The Journal

Of The Empire State Supervisors and Administrators Association

Technology in the Classroom:

Cell Phones, Gameboys, IMs, Text Messages, and MP3 Players

The Journal is the official publication of the Empire State Supervisors and Administrators Association. © 2007 ESSAA

Volume V, Issue 2
January 2008

Dear Colleagues:

I am presently completing my thirty-eighth year as a high school principal. For twenty-eight of those years I have served as an educational labor leader, first as President of the Regional Association of School Administrators, and for the past eleven years as President of ESSAA.

As a labor leader I have seen many changes to the educational landscape. My focus has always been to protect school administrator, from threats within and outside the educational community. Over the years we have had to defend ourselves against a variety of assaults from the White House to the State Governor’s Mansion, and various locations in between. Yet, despite our concerns, we have always been able to understand the motivation behind these attacks and the steps that we must take to protect ourselves. However, this year’s admonitions are very different. Today’s message is about our need to protect ourselves from foreign agencies who threaten to destroy the very fiber of not only our school systems, but the very soul of our country. I am referring to the increasing threats of terrorism and of the organized forces in a hostile world who intend to physically harm our staff and students.

In the past year there has been an increase in warnings from validated community agencies such as the FBI, Homeland Security, the NY State Police, etc. In essence, the message is that a terrorist attack against a school in the United States within the near future is inevitable. The example often used is the attack that was launched by Al-Qaeda against an elementary school in Beslan, Russia in 2004. Three hundred eighty six people were murdered and over 730 were injured in this vicious terrorist assault. Among the dead were 186 children. It is crystal clear that terrorists who invade schools are ruthless and are intent on the destruction of human life, including their own.

School administrators would be naïve not take these warnings seriously. Difficult as it is to face, we must accept the fact that we are under siege and we must take every precaution to protect our schools and our student body and staff. With this in mind, I urge you to become very current in safety measures that should be instituted in all your schools to make it difficult for an assailant to penetrate. Fire drills, lock down drills, evacuation drills should become a matter of regular building practice. The more secure your parameters, the more difficult it will be to penetrate, and less likely your school will become a target.

Along these same lines, ESSAA has as a member of its executive board, Mr. Chuck Mitchell, a retired high school principal from Auburn, New York, who has become a national expert on this topic. He has received training from Homeland Security, the FBI and the Red Cross and other similar agencies. He is extremely skilled on this issue of school security and is available to assist you whenever the need presents itself. If you feel that you would benefit from a workshop on school safety and security, please contact us and we would be very pleased to arrange something for you. This is an area where lack of knowledge can result in incalculable casualties. All attacks on public education pale in comparison to this new and most deadly threat. Forewarned is forearmed.

Very truly yours,

Presidents Message 2

The Technology Students Carry Today 3

Statistics - Resources On Media Habits Of Young Adults 4

What The Regents Are Thinking 9

News From NYSUT 10

ESSAA's Carmen Macchia Receives Award 10

NYSED Tell Supers How to Deal With Terrorist Attacks 11

Literary Corner 11

New Rules For IRS Announced 12

PAC - United We Stand 13

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The Tech Stuff Students Carry:
And You Wonder Why Your Scores Aren't Rising?

by Bob Liftig

Some call it "the quiet revolution," because it seems to be an administrator's and teacher's dream: noiseless classes all over the school building, each kid busy working. No spitballs. No outbursts. No conversation while the teacher is talking.

This must mean more education is taking place, right?

Wrong!

Recent studies have shown that at least to 50% of college students admit to using "other technologies" at the same time class is going on. These may include: cellphones, BlackBerries, I-Pods, laptops, play stations, and their classroom computers. While teachers and administrators may be pleased to see so many apparently productive and cooperative students, at least half of each class may be text messaging, listening to music, watching Youtube, cruising through Myspace of checking out Facebook websites.

Yes, you have blocking systems, but as one technologically gifted student I have brags: "I can get around anything." All that is necessary to text message on a blocked classroom computer is to log onto Guardster.com, he says. He also tells me it's much more difficult to hack into a school's grading and attendance system, but if he wanted to, he could do it...not that he would, he adds.

Over 30 years ago, my district hired a "Futurist" from a think tank in Washington, D.C. to announce the latest projections about what education would look like in the year 2000. "Audio-Visual Aids," was his conclusion. Most texts would be converted into audio tapes. Most novels and short stories would be available in movie format. Students would communicate with each other using elaborate phone systems.

Students would no longer need to know how to read or write

English and Typing teachers, of course, would no longer be needed.

Fast forward to 2007.

Keyboarding is probably the most important skill any student can acquire. Reading skills have become even more essential as a means of communication. Writing skills are more necessary than ever. The amount of printed material generated is larger than ever before, even if the definition of "print" has changed...and the world has come to agree on one other thing: that most of this communication should be done in English!

Go figure.

Classroom teachers are now wrestling with how NOT to have students read and write while their lessons are presented, and we are witnessing a technological revolution in written communication which may only be surpassed by Guttenberg's invention of the printing press in 1450!

If you're like me, you probably don't own more than two or three of the new gadgets. And if you're like me, the first tendency when you see them being used in the classroom is to first to ignore, and maybe then to confiscate them. But it's hard to ignore a student who is whispering loudly to himself; and confiscating a $500 Blackberry, $300 cellphone, or $200 psp will evoke a stronger student and parent reaction than taking away a pencil did in the 1970's.

There may be a lot less education going on in our classrooms than we'd like to think, and this may account for why, no matter what we do, raising standardized testing scores is often difficult. It may be that to raise student scores we will have to incorporate the new technology into our curriculum ... and I don't mean requiring the students to work on our desktop computers a few hours a week.

The kids are way ahead of us.

This issue of The Journal may include information that will surprise you.

