Archive for November, 2008

November 14, 2008

Preserving and Improving

Mayoral Control

of the New York City Public Schools

 by David C. Bloomfield

School Governance & Mayoral Control:

      In thinking about the long term status of mayoral control in New York City, it is crucial to separate policy disputes with this Mayor from structural dysfunction.  I have many serious criticisms of the how schools have been run under Mayor Bloomberg’s administration, including insular decision-making, a confusing organizational structure, widespread data manipulation, as well as expensive, mishandled contractual and program initiatives in such areas as busing, leadership preparation, and school accountability.  I should also note some important, if modest successes: achievement in some areas headed in the right direction and a general lack of old-style political patronage.   But, whatever the current ledger of pros and cons, we have a sample of one when it comes to mayoral control.  We should not over generalize from our experience with Mayor Bloomberg.

            I continue to be a strong proponent of mayoral control and its statutory formulation in Article 52-A of the State Education Law.  My main reason is that as long as the Mayor maintains control over school funding – and the current Charter gives particularly strong powers in this regard — the Mayor should bear operational authority and accountability for the schools. 

            The former system of diffuse responsibility was a recipe for paralysis and finger-pointing.  Children could not be served, so structurally broken was the system.  Because the Mayor did not bear responsibility for these failures, schools were perpetually under-funded.  It was that battle, rather than today’s welcome wrangling over educational policies, that seized headlines.  Today, we forget this former reality.  Before the current economic downturn resulted in severe funding cuts, the old budgetary war cry from education advocates was rarely heard.  I do not think this is a consequence of Mayor Bloomberg’s personal priorities or of the CFE lawsuit, though both play a role, but structurally the Mayor is now responsible for funding the administration’s educational agenda and knows that it will be held accountable for results.

             The law having solved these structural problems of decisional paralysis and chronic under-funding, what problems might amendment address?  There can be no statutory protection against what some view as bad policy-making, so any attempt to do so will simply affect stalemate, a return to the status quo ante.  But, as previously suggested, the current statute seems to encourage irresponsible mayoral spending, a propensity to rig data, and autocracy.  Some of this is the result of the election cycle: a Mayor intent on showing quick results during the first term to shore up re-election, then a lame duck under term limits lacking electoral accountability.  Since the Election Law is outside the scope of this Commission, we are left to ponder remedies within Article 52-A.

             To cure the problem of overspending, particularly in the area of sole source contracting, I recommend that all procurement, auditing, and financial review powers usually vested in the City Comptroller be put into place for oversight of the Department of Education.  In the alternative, a special office of the New York State Comptroller should be legislatively established to ensure fiscal responsibility in these areas.  No doubt such oversight will slow down the process of approving large scale contracts but this seems a reasonable trade off to re-establish fiscal responsibility.

              I also favor a return to full disclosure of all DOE contracts above minimal spending limits through notice, comment, and approval processes once followed by the old Board of Education prior to their business meetings, perhaps their only function for which I feel nostalgia.  The current board, renamed the Panel on Educational Policy by Mayor Bloomberg, should assume this responsibility.  Even if a rubber stamp, transparency of full public disclosure prior to approval would be salutary for a contracting system too often shrouded in secrecy and, potentially, in patronage.

             I wrote above of the current statute’s propensity to promote spending irregularities but also data manipulation.  The temptation to put the best face on school data is political catnip.  There must be a source of objective data assessment.  For this role, I nominate the New York City Independent Budget Office.  The IBO has proven to be a reliable source of objective, professional budget analysis.  Its apolitical institutional culture is above reproach.  Enlarging its portfolio for education – making it not only equivalent to its model, the Congressional Budget Office, but also to the U.S. Government Accountability Office (formerly the General Accounting Office) – would give the IBO appropriate scope to study the effectiveness of DOE programs.  If provided with statutory power to obtain not only financial information but non-confidential student and other data, the IBO would enhance performance and public confidence in mayoral school governance.

