STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY _____________________________________________________________ KEVIN AHERN, as President, SYRACUSE TEACHERS ASSOCIATION; et al.

, Plaintiffs/Petitioners, -againstJOHN B. KING, JR., as Commissioner of the New York State Education Department; BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK; and NEW YORK STATE EDUCATION DEPARTMENT, Defendants/Respondents, and SYRACUSE CITY SCHOOL DISTRICT, BOARD OF EDUCATION OF THE SYRACUSE CITY SCHOOL DISTRICT, and SHARON CONTRERAS, in Her Capacity as Superintendent of the Syracuse City School District, Necessary Party Defendants/Respondents. _____________________________________________________________

MEMORANDUM OF LAW ON BEHALF OF PETITIONERS

RICHARD E. CASAGRANDE, ESQ. Attorney for Petitioners 800 Troy-Schenectady Road Latham, New York 12110-2455 Tel. No. (518) 213-6000

MATTHEW E. BERGERON Of Counsel

TABLE OF CONTENTS Page

PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF RELEVANT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Class Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Defendants/Respondents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Facts Supporting Plaintiffs Article 78 Claims A. B. C. Education Law 3102-c and the Syracuse APPR Plan. . . . . . . . . . . . . . . . . . . . . . 5 The Subcomponents Based on Student Achievement. . . . . . . . . . . . . . . . . . . . . . . 8 Student Poverty, The Achievement ap, and Plaintiffs APPR Scores as Compared with Teachers from More Affluent Areas. . . . . . . . . . . . . . 10 Defendants Actions Purporting to Account for Poverty and Related Factors i. ii. Math and ELA Teachers (4th and 8th Grade). . . . . . . . . . . . . . . . . . . . . . 14 Plaintiffs Subject to Other Comparable Measures (Student Learning Objectives). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

D.

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 POINT I THE STATE DEFENDANTS VIOLATED EDUCATION LAW SECTION 3012-c AND ACTED IN AN ARBITRARY, CAPRICIOUS AND UNLAWFUL MANNER BY FAILING TO PROPERLY ACCOUNT FOR THE EFFECTS OF POVERTY AND RELATED FACTORS ON PLAINTIFFS APPR RATINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 A. Failure to Account for the Effects of Poverty and Related Factors on Plaintiffs Who Teach Fourth Through Eighth Grade ELA and Math.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 i

B.

Failure to Account for the Effects of Poverty and Related Factors On Plaintiffs Subject to Other Comparable Measures (Student Learning Objectives). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Defendants Failure to Account for the Effects of Low School District Wealth on Plaintiffs Scores for the State Assessments and Other Comparable Measures Subcomponent. . . . . . . . . . . . . . . . . . 36

C.

POINT II THE STATE DEFENDANTS ACTIONS IN PURPORTEDLY ADJUSTING STUDENT GROWTH MEASURES BASED ON POVERTY WERE ARBITRARY, CAPRICIOUS AND UNLAWFUL BECAUSE THEY WERE NOT PROMULGATED AS RULES IN ACCORDANCE WITH LAW. . . . . . . 37

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

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STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY _____________________________________________________________ KEVIN AHERN, as President, SYRACUSE TEACHERS ASSOCIATION; on behalf of themselves and as representatives of a class of all other persons similarly situated, Plaintiffs/Petitioners, -againstJOHN B. KING, JR., as Commissioner of the New York State Education Department; BOARD OF REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK; and NEW YORK STATE EDUCATION DEPARTMENT, Defendants/Respondents, and SYRACUSE CITY SCHOOL DISTRICT, BOARD OF EDUCATION OF THE SYRACUSE CITY SCHOOL DISTRICT, and SHARON CONTRERAS, in Her Capacity as Superintendent of the Syracuse City School District, Necessary Party Defendants/Respondents. _____________________________________________________________ PRELIMINARY STATEMENT Plaintiffs/petitioners bring this hybrid action for declaratory and injunctive relief and Article 78 proceeding to challenge and obtain redress for the State defendants/respondents failure in their duties conferred by Education Law 3012-c to adequately account and correct for student poverty and low district wealth in implementing the annual professional performance review (APPR) and teacher evaluation system for the 2012-13 school year, resulting in plaintiffs/petitioners receiving overall performance ratings of less than effective, thereby violating Section 3012-c and plaintiffs/petitioners constitutional rights to Equal Protection under the United States and New York State Constitutions, and also acting in an arbitrary and unlawful manner. The State