The Scope and Extent of the Cyber-Insurgency

Samuel Friedman points to a study done at Iowa State University which showed that a majority of students had used cell phones, sent or read email or gone into social network sites during class time. In fact, at least 25% of the students answering the survey said that they were doing it while sitting in another class.

Professor Michael Bugeja, who conducted this study, sees serious implications for education: "...we are training a generation of air traffic controllers rather than scholars." In Bugeja's eyes, the new technology may be bringing back the "vocational training" many school abandoned long ago.

Other observers see this proliferation as the beginning of the end of "teacher centered lessons" and with it, the elimination of school buildings as the primary venue for education.

We've heard this kind of hype before.

While it's true that across the country thousands of students are being "home schooled," up to now the biggest drawback to the movement has been the social isolation that comes along with it. Will BlackBerries, IM's, chat rooms, etc. help put an end to that?

There are other Nightmare Scenarios:

In the Fayetteville-Manlius school district east of Syracuse six students have been charged with altering grades both this year and in 2006. Last May, a high school senior obtained a school computer technician's user name and password simply by looking over his shoulder. The information was passed around liberally, and before school let out in June, grades were being changed throughout the computer system.

With the same information, students continued their grade changing into this school year; the plot was uncovered when one student forgot to sign off a computer in the school library. Then the "cover up" started with students signing on again to delete the evidence.

Here are just some of the crimes they were charged with:

• first-degree tampering with public records, a class D felony
• criminal possession of computer related material, a class E felony
• third-degree attempted burglary, a class E felony
• third-degree unlawful possession of personal identification information, a misdemeanor
• computer trespass, a class E felony
• second-degree computer tampering, a class D felony
• second-degree forgery, a class D felony
• fifth-degree conspiracy, a misdemeanor

How Students Get Around Our Systems

Many administrators think that computer blocking systems and district computer use policies are containing the problem, but a recent student survey I conducted makes a mockery of our efforts.

This fall I asked some not especially computer savvy community college students, all of whom had been recent high school students, to anonymously describe how they, or students they have seen, used the new technologies to entertain themselves or communicate with each other when they were supposed to be paying attention to the teacher.

Here are some of the results in the students' own words:

Cell Phones:

• I use my cell phone by putting on a head piece.
• Most kids use cell phones for texting during class. Some kids answer their cell phones and answer in a whisper
• Cell phones are mostly used under desks or in bathrooms.
• Girls put cell phones in their pocketbooks and text as they make like they are getting something out of their purses.
• Kids have test answers in their phones or friends text them the answers.
• Use your cellphone to text and put an open book on your desk so the teacher will think you are reading because you are looking down.
• Kids put their backpacks on their desks, then use their cellphones behind them. The teacher can't see them.

I-Pods:

• You can use an I-Pod by putting a hood on and covering the wires of the headphones.
• I wear only one speaker plug in one of my ears, then lean on my hand.
• It's important to turn down the volume on your I-Pod and wear a hat that covers your ears so the teacher won't see the ear plug.
• For I-Pods, students put head phone wires inside their shirts and a plug in one ear only. They make sure they turn the side of their head to the teacher - the one that doesn't have the ear plug in it
• For the I-Pod, we run wires through our clothes to hide them, then plugs in our ears.

School Computers:

• I use Proxy (a website) that allows me to IM people.
• I use Guardster.com to IM friends. But there are plenty of other proxys.
• For IM's during class, we use AIM EXPRESS.
• You can play games on school computers using secret websites. Most school have
  firewalls against them, but we can get around the system.
• We minimize the game screen when teachers walk around.
• We go to AIM or AOL and talk to our friends.

... And Even Play Stations (PSPs)

• Students hide psp (play stations) behind their backpacks and the teachers never see them.

What Can Be Done About It?

There are some "urban legends" that have circulated about teachers who have not been vigilant enough in their classrooms.

One story is about a Social Studies teacher who brought her kids to the Computer Room to research report topics she handed out to him. The 7th Grader who got "White House" was shocked when the information she printed out was about a brothel (and she told her parents, and ... etc.etc.). Another story which has made the rounds involves a Science teacher who gave out topics to her 8th Grade classes (for some reason these stories usually involve Middle School students), and the girl who got "Chicks" was similarly shocked (and told her parents, and ...etc. etc.)

The first reaction most administrators might have is to hold the teachers more accountable - maybe threaten them with 30-20A charges, if you have to...but is it fair to hold one teacher accountable for what is momentarily flashing on one of 30 computer screens? Another might be to simply have faith in the District's computer blocking system ....the one which even marginal students claim they can find ways around.

New Software Monitoring

There is, however, new software that allows the teacher in the room to monitor the computers in a classroom, and then freeze the perp's download and eliminate it. Smart Technologies, of Canada, for example is offering software - called SynchronEyes - for sale for less than $4,000 for an entire school building.

Here's a sample of its advertising:

“SynchronEyes classroom management software connects a teacher’s computer with every computer in a networked classroom. SynchronEyes software is easy to use and offers a variety of features that enable you to keep students focused on learning and redirect their attention if they go off track.

You can communicate, monitor or collaborate with students individually or as a group, so everyone gets the most out of class time.

SynchronEyes software 7.0 is now available

This new version of the software can be used on wired or wireless networks, and supports most mobile devices, ensuring the software adapts to your changing needs as your classroom technology evolves. Teacher authentication and encryption features help you provide a safe learning environment and keep your network secure. Additionally, the software can automatically be deployed to all computers using an .msi file.

Highlights

Switch easily from individual to group instruction

With SynchronEyes software, you can work with students one to one or in groups directly from your desktop.

Keep the focus on learning

You can control access to the Internet or to specific computer applications. You can also block students individually or as a group, making it easier to manage a class where students are working on different projects or at different paces.

