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Strengthening School Leadership and School-Level Accountability:
Rethinking Principals' Rights and Responsibilities After Governance Reform

A Report of the Committee on Education and the Law
of the Association of the Bar of the City of New York

TABLE OF CONTENTS

I. INTRODUCTION.

II. THE 1996 REFORM ACT: PRINCIPALS AS SCHOOLEADERS.

A. Research.
B. The Reform Act.

III. IMPLICATIONS OF THE REFORM ACT FOR PRINCIPAL REMOVAL AND TRANSFER.

A. The §3020-a Process and Principal Tenure.
B. Past Critiques of the Disciplinary Process.
C. Principal Transfer.

IV. RECOMMENDATIONS

A. Reorganize Principals’ Managerial Responsibilities and Provide Them with Appropriate Compensation, Autonomy and Support.
B. Hold Principals Accountable for Meeting High Performance Standards.

1. Fully Evaluate Candidates for Permanent Placement and Extend the Period for Evaluation of Prospective Candidates for Permanent Positions.
2. Modify Tenure to Permit Community School Superintendents to Remove Principals for the Failure to Meet High Performance Standards with Appropriate Due Process Protections.

a. Principals Should Be Held Accountable for School Factors under
Their Control Through Annual Evaluations According to Comprehensive Standards of Professional Practice And Student Performance.
b. School Based Councils Should Be Consulted in the Evaluation Process.
c. Principals Receiving and Unsatisfactory Rating must Be Provided With Professional Support.
d. Community School Superintendents May Dismiss Principals from Their Positions after Two or More Unsatisfactory Evaluations.
e. Principals Have the Right to Appeal the Basis of Any Decision to an Independent Hearing Officer and the Chancellor.

V. CONCLUSION


Strengthening School Leadership and School-Level Accountability:
Rethinking Principals' Rights and Responsibilities After Governance Reform

A Report of the Committee on Education and the Law
of the Association of the Bar of the City of New York

Introduction

On December 31, 1996, in an effort to create “a governance structure that fosters leadership and accountability, delineates clear lines of authority, and promotes academic excellence,” 1 Governor Pataki signed the School Governance Reform Act (the Reform Act), 2 which substantially altered the powers and responsibilities of various actors in the City School District of the City of New York. Under prior law, governance of the mammoth city school system was divided among the City Board of Education (Board or Board of Education), the chancellor and thirty-two Community School Boards. 3 The Reform Act enhanced the authority of the chancellor and limited, if not eliminated, most powers of the community school boards. And in one of its most striking aspects, the Reform Act departed from the prior law by recognizing the principal's role as the administrative and instructional leader of the school and bestowing significant new educational and budgetary powers on the position. In consultation with a statutorily mandated school-based council, the principal is now responsible for all aspects of the day-to-day operation of the school and functions as the manager of his or her school. 4

This new legislative emphasis on principals’ importance as educational leaders, and the need for greater accountability within the New York City school system, is consistent with other efforts to improve education in New York State. Since first issuing the New Compact for Learning in 1992, the New York State Board of Regents has demonstrated its commitment to higher academic standards by, among other things, mandating the Regents diploma for all students. Research consistently suggests that this goal can only be met with a significant, systemic reform. Researchers posit that site-based management, coupled with strong accountability for decision-making, is essential to transform schools to meet higher standards. 5

As a school’s building manager, administrator, and instructional leader, the principal has and will continue to play a key role in that reform process. 6 With sufficient levels of educational resources, meaningful autonomy over staff and budget matters, and clear incentives to produce high levels of student achievement, principals can be an important catalyst for academic excellence in the system's worst schools. 7 Without effective principals, however, even those schools with dedicated staff will have difficulty reaching higher state and world class standards.
Since the Reform Act’s passage nearly a year ago, critics have charged that the legislation contains no meaningful mechanisms to hold principals responsible for improving school performance and enabling their students to meet higher standards. 8 Although the Reform Act permits the chancellor to intervene in schools demonstrating persistent educational failure or malfeasance, it does not establish high performance standards or modify the existing discipline process for principals. By continuing to provide negligible consequences for mediocre performance, these critics maintain, meaningful educational reforms remain stymied.

To better understand the ramifications of the Reform Act, the Committee began in August 1997 to examine the role of principals in New York City’s public schools and consider whether existing laws governing the removal and transfer of principals are sufficient to create meaningful school-level performance and accountability standards. During nearly a year of deliberations, Committee members met with and interviewed school officials, principals, community groups, and labor unions, including the Council of Supervisors and Administrators (CSA), the principals' labor union. Throughout this process, the Committee found that principals perform admirably, if not heroically, in a system plagued by inadequate resources and extraordinary student needs. Given their long hours and low salaries - New York City principals receive significantly less pay than their counterparts in the surrounding suburbs - principals should be honored for their commitment to this city's young people.

Nevertheless, precisely because good principals function as managers within our best schools, the report recommends that the Legislature implement an evaluation system which is better
aligned with efforts to treat principals as the administrative and instructional leader of the school. The Committee recommends that the Legislature, state and local policy makers take the following steps:

  • Principals’ role as the managers of their schools should be given greater credence by state and local policy makers. Under the new Governance Law, principals will exercise increased control over their local budgets and oversee the effective development and implementation of school-based councils. Principals should be accorded a greater level of decision-making authority and autonomy to ensure that schools function effectively.
  • Consistent with our beliefs that principals should be treated as managers, we also recommend that principals be better compensated, receive greater professional support, and, together with school-based councils, receive greater authority over local staffing and budget decisions.
  • The statutory probationary appointment of principals should be a five-year period. During this time, principals may be removed from positions without cause.
  • The chancellor and superintendents, in consultation with the school-based councils, should be given the authority to review principals according to performance-based standards in the principal’s annual review. Because these standards include objective and subjective criteria geared to evaluate whether the principal is creating conditions which maximize opportunities for teaching and learning, they should be used as the basis of evaluating the effectiveness of the principal in his or her present position. Most principals are doing a very good job under challenging conditions, and the standards will take these efforts into account.
  • Community school district superintendents should be permitted to remove principals who fail to meet standards after two or more consecutive evaluations. The principal must be provided with professional development and support after any unsatisfactory evaluation.
  • Principals should be provided with a limited right to contest any termination decision before an independent hearing officer to determine whether there is a substantial basis for the superintendent’s decision. The Chancellor should hear any appeals and serve as the final level of the administrative review process. Principals who are removed from a particular school retain their prior tenured position as assistant principal or teacher.

Strengthening principals' responsibilities, compensation, and evaluation will not, in and of itself, magically transform our public schools. And of course, unless state officials act to guarantee that all students have sufficient resources and support to obtain a sound education, it will be difficult, if not impossible, for New York City school children to meet the Regents' higher standards set by the Regents and Chancellor Crew. At the same time, the Committee believes that improved school-level accountability is essential to instill greater public confidence in the existing public education system. This public confidence is a critical part of supporting and strengthening the capacity of every school to educate its students to meet the challenges of the twenty-first century.

