October 2011
September 27, 2011

Why we sued the Regents

Author: Richard E. Casagrande
Source: NYSUT United

By Richard E. Casagrande, Esq.,
NYSUT General Counsel

It takes something extremely important for NYSUT to sue the Board of Regents. It had happened only once in NYSUT's 40 years' existence. But in June, NYSUT was forced to sue the Regents again, concerning the regulations adopted by the Regents to implement Annual Professional Performance Review (APPR) under Education Law §3012-c. On Aug. 24, the Albany County Supreme Court ruled largely for NYSUT in a lawsuit that should have been unnecessary, had the regulations followed the letter and intent of the law.

Education Law §3012-c

Education Law §3012-c was enacted in May 2010. The goal was to enhance student achievement through the APPR and an annual effectiveness rating for teachers and principals. Based on this annual review, deficiencies in a teacher's performance are to be addressed through professional development and other measures. The Regents considered the APPR legislation essential to New York's participation in the federal Race to the Top (RTTT) program. To this end, the Regents invited NYSUT to participate in the development of the law. As the representative of almost all of New York's public school teachers, NYSUT did participate to ensure that the law would be good for school children and fair for teachers.

The law's final language was built on three major premises: 1) the percentage of a teacher's effectiveness rating based on student achievement on state standardized tests would be strictly limited; 2) a teacher's composite effectiveness score would be based on multiple measures; and 3) the majority of these measures would be locally developed, through collective bargaining. Based largely on this new law, New York successfully competed for a RTTT grant, gaining nearly $700 million dollars in federal education aid.

The next step was to convene a task force to recommend regulations, to fill in the details the Legislature had not addressed. NYSUT fully participated in the task force, which made its recommendations to the Regents last April.

Unfortunately, in the final regulations, the Regents ignored key portions of the statute, as well as certain task force recommendations. First, the regulations allowed and encouraged the use of student growth, as measured by state standardized tests, to count for fully 40 percent of a teacher's effectiveness score - double the statutory limit of 20 percent. Second, the regulations imposed mandates on local school districts for those portions of a teacher's composite effectiveness score that were supposed to be bargained collectively. Third, the regulations set up scoring bands under which a teacher could be rated ineffective based on a single measure of performance - student growth on standardized state tests. Thus, the regulations undermined the three main pillars of the law: the guarantee of limits on the use of standardized testing in measuring a teacher's effectiveness; the guarantee that a teacher's effectiveness rating would be based on multiple measures; and the guarantee that teachers would have a voice in this process through collective bargaining. NYSUT was forced to sue to remedy these glaring violations of the letter and intent of the law.

The court's decision

The Albany County Supreme Court agreed with NYSUT on most of its claims. It ruled that the statute precluded the same measure of student achievement, based on state assessments, from being used for both the state and local portions of the effectiveness score that are based on student achievement. The court held that data from state assessments that defines a distinctly different measure of student achievement from the first 20 percent could be used for the second 20 percent, so long as this distinctly different measure is developed locally, through collective bargaining. This ruling is important because it partially limits the use of state assessments, and upholds the law's requirements of multiple measures developed through collective bargaining.

The second key ruling invalidated the regulatory mandate that 40 of the remaining 60 points be based on multiple classroom observations. This is crucial, not because NYSUT opposes the use of classroom observations as a measure of teaching performance, but because the law clearly states that this 60 percent of the composite score is to be locally developed through collective bargaining.

The third critical result was the striking down of the scoring bands, designed by the Regents to overweight that portion of a teacher's effectiveness score based on standardized state tests. This overweighting was contrary to the statute's guarantee that a teacher's effectiveness rating would be based on multiple measures, and contrary to the guarantee that the impact of student performance measures based on standardized state tests would be strictly limited by the law.