           Then there is the thorny problem of this Mayor’s autocratic management of the school system.  At this time, I do not favor returning to the prescriptive community school district structure since no amount of fine tuning will assure community access without overburdening public officials’ and educators’ need for bureaucratic agility.  The issue of parent and community engagement is addressed in the second section of this paper.

          There must be greater fidelity to the current statute’s clear intent of broad, substantive community consultation.  How to effectuate this necessary openness by legal, as well as political, means is a challenging task.  Eliminating the Mayor’s and Borough Presidents’ power to remove PEP members is a possible step, but one which did not improve policies under the old Board of Education, as I argue in the third section.  Adding members appointed by the Council, Comptroller, and Public Advocate gives no assurance of better policy-making, only more deal-making.  Giving CECs greater authority presents legal problems unless they become more electorally representative and smacks of the old community school board system that was rejected less than a decade ago.   I am thus left to suggest that current legislative guarantees be strengthened, with a clearly designed structure for parent and community consultation regarding policy and program initiatives, as suggested below.  This intent must be clearly spelled out so that the Mayor and the courts are forced to recognize stakeholders’ critical policy role.

            And that’s it.  I would not recommend converting the DOE into a municipal agency, subject to micromanagement and further politicization by the City Council, though I would clarify its existing and meritorious oversight function.   I would not return to the old Board of Education or even interfere with the Mayor’s and Borough Presidents’ current powers of appointment and removal.  This would only foster paralysis without any guarantee of corresponding gains in decisional quality.  Key to my analysis, however, are critical changes to the way the current statute handles contracts and budgets, data, and community consultation.

 Parent and Community Involvement:

      I start with the view that parent and community voices must be institutionally robust while not diffusing decision-making which results in institutional paralysis.  Our children’s education depends both on active parent/community partnerships and on decisive leadership.

        Further complicating the issue is the diversity of parent and community views.  There is no single “parent” or “community” opinion, nor a single spokesperson.  And, much as we may wish otherwise, lay volunteers – especially when acting in committee – are not in a position to exercise the oversight and policy responsibilities needed for a well-functioning school system.

             The current statute is full of well-intended, if poorly drafted, provisions for parent and community involvement.  One of the Mayor’s worst tendencies is that he has seized power where legal ambiguities exist and expended great efforts to minimize and marginalize avenues for dissent.

            For example, the mayoral control law contains a strong Parent Bill of Educational Rights at section 2590-h(15)(c), which the Mayor watered-down in the Department of Education’s own Parent Bill of Rights, then added more “responsibilities” than rights!

             Similarly, where the statute clearly delineates numerous powers for the Community Education Councils (CECs) at section 2590-e, the Chancellor has either systematically ignored those powers or, through his Orwellian agents in the Office of Family Engagement and Advocacy, pinned down the Councils to empty and distracting procedural duties that have no real impact on their children’s education.  A thorough review of this section is necessary to revive CECs as active partners in district success with broad portfolios for interaction with all levels of school, district, and Central management. 

             Further, the current statute contemplated CECs as replacements for community school boards and saddled them with onerous reporting and conflict-avoidance requirements.  Most of those have turned out to be unnecessary since, as advisory bodies, Council members do not have the authority that requires such safeguards.  It is ironic that Central bureaucrats regularly end-run public transparency, possess clear conflicts of interest, and engage in revolving-door employment, yet demand of volunteers more onerous ethical rules than they themselves obey.

             Based on these observations, I have specific recommendations for investigation.  I do not necessarily propose them as solutions since they require further research and debate.  First, though counterintuitive to increasing parent and community power, CECs and other parent/community bodies should have broad powers of oversight and policy input, though fewer enumerated responsibilities since, as part time lay voluntary bodies with little staff assistance, exacting compliance becomes burdensome.  I use my own Council as a model.  The Citywide Council on High Schools has few enumerated duties and so can pursue almost anything we want, sometimes with telling impact.

             I would add one important power from which much ancillary power flows.  I would restore under section 2590-e CECs’ power to recommend Community Superintendents, a well-crafted provision of the 1996 School Governance Law which balanced the interests of local communities with the Chancellor’s citywide governance role.  Through this mechanism, CECs’ advisory roles would be given teeth through real power over Superintendent reappointment.

