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| Sheri Lederman |
Bruce Lederman is representing his wife, Sheri Lederman, a fourth grade teacher in Great Neck, New York, in a legal challenge to New York State's teacher evaluation system. Several readers asked to see the court papers, and I will post some of the affidavits from nationally recognized experts in a day or two. For now, here is Bruce Lederman's explanation of the theory behind the legal claim on behalf of Sheri Lederman. The New York State Education Department sought to have the case dismissed without a hearing, but the state Supreme Court accepted the case. There will be oral arguments on August 12 at 10 a.m. in Albany in the court of Judge McDonough, 10 Eagle Street. If you are interested, please attend.
Bruce Lederman writes:
Diane:
Several of your readers have asked for an explanation of the legal theories behind the Lederman v. King lawsuit. I am attaching the reply memorandum of law which explains in detail the evidence and expert opinions in the case, as well as the legal arguments at issue. I also attached reply expert and facts affidavits from Aaron Pallas (Columbia), Linda Darling-Hammond (Stanford), Audrey Amrein-Beardsley (ASU), and Sean Patrick Corcoran (NYU), Jesse Rothstein (Berkeley), Carol Burris, Sharon Fougner and myself (which has an important email exchange with Professor John Friedman, co-author of the widely cited Chetty, Friedman & Rockoff studies).
To summarize for your readers the legal theories, we are proceeding based upon three theories. First, seek to have Sheri’s Growth Score Rating of 1 out of 20 points declared null and void under New York law on the grounds that it is “arbitrary and capricious.” Under New York law, any actions by a State Agency (in this case the Dept. of Education) can be challenged as “arbitrary and capricious” which is generally defined by the Courts as irrational and unreasonable based upon the facts. Second, we are asserting that the New York Growth Model (a VAM program) actually violates the New York law because it does not measure growth as defined in Education Law §3012-c(2)(i), is also not transparent and available to teachers before the beginning of the school year as required by Education Law § 3012-c(2)(j)(1) and does not allow all teachers to get all points as required by Education Law § 3012-c(2)(j)(2). Third, we argue that if Sheri is not allowed to have the individual facts of her case reviewed and is rated by a computer program whose results are not reviewable by a human being base upon real life facts, then she has been denied due process of law in violation of the Constitution. We ask, rhetorically, is this 2001 a space odyssey where the computer is always right and common sense has gone out the window?
One specific thing we are challenging is that she got a growth score of 14 out of 20 in year 2012/13 and a growth score of 1 out of 20 in 2013/14, even though the proficiency of her students (i.e., Students whose scores meet or exceed state standards) was virtually identical and there is no rational explanation for such wild swings in scores year to year. Another thing her case illustrates is the problem of ceiling effect when teaching high performing students. For one student, she got a failing student growth percentile (SGP) of 27 out of 100 because the student got 60 out of 60 questions right on a 3rd grade test, and got 64 out of 66 questions right on his 4th grade test while in Sheri’s class. Even though the student was in the 98th percentile, the teacher was rated in the 27th percentile because a child got 2 questions wrong. Is that rational?
The issues of why New York’s Growth Model does not comply with the law is that the law tells the Department of Education to measure change in student achievement between two points in time. New York’s Growth Model does not do this because instead of measuring growth, it creates what we are calling a “survivor-type” competition where the computer predicts what children should do and evaluates teachers on a bell-curve for whose students met the computer predictions. There are many problems with this, most notably that the computer is comparing apples and oranges. The fact that a child got a score of 300 on a 3rd grade math test and a score of 295 on a 4th grade math test does not prove that the child did not learn substantial amounts in 4th grade. This is explained very well by Professor Aaron Pallas in his reply affidavit, which I highly recommend reading. Sheri and I suggest that all our experts provide important information and I suggest that people read their affidavits.
Another significant fact is a series of statistics located by Dr. Carol Burris. Dr. Burris found that there were wild swings in teacher ratings between 2012/13 and 2013/14 which made absolutely no sense. For example, Scarsdale, which is generally highly regarded, went from having 0% ineffective teachers and 13% highly effective teachers to 19% ineffective teachers and 0% highly effective teachers in one year. Something is obviously wrong. There are additional examples in Dr. Burris’ reply affidavit which your readers may find interesting.
