Buffalo teachers go to court over students' missing out on music and arts - Buffalo News

At first, Marleen O'Connor worried when her son signed up for band at Hutchinson-Central Technical High School.

With a central auditory processing disorder, he cannot process more than three commands at a time. But as a freshman two years ago he thrived in the band, coming out of his shell, making friends and playing the saxophone at a jazz performance on Hertel Avenue, traveling with the band to Philadelphia and playing in the annual school concert, she said.

But this school year, Hutch-Tech stopped offering concert band.

"My son has lost all enthusiasm for school and his grades have tanked," O'Connor said in an affidavit supporting five teachers who have taken the Buffalo Board of Education to court over the district's music and arts offerings.

Students cried when they learned concert band would not be offered, O'Connor told The Buffalo News.

"At first they still had their jazz ensemble club before school, but that got cancelled, too," she said.

The court petition filed Dec. 17 focuses on art and music in the district's high schools and alleges that the school district fails to provide all of its students with “the legally required opportunity to complete a three- or five-unit sequence in the arts during the 2019-2020 school year.”

The district also fails to offer students “equitable opportunities and resources to study the arts as specifically required by law,” according to the teachers' court petition.

The school district believes it complies with state law, said Nathaniel J. Kuzma, the district’s general counsel.

But the district is now in the process of analyzing what exactly is offered at each school, Kuzma said.

“We have a Board of Education and a superintendent that are committed to investing in the arts and music and providing a full and rich academic experience for all of the students in our schools,” Kuzma said. “The board and the superintendent will endeavor to continue to invest in those areas.”

Lack of art and music

In a memo to Superintendent Kriner Cash earlier this year, Buffalo Teachers Federation President Philip Rumore said a federation survey of teachers revealed "the lack of required art and music available to our students." He asked the district to do its own survey of schools to ensure that all of them are providing at least what state education law requires.

Among complaints in the court petition:

• By cutting concert band and performance choir, there is no longer a performance-based music program at Hutch-Tech.

• The district does not provide students at Louis J. Bennett School of Innovative Technology the chance to take music, theater or dance classes.

• No high school, other than the Buffalo Academy of the Visual and Performing Arts, provides students with the chance to complete the arts sequence in music.

• While Frederick Law Olmsted offers concert band, choir and orchestra, as well as visual arts courses, it does not offer non-performance classes such as "Music in our Lives" or "Music History," and students cannot complete a sequence in music, theater or dance.

• The band director at City Honors teaches concert band three times every six days from 7:30 a.m. to 8:04 a.m., before the school day officially starts at 8:07 a.m. The average rehearsal doesn't start until 7:40 a.m., however, because of a school rule that doesn't allow students into the building until 7:30 a.m.

• Leonardo DaVinci High School offers no courses in music, theater or dance and no longer has a band program.

Five teachers filed the Article 78 petition, which allows for challenges to government actions through the state's civil practice laws and rules. They are Donna Delano-Kerr, a music teacher assigned primarily to Olmsted; John P. Smith, a district teacher whose daughter attends Visual and Performing Arts; Eve Shippens, a district teacher whose son attends Bennett School of Innovative Technology; Timothy Lyon, the band director at City Honors School; and Amy Steiner, a music teacher at Hutch-Tech.

"Without a performance-based music program at Hutch-Tech, students can no longer try out for or compete in All County, All State, the New York State School Music Association and other such competitions," Steiner said in an affidavit. "To compete or try out for ... such competitions, a student must be registered in his or her school music performance program. Last year I had 28 students compete or perform in All County. The district's decision to cut the performance-based music program at Hutch-Tech is denying students this opportunity."

At Hutch-Tech, "students also no longer have the opportunity to participate in a school musical, even though this was the reason I was recruited to Hutch-Tech," music teacher Lauriann Stephan said in her affidavit.

Musicals provide students the chance to participate in all areas of the arts: visual arts in creating the sets, media arts through lighting, and music by singing or dancing, she said.

Fifty-five students performed or participated in the school musical "A Musical Review" during the 2017-18 school year, she said.

Stephan said the school's principal in June 2018 permitted her and Hutch-Tech's other music teacher to secure the licensing rights to "Phantom of the Opera" and approved the dates for the school musical. Over the summer break, she and other teachers began working on the production details.

The musical was even selected to be one of 10 musicals to compete in the Kenny Awards competition, which recognizes, rewards and encourage student talent and achievement in high school musical theater productions. When the teachers told the principal the news, they were told the musical had never been approved.

"Accordingly, there was no musical at Hutch-Tech for the 2018-19 school year, and there will not be one again this year," Stephan said in her affidavit.

'In compliance'

Buffalo Public Schools has budgeted, for this school year, 179 full-time equivalent staff teaching either art or vocal and instrumental music across the school system of more than 30,000 students, according to district figures.

That’s up from 170 five years ago.

The Board of Education has raised questions in recent years about equity across the system when it comes to art and music.

The district uses what it calls a school-based budgeting model, which means money is allocated to each school and a school-based management team decides how best to use that money. Depending on their academic needs, that could mean some tough choices for schools, and that has raised concerns from the board that subjects like art and music are getting short-changed.

Darren Brown, chief of staff for the school district, sent Rumore a reply memo in May, saying, "We meet the New York State Education Department requirement by providing both music and art in every elementary school in the district. We have a total of 60 schools in the district with a total of 89 (full-time equivalent) music teachers and 88 (full-time equivalent) art teachers.

"High schools are staffed to ensure our students meet the graduation requirement for an arts credit (music, art, dance, theatre)," he wrote in his response to Rumore. "Each year we re-examine the art and music courses offered at each high school. With the board's and superintendent's strong commitment to equity in the arts across all schools, we will seek to formalize the New York State Education Department requirements regarding sequencing, at the grade 9-12 level, into the school based budget process for future school years."

The district's general counsel questioned the timing of the legal action.

“The district believes it is in compliance and views this as another maneuver on behalf of the federation to impact negotiations,” Kuzma told The News.

The Buffalo Teachers Federation contract expired in June, and there has been little to no movement at the bargaining table. The district sees the lawsuit as a tactic by the union to try to get some leverage in negotiations.

“Where were they at budget time?” Kuzma asked. “Why are they filing the week before Christmas in the middle of the school year? My answer to you is because it’s negotiating time.”

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