Help students stay on track

With a view of all the computer screens in your classroom, you can quickly ensure that students are paying attention and staying on task.

Test students quickly and easily

Deliver quizzes and have the tests marked automatically. A new feature also provides you with a summary of the results.”

Block The Proxys?

I didn't know about these until my students told me about them. Here's one advertisement for a "Proxy" site, conveniently packaged in the American Flag:

“Proxy.org is the pragmatic Web surfer's guide to online privacy and anonymous web surfing. We give you the information and tools you need to be confident and in command of your Web surfing experience. Here you'll find information on the latest privacy issues facing Web consumers and links to relevant privacy technology. Proxy.org has the most comprehensive list of working proxies in the most convienient form.

Your right to anonymity

Amendments 9 and 10 of The United States Bill Of Rights protect the right to be free of unwarranted and unwanted government intrusion into one's personal and private affairs, papers, and possessions. Article 12 of The United Nations Universal Declaration of Human Rights states, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Despite some charges to the contrary, anonymous Web surfing is not the sole province of criminals. Anonymity also serves whistle blowers, free speech advocates, and people just looking for personal privacy online. Privacy is not a crime and anonymity is not morally ambiguous or wrong, they are your right.”

Note here the operative words: "anonymous web surfing." By going on to a proxy server (my students tell me), kids can not only get around most blocking systems, but can leave a virtually footprint free trail of their transactions. My students especially enjoy: Gurardster.com, youhide.com, and mydropbox.com.

What do your students prefer?

The possibilities for downloading junk that would embarrass the entire school district, if the story got out, should be obvious and amazing.

Appreciate The Possibilities

Science Fiction cartoons in the 1930's often featured "Answer Boxes" that would be created sometime in the future: pose a question, and the answers would spill out of them (usually in a deep robotic voice that shouldn't be trusted).

Now we have it.

The ability of students to research a topic has increased a hundred - or a thousand fold - since the appearance of Search Engines.

Don't count the current batch of students to debate the advantages and disadvantages of I-Pods, PSPs, Youtube, and the rest of them. They might seem like new inventions to us, but for them, it is their history.

Which leads us to the inevitable suggestion for educators ...

Incorporate New Technology Into Your Curriculum

Here's just one example:

It's true that many schools have banned the hugely popular Wikipedia as an allowable source to reference in student papers, but many educators are facing the reality that kids use it anyway. Others are incorporating Wikipedia and sources like it, into their curriculum.

AP writer Jessica Mintz points to an experimental lesson conducted by University of Washington Professor Martha Groom, which requires students to either submit an original article to Wikipedia or edit an existing one. By doing so, students are better able to see what the popular resource site usually requires, and what its articles- often submitted by self-styled "experts" - are lacking.

Condoning IM's and chat rooms for use in the K-12 classroom use may strike cold fear into the hearts of most administrators, but even a skeptic would have to admit that using them to conduct interviews or to encourage the old "pen pal" system has some interesting possibilities.

The ingenuity and technical expertise students already demonstrate in maintaining daily blogs, Myspace and Facebook sites, also present possibilities for mining and reporting on the information. Similar uses might be found for the ubiquitous I-Pods...and all the rest of them.

Right now, of course the new technology is also fraught with danger.

As Chuck Mitchell, ESSAA's Project SAVE Director pointed out to me, even the august Center for Disease Control in Atlanta has devoted a special issue of its Journal of Adolescent Health to some of the dangers inherent in the new technologies.

Here is an excerpt from one of their press releases:

The recent explosion in technology does not come without possible risks. Youth can use electronic media to embarrass, harass or threaten their peers. Increasing numbers of adolescents are becoming victims of this new form of violence. Although many different terms-such as cyberbullying, Internet harassment, and Internet bullying-have been used to describe this type of violence, electronic aggression is the term that most accurately captures all types of violence that occur electronically. Like traditional forms of youth violence, electronic aggression is associated with emotional distress and conduct problems at school.

In September 2006, the Centers for Disease Control and Prevention (CDC) convened a panel of experts to discuss issues related to the emerging public health problem of electronic aggression. The panel included representatives from research universities, public school systems, federal agencies, and nonprofit organizations.

To: The Whiz Kid In The Central Office

If YOU'RE the Whiz Kid in the Central Office who's in charge of your district's computer system, I tip my Derby hat to you for knowing much, much more about the potential for both learning and chaos in our modern technological classrooms.

But the average building administrator or classroom teacher can no longer get away with claiming only minimal computer literacy, and then turning the bigger questions over to you.

The time has come for educators themselves to be educated about how students are already using the new technologies, AND about what new goodies we can expect in 2008.

Happy New Year!

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Media Use Statistics:
Resources on media habits of children, youth and adults

"State of the Media Democracy" Deloitte & Touche new media study

About 62 percent of "millenials" (consumers 13-to-24-years-old) are using their cell phones as entertainment devices, up from 46 percent in the previous study. And among Generation X consumers (25-to-41-year-olds), the number grew to 47 percent from 29 percent in the earlier survey. About 20 percent of consumers said they are viewing video content on their cell phones daily or almost daily.

The percentage of consumers watching TV online jumped from the 23 percent figure reported in the previous study. Roughly 54 percent of those surveyed said they are making their own entertainment content through editing photos, videos or music, 45 percent said they are producing that content for others to see, and 32 percent said they consider themselves to be "broadcasters" of their own media.