Finally, a very important issue which is presented is the defense of New York State which claims that there are academic studies recommending the use of VAM-type programs for these types of high stakes teacher evaluations. All of our experts do a great job of explaining that there are no studies that suggest that VAM-type programs can accurately rate teachers in individual cases. Professor Sean Patrick Corcoran from NYU explains that studies have found that VAM is unbiased, not that it is accurate. New York’s Education Department is misunderstanding the difference in their position in our case. Professor Corcoran provides a simple example that if you throw darts at a dart board and always miss, but miss as much to the left as to the right, and as much to the top as to the bottom, you are not biased, but you are also neither precise nor accurate. Also, I had an interesting email exchange with John Friedman, co-author of the widely discussed Chetty, Friedman Rockoff studies where he readily acknowledged that his studies were only saying that VAM-type scores tend to be accurate “on average” which he explained means over the lifetime of teacher. He suggested considering VAM scores like a type of lifetime batting average in baseball. Professor Friedman specifically said that VAM scores can be too high or too low in any year, and that they may be wrong because a particular student had a bad day when the test was taken. Following this logic (which comes from one of the leading VA researchers) rating teachers based upon VAM generated scores is like rating a baseball player based upon a single randomly chosen at bat.
We are scheduled to have an oral argument on August 12, 2015, and are optimistic that the Judge will recognize that something is terribly wrong with New York’s Growth Model and the rating of 1 out of 20 points given to Sheri. We believe we have established that New York’s Growth Model (which it paid a contractor $3.48 million to develop) is a statistical black box which no rational person could find fair or accurate.
We thank all those who have supported us.
- Supreme Court, Albany County
- Justice Roger McDonough
Diane added:
If you are interested in the subject of teacher evaluation, here is a treat for you. This file contains the affidavits of the experts in the Lederman v. King case, which will be heard in New York Supreme Court in Albany on August 12 at 10 a.m. (If you have trouble with that link, try this one.)
It also contains statements from Sheri Lederman's superintendent in Great Neck, New York, her principal, her former students, and parents, all testifying to her effectiveness as a teacher. It also includes an affidavit by an economist at AIR attempting to explain New York's method of calculating teacher effectiveness, defending Sheri Lederman's rating as ineffective.
Just reading all these affidavits should be enough to earn course credits at any college or university.
If Sheri Lederman should win, her victory will have statewide impact and even national impact.
If she should lose, it is the triumph of an incoherent and punitive status quo.
Cite as: Matter of Lederman v. King, 5443-14, NYLJ 1202728606429, at *1 (Sup., AL, Decided May 28, 2015)
In the Matter of the Application of Sheri G. Lederman, Ed. D. Petitioner v. John B. King, Jr., Commissioner, New York State Education Department, Candace H. Shyer, Assistant Commissioner, office of State Assessment of the New York State Education Department Respondents to Declare Petitioner's Growth Score and Rating for the 2013-2014 School Year (Rating Petitioner as "Ineffective") to be Arbitrary and Capricious and an Abuse of Discretion.
5443-14
Justice Roger McDonough
Decided: May 28, 2015
ATTORNEYS
Attorneys for Petitioner: Bruce Lederman, Esq., of Counsel, D'Agostino, Levine, Landesman & Lederman, LLP, New York, NY.
Attorney for Respondents: Colleen D. Galligan, Esq., Assistant Attorney General, Eric T. Schneiderman, Attorney General, State of New York, Albany, NY.
For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules
DECISION AND ORDER
*1
Petitioner seeks a Judgment: (1) setting aside or vacating the Growth Score and Rating ("growth score") of Petitioner of 1 out of 20, and the identification of petitioner as an "Ineffective" education for school year 2013-2014; (2) declaring that the New York State Growth
*2
Measures ("growth measures") as implemented by the Office of Assessment are arbitrary and capricious and an abuse of discretion; and (3) permanently enjoining the use of said "growth measures" unless they are modified to rationally evaluate teacher performance. Respondents seek dismissal of the petition based upon petitioner's purported lack of standing. Specifically, respondents maintain that petitioner has not suffered a harm in fact.
