduling witnesses’ hearing testimony
  • refuse to cooperate in any respect

These lawyers and clients seem to believe that the arbitrator is impressed by these tactics or awards points based on counsel’s cleverness in obfuscating matters, delaying resolution or raising the cost of the case.  They don’t.  Indeed, tactics such as these are seen for what they are:  simple gamesmanship.  Parties and their lawyers who engage in them lose credibility with the only one who counts:  the arbitrator.
Avoid games-playing like the plague.  Like litigation, arbitration is an adversarialprocess; that, however, does not mean that basic professionalism and civility are ignored in favor of chest-thumping and uncooperativeness.  Counsel should pick her fights with care;  save arguments for those matters that are really important; try andresolve all other matters cooperatively.
Remember that discovery in arbitration is substantially less broad than it is in litigation; tailor your discovery, and suggest a mutual discovery plan, that legitimately addresses the needs of the parties and the case; the arbitrator is unlikely to be receptive to a party’s insistence on turning over every rock.[1]  Avoid bringing numerous discovery disputes to the arbitrator for resolution; arbitrators don’t like having to resolve such disputes any more than judges do.

#9 – Display Anger, Animosity and Rudeness:  Personalize Everything; Engage in Ad Hominem Attacks

You have seen it before, the lawyer who:

  • refers to the opposing lawyer or witness (or even the arbitrator!) disrespectfully
  • sneers, rolls his eyes or raises his eyebrows at arguments made by opposing counsel or a witness’s testimony
  • lards briefs or oral arguments with purple prose
  • encourages or allows her client to make sotto voce comments about testimony, exhibits or case developments
Avoid personal attacks.  Emotions can run high even in arbitration, but your clients have a dispute, which you have been hired to help them resolve – not to fan the flames.  You can be a zealous advocate without stooping to the level of a street-fighter.  Don’t characterize the opposing side’s arguments (or a witness’s testimony) as “patently ridiculous” (or use similar purple prose) in your briefs, examination or oral arguments.  Engaging in such conduct merely highlights for the arbitrator your (or your client’s) lack of professionalism, civility and faith in the merits of your client’s cause.  The arbitrator is looking for objectively supportable facts and legal authority to help her decide the case.  This sort of conduct detracts from the merits of your case and distracts the arbitrator from doing her job.

#8 – Overuse or Misuse Technology:  Use Fancy but Unnecessary Technological or Demonstrative Aids; Fail to Know how to use Them

Technology is a wonderful teaching and learning tool.  But using power-points or electronic displays for everything is generally unhelpful and can be distracting.  Technology is especially unhelpful (and distracting) if it doesn’t work.  Moreover, unless you print out whatever you display electronically, the arbitrator won’t have a record of your “techie” presentation available to refer back to after the hearing.
In deciding what technology to use, and how, remember that the point of the hearing is to tell your side’s story to a particular audience:  the arbitrator.  Ask yourself if your proposed tech aid facilitates the telling of that story or gets in the way.  You will have presented exhibits in paper form (commonly in a tabbed ring-binder), which both the arbitrator and the witness will have available during the hearing.  Putting exhibits up on a screen (generally with ambient lighting making it difficult to read and follow along; extinguishing the lights makes note-taking difficult or impossible) is frequently unhelpful and often counter productive.  If there is a key phrase or section in an exhibit that you wish to highlight, have a large and readable blow-up made; it will be easier for the arbitrator and witness to read and assimilate.  Most arbitrators appreciate counsel highlighting (a yellow marker does the job nicely) key portions of exhibits in their binder.
The same holds true for squibs from deposition transcripts.  If you are using technology, be sure you practice beforehand so that your presentation is flawless.  If you are using a video squib (from a deposition, for instance), limit use to the really important parts and cue up any squibs so that the presentation is effective.  If you intend to use a power-point presentation during your closing argument, be sure to print off a copy and give it to the arbitrator (and opposing counsel, of course) before the argument.