             Another idea, this to avoid the confusing clutter of multiple, sometimes competing, parent bodies, would be for District CEC members to be elected from individual Parent Associations (including high schools), so that in effect, the District Presidents Council and CECs would be blended into a single entity, with the Chancellor’s Parent Advisory Council (CPAC) consisting of a delegate from each CEC.  Citywide Councils (including elementary, secondary, and District 75) could then be constituted as subcommittees of CPAC, providing public information and advice to Central in a unified, coherent manner.             

            Finally, I suggest that the next Chancellor be appointed by the Mayor with advice and consent of the City Council.  While I generally disfavor an active role in governance for the Council (though I strongly favor its active oversight of schools), I believe that public vetting of the Mayor’s nominee will improve selection and community support of the eventual Chancellor.

             I believe these suggestions have the value of invigorating parent and community voices in our schools while preserving important elements of executive decision-making needed to operate our schools in a professional, efficient manner.  Combined with my other recommendations, this constellation of powers preserves the city’s need for unified fiscal and operational control of our school system and returns a strong parent and community role in how that control should be exercised.

The Panel on Educational Policy:

             An independent New York City school board, as recently proposed by the Public Advocate’s Commission on School Governance, is wrong for New York.  The Commission calls for a mayoral majority on the Panel on Educational Policy (PEP) with members to serve fixed terms without power of removal.  But calling for an independent board — an unaccountable board — is just a cheap shot at the Mayor, much as he deserves it.  It will not improve education, accountability, or even transparency.  Other reforms are needed.

         The old Board of Education demonstrated that “independence” is no guarantee of careful deliberations or wise policies.  As with the Commission’s plan, Board members served fixed terms and could not be removed.  Were our schools excellent?  No.  Did members vote upon principle, not politics?  No.  That system simply guaranteed years of political deal-making, buck-passing, and instability. 

             Remember the “Gang of Four,” when a Board majority formed independent of Mayor Dinkins?  There was no power of removal so Borough Presidents could do nothing to stop their appointees from vetoing Chancellor Fernandez’s multicultural curriculum or his condom distribution proposal.

             Even before the Gang of Four, Board membership was little more than a political sinecure.  The system was marked by complacency and a stream of Chancellors who generally ended their short terms as political road kill.  Our children suffered from the instability of ever-changing budget and program priorities, not to mention the petty politics of the day.  The separation of the Board from budgetary responsibility – which rests with the Mayor — was a recipe for policy irrelevance.  Mayoral control’s strength lies in its uniting of budgetary and operational accountability.  An independent school board would dilute that, without any likely increase in system quality. 

             Today, the PEP has an automatic majority of 8 mayoral appointees plus 5 Borough President appointees and 2 students.  Members serve at the pleasure of their appointing authority.  That is what enabled Mayor Bloomberg to engage in the 2004 “Monday Night Massacre” of two recalcitrant members over his promotion policies. 

             I think the Mayor’s proposal was wrong but governance can not be adjusted to yield preferred results.  Without power of removal, this would have been a rare mayoral loss even under the Commission’s proposal.  Though not an independent board, the PEP is at least pluralistic.  Yet dissent is rare because of Borough Presidents’ dependence on the Mayor under the Charter.  And if the power of removal was eliminated, even more docile appointees would result!  No Mayor and no Borough President would risk political embarrassment by appointing a loose cannon.

             And the accountability gained from mayoral control would be entirely lost.  Had his fourth grade promotion policy failed, or other votes that might have taken place in the absence of his “Massacre,” Bloomberg would have blamed all sorts of instructional calamities on the PEP’s failure to follow his lead.  He would say — accurately — that he could not be held accountable for student performance because an independent board had compromised his leadership.      

             Why not, then, put us out of our misery and disband the PEP?  Since it has an automatic mayoral majority, why not abandon the charade and have the Mayor and Chancellor make all final decisions, absent their courtiers and the lame pluralism provided by usually beholden non-mayoral appointees?