Discussion
I. The 1996 Reform Act: Principals as School Leaders

A. Research

Researchers studying effective schools have consistently identified principals and school staff, held accountable for outcomes and operating with sufficient autonomy to implement decisions at the school level, as a central part of school systems' efforts to meet higher academic standards. 9 They note that it is frequently the principals' actions, commitment and leadership that enable a school to function as a coherent whole. With appropriate resources, good principals support teachers and enhance effective teaching practices, develop a coordinated curriculum, and create a school climate that supports high expectations for learning and collegial relationships among administrators and faculty. Good principals promote a staff-wide commitment to continuous improvement and promote the adoption of best practices by staff. 10 Researchers have also found that, in order to be effective, principals need meaningful control over budgeting, staffing, scheduling, curriculum, pedagogy and assessment. 11 Efforts to hold principals accountable for
factors beyond their control has little impact on school performance. These researchers point to parochial and private school systems, which they maintain are successful, in significant part, because they afford principals' and schools' considerable managerial autonomy. 12

The importance of the principal’s role in school reform was recently underscored by the Educational Priorities Panel’s (“EPP”) comprehensive study of ten New York City schools that successfully moved off the state’s list of failing schools. 13 EPP found that successful principals were hard driving, entrepreneurial, and charismatic and relished playing a strong leadership role in their school. 14 The report concluded that just as good generals pay close attention to their soldiers, it could be said that good principals pay close attention to teachers and see their main job as 'managing' teachers not just instruction in the abstract or handling all the tasks that go with operating a school. These successful principals had the autonomy to respond effectively to budgetary and staffing conditions at the local school, communicated a clear sense of the teaching needed to improve instruction, and worked closely with school staff and parents to build strong planning teams to provide continuing direction for the school. 15

B. The Reform Act
The implications of this research have not been lost on New York policy makers. Although much of the public fanfare associated with the Reform Act has focused on the consolidation of the chancellor’s powers and transfer of many of the community school boards' powers for the overall operation of the district 16 to the community superintendents, 17 the Legislature also recognized the essential role principals play in formulating and implementing meaningful educational reform. The Reform Act provides principals, in consultation with community-based school councils, 18 with significant new authority as the administrative and instructional leader[s] of the school. 19 The principal now has explicit responsibility, pursuant to some limitations, to:

1. promote equal educational opportunity for students in the school;
2. make recommendations on staff selection based on the school’s instructional and facility needs;
3. develop school-based curricula and choose texts from lists approved by the chancellor;
4. enhance teacher and staff development, pupil support services, and to support extended day programs and school reform programs;
5. make minor repairs;
6. purchase certain supplies and equipment; and
7. manage and operate the school building and other facilities. 20

In addition, the Legislature granted principals significant new powers as set forth in the school-based budgeting and expenditure reporting provisions of § 2590-r. In contrast to the Decentralization Law, 21 the Reform Act places decision-making authority concerning budget priorities at the school level with the principal and the local school council, rather than at the community school district level. Principals are responsible for establishing a collaborative school-based budgeting process, which is to involv[e] parents, teachers, other school personnel and, where appropriate, students, in assessing the educational impact of particular practices or expenditures and modifying practices, as appropriate, to improve student performance. 22

While a principal’s power at a school is not absolute, 23 the Legislature suggested that direct involvement by the chancellor and the community superintendent is to be minimal in schools that meet relevant standards and regulations. A proviso at the beginning of § 2590-f.1, for example, states that the community superintendent's power is subject in every case to powers devolved to principals and schools consistent with this article. Consistent with this shift of power at the community school district level, the Legislature also limited the City Board's oversight over high schools, stating that it shall not be construed to require or authorize the day-to-day supervision or the administration of the operation of such schools. 24

II. Implications of the Reform Act for Principal Removal and Transfer

Although it significantly changed and expanded the role of principals, the Reform Act only minimally addressed the consequences of providing autonomy at the school level. To be sure, the chancellor’s power to intervene in local school or district affairs is no longer ambiguous. Under the Reform Act, the chancellor is charged with promulgating standards that define persistent educational failure. 25 If a district or school falls within this definition, the chancellor may mandate district- and school-level corrective action plans and/or ultimately assume joint or direct control of district and school operations. 26

What remains unclear under the new law is whether these statutory mechanisms increase the chancellor’s ability to require higher levels of performance or quickly remove poor-performing principals. While the Reform Act indicates that principals may be “removed or transferred by the superintendent or chancellor for persistent educational failure of the school or other cause, 27 the Legislature did not modify other statutes related to the discipline and removal of principals to reflect this new standard. Meaningful accountability for principals is still circumscribed by the disciplinary process set forth in Education Law § 3020-a. To the extent that the chancellor attempts to demand higher performance of principals, he faces many of the same obstacles as his predecessors.

A. The § 3020-a Process and Principal Tenure

Tenure has a long history in New York State. 28 In an effort to maintain adequate, permanent, and qualified teaching and administrative staffs, the Legislature enacted tenure to protect principals from arbitrary political and personal interference. Once they have been selected according to the process prescribed by the chancellor, 29 appointed by the superintendent, served for an appropriate probationary period, and completed the requirements for tenure, principals cannot be removed or dismissed except according to the procedures described in Educ. Law § 3020-a (3020-a). 30 The failure of school districts to follow the appropriate statutory procedures and guidelines can result in an automatic grant of tenure. Committee discussions with board officials, principals, business leaders and community groups suggest that the process for removing a tenured principal is generally complex, requires extensive documentation, and can last for several years. Grounds for removal are limited to cause and include, inter alia, unauthorized absence, neglect of duty, conduct unbecoming of the position or conduct prejudicial to the good order, efficiency or discipline of the service. 31 In order to initiate the process, the community school district 32 must file charges within strict statutory limits 33 and must comply with extensive charging and notice procedures 34 to bring an employee up on charges. Once charges have been brought, the principal may, together with the district's representative, select the hearing officers from a designated list. 35 36 37 During this extensive process, the principal can be suspended, usually with pay, pending a hearing
on the charges and a final determination by the hearing officer. 38

At the hearing, the principal may testify on his or her own behalf, retain counsel, and subpoena and cross examine witnesses in his or her defense. 39 Within 30 days after the hearing, the hearing officer usually issues a written decision that includes findings on each charge, conclusions of law, and the penalty or other action the district must take to comply with the decision. 40 The principal or district may appeal the hearing officer's decision to the State Commissioner of Education no later than 10 days after receiving the decision. The filing of an appeal does not delay the implementation of the hearing officer's decision. 41

The practical impact of the 3020-a process is that very few principals are terminated in the New York City system. According to Board of Education staff, documenting charges of incompetence typically takes between two and three years, followed by the lengthy procedural process prescribed by 3020-a. Moreover, the nature of the principal's position makes collection of this information for termination difficult. Teachers and assistant principals generally do not complain or document principal's incompetence because they fear reprisal. Superintendents are unlikely to fully monitor a principals' actions and document them appropriately. As a result, charges are filed in only the most extreme situations of mismanagement or incompetence, and do not function as a meaningful way of holding principals accountable for their actions or the academic performance of their schools. In the last two years, the Board of Education has filed charges against only eight principals for incompetence.