#7 – Waste Opportunities to Persuade the Arbitrator:  Assume the Arbitrator Shares Your Knowledge of the Case; Fail to Analyze, Distill and Organize Your Case; File Long and Unpersuasive Briefs

By the time the hearing rolls around, you will have lived with your case – the facts and the law – for several months.  The arbitrator may be a quick study, but she doesn’t have the same knowledge base as you do.  Your task at the hearing is to bring the arbitrator along – don’t waste the opportunity to educate her.  Your hearing brief ought to highlight the critical facts that will be adduced at the hearing, put those facts into context so their importance is obvious, and apply the law to the facts.  Make sure the arbitrator knows who the main players (and witnesses) are, and why their testimony is important; cover the elements of your claim or defense.  If a timeline is important, consider preparing a chronology.
Briefs should be focused and as short as possible.  Even if the arbitrator doesn’t place a page-limit on briefs, use local federal or state brief limits as guidelines.  If your hearing brief is longer than 30 pages, try again.  Remember that a reply brief is designed to reply to an argument that your opponent has made in opposition (and which you may not have addressed to your satisfaction in your opening brief); don’t simply repeat all the arguments made in your opening brief.

#6 – Ask Inappropriate Questions; Fail to Pick up on an Opportunity to Deal   With Something the Arbitrator views as Important; Ignore a Witness’s Non-Responsive Answer:  Ask Questions That are not Really Questions or ask Overly Legalistic Questions of a Lay Witness; Rebuff Questions from the Arbitrator

Long, wandering “questions” are to be avoided, as are questions asking for a legal conclusion – from either a lay or expert witness.  Strive for short, crisp questions. Write your questions out ahead of time or practice them.  Be sure there is a question mark at the end.  The power of the witness’s answer depends on the clarity of the question it responds to; if the witness is confused, the arbitrator will likely be confused as well.
Ask questions of witnesses; don’t testify yourself.  The arbitrator is interested in the witness’s testimony, not yours.
Listen to the witness’s response: the arbitrator will hear what the witness says, not what you expect him to say.  If the witness fails to answer the question you asked, repeat it and ask for a response.  A motion to strike as non-responsive will highlight for the arbitrator that the witness may be evasive or not paying attention.
Welcome questions from the arbitrator; if she asks questions, assume that she really is interested in the answer.  Don’t put the arbitrator off by saying, “I’ll come back to that.”  In all likelihood you won’t.  Even if you do, you will have missed an opportunity to respond timely to something the arbitrator wanted more information about.

#5 – Assume the Evidentiary Rules in Arbitration are the Same as Those in Court:  Fail to Take the Time to Understand the Rules of Evidence; Make Numerous and Ineffective Evidentiary Objections

While “not everything goes” in arbitration, arbitration hearings are generally unfettered by the evidentiary rules applicable to court proceedings.  It behooves counsel to know what rules there are and to act accordingly.
Most arbitration providers have rules similar to Rule R-31, AAA Commercial Rules, which states the general evidentiary rule applicable in arbitration:  “Conformity to legal rules of evidence shall not be necessary”  and “The arbitrator is empowered to decide the admissibility, relevance and materiality of evidence that is offered.”  To the same effect is Section 15 of the Revised Uniform Arbitration Act.[2]
Most arbitrators will allow leading questions on preliminary matters or matters which are not critical to disposition.  Avoid, however, leading your own client: doing so telegraphs to the arbitrator that your client is unable to testify . . . so you have to do it for him.
Lay an appropriate foundation for key evidence, but don’t overdo it.  Faced with a “lack of foundation” objection, many arbitrators will overrule it and tell you that you may demonstrate the unreliability (or irrelevance) of the evidence on cross.  Pick up on that and heed her advice.  The case will move along more quickly and, assuming you ask crisp, focused questions on cross, the arbitrator will get the point that your opponent’s evidence is to be ignored or not to be accorded much weight.
While arbitrators will not generally accept 3rd or 4th hand hearsay, they will frequently allow hearsay if the evidence is of the sort that a reasonable and prudent business-person would rely on, reserving for herself a decision on the weight that such evidence should be accorded.  Just because a hearsay objection could (and perhaps should) be made at trial, does not mean that objection should be made at the arbitration hearing.[3]  Making numerous and repetitive objections, especially hearsay objections and sweeping admissibility objections to exhibits on any ground, at the hearing is most often counterproductive and serves only to diminish counsel’s effectiveness in the eyes of the arbitrator.  Wise counsel will limit her objections to those which are recognized in almost every context, such as those based on attorney-client privilege, or which are not only critical to the case but also likely to be sustained (e.g., questions about settlement or mediation).
At trial, counsel would hardly ever get away with introducing a declaration of affidavit from a witness.  The same is not true in arbitration.  See, e.g., Rule R-32, AAA Commercial Rules, which permits such evidence over objection with the caveat that the arbitrator will give it such weight as she deems it entitled to.  Your chances of getting the arbitrator to give your witness’s declaration or affidavit substantial weight will be improved if you make the witness available for cross-examination either by telephone or video conference.