Pew "Teens & Social Media" Study

Some of the highlights:

• Nearly two-thirds of teens - 63 percent - have a cell phone
• 35 percent of all online teen girls blog, compared with 20 percent of online teen boys.
• 32 percent of girls ages 12 to 14 blog, compared to 18 percent of boys age 15 to 17.
• YouTube and other video sharing sites tend to be the domain of boys. Online teen boys are "twice as likely" as girls to post video files online, by a 19 percent to 10 percent margin.
• Fully 41 percent of teens who use MySpace, Facebook or similar sites say they send messages to friends via those sites every day. More than half of teens - 55 percent - reported having a profile on sites like
• MySpace or Facebook, and 42 percent of those teens said they also blog, while 70 percent said they read the blogs

Nokia Study of Future of Entertainment Options

The study, entitled 'A Glimpse of the Next Episode', carried out by The Future Laboratory, interviewed 9000 trend-setting consumers from 17 countries about their digital behaviors and lifestyles signposting emerging entertainment trends.

Among the results:

• 23% buy movies in digital format
• 35% buy music on MP3 files
• 25% buy music on mobile devices
• 39% watch TV on the internet
• 23% watch TV on mobile devices
• 46% regularly use IM, 37% on a mobile device
• 29% regularly blog
• 28% regularly access social networking sites
• 22% connect using technologies such as Skype
• 17% take part in Multiplayer Online Role Playing Games
• 17% upload to the internet from a mobile device 

Tweens & Mobile Phone Use

Some 35% of U.S. "tweens," defined as kids aged 8-12, own a mobile phone, and 5% access the Internet over their phones each month, according to a new study (Dec. 2007) from The Nielsen Company. The study also found that 20% of tweens have used text messaging, while 21% have used ringtones or ringback tones. Of the 5% of tweens who use their phones to access the Internet, 41% said they did so while commuting or traveling, while 56% did so at home. At home was also where the majority of tweens said they downloaded or watched TV on their phones (58%) or downloaded or played music on their phones (64%).

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ESSAA Officers

John F. Sullivan 888-88-ESSAA
President Westchester
essaa@msn.com

Anthony Laurino 888-363-8797
Executive Vice President Long Island
lbrklyn55@aol.com

Tom Vasiloff 315-656-7201
Vice President East Syracuse-Minoa
tvasiloff@esmschools.org

Edward Keeler 315-736-0629
Vice President Utica
e.keeler@verizon.com

Jerry Spicer 518-462-7185
Vice President Albany
jspicer@albany.k12.ny.us

William Evans 914-761-0390
Vice President Westchester
bevans358@aol.com

Chuck Smith 518-399-7480
Treasurer Schenectady
csmith7@nycap.rr.com

Robert D’Arcangelo 607-762-8116
Secretary Binghamton
darcanger@bcsdgw.stier.org

ESSAA Directors

Herbert Dickson 607-748-8683
Director of Organizational Development
dicksonghs@aol.com

Robert A. Liftig 203-226-3437
Director of Communications
Editor, The Journal
boblif@aol.com

Inez Liftig Assistant Editor, The Journal

Jan Yablow 914-693-7564
Director of Research & Development

ESSAA Attorneys

Paul Derkasch, Esq. 888-363-8797

Kevin O’Hare, Esq. 518-441-3099

Robert Saperstein, Esq. 888-363-8797
888-294-8282

Robert Ungar, Esq. 516-227-2400
Legislative Counsel

Website Coordinator

Joanna Keeler 315-736-0629

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WHAT THE REGENTS ARE THINKING

“For a decade, student achievement has improved in response to Regents policy and action. But the improvement is not sufficient. The achievement gap has narrowed, but not closed. The world has also changed as billions of people have entered the global economy and ignited a global education boom. The Regents will engage with statewide and local partners to implement this (P-16 Action) plan.”

Board of Regents Announces Support for P-16 Action Plan's Student Achievement Initiatives and College Readiness Programs

The Board of Regents announced it is receiving $6.2 million in support from the Bill & Melinda Gates Foundation and The Wallace Foundation for work to improve New York State’s high school graduation rates, college readiness and college completion rates.

Proposed New York State Professional Development Standards November 2007 Draft -

The State Professional Standards and Practices Board for Teaching, in its advisory role to the Board of Regents and the Commissioner, is proposing that New York adopt state standards in the area of professional development. The State Education Department is releasing a draft, authored by the Standards Board, titled Proposed New York State Professional Development Standards. The purpose of these standards is to define effective professional development and support the implementation of professional development programs throughout the State.

Dr. Martin Luther King, Jr. Fine Arts & Essay Display -

We are pleased to announce that we have recently been authorized to co-sponsor with our colleagues in the New York State Office of General Services (OGS) an event in celebration of the life of Dr. Martin Luther King, Jr.  This inter-agency initiative will honor Dr. King’s memory with an exhibit of student art and essays. The New York State Education Department and OGS invite children throughout New York State to submit original artwork illustrating Dr. King’s Six Principles and Steps of Nonviolence, or essays about celebrating Dr. King’s birthday throughout the year. All entries will be displayed in Albany’s Empire State Plaza at the time of the Dr. Martin Luther King, Jr. Holiday Memorial Observance in January. Additionally, selected artwork from the submitted entries will be used in the development of next year’s posters publicizing and promoting events in Dr. King’s memory.

Congratulations to the 2008 New York State Teacher of the Year -

Richard Ognibene, Jr., an eleventh grade chemistry and twelfth grade physics teacher at Fairport High School in Fairport, NY: Mr. Ognibene was honored for excellence in teaching and for his remarkable commitment to student learning and success at a reception in Albany on October 22, 2007 hosted by the New York State Board of Regents and the State Education Department. Four Teacher of the Year finalists were also honored at the event; they are Felipa Gaudet, a kindergarten teacher at Violet Avenue Elementary School in Poughkeepsie, NY; Anne Sierotnik, a high school English teacher at West Genesee High School in Camillus, NY; Alison Albright, a high school English teacher at Canandaigua Academy in Canandaigua, NY; and Elaine Ormsbee, an ADA-PEP counselor for grades five through seven at Gillette Road Middle School in Cicero, NY.