It takes something extremely important for NYSUT to sue the Board of Regents. It had happened only once in NYSUT's 40 years' existence. But in June, NYSUT was forced to sue the Regents again, concerning the regulations adopted by the Regents to implement Annual Professional Performance Review (APPR) under Education Law §3012-c. On Aug. 24, the Albany County Supreme Court ruled largely for NYSUT in a lawsuit that should have been unnecessary, had the regulations followed the letter and intent of the law. Education Law §3012-c Education Law §3012-c was enacted in May 2010. The goal was to enhance student achievement through the APPR and an annual effectiveness rating for teachers and principals. Based on this annual review, deficiencies in a teacher's performance are to be addressed through professional development and other measures. The Regents considered the APPR legislation essential to New York's participation in the federal Race to the Top (RTTT) program. To this end, the Regents invited NYSUT to participate in the development of the law. As the representative of almost all of New York's public school teachers, NYSUT did participate to ensure that the law would be good for school children and fair for teachers. The law's final language was built on three major premises: 1) the percentage of a teacher's effectiveness rating based on student achievement on state standardized tests would be strictly limited; 2) a teacher's composite effectiveness score would be based on multiple measures; and 3) the majority of these measures would be locally developed, through collective bargaining. Based largely on this new law, New York successfully competed for a RTTT grant, gaining nearly $700 million dollars in federal education aid. The next step was to convene a task force to recommend regulations, to fill in the details the Legislature had not addressed. NYSUT fully participated in the task force, which made its recommendations to the Regents last April.

Unfortunately, in the final regulations, the Regents ignored key portions of the statute, as well as certain task force recommendations. First, the regulations allowed and encouraged the use of student growth, as measured by state standardized tests, to count for fully 40 percent of a teacher's effectiveness score - double the statutory limit of 20 percent. Second, the regulations imposed mandates on local school districts for those portions of a teacher's composite effectiveness score that were supposed to be bargained collectively. Third, the regulations set up scoring bands under which a teacher could be rated ineffective based on a single measure of performance - student growth on standardized state tests. Thus, the regulations undermined the three main pillars of the law: the guarantee of limits on the use of standardized testing in measuring a teacher's effectiveness; the guarantee that a teacher's effectiveness rating would be based on multiple measures; and the guarantee that teachers would have a voice in this process through collective bargaining. NYSUT was forced to sue to remedy these glaring violations of the letter and intent of the law.

The court's decision

The Albany County Supreme Court agreed with NYSUT on most of its claims. It ruled that the statute precluded the same measure of student achievement, based on state assessments, from being used for both the state and local portions of the effectiveness score that are based on student achievement. The court held that data from state assessments that defines a distinctly different measure of student achievement from the first 20 percent could be used for the second 20 percent, so long as this distinctly different measure is developed locally, through collective bargaining. This ruling is important because it partially limits the use of state assessments, and upholds the law's requirements of multiple measures developed through collective bargaining.

The second key ruling invalidated the regulatory mandate that 40 of the remaining 60 points be based on multiple classroom observations. This is crucial, not because NYSUT opposes the use of classroom observations as a measure of teaching performance, but because the law clearly states that this 60 percent of the composite score is to be locally developed through collective bargaining. The third critical result was the striking down of the scoring bands, designed by the Regents to overweight that portion of a teacher's effectiveness score based on standardized state tests. This overweighting was contrary to the statute's guarantee that a teacher's effectiveness rating would be based on multiple measures, and contrary to the guarantee that the impact of student performance measures based on standardized state tests would be strictly limited by the law.

The fallout

Under the court's ruling, the Regents will have to revise these regulations, in accordance with the statute, unless the court's decision is overturned on appeal. There has been a great deal of misinformation about this case. One claim is that the lawsuit is an attempt to interfere with the implementation of APPR. This is not true. NYSUT stands behind the statute, and is ready and willing to ensure the law is implemented according to its letter and intent. NYSUT will not, however, stand by while the law is rewritten through overreaching and unfair regulations.

There has also been the erroneous claim that NYSUT's lawsuit could endanger the Race to the Top grant. Nothing in the lawsuit is in any way inconsistent with New York's RTTT application. Indeed, any delay in the implementation of the law is because the regulations were inconsistent with the law.

The Regents, unfortunately, have filed an appeal of the decision. During the pendency of the appeal, the lower court's decision will remain in effect, and the invalidated regulations will remain unenforceable.

We will do everything possible to convince the Appellate Court to uphold the lower court's just decision. NYSUT's position has always been that the Regents must implement this new law, on a statewide basis, in accord with its letter and intent, and we must hold them accountable if they do not do so. To do otherwise would be contrary to the best interests of the children of this state, and to their teachers.

NYSUT will continue to update you on the progress of this litigation, and will continue to fight for fair implementation of this new law.