#4 – Misuse Cross-Examination of Witnesses:  Try and use Cross to Prove Your Case in Chief; Fail to Plan Cross Before the Hearing

Any student of trial advocacy knows that cross-examination is one of the most powerful tools available to counsel.  Nonetheless, lawyers continue to:
  • ask open-ended questions on cross, giving the witness an(other) opportunity to tell “his” side of the story
  • ask questions to which the lawyer does not know the answer (a bad idea unless the lawyer doesn’t care what the answer is)
  • try and use cross to prove her case-in-chief
  • spend time on cross laboriously challenging every jot and tittle of the witness’s direct examination, especially as to matters that are not important

Generally, the most that counsel can hope for from a witness on cross-examination is that some in-roads can be made debunking a key point of the other side’s case.  If you have prepared your case well, you will know what points you can get from the witness on cross.  Make a short list and get to it.  Except in the unusual case, resist the temptation to grill the witness for hours on everything he or she said on direct.  While there is truth to the “death by a thousand cuts” maxim, it is rare that such a strategy yields significant results at a hearing.

#3 – Continue Blithely on, Ignoring What Common Sense Tells (or Should Tell) You: Fail to Know When to Stop; Treat the Arbitrator as an Unsophisticated Rube

The arbitration hearing should not be an endurance contest.  Counsel’s task is to present sufficient evidence on key factual points to sustain her client’s burden of proof and provide a foundation for closing argument; do so and then STOP!  There is a difference between “corroborating” evidence and “cumulative” evidence.  Recognize it.
Know your arbitrator’s professional background and work history; know the elements of proof needed.  Prepare your case accordingly.  While your arbitrator may not be an expert on your client’s industry or the particular legal issues your case presents, he is an intelligent individual, who frequently has “tried” cases before, if not as an arbitrator then as counsel.  If the arbitrator tells you that “I got it”, believe him.  Burdening him with hours more testimony on the same subject will not help him rule in your favor; it will likely antagonize and frustrate him.

#2 – Make it Difficult for the Arbitrator to Rule in Your Client’s Favor:  Fail to Organize Your Case and get Your Client’s Story Across