ESSAA Sponsors Michael Dorn's Address to Yorktown Educators.

On February 4, school safety consultant Michael Dorn spoke to the Yorktown School community about recent credible terrorist threats to our nation’s public schools. The Superintendents Day Workshop and evening public meeting discussed the mounting evidence that Al Quaeda operatives have been trained in places like Afghanistan to occupy American schools and murder children using techniques similar to the ones they used in Beslan, in Southern Russian in 2004, when almost 400 adults and children were killed.

A former School Safety Specialist for the State of Georgia, Dorn and the Lead Program Manager of the Terrorism Emergency Preparedness Division of the Georgia Office of Homeland Security, Dorn was selected as the top school safety expert by Jane’s, the British intelligence, defense and security publisher after an international search. He is a graduate of the FBI National Academy and has received extensive antiterrorism training in the United States and in Israel. This workshop was organized and sponsored by ESSAA.

And The Courts Are Saying

Defamation On The Internet

What, if any, responsibility/liability do web-site operators have to control the postings on their web community bulletin boards? The facts in a recent New Jersey case, Donato v. Moldow, closely parallel those in which school district personnel find themselves and therefore sheds some light on this gnawing issue.

The Donato plaintiffs were town officials who sued the web-site owner for defamation when anonymous third parties posted allegedly false statements about them on the website. The statements included claims that the plaintiffs engaged in improper sexual activities and were illegal drug users. The plaintiffs argued that the site owner, because he exercised control over which items would be posted/rejected on the website, became a publisher of defamatory comments for which he should be held accountable. Not so, said the court! § 230 of the federal Communications Decency Act states: “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Thus, since the website owner/operator fell within the meaning of “provider or “user” in §230, he is shielded from suit. As for the discretion website owners exercise over the content appearing on their site’s boards, the court said such discretion is “nothing more than the exercise of a publisher’s traditional editorial functions, namely, whether to publish, withdraw, postpone or alter content provided by others. …This is the very conduct Congress chose to immunize by §230.”

Internet + Porn = Problems

By now you have all heard of teachers and administrators caught, and disciplined, for having porn on their computers. This topic would not have hit our radar but for a new and surprising twist. The case [Matter of Bd. of Ed. Peru C.S.D., NY Sup Ct. #05-0112] involved a teacher, who by all accounts was an excellent one, popular with students and staff and who coached several sports teams. The District had an internet policy that prohibited using computers to access “adult” material. The teacher was aware of the policy yet ventured into the “dark side” on several occasions. The District’s computer software locked the teacher’s computer on his last visit. He knew the jig was up so he immediately went to his principal and confessed everything.

The 3020 A hearing was swift and the conclusion was inevitable: guilty! Taking into account the teacher’s excellent teaching and coaching record, his contrition and openness, and the fact that the forays to the wild side, though on school time, were never done while students were present, the Hearing Officer’s penalty was a 6 month suspension without pay and summary termination if he violated the policy again.

“Too lenient!” Argued the District in appealing the penalty in court. Lenient?[!!!] 6 months without pay, although not terminal (unless he violated the policy a second time), is hugely expensive. Courts rarely overturn the judgments of Hearing Officers, and even more remote are cases wherein the courts review the penalty imposed. Alas, for this teacher the court did the unexpected. The court agreed with the District and sent the case back to the Hearing Officer for a new penalty because, according to the court, the leniency of his penalty “violated public policy”.

The court’s reasoning was that the public’s policy expressed through the Child Internet Protection Act, was expressly intended to protect children from pornography on the internet, ergo, leniency is prohibited! Even though no students were aware, or exposed, of what was on the teacher’s computer, the mere potential of exposure trumped all mitigating circumstances.

ESSAA's Macchia Receives Prestigious State Award

Portchester Middle School Principal Carmen Macchia received “The Connie Toepfer Award for Leadership at the Middle Level” at the New York State Middle School Association meeting in Saratoga last fall. The Toepfer Award is the most prestigious award given by the organization. NYSMSA "serves the needs of adults working with middle-level youth and supports teachers, administrators, parents, and others in an effort to provide services to youth between the ages of ten and fifteen. NYSMSA is governed by officers and directors elected from across New York State."

NEWS FROM NYSUT

NYSUT reports that it will be introducing the 25/ 55 Bill again this spring. Under this plan, teachers could retire at age 55 if the had 25 years of experience. Administrators are included in the NYSUT retirement system.

OSHA rules have been strengthened for school employees such as school custodians, bus drivers, nurses, and para-professionals. School systems now must "provide employees with the equipment and resources to perform their job in a safe manner," said NYSUT Vice President Kathleen Donahue. Examples that are given are: steel toes shoes for custodians, gloves for bus drivers when they pump fuel, aprons and gloves for health and para-professionals, and N-95 respirators to care for patients with active tuberculosis.

NYSUT reports that a mass mailing to 80,000 retirees for VOTE/ COPE the PAC for the teachers' union, resulted in 6.000 new contributions.

The school year 2008-2009 will see changes in the tenure law under Chapter 57. Statewide minimum standards will be required for teacher tenure determinations as part of Gov. Spitzer's accountability system. According to an article published in the December issue of The New York Teacher, tenure determinations made on or after July 1, 2008 will include:

• an evaluation of the teachers successful use of student performance data when providing instruction.
• peer review by other teachers.
• an assessment by the teacher's building adminstrator.

While the law is intended to apply to all teachers currently on a tenure track, NYSUT is working with SED to amend the law so it applies only to teachers hired after July 1, 2008.

Finally, NYSUT believes that any reauthorization of NCLB will not occur this year, although the law expired in September, 2007. NYSUT urged Congress not to rush reauthorization.