Petitioner cross-moves for discovery and to supplement her petition. Respondents oppose the discovery relief but have not opposed the request to supplement the petition.
BACKGROUND
Petitioner is a fourth (4th) grade teacher employed by the Great Neck Public School District in the State of New York. She has been so employed since September of 1997. For the school year 2013-2014, she received a "growth score" of 1 out of a possible 20 points. Said score correlates to a rating of "Ineffective". The score/rating sheet with petitioner's 1 point score defines "Ineffective" as: "Results are well-below State average for similar students". For the school year 2012-2013, she received a "growth score" of 14 out of 20 points. Said score correlates to a rating of "Effective", defined as: "Results meet State average for similar students". Petitioner, via her counsel, confirmed with the New York State Education Department ("Education Department") that neither an administrative appeal nor an appeal to the Education Commissioner was available. The instant proceeding ensued.
Counsel for the parties appeared before the Part I Justice (Justice Platkin) as to the issues of temporary relief and discovery. Justice Platkin struck all temporary relief from the Order to Show Cause as well as the relief seeking discovery. The parties appeared before this Court for oral argument as to respondents' motion to dismiss and petitioner's cross-motion to conduct discovery.
DISCUSSION
Standing
In order to have standing, a petitioner must have something truly at stake in a genuine controversy (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 812 [2003]). Petitioner bears the burden of establishing an injury in fact as well as that said injury is within the zone of interests to sought to be protected by the statute that has allegedly been violated (Matter
*3
of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 6 [2014]).1 The injury in fact component must rise above the level of conjecture or speculation (see, Matter of Animal Legal Defense Fund, Inc. v. Aubertine, 119 AD3d 1202, 1203 [3rd Dept. 2014]). Petitioner must demonstrate an actual legal stake in this litigation's outcome, meaning "an injury in fact worthy and capable of judicial resolution" (Matter of La Barbera v. Town of Woodstock, 29 A.D.3d 1054, 1055 [3rd Dept. 2006]).
Respondents maintain that petitioner's allegations are insufficient to confer standing because they do not allege an injury in fact. In support, respondents note that petitioner's 1 point "growth score" is confidential and cannot be disclosed even pursuant to a Freedom of Information Act request. Respondents also point out that petitioner is the only one publicizing her otherwise confidential "growth score". They further argue that petitioner's overall composite rating is "Effective" and that said rating would not give rise to any adverse employment or disciplinary actions. Finally, respondents characterize petitioner's claims of potential harm as highly speculative.
In opposition, petitioner asserts that the 1 point growth score has had a direct, personal adverse impact by: (1) lowering her overall Annual Professional Performance Review ("APPR") rating from Highly Effective to Effective; (2) impugning her reputation among certain parents; (3) de-faming her directly to her employer; (4) putting her ability to earn the designation of Master Teacher at risk as well as her eligibility for certain bonus pay; and (5) demoralizing her as a professional based on her prior track record of top ratings. In sum, petitioner maintains that she has a direct and personal stake in challenging her 1 point "growth score" because it directly and adversely affects her career, professional standing, reputation and self-image.
In reply, respondents re-emphasize the speculative and hypothetical nature of petitioner's purported injuries. Additionally, respondents note that petitioner is now improperly raising injuries that were not set forth in the petition. Finally, respondents argue that being demoralized is not a sufficiently real and concrete injury to warrant standing.
The Court finds that petitioner has standing to bring the instant proceeding. Petitioner has adequately demonstrated that she has suffered an injury in fact in the form of her precipitous
*4
drop in her growth score from 14 points out of 20 (or 70 percent ) to 1 point out of 20 (or 5 percent ) from the 2012/2013 year to the 2013/2014 year. Said drop directly correlates to a drop in her growth score rating from "Effective" to "Ineffective". Additionally, said drop directly resulted in petitioner's drop in her APPR from "Highly Effective" to "Effective". The drastic, statistically significant drop in a component that makes up 20 percent of petitioner's 100 point annual rating strikes the Court as adequate to constitute an injury in fact. Additionally, respondents have not established that said injury in fact is either incapable or unworthy of judicial resolution. Accordingly, the Court finds that petitioner has adequately established the threshold issue of standing.