Furthermore, some critics have expressed concerns about whether provisions in the Reform Act significantly alter the status quo and increase accountability in any measurable way. Under the Reform Act, charges may be filed against principals for persistent educational failure, an extremely low performance standard. The chancellor promulgated regulations defining these words in terms of school performance. Unfortunately, even if the courts accept this expansion of the criteria for removal under 3020-a, Board officials believe that any disciplinary procedure will be delayed by a hearing officer's attempts to fully interpret regulations promulgated by the chancellor defining persistent educational failure and by the difficulty in applying them in an employment context.

B.Past Critiques of the Disciplinary Process

Criticisms of the discipline process are not new. In its 1989 report, 42 the Municipal Affairs Committee of the Association of the Bar of the City of New York concluded that the existing accountability system needed to be overhauled for many of these same reasons. According to the Committee, there was universal agreement among education stakeholders- including among principals themselves - that the school system does not take adequate measures to ensure principal performance and accountability. 43 In addition to the procedural defects in the system, the Committee criticized the Education Law's failure to provide the chancellor and other school system administrators with the authority to make the final and binding determination as to whether the disciplinary charges have been sustained - and, if so, [determine] the nature of the penalty. The Committee pointed to the independence of hearing panels as a fundamental part of the problem:

The unparalleled authority of the 3020-a panels reflects a system that is not designed to ensure accountability at any level. If principals are to be held accountable for the success or failure of their schools, the school systems’ administrators must be held directly accountable for the performance of their principals. Without the direct authority to determine the outcome of disciplinary proceedings, the goal of principal accountability is significantly undermined. 44

The Committee speculated that reform of principal tenure is fundamental to any effective accountability system.

In 1991, the Senate Committee on Investigations, Taxation, and Government Operations made similar findings in Disciplining School Principals in New York City. Reviewing the prior operation of the 3020-a process, the Committee reached the inescapable conclusion that the school system's ability to discipline school principals is, for most practical purposes, dysfunctional. There is little in the system to insure either performance or accountability by principals. (emphasis in the original) The Committee found that the widespread belief that the selection process for arbitration was not impartial, the right of principals to pay and pension credit during the pendency of the 3020-a process increased administrators' incentives to delay proceedings, and the extensive scheduling delays inherent in a semijudicial process all undercut 3020-a's effectiveness. The Committee also noted that, contrary to the provisions of Section 75 of the Civil Service Law, the chancellor did not have authority to make determinations of facts or impose penalties in the disciplinary process. 45

The current disciplinary system - particularly the placement of disciplinary authority for principals outside of the school system - remains unchanged. And in fact, the Regents’ new emphasis on higher standards for students and schools makes reform of principal tenure more critical than it was eight years ago. The Regents have, for example, mandated the Regents diploma for all students, a significantly more challenging course of study. With sufficient levels of educational resources, meaningful autonomy over staff and budget matters, and clear incentives to produce high levels of student achievement, principals can be an important catalyst for academic excellence even in a systems' worst schools. The Committee believes that as expectations are raised for students and the system as a whole, it is critical that they also be raised for principals, the single most important person in the collective life of individual schools. The higher educational goals for students are inconsistent with the persistent educational failure standard promulgated under the Reform Act. We conclude that, in light of the cumbersome process for review and removal of failing principals, this standard undercuts efforts to establish the performance standards necessary to ensure high educational achievement in all schools and that authority to make these determinations must be returned - with appropriate due process protections - to the school system.

C. Principal Transfer

The Reform Act has liberalized the chancellor’s and superintendents’ ability to transfer principals to other schools, but whether this is a significant mechanism to enhance school-level performance is not clear. Prior to 1990, principals had the right to remain in their assigned buildings and could not be transferred involuntarily except through the initiation of charges under Education Law § 3020-a. 46 In 1990, then-Chancellor Joseph Fernandez secured the right in contract with the Council of Supervisors and Administrators to transfer principals who were failing in particular schools; this was later codified in statute. 47 Pursuant to this agreement, the chancellor is empowered, after first consulting with the appropriate superintendent and parents, to transfer principals without their consent from one assignment to another within a community school district, or, with respect to positions directly under the jurisdiction of the chancellor, within the borough. 48 Under this process, however, transfers may only be effectuated after a lengthy procedural process. Once the chancellor determines that a principal is ineffective, 49 for example, he or she is required to send a team into the school to conduct an assessment and evaluate school operations and leadership. 50 Only after the chancellor receives the recommendation can he or she transfer the principal to another school or a professional development center for training. The principal must receive a written notice of the decision and be provided with an opportunity for review and appeal. 51

The Reform Act continues the process established by the CSA’s collective bargaining agreement with the Board of Education. But the Legislature appears to have expanded the chancellor’s power in this regard and provided a second avenue for the involuntary transfer of poor performing principals. Pursuant to § 2590-h(25)'s amended language, the chancellor may transfer principals for the persistent education failure of the school. While the principal may appeal any involuntary transfer provision to the City Board, the community superintendent is entitled to assign an interim-acting principal while the appeal is pending. However, as several education officials and outside advocates have indicated, principal transfer is nothing more than a dance of the lemons, where incompetent principals are transferred through the system from one school to another. Transfer perpetuates the lifespan of poorly performing principals, rather than improving the effectiveness of existing principals or meaningfully improving school-level accountability.

Recommendations
Based on the Committee’s foregoing analysis, we recommend the following changes to increase school-level accountability in the present system.

1. Recognize Principals’ Managerial Responsibilities and Provide Them with the Appropriate Compensation, Autonomy and Support.

As previously discussed, under the new provisions of the Reform Act, principals have a more managerial role and enjoy broad authority that extends beyond traditional supervisory concerns posited by the original decentralization law. The Reform Act provided clear, policy-making responsibilities for the principals' performance in their local schools. As the statutorily-defined educational leader of their schools, principals now have the legal responsibility to structure the overall staff, curriculum and educational operation of their schools. The Legislature's specific decision to link educational and budgetary authority at the local level, in conjunction with the decision to limit the express statutory authority of community school boards, signals a departure from prior institutional arrangement in the schools.

We believe that State and Local officials should act to ensure that principals are provided with sufficient pay and the authority and autonomy necessary to strengthen their managerial role in schools:

1. Increase Compensation
Principals are one of our most valuable resources in the struggle to radically improve education in New York City. Unfortunately, every year many principals leave New York City to lead suburban schools where pay is higher and the challenges are not nearly as great. According to New York: The State of Learning, an annual report published by the New York State Education Department, New York City administrators' average salary is $61,779, compared with $82,100 in the surrounding suburbs. This salary gap appears to increase for more experienced administrators. 52 Higher salaries, combined with better educational conditions in many of these high spending districts, create a natural incentive for New York City's best principals to find employment elsewhere. This loss of capable leadership has a tangible effect on efforts to increase academic performance, particularly in New York City's poorest performing schools.

The Committee has concluded that as the Regents and the chancellor push for higher standards in New York City, it is essential to provide principals with a salary that reflects the magnitude of their responsibilities and provides incentives to outstanding principals to remain in New York City's school system and embrace the challenge inherent in improving their schools.