NYSED Tells Superintendents How To Deal With Terrorist Attacks: Has This Been Shared With You?

by; Chuck Mitchell, ESSAA Project SAVE

In early December, NYSED mailed to every school superintendent a copy of the New York State School Safety Guide and a training DVD entitled NYS Safety Program, with a cover letter from Richard Mills. ESSAA members are urged to request copies of both of them from their Superintendents. Unfortunately, neither the DVD nor the NYS Safety guide seems to be available on Google, nor is it yet on the NYSED Project SAVE site.

The Guide is the result of a collaborative effort of NYSED, NYS Police, NYS Office of Homeland Security, and NYS Emergency Management Office; it updates the procedures that schools should follow to prevent, prepare for, respond to, and recover from acts of terrorism (internal or external) and other emergencies. It is a result of examinations into recent tragedies that have occurred in our schools. There is also an extensive Appendix with a variety of checklists and quick guides for lockdown, lockout, and shelter in place.

The former guide from NYSED is woefully out of date. 

The current NYS School Safety Guide should be used to update building and district emergency plans asap! The accompanying DVD is an excellent 25 minute presentation on the threat assessment process that should be enacted in every school in order to maintain a culture of shared information, access information, and take appropriate action when necessary to ensure safety. 

ESSAA can provide you with more in-depth on-site training in the Threat Assessment Process. Contact John Sullivan, President of ESSAA - essaa@msn.com OR Charles Mitchell, Chair - School Safety Committee - ESSAA -cmitchcmitch@yahoo.com

Literary Corner:
Emergency Preparedness - A Poem

by Chuck Mitchell, ESSAA Project SAVE

Lockdown, lockout, shelter in place,

Hide in the broom closet! + Fire drills

Nysed mandates 12 per year

But when was the last time there was a

School fire that injured anyone????!

What good does it do to lockdown/lockout

In a small rural nys district when it will take at least 30 minutes for the first

Police officer to respond,

And that might be an

Environmental conservation officer.

When a state policeman was asked that question in my presence

His response was:

"We haven't worked out yet how you can

Protect yourselves until we get there.

 Duck under the desk

Or hide in an interior hallway

Still works for tornadoes,

Straight line wind storms,

Hurricanes -

As long as the roof holds up [it didn't in arkansas].

San Diego school districts used their

Emergency communcation to parents'

Cell phones, home phones, email addresses, etc.

To communicate when schools were

Opening, closing, whatever,

During the recent wildfires

Successfully

Special Alert To ESSAA Members:
IRS Announces New Rules For 403(b) Accounts

by; Alan W. Waidelich, Partner
Debany Financial Group, LLC
303 South Broadway, Suite 103

These new regulations will add an extra responsibility to an already overburdened school business official, in addition to the possibility of limiting investment options for the employees of school districts, hospitals, and other non-profit organizations. There is also the possibility of IRS repercussions to the district and ultimately the employees if the school business official makes an error in calculations.

New 403(b) Regulations:

A new set of Internal Revenue Service regulations issued on July 26, 2007 is prompting the first significant changes to 403(b) plans in more than 40 years. These rules are designed to regulate the way 403(b) plans are managed and to help improve the retirement savings progress for employees in the tax-exempt/non-profit sector.

The rules apply to all types of 403(b) plans, including governmental, higher education, public school, health care, church, tax-exempt associations, and ERISA and non-ERISA plans.

New Key Provisions:

• Written Plan Document
• Exchanges
• Universal Availability
• Timing of Contributions
• Coordinated Catch-Up Rule
• Severance from Employment
• Key Dates

Written Plan Document:

Sponsors of ERISA and non-ERISA plans are required to have a formal plan document specifying; available investment options, eligibility requirements, contribution limits, benefits, and time and form of benefit distributions. The plan document would also indicate any optional plan features, such as hardship distributions, loans, acceptance of rollovers and plan-to-plan transfers, in-service transfers to approved vendors, in-service distributions at age 59 and a half, and exchanges to non-approved vendors.

Exchanges:

The traditional 90-24 transfer rules allowing unrestricted transfers were eliminated on September 24, 2007. Effective September 25, 2007 plan participants can send new contributions or exchange their accounts only to approved providers. Plan Sponsors and Vendors will need to enter into an “Information Sharing Agreement” no later than December 31, 2008. The agreement concerns the sharing of participants’ employment, severance, hardship withdrawals and loan activity data between the plan sponsor and the vendor(s) to ensure compliance with 403(b) rules.

Universal Availability:

All employees must be able to participate in the 403(b) plan. When hired, all new employees must be notified of their opportunity to participate in the 403(b) plan. Those who don’t enroll need to be notified again, at least once a year. Employees who ordinarily work less than 20 hours per week may be excluded.

Timing of Contributions:

Plan participants contributions must be sent to vendors as soon as administratively possible. This rule applies to employers of all sizes, including small organizations.

Coordinated Catch-Up Rule:

New rules for the coordination of the age 50 and special 15 year catch-up contribution provision are part of the new 403(b) regulations. The new rules will help to clarify the contribution opportunities for employees approaching retirement.

Severance from Employment:

Tax-exempt and public sector employers must provide their own definition of severance. A more restrictive definition may preserve more assets for retirement. But a less restrictive definition may give employers more flexibility when making job or career changes.

Key Dates:

• As Soon As Possible Determine your retirement vendors
• By January 1, 2009 Establish a written plan document
• By January 1, 2009 Document information Sharing Agreement with Vendors

cont'd. page 16

United We Stand

by Tom Vasiloff

“United We Stand,” has significant meaning to our country. We are from many backgrounds - many ethnic, racial and social groups. But, we are “united” as one country with one language, one currency, and one form of government. How lucky we are indeed! United – “connected,” “unified,” “solidified,” “working together with one heartbeat!”