Discovery
The Court will reserve on the issue of discovery until after respondents have submitted their answer and administrative record. The Court has not been persuaded, at this stage of the proceeding, that any need for discovery exists in this Article 78 matter (see generally, Matter of Cohn Chemung Properties, Inc. v. Town of Southport, 108 AD3d 928, 930 [3rd Dept. 2013]).2
Based on the foregoing, the motion to dismiss based on lack of standing is denied and the Court reserves decision on the cross-motion for discovery. That portion of the motion seeking permission to supplement the petition with affidavits from "parents and experts" is hereby granted. Respondents are directed to serve their answer within thirty (30) days of receipt of notice of entry of this Decision and Order. Petitioner may have fifteen (15) days from service of the answer to serve a reply as well as a further submission on the discovery cross-motion.3
SO ORDERED.
This shall constitute the Decision and Order. The original Decision and Order is being
*5
returned to the counsel for petitioner who is directed to enter this Decision and Order without notice and to serve respondents' counsel with a copy of this Decision and Order with notice of entry. The Court will transmit a copy of the Decision and Order to the County Clerk. The Court will retain the papers considered at this time. The signing of the Decision and Order and delivery of a copy of the Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.
ENTER
Dated: May 28, 2015
Albany, New York
Papers Considered4:
Order to Show Cause, executed on October 27, 2014 by Justice Platkin;
Affirmation of Bruce H. Lederman, Esq., dated October 23, 2014, with annexed exhibits;
Petitioner's Affidavit, sworn to October 24, 2014;
Affidavit of Sharon Fougner, sworn to October 20, 2014;
Affidavit of Thomas P. Dolan, sworn to October 20, 2014;
Verified Petition, dated October 24, 2014, with annexed exhibits;
Respondents' Notice of Motion, dated February 2, 2015;
Affirmation of Colleen D. Galligan, Esq., A.A.G., dated February 2, 2015, with annexed exhibits;
Petitioner's Notice of Cross-Motion, dated March 3, 2015;
Affirmation of Bruce H. Lederman, Esq., dated March 3, 2015;
Petitioner's Affidavit, sworn to March 3, 2015, with annexed affidavits "from experts and parents";
Affirmation of Colleen D. Galligan, Esq., A.A.G., dated March 13, 2015.
1. Respondents' submissions make clear that respondents are solely arguing that petitioner has neither asserted nor suffered an injury in fact.
2. The Court notes that petitioner has already, without the benefit of the record, procured four expert affidavits wherein the authors conclude that respondents have acted irrationally herein as to the ratings, processes at calculating the ratings, etc.
3. Upon completion of the briefing schedule, the parties are directed to confer and submit to the Court four potential dates for oral argument.
4. Petitioner and respondents also submitted memoranda of law.
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| Sheri Lederman |
Tests above average, but teacher fails
Suit challenges computer rating as "ineffective"
By Brittany Horn
Published 11:07 pm, Friday, February 20, 2015
In Sheri Lederman's 18 years of teaching, failing her students has never been a concern.
Her employers consider her to be an "extraordinary teacher" and her students' parents refer to her as "one of the most influential educators" their children have ever had. Her students, years after they sat in her fourth-grade classroom, cite her as an integral part in their strong academic careers.
But when the State Education Department's teacher ratings rolled out in September, the Great Neck public school teacher was found to have scored only one point out of 20 — deeming her ineffective — in the Office of Assessment's Growth Score and Rating system. Lederman's students, however, met or exceeded test standards at more than twice the state's average scores since the new testing standards were implemented two years ago, according to State Education Department data.
So how did it happen? The state uses a computer program to compare student growth based on standardized tests that are said to reflect the impact teachers have on their students over the course of a year. Lederman's students, although high achieving, were evaluated at a growth rating "well below average for similar students" with prior academic achievement and similar demographics, according to state teacher growth score definitions. Her own school district awarded her a perfect score in its evaluation.