2. Professional Support
In addition, the Committee recommends that state and city officials ensure that principals receive significant new assistance and support. This support is particularly critical for new principals entering the system and those individuals failing to meet performance standards (discussed below). One particularly promising way of providing support and assistance for principals is to set up a system of non-supervisory support and assistance. In this way, principals can honestly evaluate their performance and improve without the direct involvement of their superintendent. Any system adopted by the Board should provide non-supervisory technical assistance, emotional support, creative ideas, problem-solving or other services principals may require from time to time. We applaud past efforts such as the Board's efforts to create a doctoral incentive program to attract principals to low-performing schools. Under the program, those qualified administrators who make a commitment to serve in low-performing schools receive a scholarship to pursue their doctorate. 53 These efforts needs to be significantly expanded.

As we have suggested throughout this report, principals are one of our most valuable resources in the struggle to radically improve education in New York City. As we push for higher standards in New York City, it is essential to provide all principals with assistance to reach these standards.

3. Autonomy
Good schools are not the product of some rigid application of factory principles to schools, but result from the unique collaboration between an effective principal, a dedicated staff, involved parents and motivated students. So long as schools are held accountable for meeting higher standards, we believe that the chancellor should place decision-making as close to the classroom as possible. The ultimate promise of the Reform Act is not the recentralization of the administration of the New York City Public School system. Rather, the Act's promise resides in its implicit recognition of a decentralized system of one thousand empowered principals with sufficient authority and resources to meet standards, and its creation of a strong chancellor and community school superintendents who are able to hold them accountable for educating the 1.1 million students in their charge. It is crucial, at this point, to quickly finish putting the building blocks of that system in place, rather than adopting piecemeal reforms to slowly implement this goal.

We therefore recommend that the Legislature should require the chancellor to promulgate regulations that give principals and their staffs meaningful authority over their schools. In the interim, the Committee believes that it is incumbent on the chancellor to promulgate such regulations, consistent with the Reform Act, for principals to operate their schools semi-autonomously within the broad standards set by the system. Principals' and teachers' effectiveness as school leaders is dependent on their ability to act collaboratively with their staff and have a significant measure of control over budgeting, staffing, scheduling, curriculum, pedagogy and assessment.

For example, the Committee recommends that the Legislature and the chancellor take steps to ensure that, in a manner consistent with existing collective bargaining agreements, the principal and the staff, with the participation of the local school-based council, have the authority to determine criteria and qualifications for filling prospective vacancies, interview applicants and make hiring decisions. Annual evaluations should be performance-based and involve peers.

Our call for recognition of and expansion of this autonomy has potential ramifications under the Public Employees Fair Employment Act, which governs the relationship between public
employees and their employers. 54 Pursuant to the Act, commonly referred to as the Taylor Law, principals have the right to organize and collectively negotiate and enter into written contracts concerning the terms and conditions of their employment. While the law excludes managerial or confidential employees from its ambit, 55 the Public Employees Relations Board, the administrative entity charged with overseeing the law's implementation, rejected an early attempt 56 by New York City's Board of Education to challenge the collective bargaining status of principals in 1972. 57 The Committee has concluded, however, that any discussion of modifications to principals rights under the Taylor Law should await full implementation and review of the new school level accountability process described below.

2.Hold Principals Accountable for Meeting High Performance Standards
The Legislature’s decision in the Reform Act both to establish a low standard - “persistent educational failure” - to evaluate principals and to leave the existing disciplinary process intact, undercuts the educational impact of other changes in the governance of New York City's public school system. Apart for the cumbersome provisions of the existing 3020-a process, the present law simply does not provide the chancellor or the superintendents with the power to hold principals accountable for their performance. We believe that without this power, the chancellor and superintendents will be unable to effect meaningful and widespread change. In fact, these changes in New York City's governance system, together with the Regents' efforts to raise standards, make the need to modify the disciplinary process for administrators even more apparent than when the option was first proposed by the Municipal Affairs Committee of this Association in 1989.

In reaching this conclusion to modify tenure, we in no way wish to impugn the vast majority of principals now working effectively throughout the system. These individuals deserve a salary that is commensurate with their enormous responsibilities within the system, greater opportunities for professional development and support, and greater recognition for their efforts to improve teaching and learning in New York City's schools. The systemic underfunding of New York City's public schools, make principals' jobs vastly more difficult, if not impossible. Reform can only succeed when New York State ultimately creates a finance system that targets resources to our most needy schools, provides sufficient capital to maintain a safe physical environment and fully supports high standards.

At the same time, it is critical for the Legislature to increase school-level accountability and better align governance with the demands for performance created by the new high standards set by the Regents and Chancellor Crew. The Committee believes that this proposition necessarily means changing the way principals are evaluated and retained. Whether due to a mistaken initial evaluation and grant of tenure, a simple change in attitude, or the loss of energy and enthusiasm brought about by the difficulties faced in many New York City schools, some individual principals are not effective. We believe that there is no reason to perpetuate the present system at the cost of maintaining ineffective learning environments for the city's school children. While it remains important to protect principals from unfair political interference, the present system provides more protection than is necessary to adequately protect principals' rights. Now, even if the system can remove them from a particular school, principals must be transferred to another building or kept on the payroll.

We therefore propose that the Legislature establish a new disciplinary process, separate from the 3020-a process, for school principals to ensure that they can be held accountable for high performance. 58 We believe that the Legislature that this new disciplinary process should continue to permit the Board to remove principals for gross malfeasance along the lines developed in the 3020-a process. 59 But this new process should expand the process of evaluation and permit principals to be removed, with some due process rights, if they fail to meet higher performance standards. We therefore propose the following:

A. Fully Evaluate Candidates for Permanent Placement and Extend the Period for Evaluation of Prospective Candidates for Permanent Positions.

The Municipal Affairs Committee noted in 1989 that the chancellor did not always vigorously protect his or her rights in the then-existing removal process. We fear the same is true today. In the next two years, between 500- 600 principals will finish their probationary period and will be evaluated for more permanent placement. 60 While the magnitude of this staff turnover is extraordinary, it is incumbent on the chancellor and superintendents to make this review as meaningful and thorough as possible. The chancellor and the community superintendents should meaningfully evaluate candidates and take steps to ensure that only those candidates with exemplary records are retained in their positions. The chancellor and the community school superintendents have the most power to demand accountability at this point in the hiring process - we urge them to use it fully and fairly in appropriate cases. 61

In addition, we recommend that the probationary appointment of principals should be legislatively mandated for a five-year period - the probationary period established by the CSA’s collective bargaining agreement with the Board - rather than the current statutory term of three years. This longer period permits superintendents and local school councils to better evaluate principals being considered for more permanent employment. During this time period, probationary principals serve at the will of the superintendent and may be removed after an evaluation. Extensive documentation should be kept by the community district superintendent to ensure that only qualified individuals ultimately maintain their position.

B. Modify Tenure to Permit Community School District Superintendents to Remove Principals for the Failure to Meet High Performance Standards with Appropriate Due Process Protection

The Committee believes that the continuing reliance on the 3020-a process for removing poor-performing principals does not establish the type of accountability process necessary to maximize performance or meet higher standards in the public school system. To accomplish these ends, we recommend that the Legislature establish a new procedure for removal of principals for failure to meet high performance standards. The legislature should create a new section of the Education Law which separately addresses principals. This new § 3021" process should apply only to principals, replicate procedures for the immediate dismissal of principals for cause, and create a second ground for dismissal based on annual evaluations now mandated by the Reform Act. This addition should specifically permit school officials to remove principals who fail to meet standards after first conducting at least two annual reviews and finding performance unsatisfactory, offering some level of support to the principal during this period, and providing a limited right to appeal any dismissal in a process where the chancellor has final administrative review.