There are many examples of other “united” groups - the United Autoworkers, the United Press, the New York State United Teachers, to name a few. These and other organizations join together to work for a common reason or cause for their membership – protection of rights, wages, working conditions and the like.

The ESSAA unit members, some 3,000 strong and growing, likewise are united. We share the common bond of the responsibility for the day-to-day operations of our public schools, advocating for our children and educational programs. We also share the burden of protecting our members’ rights from the ever-present onslaught of angry parents, litigation and other hazards.

So what does this have to do with our PAC Fund? Plenty. ESSAA is united in it's efforts to effect legislation that has a direct impact upon our members. Consider the following bills: A2928 – Weinstein/ S1512 – Farley; A6793 – Weisenberg/S5134 – Lanza; A7815 – Abbate/S5523 – Flanagan; A8792 – Lavine/S6115 – Golden; A8752 – Lentol/S3233 – Maziarz. These are ESSAA-supported bills or, in the case of A8792/S6115, an ESSAA-written and funded bill that will have implications for our membership. (You can look up the details of each at the New York State Senate and Assembly website.)

But, frankly, none of this happens without a united PAC group. Your PAC contributions make these bills a reality and we get the lawmakers’ attention. A PAC Fund of contributions from each and every unit member, communicates loudly and clearly to our legislators that “United We Stand.” I write the checks and I see firsthand the names of those whom we support. Judging by the many “thank you’s” I receive, it is quite clear that the ESSAA organization continues to be recognized by the legislators as a growing force. You should be proud of that!

But remember - we cannot stop or slow down our support. So please, make your contribution today to the ESSAA PAC Fund today!

ESSAA PAC

Needs Your Donation Now

Thomas A. Vasiloff

ESSAA PAC Chairman

7333 Dartmoor Crossing

Fayetteville, NY 13066

What's New On The Legal Pad

Claiming Disability and Sick Time

In Ramirez v. NYC Bd of Ed, [03-cv-4765], a teacher sued because his contract was not renewed. He claimed the non-renewal was discriminatory because his unsatisfactory rating was due to his being absent for 42 days [some were documented as being related to epilepsy, depression and hypertension] in one year and therefore violated the ADA.

The Santiago v. Newburgh City School District case [05-civ-10731, the court was presented with a secretary typist being dismissed because an on the job injury prevented her from typing. Even after 15 months of treatment, the prognosis was that she could not type.

In each case the court made short shrift of the plaintiffs’ claims. Alas, while Mr. Ramirez appeared to be a competent teacher, an essential function of teaching is showing up for work on a regular basis, i.e. something he could not do. Similarly, since the medical evidence established that Ms. Santiago could not type, the court said “A person who cannot type is not qualified to be a typist.”

To establish an initial case of disability discrimination an employee must show that he/she could perform the essential functions of their jobs. To any average Joe or Jane, the inability of a teacher to come to work regularly, or for a typist to be able to type, would seem to clearly justify their dismissal.

Investigation –vs- Interrogation

These are terms of art whose differences in a school setting are often blurred if not ignored completely depending upon the degree of umbrage taken by parents when you call their son or daughter to your office to answer a complaint made against them. The issues are whether school authorities have the right to question students without first notifying the student’s parents; and, the manner and means by which the investigation is conducted. These issues were addressed in Mislin v. Tonawanda City Sch. Dist. [03 cv 273S].

A black student made a racial harassment complaint to school authorities. A school official was assigned to investigate the complaint. The official removed the student against whom the complaint was made from class and escorted him to a room where he was interviewed by an attorney hired by the District to investigate the matter. The interview was conducted behind closed doors and was recorded.

The student’s parents sued the District for violating their son’s Fourth Amendment right to be free from an unreasonable seizure. The parents’ arguments were that the seizure was unreasonable because there was no exigent circumstance that required the District to interview their son with such immediacy that they could not have been given notice so they could appear with him. Further, they argued that conducting the interview behind closed doors, and recording it in their absence compounded the unreasonableness of the seizure.

In dismissing the case, the court applied the Fourth Amendment analysis used by the U.S. Supreme Court in New Jersey v. TLO , 469 U.S. 325. School districts are NOT held to the same probable cause standard required in criminal prosecutions. In order to avoid Fourth Amendment liability all a school district must demonstrate is that the seizure of the student for questioning was reasonable under the circumstances. In this case, there was a complaint of racial harassment filed by a black student against a white student, ergo, the district was correct, if not obligated, to institute the investigation. The court rejected the parents’ argument that the presence of exigent circumstance was required before a school official is authorized under the Fourth Amendment to question a student during an ongoing investigation.

Such a rule, the court observed, “would intrude on the necessary discretion retained by administrators to conduct the day-to-day operation of public schools.” Neither the absence of the student’s parents, the closure of the office door, nor the use of recording equipment rendered the seizure of the student unconstitutional. [Note: All Districts should have a policy about how, when, and where investigations of students are to be conducted. Please review them with your District’s counsel and apply them uniformly.]

Students’ Off Campus Expressive Activities

Yes, another internet case. In this one a student used an instant messaging icon depicting a pistol firing a bullet at a person’s head. Beneath the drawing were the words, “Kill [name of teacher].”The posting was made from the student’s home on his home computer. Further, what was apparently not in dispute was that the student posted the IM as a joke and not as a threat.

Following an internal investigation, it was determined that the icon was seen by about 15 students over a 3 week period before it came to the attention of school authorities. The School Board suspended the student for one semester. The parents sued claiming that the punishment was a violation of their child’s First Amendment rights to express his opinion.