"It's dehumanized us," she said of the teaching scores. "It really takes away my significance in terms of my human interaction with the kids and their parents and it's turned every one of us into nothing more than a number."
Her story is just one example of what some say can happen as the state continues to rely on a computerized scoring system to evaluate teachers. They worry the situation could worsen if Gov. Andrew Cuomo's proposals to rely more heavily on the growth tests in teacher evaluations is passed in his 2015 budget.
Lederman was told by the State Education Department that she can't appeal her growth rating score, because it is a subcomponent of her composite score of "effective" for the 2013-2014 school year. Lederman was told her only option was to sue, so that's what she has done, with the aid of her husband who is serving as her attorney.
Now, the state is attempting to dismiss Lederman's suit, which claims the evaluation system and Lederman's rating is "arbitrary, capricious and an abuse of discretion," according to documents filed with the state Supreme Court in Albany. The state argues that Lederman's concern about parents finding out her low score is unfounded, as the information can't be accessed through a Freedom of Information Act Request.
Additionally, the state argues her other evaluation scores are high enough that her low growth rating does not bring her overall composite score to the level requiring disciplinary action, according to court documents.
The State Education Department declined comment on the case, citing the pending litigation.
Spokesmen did confirm that there is an appeal process for teachers at Great Neck public schools specific to the district, but under state Education Law, teachers can only challenge the "substance of the annual professional performance review" and the district's adherence to the review process and implementation of the State Education Department's regulations. Teachers who receive an overall "ineffective" rating must submit an appeal to the superintendent, but the district can't evaluate or repeal the state's growth rating subcomponent.
Since Lederman's overall rating was effective and her "ineffective" score was in the growth subcomponent of her assessment, she cannot appeal.
It's not just the impact of this year's score that has Lederman concerned though.
Cuomo's plan to is to evenly split between the weight of in-person district observations of teachers and the computerized state test growth in teacher evaluations. Currently, the system bases 60 percent of the score on district observations, 20 percent on state growth evaluations and 20 percent on local testing.
"Last year, less than 1 percent of teachers in New York state were rated ineffective; but state test results show that statewide only 35.8 percent of our students in third through eighth grades were proficient in math and 31.4 percent were proficient in English Language Arts," Cuomo wrote in his budget proposal. "We must ask ourselves: How can so many of our students be failing if our teachers are all succeeding?"
The growth test uses a computer software program created by the American Institutes for Research that compares student test scores of one teacher to those of similar students across the state. The program — which has cost the state more than $3.4 million, according to State Education Department invoices — classifies and compares students based on similar demographics, prior academic history and learning classifications.
By comparing student performance in this way, the state test system "ensures that all educators have a chance to do well regardless of the composition of their schools or classrooms," according to the education department.
But the American Statistical Association in an April 2014 statement advised "wise use" of these "value-added models" like the growth rating system for teachers, especially when it comes to making high-stakes decisions like hiring and firing educators.
Neither Lederman nor the district administration has been provided any data to support why she received only one out of 20 points.
Bruce Lederman said his wife is publicly acknowledging that the state awarded her an "F" for her ability to help students grow when compared to those across the state.
And though Lederman typically deals with real estate and commercial litigation, he said it has been alarming to see how unwilling the State Education Department has been to even discuss the effect these ratings have on teachers. The Ledermans are currently setting up meetings with state legislators to get their story heard. They have had no response from the governor or the governor's office.
"We come at this from a very small piece of the puzzle, but since the governor has made (teacher evaluations) the centerpiece of the puzzle... it needs to be made known how inaccurate the tests are," Bruce Lederman said.
Sheri Lederman isn't the only teacher affected by low ratings. Her husband said he has received numerous calls from teachers across the state fighting the same battle but lacking the financial means — typically upward of six figures when entering into a lawsuit.
Educational organizations across the state want to throw out teacher evaluations based on standardized test scores, none more so than the New York State United Teachers union. NYSUT argues the governor's proposal places increased pressure on students and teachers whose achievement is dictated by a numerical test score. Others have said it relies on a flaky evaluation system that will turn teachers away from the profession.