1. Principals Should Be Held Accountable for School Factors Under Their Control Through Annual Evaluations According to Comprehensive Standards of Professional Practice and Student Performance.

Under the Reform Act, principals are evaluated annually. The Board, with the consent of the CSA, implemented a set of evaluation criteria developed by McKinsey & Company, an independent consultant, in conjunction with principals, community superintendents and union representatives. 62 This model envisions a three-step process whereby the principal, in consultation with the local superintendent, develops goals and objectives based on the school's priorities and performance data from the previous year. 63 The areas covered by this process include: instructional leadership, organizational leadership, staff development, student support services, and community relations and communication. Each of these performance areas is defined both in terms of concrete activities and subactivities and clear standards for evaluating the performance of each activity.

We believe that this new process provides the basis for developing meaningful evaluation standards for principals under a new disciplinary process. We propose that the chancellor, in conjunction with superintendents, principals, and school-based councils, review these standards to ensure that they are appropriate for use in a review process. Obviously, any standards implemented by the chancellor must be geared to the performance of students under the principal's charge over a reasonable time frame. Criteria should therefore include criteria to assess the value added by the principal to the overall performance of the school, i.e. the progress that the school has made to meet standards under the principal's leadership. Any evaluation should also focus on the factors under the principal's control, such as his or her efforts to support teachers and enhance effective teaching practices, to develop a coordinated curriculum with staff, parents, and community groups, and to create a safe and healthy school climate -- the necessary conditions for improved student performance. The criteria for evaluation should be as objective as possible, but should also include provisions for unexpected contingencies such as budget cuts and/or major changes in student demographics.

In addition, we recommend that any high performance standards promulgated by the chancellor should provide a limited amount of discretion to superintendents and school-based councils regarding the types of criteria used in the evaluation. 64 These local criteria, which must be consistent with the chancellor's standards, would permit individual schools to tailor any evaluation to that school's needs and philosophy. For example, if a particular school is located near a homeless shelter, has a student high mobility rate based on student demographics (not school quality), has a high number of students with disabilities, or is pioneering a unique educational program, the evaluation standards should recognize the unique challenges. Obviously, the superintendent, principal, and local community should mutually agree to any additional standards supplementing the chancellor's standards. The evaluation should specifically document the level of additional professional development and support provided to principals having difficulty meeting performance goals and standards, particularly if they have received unsatisfactory reviews in the past.

2.School-Based Councils Should be Consulted in the Evaluation Process.

Consistent with existing laws, the superintendent should conduct the evaluation and should be responsible for making a final determination regarding the principal’s employment status. Consistent with other provisions of the Act, the superintendent should be required to solicit comments from the councils during the evaluation process. These comments should be reflected in any final documentation produced as part of the evaluation and included in the principal's file. 65

3.Principals Receiving An Unsatisfactory Rating Must be Provided with Professional Support.

Professional development is an essential element of reform. We believe that all principals should have access to nonsupervisory technical assistance, emotional support, creative ideas, problem solving or other services on an as needed basis. As we have already suggested this is particularly true for probationary principals and any principal who does not meet the performance standards in the annual evaluation. We recommend that these principals must receive additional support and assistance to meet the evaluation standards for the next school year prior to any decision to dismiss them from a particular position. This assistance must be documented by the Superintendent in the principal's file after any unsatisfactory rating.

4.Community School Superintendents May Dismiss Principals from Their Position after Two or More Unsatisfactory Evaluations.

Ultimately, if the principal receives an unsatisfactory review by the community superintendent for two or more years, he or she may be terminated by the superintendent.

It is critical, however, that the decision to terminate or demote a principal be based on a fair assessment of performance, rather than arbitrary and capricious decision making by the community superintendent. Principals should be informed by April 1 that they will not have their position renewed for the next school year. In the dismissal notice, superintendents should include documentation describing in detail how the principal has failed to meet performance standards and describing the specific support provided by the district prior to termination.

5. Principals Have the Right to Appeal the Basis for Any Decision to an Independent Hearing Officer and the Chancellor.

In order to ensure that principals are provided with a level of due process appropriate to their role as educational managers in their schools, we recommend that the Legislature modify existing due process procedures for principals as follows: Upon receiving notice that they will not be employed by the community school superintendent, principals should have twenty days to appeal the superintendent's decision to an impartial hearing officer. During this time-frame, the principal should be permitted to submit additional documentation to demonstrate there is not a substantial basis for the superintendent's decision. This may include evidence concerning conditions beyond the control of the principal that affected performance and/or the superintendent's failure to provide professional support and development.

After the timely submission of any additional documentation, the hearing officer should review the evaluation and any additional documentation to determine whether there is a substantial basis for the superintendent's decision. The hearing officer should render a decision based on the record within 30 days. Either the superintendent or the principal may ultimately appeal the hearing officer's decision to the chancellor within an additional 15 days. The chancellor should then make the final decision to retain or dismiss the principal within 30 days. If the superintendent's decision is affirmed by the chancellor, the principal should receive the salary and benefits associated with their reversionary rights to their prior tenured position. 66 Any determination of the chancellor should be final and may be appealed to the Commissioner of Education and the courts. The legislature should mandate that appeals to the chancellor must be resolved by the end of the school year.

Ultimately, principals should not have the right to be transferred to other schools or to receive an administrator’s salary or benefits in the absence of securing a new administrative position. If they are dismissed, principals should be permitted to retain any prior tenure rights as assistant principals or teachers within the system upon becoming a principal. Those principals ultimately deemed unsatisfactory as administrators should be permitted to revert to their prior positions at a salary level commensurate with that position and reapply for a principalship at a later date. Administrators are ensured that they have some measure of job security and an opportunity for continuing service in the school system.

Conclusion

While it is not a panacea, sound governance reform can empower local school communities to improve teaching and learning in every New York City public school. It is clear that accountable and motivated principals will be better prepared to work with teachers and students to improve the quality of education. The Education Committee believes that improving principals' compensation, holding them accountable for higher standards, and recognizing their managerial responsibilities can promote academic excellence. It is incumbent on the Legislature to effectuate these changes as part of its Constitutional duty to establish a system of schools where all children are provided with the meaningful opportunity to learn.

Principals, like other civil service employees, should have ample due process protections and job security. We believe that this report’s recommendations protect against the arbitrary or purely economic dismissals of principals. However, if we are ultimately to create schools that respond to the needs of public school children and their parents, principals, in conjunction with school-based councils, must be given greater autonomy over staff and budget matters and must be held directly responsible for their school's operation and performance. Efforts to improve New York City's public school system should not be hampered by outmoded accountability and compensation structures for principals that fail to provide incentives for high performance and consequences for failure.


1 Memorandum of the Governor, L. 1996, ch. 720 (December 31, 1996).

2 See generally, 1996 N.Y. Laws, ch. 720. For an overview of the new law, see Association of the Bar of the City of New York, New York City Public School Governance Reform: Understanding the Law and How New York City Public Schools Have Changed (1997).

