New Jersey Education Commissioner David Hespe, in what has to be one of the most extraordinarily cynical and disingenuous legal decisions produced by a state bureaucrat (who also is a lawyer), has upheld the dismissal of nearly 50 pupil attendance officers in Newark, a district with arguably the worst pupil attendance rates of any school district in the state.
Hespe overturned the decision of a state administrative law judge who ruled that former state-appointed school superintendent Cami Anderson violated the law in 2013 when she laid off 46 attendance officers to close a budget gap.
Administrative Law Judge Kimberly Moss, citing the statutes requiring all districts to take action against truants, concluded Anderson “violated (the statute) by abolishing the position of attendance counselor that is statutorily mandated.”
Anderson, Moss wrote, took the action as part of a plan to close a budget shortfall of $57 million–a shortfall caused primarily by $33 million in payments of district funds to privately-run charter schools. But, while school districts and other public agencies have broad powers to abolish jobs and lay off workers, they may not break the law to do it.
“The testimony in this matter has shown that there is no one in the NPS (Newark Public Schools) who is looking for truant students since the attendance officers were laid off,” Moss wrote in a ruling on a case brought by the Newark Teachers Union (NTU).
Moss described the responsibilities of attendance counselors who, under law, had extensive powers to track chronic absenteeism, search the city’s streets for truants, and even arrest them summarily and return them to school or their parents. She said the district operated four yellow school buses used solely to patrol Newark in search of students who should have been in school. Citing testimony, Moss wrote:
“Attendance counselor’s job was to report to the school and obtain form (sic) of absences, then contact the families or make house visits. They would make referrals for families to mitigate obstacles. The attendance counselors who were in the truant section would attempt to locate the students and bring them to school. If the student would not come to school, it was referred to a court representative.
“One of the core functions of attendance counselors was home visitation. In addition, they had community based contacts that would help them find students. They asked local businesses not to sell to students during school hours.”
But, despite the elaborate system put into place and then shut down by Anderson’s layoffs, Hespe said the district was allowed to “designate” other school employees as part of a “student support team” (SST) that would track absenteeism without actually going out into the streets to find truant students.
The law, said Hespe, allows employees who already have full-time jobs to take over truancy as well.
The language of the statute provides that, to solve truancy, districts must “appoint a suitable number of qualified persons to be designated as attendance officers, and shall fix their compensation.”
Hespe has decided, however, that the operant word here is not “appoint”–as in “hire”–but rather “designate.” So Newark is free to “designate” already working employees with full-time jobs to be the attendance officers without actually having to hire attendance officers. As long as they’re called “attendance officers” and paid–although they were not, in fact, called attendance officers and not, in fact, paid to be attendance officers–then the requirements of the statute are met.
This is the sort of decision that makes decent and rational men and women want to scream because it is such a cynical distortion of language and common sense that it would have been far more honest–and far less nauseating–for Hespe to say out loud: “Look, I know this is bullshit, but it’s what I have to do to keep my job.”
But, of course, Hespe would not say that. But get what he does say: Language in the law requires that “any attendance officer who shall find” truant children will take them either back to their parents or to their schools. The district’s SST teams were not allowed to go out and find the kids the way attendance officers, cruising the city in school buses, once did.
This is what Hespe did write–and he’s got to be embarrassed by this:
“Although the district used four buses to round up truant students prior to the layoff of the attendance officers, such use of buses and patrolling the streets is not required by (the statute). Considering the plain language of the statute, attendance officers ‘who shall find’ truant students are required to return them to school or to their home. The phrase ‘who shall find’ does not compel districts to develop a scheme wherein attendance officers are required to canvas (sic) the streets searching for truant students, To the contrary, (the statute) does not delineate specifically how attendance officers will find students and leaves districts with discretion on how to find students.”
NOW GET THIS: “Advancements in technology will naturally result in new and innovative ways to locate truant students. Through the SST and the power school clerk, the district finds truant students through parent contact and involvement after the student has been absent as few as one to four times.”
Power School–which Hespe does not capitalize–is a privately-provided, commercially available computer program that, theoretically, tracks down absentee students. It can be–and, according to school employees, has been–manipulated by administrators to make their schools look better.
So, in the end, a law that requires districts to hire attendance officers becomes, to Hespe, a law that does not require districts to hire attendance officers. In the rank, smelly world in which the commissioner operates, the words referring to attendance officers “who shall find” does NOT mean these attendance officers shall go out and find truant students. It means clerks will type stuff into the computer.
All you need to do is look at the record. Absenteeism has skyrocketed since Anderson laid off the attendance officers. No one is contending it has gotten better.
Of course, Anderson–supervised by none other than Hespe himself–reported that Newark didn’t have an absenteeism problem at all, that schools had perfect attendance rates.
No one, of course, believed that lie, so finally, last January, the district issued a report showing that, three years after Anderson fired the attendance officers and relied on “new technology,” the real absenteeism rates were among the worst in the state. This is what this site reported in January:
“The statistics on chronic absenteeism clearly shocked members of the Newark school board—some of whom brought up the decision three years ago by Anderson–backed by Cerf—to lay off attendance counselors who were responsible for tracking down chronic truants.