But Lederman isn't giving up. She intends to have the scoring system removed from New York completely in an effort to keep teachers judged on qualities like confidence and critical thinking.
"You get to a point where if you're seeing something that's just wrong, I feel like, as Americans, we have an obligation to stand up and say something. It's a battle that I think has to be fought — not just for the teachers, but for the kids," Lederman said.
bhorn@timesunion.com • 518-454-5097 • @brittanyhorn
View: New teacher evaluation rules not an 'emergency'
Lisa Eggert Litvin
The Board of Regents approved controversial new rules without seeking required community feedback
The state Education Department, with the approval of the Board of Regents, creates rules that school districts legally have to follow. But in doing so, the department has failed to follow the laws that tell it how to make these rules.
Over the past two years, the majority of the Education Department's rules have been temporary "emergency" rules, which then become permanent — but the vast bulk of these rules haven't been real emergencies at all. Typically, SED’s reason for the "emergency" is simply that it has run out of time to get something done, and following the legal requirements would take too long. So, SED fast tracks the rules’ adoption process by improperly labeling them as "emergency.” But the law is specific that an “emergency” is rare, and exists only when "necessary for the preservation of the public health, safety or general welfare," not simply because something is time-sensitive.
Why is this important? Because the legal process for SED to make rules, set forth in the State Administrative Procedure Act, ensures that the public has a right to offer input before rules are finalized, typically in a 45-day window. Also, SED must respond to each of the public’s comments. This is central to our democracy, as this is the only voice the public has in situations where non-elected officials, like the Board of Regents and the Education Department, which the board oversees, make binding rules.
This past June, in response to an impending deadline set by the state Legislature, SED proposed and the Board of Regents adopted new teacher evaluation rules, on an “emergency” basis. There was tremendous outcry over these rules, as they arbitrarily place even more weight on standardized test scores than the prior plan, apparently with no supporting research. Over 25,000 New Yorkers — including many of the state's most well respected educators — signed a petition urging that the new evaluation plan not be rushed. They called instead for the state to work hand-in-hand with experts on testing and psychometrics to create a thoughtful, well reasoned and research-based plan that would accurately assess teachers, and not harm children's educations. (Prior plans have not been supported by experts, and have shown erratic and unreliable results.)
The Board of Regents, which is supposed to set state education policy, and SED could have sought an extension to the Legislature’s deadline or presented an alternative vision for creating a better evaluation system. Instead, SED claimed "emergency" — a designation reserved for the “preservation of the general welfare," even though it was clear that there was no such threat — and pushed the rules through, without any opportunity for public give and take. For this reason, those emergency evaluation rules should be declared invalid.
In its follow-up efforts to make the emergency teacher evaluation rules permanent, SED still continues to disregard the law. The law requires that SED provide the public with critical information about how the rules were created, specifically identifying for the public "each scientific or statistical study, report or analysis that served as the basis for the rule … and the name of the person that produced each study, report or analysis."
What research, if any, supports the new teacher evaluation rules is at the heart of the public’s concerns. But instead of providing what the law requires, SED offers only the following non-response: "The statute requires the Commissioner to adopt regulations necessary to implement the new evaluation system for teachers and principals by June 30, 2015, after consulting with experts and practitioners in the fields of education, economics and psychometrics." SED fails to provide what the law demands, and instead, merely acknowledges its obligation to consult with experts.
The time has come for the Board of Regents and SED to follow the law, to stop claiming false “emergencies,” and to provide the essential information the law clearly requires. The time is particularly ripe because New York has a new Education Commissioner, MaryEllen Elia, who the public is very much hoping will operate in the kind of collaborative and transparent manner that has been lacking from that post. More specifically, she should immediately call to halt the new evaluation rules, and allow experts to create a viable, research-based plan, that provides the best for children. She should further declare that “emergency” rule-making will no longer be the norm, and will only be used in the narrow categories allowed by law. And she should ensure that the public is informed of all the details that the law requires.