3 See, e.g., N.Y. Educ. Law Art 52-A (1996). For an early analysis of the statutory framework of the Decentralization Law, see Michael A. Rebell, New York's School Decentralization Law, 2 ˝ Years Later, 2 J.L. & Educ. 1 (1973). For a recent analysis of the changes in law, see David C. Bloomfield, et al., Recentralization or Strategic Management? A New Governance Model for The New York City Public Schools. Teachers College Occasional Paper (1998).

4 N.Y. Educ. Law § 2590-i.

5 For an excellent analysis of the role of principals in the New York City public school system and the role they play in school reform, see generally, David S. Seeley, et al. Principals Speak 40-50 (1990)(interviewing 25 principals about the nature of school leadership in New York City public schools).

6 Id. See also Manhattan Borough President's Task Force on Education and Decentralization, People Change Schools, p. 39 (1989) (finding that the single characteristic that sets effective principals apart is that they do not merely react - they act!
They are able to figure out what needs to be done in the face of uncertainty, complexity and information overload).

7 The Educational Priorities Panel, Getting Off the List: School Improvement In New York City (1990) (hereinafter EPP Report).

8 The Community Campaign for Good Schools, a New York City based campaign of approximately 55 community based organizations, parent groups, and city-wide nonprofits, endorsed a statement of principles to further implement the Reform Act and promote educational reform. According to this statement, meaningful school level accountability can only be achieved in a system where principals [are] appointed by local school councils under a performance-based contract which replaces principal tenure. See The Community Platform For Good Schools (October 6, 1996)(on file with the Education Committee). Chancellor Crew has also called for the abolition of principal tenure. Steven Greenhouse, Schools Head Urges Abolishing Tenure for New York City Principals, N.Y.Times, April 27, 1996, at A1.

9 See, e.g., Cross City Campaign, Reinventing Central Office: A Primer for Successful Schools (1995); Linda Darling-Hammond and Carol Fischer, Creating Accountability in Big City School Systems (1991).

10 See, e.g., Dale Findley & Beverly Findley, Effective Schools: The Role of the Principal, 63 Contemporary Education 102-04 (Winter 1992) (explaining how effective principals are at the heart of effective schools); Diana Townsend-Butterworth, Ten Common Denominators of Effective Schools, 72 Principal 40-42 (Sept. 1992); Samuel Krug, Instructional Leadership: A Constructivist Perspective, 28 Educational Administration Quarterly 430, 432 (1992) (The important role of the school's chief executive in explicitly framing school goals, purposes, and mission cannot be overestimated).

11 See generally Temporary State Commission on New York City School Governance (The Marchi Commission), Governing for Results: Decentralization with Accountability (1991); Deborah Meier, Can the Odds Be Changed? 11 Educational Policy 194-208 at 198 (June 1997); Deborah Meier, Small Schools, Big Results, 182 American School Board Journal 37 (July 1995). See also Karen Haskin, A Process of Learning: The Principal's Role in Participatory Management (April 1995) (on file at Teachers College, Columbia University) (successful implementation of school-based management begins with effective principal leadership).

12 David Baker, Mei Han & Charles T. Kell, How Different, How Similar? Comparing Key Organizational Qualities of American Public and Private Secondary Schools (National Center for Educational Statistics 1996) (collecting citations and comparative statistics). See also Pearl Rock Kane & John B. Mason, The Role of Administrators, in Independent Schools, Independent Thinkers 140-151, at 143 (Jossey-Bass Inc. 1992), John E. Chubb & Terry M. Moe, Why Markets Are Good For Education, in Independent Schools, Independent Thinkers 305-334, at 306 (Jossey-Bass Inc. 1992); Anthony S. Bryk, Valerie E. Lee & Peter B. Holland, Catholic Schools and the Common Good (Harvard University Press 1993).

13 EPP Report, supra n. 7 at 34 see also Linda Darling-Hammond, Charting Learner-Centered Accountability in New York's Schools (1993)

14 Id. at 8.

15 See, e.g., Educational Priorities Panel, The Fourth R: Rethinking Remediation in the Elementary Schools, (1989) (finding that Title 1 and PCEN regulations foster paperwork and procedures to ensure that services are limited to eligible students, rather than appropriate autonomy, and do not result in educational achievement).

16 Under the Decentralization Law, each community school board had “all the powers and duties . . . with respect to the control and operation of all pre-kindergarten, nursery, kindergarten, elementary, intermediate and junior high schools and programs in connection therewith in the community district subject to citywide policies. N.Y. Educ. Law §2590-e (amended 1996). The Reform Act revokes this broad authority of the community school boards and substitutes in its place a more limited power and duty to establish educational policies and objectives. N.Y. Educ. Law § 2590-e, as amended. The Reform Act further specifies that the community boards shall have no executive or administrative powers or functions, Id. Most of these specific areas of authority originally enumerated in § 2590-e have, under the Reform Act, been abolished or transferred to the community superintendents.

17 The superintendent is vested with the specific powers to appoint and define the duties of principals, teachers and other district employees, select textbooks and other instructional materials, retain council, make minor school repairs, operate cafeteria and restaurant programs for students, and submit operating and capital proposals to the chancellor. N.Y. Educ. Law §§2590-f, 2590-r. The community superintendent is also vested with new authority to retain district fiscal officers to monitor school expenditures, id. at §2590-f.1 (i); intervene with any school which is failing educationally or is in a state of uncontrolled violence, where so authorized by the chancellor, id. at §2590-f.1 (r); and take all necessary steps to ensure the integrity of community district operations, consistent with regulations promulgated by the chancellor and the city board, id. at §2590-f.1(q) .

18 Principals must, of course, consult with parents, teachers and other professionals. Id. at § 2590-h. The school-based management provisions of §2590-h.15 refer to the Regulations of the Commissioner, 8 N.Y.C.R.R.§100.11, which requires the development of school-based councils, but modify at least two specific aspects of the regulations. First, the Reform Act substitutes for the requirement in the Commissioner's Regulation that the consultation mechanism include equal numbers of parents and school personnel a requirement for a mechanism which balances participation by parents with participation by school personnel. Second, the Reform Act describes the participation of parents and school personnel in terms of advising the principal, in comparison to the use of the term participation in the Commissioner's Regulations.

19 N.Y. Educ. Law § 2590-i.

20 Id. at a (1).

21 The former N.Y. Educ. Law § 2590-i, now modified and re-designated as N.Y. Educ. Law § 2590-q.

22 The principal is specifically charged with the responsibility of initiating the budget-making process by proposing a school-based budget after soliciting input “from all members of the school community.” N.Y. Educ. Law § 2590-r(c). Indeed, after a final budget is adopted, the law requires that be distributed to community districts and schools pursuant to specific procedures, and also provides for a uniform system of budget requests, reports and appropriations, which will provide substantial information to the entire school community. Id. at § 2590-r(j). The Chancellor and the Board of Education are now in the process of developing regulations to govern both the collaborative decision-making and school based budgeting process.