             The reason is that the PEP serves a crucial function in airing Department of Education decisions and providing a public square for discussing the system’s direction.  While not a direct check or balance to mayoral authority, the PEP provides an open forum for vetting executive decisions.  But today, the PEP agenda is so tightly controlled that it is little more than a series of PowerPoint presentations by DOE staffers, largely devoid of debate.

             Unfortunately, current State law fails to adequately support this role of transparency and debate, so necessary in an otherwise opaque bureaucracy.  The drafters of the statute were so worried that the PEP would descend into micromanagement that the law prohibits the PEP’s “day-to-day supervision or the administration of the operations of any school”.  Further, “the board shall exercise no executive power and perform no executive or administrative functions.”   For contracts, its jurisdiction covers only agreements “that would significantly impact the provision of educational services or programming”.  Even its policy-making role is reduced to those “directly related to educational achievement and student performance”.  (Emphasis added).

             In amending the law, the Legislature should lift this statutorily-created, mayorally-maximized veil on public scrutiny.  For example, the PEP should approve all DOE contracts above minimal spending limits.  Even if the PEP is a rubber stamp, full public disclosure prior to approval would be healthy for a contracting system too often shrouded in secrecy and, potentially, in patronage.

             Similarly, the policy jurisdiction of the PEP should be broadened and better defined.  The ability of the PEP to approve only matters directly related to educational achievement and student performance gives the Chancellor too much interpretive power.  That term should be omitted from the amended statute.   

             The statute should allow any member to put a matter on the agenda, only requiring a rationale for its policy relevance.  And any DOE proposal should be automatically reviewed by the PEP if it relates to testing; school creation, closings or planned increases or reductions in size; student grades and promotion; curriculum; general staffing; use of school buildings; class size; or on the basis of a program’s impact on traditionally marginalized or under-performing student populations.  Public comment should precede votes by the PEP.

             Finally, there should be designated parent membership on the PEP.  While facing some legal questions in providing that constituency with special decision-making privileges, parents clearly have a special place along with students in informing system policies.  If voting membership is precluded, there should be non-voting ex officio parent membership.

            New York needs a mayoral-majority PEP with power of removal that increases opportunities for public scrutiny and robust debate.  Amendment of the current law provides an opportunity to achieve these goals through careful drafting and attention to the values of accountability, transparency, and pluralism.

 © David C. Bloomfield, 2008

 Biographical Information:

             David Bloomfield, a former elementary and middle school teacher, was General Counsel to the old New York City Board of Education.  Now a professor and head of the Master’s Program in Educational Leadership at Brooklyn College, Bloomfield specializes in education law and prepares new leaders for the city’s public schools.  In this capacity, he works with prospective school leaders and their principals, in class and on site.  He is a Member and former President of the Citywide Council on High Schools, a parent advisory body to the New York City Department of Education.   He is the author of, among other works, American Public Education Law (Peter Lang, 2007).

             As General Counsel and Senior Education Adviser to the Manhattan Borough President in the early 1990’s, he played a significant role in drafting parts of the 1996 School Governance law.   The plan he devised for the Borough President was praised in New York Newsday as “the single most substantial improvement in the governance of this city in decades.”  He did similar work for the then-named New York City Partnership, producing a Task Force report called “A System of Schools” and advising on mayoral recommendations for school district restructuring.  His monograph, “Re-Centralization or Strategic Management,” written with Prof. Bruce Cooper of Fordham University, analyzed the 1996 governance statute and was the subject of a citywide conference held at Teachers College, Columbia University. 

             Prof. Bloomfield is a graduate of Brandeis University (BA), where he earned elementary and secondary teaching certification, Princeton University’s Woodrow Wilson School of Public Affairs (MPA), and Columbia University School of Law (JD; Stone Scholar, Paul Robeson Prize).  He also attended the Faculty of Education, University of Wales, Cardiff and Baruch College, CUNY, where he earned principal and superintendent certification.  More information at http://www.davidcbloomfield.com.