By doing so, Commissioner Elia will not only make huge strides in gaining the trust and respect of a discouraged public, but she will be doing the right thing for New York's millions of public school students and for their teachers.
The writer, a lawyer, is co-president of the Hastings on Hudson PTSA and co-chair of the New York Suburban Consortium for Public Education.
View: New teacher evaluation rules not an 'emergency'
Lisa Eggert Litvin
The Board of Regents approved controversial new rules without seeking required community feedback
The state Education Department, with the approval of the Board of Regents, creates rules that school districts legally have to follow. But in doing so, the department has failed to follow the laws that tell it how to make these rules.
Over the past two years, the majority of the Education Department's rules have been temporary "emergency" rules, which then become permanent — but the vast bulk of these rules haven't been real emergencies at all. Typically, SED’s reason for the "emergency" is simply that it has run out of time to get something done, and following the legal requirements would take too long. So, SED fast tracks the rules’ adoption process by improperly labeling them as "emergency.” But the law is specific that an “emergency” is rare, and exists only when "necessary for the preservation of the public health, safety or general welfare," not simply because something is time-sensitive.
Why is this important? Because the legal process for SED to make rules, set forth in the State Administrative Procedure Act, ensures that the public has a right to offer input before rules are finalized, typically in a 45-day window. Also, SED must respond to each of the public’s comments. This is central to our democracy, as this is the only voice the public has in situations where non-elected officials, like the Board of Regents and the Education Department, which the board oversees, make binding rules.
This past June, in response to an impending deadline set by the state Legislature, SED proposed and the Board of Regents adopted new teacher evaluation rules, on an “emergency” basis. There was tremendous outcry over these rules, as they arbitrarily place even more weight on standardized test scores than the prior plan, apparently with no supporting research. Over 25,000 New Yorkers — including many of the state's most well respected educators — signed a petition urging that the new evaluation plan not be rushed. They called instead for the state to work hand-in-hand with experts on testing and psychometrics to create a thoughtful, well reasoned and research-based plan that would accurately assess teachers, and not harm children's educations. (Prior plans have not been supported by experts, and have shown erratic and unreliable results.)
The Board of Regents, which is supposed to set state education policy, and SED could have sought an extension to the Legislature’s deadline or presented an alternative vision for creating a better evaluation system. Instead, SED claimed "emergency" — a designation reserved for the “preservation of the general welfare," even though it was clear that there was no such threat — and pushed the rules through, without any opportunity for public give and take. For this reason, those emergency evaluation rules should be declared invalid.
In its follow-up efforts to make the emergency teacher evaluation rules permanent, SED still continues to disregard the law. The law requires that SED provide the public with critical information about how the rules were created, specifically identifying for the public "each scientific or statistical study, report or analysis that served as the basis for the rule … and the name of the person that produced each study, report or analysis."
What research, if any, supports the new teacher evaluation rules is at the heart of the public’s concerns. But instead of providing what the law requires, SED offers only the following non-response: "The statute requires the Commissioner to adopt regulations necessary to implement the new evaluation system for teachers and principals by June 30, 2015, after consulting with experts and practitioners in the fields of education, economics and psychometrics." SED fails to provide what the law demands, and instead, merely acknowledges its obligation to consult with experts.
The time has come for the Board of Regents and SED to follow the law, to stop claiming false “emergencies,” and to provide the essential information the law clearly requires. The time is particularly ripe because New York has a new Education Commissioner, MaryEllen Elia, who the public is very much hoping will operate in the kind of collaborative and transparent manner that has been lacking from that post. More specifically, she should immediately call to halt the new evaluation rules, and allow experts to create a viable, research-based plan, that provides the best for children. She should further declare that “emergency” rule-making will no longer be the norm, and will only be used in the narrow categories allowed by law. And she should ensure that the public is informed of all the details that the law requires.
By doing so, Commissioner Elia will not only make huge strides in gaining the trust and respect of a discouraged public, but she will be doing the right thing for New York's millions of public school students and for their teachers.
The writer, a lawyer, is co-president of the Hastings on Hudson PTSA and co-chair of the New York Suburban Consortium for Public Education.
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