23 The community superintendent, aside from his or her authority to appoint, evaluate and remove principals and other staff, N.Y. Educ. Law § 2590-f.1 (c)-(e), (g), is authorized to approve or disapprove matters relating to the instruction of students, id. at §2590-f.1, approve school-based budgets, id. at § 2590-f.1 (h), appoint fiscal monitors, id. at § 2590-f.1 (I), and take all steps necessary to ensure the integrity of the community district, id. at § 2590-f.1 (q). In addition to broad powers to promulgate such rules and regulations as he or she deems necessary, id. at §2590-h.16, and to promulgate educational standards and curriculum requirements for all schools and programs, id. at § 2590-h.8, the chancellor has the specific authority to intervene in any school which is failing to achieve educational results, id. at § 2590-h.31, to establish educational, managerial and administrative qualifications and performance standards for principals, id. at § 2590-h.8, to transfer or initiate due process procedures to remove a principal for persistent educational failure, id. at § 2590-I.2 (a), and to establish the basic regulations for the exercise of specific local school-based powers such as purchasing, id. at §2590-h.31, and school-based budgeting, id. at § 2590-h.35.

24 N.Y. Educ. Law § 2590-g.4.

25 The statute requires only that any definition must include references to “a pattern of poor or declining achievement, a pattern of poor or declining attendance; disruption or violence; and continuing failure to meet chancellor’s performance or other standards. N.Y. Educ. Law § 2590-i (2)(a) The Chancellor has subsequently fulfilled this mandate by promulgating standards that define the principals' failure to manage schools. These regulations do not establish the high performance standards necessary to ensure that schools succeed at enabling students to meet the Regents' Standards. See Chancellors Regulation C-33.

26 Id. at § 2590-h (31)

27 Id. at § 2590-i(2)(a).

28 The concept of tenure emerged in the 1880s and was first enacted in New York in 1917 for teachers. Robert R. Sherman, “What is Tenure? A Critical Explanation. AFT Quest Report,” American Federation of Teachers/AFL-CIO 1 (January, 1973): 10; 1991 Deskbook Encyclopedia of American School Law, Data Research Inc. (1991). From 1971 to 1975, consistent with their desire to give community school boards more control over the operation of individual schools, increase the number of African-American and Latino supervisors in the system, and to have principals designated as managerial employees, the Legislature did abolish tenure for new principals in the system and authorized Boards of Education to enter into written contracts with new employees. See 1971 N.Y. Laws, ch.116, 1972 N.Y. Laws, ch.95. The Legislature ultimately reinstated tenure in 1975, in part because newly hired minority administrators wanted job security commensurate with that provided to existing employees.

29 Pursuant to the Reform Act, the chancellor has promulgated Chancellor’s Regulation C-30, which governs the selection of principals. Once they have been recommended by the C-30 committee, itself composed of representative parents, teachers, and other constituent groups, the superintendent appoints and the chancellor must approve a principal for a contractual probationary period of five years. The superintendent of schools (district superintendent) may dismiss a principal at any time during the probationary period, and the principal has an automatic right of appeal. Pursuant to a 1994 agreement negotiated by Chancellor Ramon Cortines, the Community Superintendent can recommend the completion of probation before the end of the contractual five-year probationary period under certain conditions. See Memorandum from Thomas Ryan to Ramon Cortines (January 14, 1994) (on file with the Committee).

30 From October 13, 1992 until June 30, 1994, principals could opt for binding arbitration in lieu of the 3020-a process pursuant to the collective bargaining agreement. This provision terminated on July 1, 1994. See The Collective Bargaining Agreement between the CSA and the New York City Board of Education, Article VII, J (5-6). The Legislature has subsequently prohibited any modification of the 3020 - a process through collective bargaining. NY Educ. Law § 3020. We recommend that the legislature continue to maintain the prohibition on collective bargaining around disciplinary procedures and standards.

31 N.Y. Educ. Law § 2590-j (7)(b). The statute also permits dismissal for a violation of the by-laws, rules or regulations of the city board, chancellor, or the community board, or any substantial cause that renders the employee unfit to perform his obligations properly to the service. Id. These provisions of the statute are, apparently, rarely invoked.

32

33 A party or individual cannot bring charges under this section more than three years after occurrence or discovery of alleged incompetence or misconduct, except where the charge constitutes a crime. N.Y. Educ. Law § 3020-a(1).

34 After the particular district finds probable cause and proffers charges, the principal must be notified of the charges. Within five days of receiving the charges, the district determines whether a probable cause exists to bring a disciplinary proceeding against the principal. If the district decides there is probable cause, it must notify the principal in a written statement containing the following information: the charges in detail; the maximum penalty the district will impose if the principal does not request a hearing, or is found guilty of the charges after a hearing; and a summary of the principal's rights under this section. Id. at 2.

35 Within ten days of receiving the charges, the principal must notify the district in writing whether he or she wants a hearing and, where charges concern pedagogical incompetence or pedagogical judgment, elect to appear before a single hearing officer or a three member panel. A single hearing officer will hear all other charges.

36 Id. at (c). The district and the principal select a hearing officer from the list of qualified hearing officers provided by the Commissioner of Education. A hearing panel consists of the hearing officer and two persons- one selected by the principal and the other by the district. Id. at 3. Once a hearing officer has been appointed, he or she holds a one-day pre-hearing conference, in the principal's district, within 10-15 days of his or her appointment. The hearing officer may extend the pre-hearing for good cause.

37 The purpose of the pre-hearing is to: issue subpoenas, hear and decide all motions, hear and decide on information and materials necessary for the hearing, and determine the date and time for the final hearing. The principal can decide if the hearing is public or private. Id. at 3(b)(ii-iv).

38 The suspension is with pay except in the following cases: if the principal entered a guilty plea; if the principal has been convicted of a felony crime concerning the sale or possession of a controlled substance or drug paraphernalia; or if the principal is convicted of a felony crime involving the physical or sexual abuse of a minor or student. Id. at 2(b).

39 Id. at 3(c)(i).

40 Id. at 4. A penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or instead of these penalties, a hearing officer may impose a remedial action, including but not limited to leaves of absence with or without pay, continuing education and/or study, counseling or medical treatment or any other remedial or combination of remedial actions.

41 Id. The district implements the decision within 15 days of receiving it. If the hearing officer finds the principal not guilty of the charges, the principal retains position with full pay for any period of suspension without pay. The charges are expunged from the record. Id. at 4(b).

42 The Municipal Affairs Committee, “Disciplining Principals in New York Public Schools,” 44 Record of the Association of the Bar of the City of New York 765 (1989).

43 Id. at 765.

44 Id. at 776.

45 Senate Committee on Investigations, Taxation, and Government Operations, Disciplining School Principals in New York (1991).

46 N.Y. Educ. Law § 2590-j(8)(West 1985).

47 The Legislature modified the law to provide the chancellor with the power to, “On the chancellor’s own initiative, or at the request of a community superintendent, transfer a principal employed by a community school district pursuant to an agreement with the employee organization representing such principals. N.Y. Educ. Law § 2590-h(25).

48 Agreement Between the Board of Education of the City School District of the City of New York and the Council of Supervisors and Administrators (May 23, 1990)(on file with the Committee).