‘We need to know how the elimination of these positions affected absenteeism,’’ said board member Crystal Fonseca. She never got an answer.
“Chronic absenteeism—defined as the percentage of students who miss school 10 percent or more of days enrolled–is worst in its high schools. The highest absenteeism rate was registered by Fast Track Academy, an alternative high school, with 92 percent of its students missing 18 or more days of school a year during the 2014-2015 school year. The best attendance was registered by the district’s magnet schools, specialized schools with admissions standards; Arts High had the lowest chronic absenteeism rate—22 percent of its students were chronic truants.
“The chronic absenteeism rates for other high schools included:
–Newark Leadership Academy, 82 percent.
–Weequahic High School, 74 percent.
–Newark Vocational (West Side), 74 percent.
–Malcolm X Shabazz High School, 70 percent.
–Barringer STEAM, 68 percent.
–Barringer ARTS, 60 percent.
–East Side High School, 47 percent.
–Newark Early College, 40 percent.
–Bard Early College, 37 percent.
–American History, 30 percent.
–John F. Kennedy, 27 percent.
–New Jersey Regional Day, 25 percent.
–Science Park, 25 percent.
–Technology, 24 percent.
–University, 23 percent.
Not only were the chronic absenteeism rates worse in secondary schools than elementary schools, but the problem has gotten worse. According to statistics offered by Cerf, chronic absenteeism had gone from 41 percent—the first year Anderson was in control—to 49 percent last year.
At the elementary level, chronic absenteeism went from 18 percent in 2011-2012, the first year of Anderson’s tenure, to 24 percent in 2013-2014, then down to 22 percent last year.
The rate of chronic absenteeism among elementary schools ranged from a low of 4 percent at the Ann Street School to a high of 42 percent at Speedway. At the other schools, the absentee rates were:
–Louise Spencer, 39 percent.
–Belmont-Runyon, 38 percent.
–Camden Street, 33 percent.
–Dr. E. Alma Flagg, 33 percent.
–Peshine, 33 percent.
–Rafael Hernandez, 33 percent.
–Avon, 32 percent.
–George Washington Carver, 31 percent.
–Miller Street at Spencer, 31 percent.
–South 17th Street, 31 percent.
–Girls Academy, 30 percent.
–Hawthorne, 29 percent.
–Dr. William Horton, 28 percent.
–Fourteenth Avenue, 28 percent.
–Harriet Tubman, 28 percent.
–Luis Munoz Marin, 28 percent
–Cleveland, 27 percent.
–Quitman, 27 percent.
–Thirteenth Avenue, 13 percent.
–Branch Brook, 26 percent.
–Bruce Street, 25 percent.
–McKinley, 24 percent.
–Lincoln, 23 percent.
–Roberto Clemente, 22 percent.
–South Street, 22 percent.
–Sussex Avenue, 21 percent.
–Eliott Street, 20 percent.
–Ridge, 20 percent.
–Benjamin Franklin, 19 percent.
–Chancellor Avenue, 19 percent.
–Hawkins Street, 19 percent.
–Ivy Hill, 18 percent.
–Park, 15 percent.
–Mt. Vernon, 14 percent.
–Eagle Academy, 13 percent.
–Wilson, 10 percent.
–First Avenue, 9 percent.
–Abington, 8 percent.
–Lafayette, 8 percent.
–Oliver Street, 6 percent.”
This would be laughable except for this: What state and local officials do to hide the problems in Newark results in the death of children who are lost to the system.
So, this is my personal message to the state education commissioner:
“For God’s sake, David Hespe, you were a human being before you were a political appointee. You know damn well no computer program can go out on the street and find children. You know damn hiring attendance officers means hiring attendance officers. You know damn well you are doing this to keep your boss, Chris Christie, happy. Because, if you reinstated the attendance officers, you would have to pay them back salaries–millions of dollars–and the state won’t reimburse the district because you–and your administration–won’t follow the school aid law anyway.
“For the love of children, David, act like a human being. These are kids and they are dying because of decisions like this.”
But that’s just me.
Right now, everybody loves each other in Newark because the mayor and Hespe’s boss have made a deal that won’t upset what Christopher Cerf is trying to do there to keep public school expenses down and charter school enrollment up. The new buzz word is “unity,” no matter how many children get destroyed in the process.
The NTU, which brought the case, is considering an appeal.
Power School was previously owned by Pearson.
I have no doubt that the directive to reject the ALJ’s decision came directly from the governor’s office. Hence, Hespe’s tortured logic in distorting the law to reach the Guv’s desired result. I completely agree with your analysis. It’s clear on the face of the statute that the Legislature’s intent was to require districts to employ individuals to serve as and perform all the functions of attendance officers at a salary fixed for such position. Hespe’s disingenuous sleight-of-hand ignores the plain language of the statute and renders it basically meaningless, in direct violation of the basic rules of statutory interpretation.