One would think that counsel would do everything possible to help the arbitrator rule in the client’s favor.  It’s amazing how many times counsel does not do so.  In arbitration, your only audience should be the arbitrator.  Make it easy for the arbitrator to understand your case and follow along.
The arbitrator can only rule in your client’s favor if he understands the facts and why they are important.  In order for the arbitrator to “get it” he needs to be told clearly who did what to whom (or didn’t do something) and how that plays with all the other facts that are important.  Begin to do that in your arbitration brief (if you haven’t had an opportunity before then to give the arbitrator a taste of what the case is about).
Similarly, the arbitrator needs to understand the key legal principles that undergird your case.  While some believe that arbitrators try and do equity (some say, by “splitting the baby”), in my experience arbitrators do their best to apply applicable law to proven facts and let the chips fall where they may.  To that end, counsel needs to clearly and cogently – and persuasively – demonstrate to the arbitrator what the law is, and how the law compels an award in your client’s favor.  Do not assume the arbitrator knows what the law is.
Every case has a “story” to tell.  That story should be simple, interesting and based on fact – not fiction.  Commonly, exhibits are an important part of that story.  Prepare your witnesses to tell the story in their words; let them tell it.  Make sure you integrate exhibits with testimony.  If, as is most often the case, chronology is important, prepare a chronology or time-line; find a way to use it as an exhibit, even a demonstrative one.
Organize the exhibits chronologically, or by issue; eliminate duplicate copies of exhibits (there should be only one exhibit that is the contract at issue); number exhibits so that there is only one “Exhibit 1” (you want the arbitrator to be able to easily find, track and follow exhibits and witnesses’ testimony).  Tell the arbitrator how you’ve organized your case.
Put all exhibits in one or more tabbed ring-binders.  Be sure the arbitrator has her own set of exhibit binders; all counsel and the witness should also have their own set: don’t expect to look over the arbitrator’s shoulder.  Don’t use binders with more than a 3-inch spine; when filled with paper, large-spine binders are too heavy and unwieldy.  Put a few extra tabs in the arbitrator’s binder to accommodate the inevitable “late” exhibits.  When bringing additional exhibits to the hearing for insertion in the binders, make sure the exhibits are hole-punched so the arbitrator can easily add them.  Consider using a separate binder of “core” exhibits that will be referred to frequently during the hearing.

#1 – Fail to Tell the Arbitrator Exactly What Your Client Wants:  Don’t Tell her, Keep it a Secret; Hope the Arbitrator “gets it” by Osmosis

Well before the hearing, develop a theory of the case and be sure your story is laid out by your witnesses (and the answers to your focused cross-examination) and exhibits. The arbitrator will never have the breadth of knowledge that you do – and probably doesn’t want or need to.  She does need a clear roadmap, however.  Give her one.
Use your arbitration brief to tell the arbitrator exactly what relief your client wants, and why; repeat it in your opening statement (“the evidence will show that . . . and that an award of . . . should be entered”) and again in closing argument.  Give the arbitrator a draft award laying out the relief your client wants her to award.  If you want injunctive relief, say so and tell the arbitrator what conduct should be prohibited and for how long; give her the legal basis for such an award.  If you’re seeking pre-award interest, specify the date and amount on which such interest should begin to run and the interest rate that should be used – and why.
Be careful what you ask for, you may get it.  In Washington, attorneys’ fees are awardable only where specifically provided for by contract or statute.  However, if your arbitration is administered under the AAA’s Commercial Rules, be aware of Rule R-43(d):  “The award . . . may include . . . an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or their arbitration agreement.”  Asking for attorneys’ fees only because your opponent has requested such relief (and there is no statute or contract authorizing it) can expose your client to an award for substantial fees even if they would not otherwise be available.

Phil Cutler
August 2011

[1]     The rules of most arbitration provider organizations give the arbitrator substantial power to manage and deal with discovery.  See, e.g., Rules R-21, 30 and 31, AAA Commercial Arbitration Rules, and Rule L-4, AAA Optional Rules for Large Complex Cases.  To the same expect, but more explicitly, is Section 17 of the Revised Uniform Arbitration Act (adopted in Washington (see RCW 7.04A.170), as well as in many other states).  Moreover, commercial users of arbitration (and their general counsel), view overbroad discovery in arbitration as a significant, and expensive, negative.  See  Cutler, “Reclaiming the Promise of Arbitration,” KING COUNTY BAR BULLETIN (July 2011), and Protocols  for Expeditious, Cost Effective Commercial Arbitration (Stipanowich, von Kann and Rothman, eds.) (College of Commercial Arbitrators, 2010), available on line at  Experienced arbitrators tend to actively manage the discovery process so as to reduce the cost of arbitration and improve its effectiveness and efficiency.
[2]     See RCW 7.04A.150(1).
[3]     A key reason for objections at trial is to preserve one’s record for appeal.  Not only is there commonly no transcript of the arbitration hearing, there is very limited judicial review of an arbitrator’s award.  See 9 U.S.C. §10 (Federal Arbitration Act), Section 23 of the Revised Uniform Arbitration Act and RCW 7.04A.230.