49 The criteria adopted by the chancellor to identify a principal for possible transfer are primarily school performance data, including: ranking in the lowest 15% of schools, by school level, based on failure to meet Chancellor’s Minimum Standards, e.g., standardized reading and math scores, attendance and dropout rates for three consecutive years. Only those standards which a school fails to meet for three consecutive years will be considered in generating the ranked list; and/or a pattern of continuous decline in the school's performance on two or more Chancellor's Minimum Standards considering annual data for three years. In addition, principals can be considered for transfer if they meet two or more of the following indicators: 1) ranking in the bottom 15% of the schools, by school level, according to staff attendance rate; 2) ranking in the top 15% of the schools, by school level, according to number of student suspensions; 3) ranking in the top 15% of the schools, by school level, according to number of serious incidents; 4) ranking in the top 15% of the schools, by school level, according to number of grievances emanating from different staff; and 5) the absence of consultation with a properly-constituted parent association. Chancellors Special Circular No. 33, 4 (1992-1993).

50 Id. This team must at least include a licensed supervisor from another district and a principal with comparable experience to the principal under review. Its assessment must include a written history of steps taken to improve the situation, interviews with parents and staff in the school, and an interview with the principal under review. Id.

51 Id.

52 New York State Education Department, New York: The State of Learning, A Report to the Governor and the Legislature on the Educational Status of the State's Schools, 65 Table 4.8 (February 1997).

53 This change can only be instituted if the Legislature adopts the Committee’s recommendations concerning the principals’ collective bargaining status. See, p. 38 infra.

54 See generally N.Y. Civ. Serv. Law § 200 et seq. The Act covers public employers in New York State including, but not limited to, the state, counties, cities, towns, villages, and school districts. Id. at § 201.6(a). Public employees covered by the Act include any person holding a position by appointment or employment in the service of a public employer. Id. at § 201.7(a).

55 Pursuant to Civ. Serv. Law § 201.7, employees will be designated as managerial only if they are: “persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation of or and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not a routine or clerical nature and requires the exercise of independent judgment. Employees may be designated as confidential only if they are persons who assist and act in a confidential capacity to managerial employees described in clause (ii).

56 Immediately after the Legislature passed the original Decentralization Law and the passage of these amendments to the Taylor Law, the New York City Board of Education unsuccessfully sought managerial designation for 1,200 elementary, junior high, intermediate, special and senior high school principals. PERB rejected the board's contention that principals formulated policy by setting school objectives, implemented measures to achieve them, engaging in conflict resolution among teachers, students and parents, and put educational theory into effective practice. PERB was equally dismissive of the Board's contention that principals meaningfully participated in the development of collective bargaining contracts, had sufficient authority to exercise independent judgment to affect a change in a government's procedures or methods, and had minimal discretion in making teaching and non-teaching assignments and disciplining personnel. The PERB Board acknowledged that schools might function more effectively if their principals were denied Taylor law rights, but ultimately concluded that the public policy arguments of the [Board of Education] and the Community Boards raise political questions that are properly addressed to the Legislature. Board of Education of the City School District of New York, 6 PERB ¶ 4017, 4036 (1973).

57 PERB based its decision on the Taylor Act’s legislative history, which suggested that it did not wish to “destroy existing employer-employee negotiating units such as principals or other school administrators....” However, PERB has indicated “[t]his [standard] does not mean that represented principals can never be designated as managerial, but rather that their duties and responsibilities must 'conclusively' demonstrate such status before they will be deprived of substantial Taylor Law rights. Board of Education of the City School District of the City of New York, 6 PERB ¶ 4017, 4032 (1973). PERB has, for example, held that an administrator with district-wide responsibilities is managerial so long as the individual administrator has significant discretion to establish policy with little or no oversight. See, e.g. Board of Education of the City School District of the City of New York, 17 PERB ¶ 4033 (1984), (finding district director of curriculum managerial because he established the goals, the priorities, and the objectives of the subjects taught at each grade level and he created, implemented, and supervised an alternate educational program in his district for children with special needs); See also In the Matter of Saugerties Central School District, 17 PERB ¶ 4029 (1984) (school district's director of physical education and athletics was a managerial employee where evidence showed that director had district-wide responsibility in formulating educational policy as exemplified by his development of curriculum for district-wide physical education program); In the Matter of City School District of the City of Newburgh, 16 PERB ¶ 4003 (1983) (district's assistant superintendent for curriculum and instruction was managerial employee on basis of his having district-wide responsibility for district's instructional program). But, these exceptions aside, PERB has been generally reluctant to deem school level officials as managerial for purposes of the law. In Dunkirk City School District, 26 PERB ¶ 4042 (1993), the district attempted to designate principals with super-administrative positions as managerial. The principals in question directed the District's Head Start program, served as the district's special projects administrator, and administered the district's special education program. PERB refused to designate the position as managerial because these principals obligations were highly regulated [and] allowed] for little or not independent decision-making. Id. at page 40.

58 Only 19 other states provide principals with substantive tenure protection for their administrative positions analogous to New York State’s. The majority limit this protection for principals to tenure as a teacher if they are terminated as administrators. School administrators in these states serve in their positions according to contracts that are renewable at the will of local school boards. National Association of Secondary School Principals, A Legal Memorandum: Administrator Tenure Statutes and Other Legislative Protection of Position 1 (1990).

59 Of course, the Board of Regents have independent authority to certify teachers and administrators, including principals. Principals are required to be certified as a school administrator and supervisor in order to serve as a principal. 8 N.Y.R.C.R. § 80.4. This certification can be removed where the individual holding [a] certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character... Id. at § 83.1. The regulation suggests that the Regents may remove an individual principal's certification and make him or her legally unqualified to hold a principalship, regardless of any tenure rights the principal may retain.

60 While supporting the modification or removal of tenure, the Public Education Association has called on the chancellor to “make a huge impact on the leadership of city schools by stopping failing principals before they get tenure.... [by making it] clear to his superintendents that their own jobs depend on tough, thorough evaluations of the principals in their districts, and, ultimately, on the performance of their schools. The Public Education Association, Principals on Probation, PEA Alert Vol. 11, no. 1, p. 4.

61 Several members of the Committee expressed concern over the slow pace of the C-30 process for selecting principals. The superintendent may assign an interim acting principal, a necessary step which sometime further delays the selection process and results in unstable school leadership. The Chancellor has taken steps to speed up selection and hiring of a candidate for the position.

62 On file with the Committee.

63 Performance data includes attendance data, student achievement information for all students, including special education, limited English proficient students, and high school articulation statistics.

64 We recommend that school-based councils be consulted by the superintendent in the development of a limited number of school specific standards to address local conditions.

65 This proposal differs from the model adopted by the Illinois Legislature, where the school-based council has exclusive control over hiring process. Unlike Chicago, the community superintendent and the school-based council share the power for selection and evaluation of principals. See Mary O'Connell, School Reform Chicago Style: How Citizens Organized to Change Public Policy, The Neighborhood Works (1991); Donald Moore, Chicago School Reform: The Nature and Origin of Basic Assumptions, Designs For Change Research And Policy Analysis Series No. 7 (1991).

66 We assume that all principals have served as teachers prior to accepting an administrative position and thus have tenure.