defendants/respondents inadequate and arbitrary actions with regard to accounting and correcting for student poverty and low district wealth also constituted improper rule making in violation of the New York State Administrative Procedure Act (SAPA), the Executive Law, and the New York State Constitution. Because of the above, plaintiffs/petitioners 2012-13 APPR scores are invalid and void. This memorandum of law is submitted solely in support of the causes of action that fall under Article 78 of the CPLR, i.e., the First, Second and Third Causes of Action. STATEMENT OF RELEVANT FACTS1 The plaintiff/petitioner (plaintiff) Syracuse Teachers Association (STA) is a labor organization for purposes of Civil Service Law 200 et seq. (the Taylor Law). The STA represents a bargaining unit including all teachers employed by the Syracuse School District. The District and the STA are parties to a Collective Bargaining Agreement covering the period July 1, 2010 through June 30, 2012, which was subsequently extended until June 30, 2014. Plaintiff Kevin Ahern is the President of the STA. Under Education Law 3012-c and the Taylor Law, the STA has the right and duty to negotiate with the Syracuse City School District concerning certain teacher evaluation and APPR matters. Complaint 6-8. The other plaintiffs classroom teachers employed by the Syracuse City School District, who were subject to the APPR under Education Law 3012-c and Regents regulations, and received final ratings of less than Effective (i.e., either Ineffective or Developing) for the 2012-2013 school year. Id. 9

This statement of facts is derived from the verified complaint/petition, and affidavit of Aaron Pallas, Ph.D. 2

Class Action Plaintiffs commence this hybrid declaratory/injunctive action and Article 78 proceeding as a class. The description of the class is all classroom teachers employed by the Syracuse City School District who were subject to the 2012-2013 APPR and who received a final APPR rating of less than effective (i.e., Developing or Ineffective) for the 2012-13 school year. Complaint 9, 17, 18. Further, the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class which predominate over any questions affecting only individual members, and the claims of the representative parties are typical of the claims of the class. Complaint 19-21. Moreover, the representative parties will fairly and adequately protect the interests of the class, a class action is superior to other available methods for fair and efficient adjudication of the controversy, and the members of the class are not interested in individually controlling the prosecution of separate actions or proceedings, as all members of the class will be affected equally by the outcome of the litigation. In addition, it would be impracticable and inefficient to prosecute separate actions, given the predominate common questions of law and fact. Nor is there any other litigation commenced by members of the class concerning the controversy alleged herein. It is desirable that the litigation be concentrated in this forum where the State defendants/respondents are located and there are no difficulties likely to be encountered in the management of a class action. Complaint 20-28. Defendant/Respondents Defendant/respondent (defendant) John B. King, Jr. is the Commissioner of Education of the State of New York, and exercises those powers and duties authorized by the Legislature pursuant 3

to Education Law Article 7. Defendant New York State Education Department (SED) is a department of state government established under Education Law 101. It has such powers and duties as are set forth in the Education Law, including the duty to generally manage and supervise New Yorks public schools. Defendant Board of Regents of the University of the State of New York was established by the Legislature as the governing body of the University of the State of New York and exercises those powers and duties authorized by the Legislature pursuant to Education Law Article 5. Complaint 29-31. Defendants King, SED and Board of Regents are referred to collectively as defendants. Defendant Syracuse City School District is a necessary party and is a city school district and municipal corporation located in the City of Syracuse, County of Onondaga, State of New York and is organized and existing under Article 37 of the Education Law. Defendant Board of Education of the Syracuse City School District is a necessary party and is a body corporate, responsible under Article 37 of the Education Law for the management and control of the affairs of the District, and has its primary place of business located in the City of Syracuse, County of Onondaga, State of New York. Defendant Sharon Contreras is a necessary party and is the Superintendent of the Syracuse City School District and, as such, is the chief executive officer of the school district pursuant to Article 37 of the Education Law and has a principal place of business in the City of Syracuse, County of Onondaga, State of New York. collectively as the District. The necessary party defendants/respondents are referred to