By now of course it is well settled that schools have broad authority to discipline students for both on –and off- campus expressive activities, including messages disseminated via the Internet. The standard applied in these cases is whether the expression materially and substantially disrupts the work and discipline of the school. (Tinker v. Des Moines, Indep. Comm Sch. Dist., 393 U.S. 503). The U.S. Court of Appeals, 2nd Cir, upheld the suspension of the student saying that the school officials could reasonably conclude that the internet posting would have the disruptive effect that removed it from the First Amendment protection. Wisniewski v Weedsport CSD, 06-3394-cv (2nd Circuit)

It is not yet known whether the parents will appeal this case, but there would seem to be grounds for them to do so. First, the court accepted as true that the posting was intended as a joke and not a threat; second, the posting was extensively distributed for three weeks yet there was no demonstrable disruption or interference in the day to day operation or conduct within the school. With what facts was the district’s fear of disruption “reasonable”? If the internet posting was on-line for 4 weeks, or 10 weeks, with no impact on school discipline or day to day operations would that make a difference?

In Loco Parentis bites back?

The above doctrine places school personnel in the place of students’ parents when the students are under control ,and within the authority, of the school district. The phrase typically comes to the fore when teachers and/or administrators are named as defendants in lawsuits for their failure to exercise the same degree of care toward the students in their custody as a reasonably prudent parent would under comparable circumstances. McGovern v. Nassau County Dept. of Soc. Svcs (NY Sup Ct. 06/06/07 shows the flip side of the doctrine. Can a teacher be held liable for an action that a reasonably prudent parent should take BUT DIDN’T?!

In this case the parent brought a claim against her high school daughter’s district claiming that a teacher’s abusive comments to her daughter (described as being “sensitive” by the parent’s psychologist) caused her to miss school and were the reason her daughter was doing so poorly academically. Indeed, the student was doing poorly, and in part it was because of her sporadic attendance. The parent alleged that a teacher told her daughter that if her academic performance did not improve she would “fail high school and college” and her life would amount to nothing. Pretty stern stuff….but unreasonable under the circumstances? The court said NO. The court did not find such comments to be extremely outrageous, and even if characterized as constructive criticism, the teacher’s comment was not so severe that a student, even a sensitive one, could not be expected to endure it.

Attorney / Client Privilege

The above doctrine shields confidential communications (oral and/or written) between you and your attorney from being revealed in civil, criminal, and administrative cases. In order for that privilege to attach certain criteria must be met. For purposes of this squib, the criterion under review is that the communication must have been intended to be private and confidential, ie. conducted with no third party being present. Technology has created a wrinkle that we hereby caution our readers about.

It is not unusual for clients to contact their attorney by using their computer at work. There’s the rub…whose computer is it? Did the user have any expectation of privacy in using the company computer when conducting “private” business? While you may have intended your communication with your attorney to be confidential we fear that a court may rule to the contrary. So far at least one court has held that using the company’s computer, on company time, WAIVED, the attorney/client privilege since the company was free to monitor computer useage, ergo, the company was a third party to the communication….a condition fatal to the privilege and possibly terminal to your continued employment!

Downhill Skiing ….more expensive than you thought!

With winter and snow upon us, the lure of alpine and cross-country skiing is hard to resist. Some staff members in the Malone Central Sch. Dist.9451 AIS 3 (NY) couldn’t resist and took personal days for their time on the slopes. PROBLEM: While the contract Agreement with the school district provided personal days and did not require specific reasons to be given for taking them, it did include an admittedly non-all inclusive list of appropriate usage. Once the District found out that the staff members used personal days to go skiing they docked the members a day’s pay.

The union grieved. Its argument was that the contract provision did not exclude the use of personal leave days for recreational purposes; and that, the agreed upon list of permissible usage was not all-inclusive. The reasons for taking the personal days were: it was for family business was because they could not use their reciprocal ski passes on days school was not in session or after school hours; another claimed usage for family business, was to address marital problems.

The Arbitrator found for the district. From the list of permissible usage he determined that the intended purpose for personal days was to attend to business or activities important to an employee or his family that typically could not be attended to during work ours. Skiing was not such a “need.”

Empire State Supervisors & Administrators Association

Box 187 • Eastchester, New York 10709

Would you like more
information about ESSAA?

Please contact Ed Keeler.

Telephone 315-736-0629 or

e-mail: e.keeler@verizon.net

cont'd. from page 12

The changes in the 403(b) rules place the school district in a position of direct oversight of the 403(b) program. The district will be responsible for monitoring contribution limits, investment exchanges, loan administration and selection of vendors. There may be additional areas of review added to the school district as the legislation is clarified.

One aspect that is certain is that school districts will have a more direct role in the 403(b) program. This new role will place additional responsibilities and burdens on an already overworked school business official and his/her staff.

Alan Waidelich is a registered representative with Walnut Street Securities, Inc. For 15 years Alan has worked extensively with school teachers and administrators, designing and implementing innovative investment and retirement strategies. He is available to respond to inquires at the contact information listed below.

Tarrytown, New York 10591

(914) 366-4900, Extension 103

Attention ESSAA Members Retiring in June:

Because retired educators remain informed about and interested in supporting excellence in education for all New York State students, ESSAA has formed an organization for the retired administrator. The Retired Empire State Supervisors and Administrators Association will devote 100% of it’s time and resources to serve the interests of retired administrators, work to improve the quality of life for all retired educators and insure excellence in education for all children in New York State. Additionally, all the benefits of ESSAA membership (excluding the life insurance) are available. The annual fees are $25 dollars per calendar year ($10 of which will go to the ESSAA PAC). Since this is for a calendar year, members joining in July need to send $12.50 for the remainder of 2006.

Tear Off Form to be sent to:

Retired Empire State Supervisors & Administrators Association

C/o Herbert Dickson

2636 Quail Ridge Road

Endicott, NY 13760

Name Home Phone

Address Work Phone

Former Unit E-mail

!