Facts Supporting Plaintiffs Article 78 Claims A. Education Law 3012-c and the Syracuse APPR Plan Education Law 3012-c, entitled "Annual Professional Performance Review of Classroom Teachers and Building Principals," was enacted by the Legislature by Chapter 103 of the Laws of 2010, and became effective on July 1, 2010. It was amended in 2012 (Laws of 2012, ch. 21, 57, and 68). Section 3012-c established for the first time in New York State, a comprehensive framework for the performance evaluation of all classroom teachers and building principals employed by all public school districts in the State. The law provides for a rating system using a "single composite teacher effectiveness score" and final rating of highly effective, effective, developing, or ineffective (commonly known as a HEDI rating). (Education Law 3012-c(2)(a)). Complaint 38-40. Implementation of the APPR law took place in a small number of schools in the 2011-2012 school year. In connection with the 2012-13 school year, implementation of APPR and the issuance of final composite scores and HEDI ratings took place in all districts except New York City. The primary purposes of the APPR law included enhancement of student learning and teacher effectiveness through regular evaluation of classroom teachers, identification of any teaching deficiencies, and professional development and other measures to remediate such deficiencies. Complaint 41-42. Defendant SED, in describing the new APPR, stated that its purpose was to implement a statewide comprehensive evaluation system for school districts and BOCES. The evaluation system is designed to measure teacher and principal effectiveness based on performance, including measures 5

of student achievement. Complaint 43; Exhibit A. That APPR was to be not only comprehensive but also fair and equitable to all teachers, was expressed by the defendant Board of Regents in a May 16, 2011 press release: The New York State Board of Regents today adopted regulations that will implement a statewide teacher and principal performance evaluation system that includes multiple measures of educator effectiveness. The regulations, which will take effect during the 20112012 school year, are required by legislation enacted last year. The new law establishes a comprehensive evaluation system for all classroom teachers and building principals in New York. Regents Chancellor Merryl H. Tisch said, "With the help of our partners in the field, we have taken a critical step today in developing a fair and equitable system for evaluating the performance of New Yorks teachers and principals a system that will enhance the quality of education across the State." http://www.oms.nysed.gov/press/EvaluatingTeacherPrincipalEffect iveness.BORAdoptRules.htm [emphasis supplied]. Complaint 44; Exhibit B. The importance of an educators APPR rating to his or her career is explicitly outlined in the statute: [A]nnual professional performance reviews shall be a significant factor for employment decisions including but not limited to, promotion, retention, tenure determination, termination, and supplemental compensation, which decisions are to be made in accordance with locally developed procedures negotiated pursuant to the requirements of article fourteen of the civil service law where applicable . . . Such performance reviews shall also be a significant factor in teacher and principal development, including but not limited to, coaching, induction support and differentiated professional development, which are to be locally established in accordance with procedures negotiated pursuant to the requirements of article fourteen of the civil service law. Education Law 3012-c (1). Under Education Law 3012-c(4), plaintiffs, who were all rated either Developing or Ineffective in 2012-13, must, during the 2013-14 6 school year, be placed on a teacher

improvement plan. This plan must include . . . identification of needed areas of improvement, a timeline for achieving improvement, the manner in which improvement will be assessed and, where appropriate, differentiated activities to support a teachers . . . improvement in those areas. Pursuant to Education Law 3020 and 3020-a, which were also amended by Chapter 103, any teacher who is rated ineffective during two consecutive school years is deemed to have exhibited a pattern of ineffective teaching and may be the subject of expedited charges of incompetence under Education Law 3020-a. Education Law 3012-c (6); 3020-a (3) (i-a) (A). Education Law 3020-a (3) states in relevant part: (i-a) (A) Where charges of incompetence are brought based solely upon a pattern of ineffective teaching or performance of a classroom teacher or principal, as defined in section three thousand twelve-c of this article . . . the hearing shall be conducted before and by a single hearing officer in an expedited hearing . . . . (B) . . . Notwithstanding any other provision of law to the contrary, a pattern of ineffective teaching or performance as defined in section three thousand twelve-c of this article shall constitute very significant evidence of incompetence for purposes of this section. Complaint 45-48. As noted, the composite effectiveness score is based on multiple measures. In the 2012-13 school year, 40% of this effectiveness score was based on student achievement measures as follows: (a) twenty percent (20%) shall be based upon student growth data on state assessments as prescribed by the commissioner, or a comparable measures of student growth if such growth data is not available; and (b) twenty percent (20%) shall be based on other locally selected measures of student achievement that are determined to be rigorous and comparable across classrooms in accordance with the regulations of the commissioner and as are developed locally in a manner consistent with procedures negotiated pursuant to the requirements of article fourteen of the civil 7

service law (Education Law 3012-c(2)(f)(1)). Under Education Law 3012-c(2)(h), the remaining sixty percent (60%) of the composite effectiveness score shall be locally developed, consistent with the standards prescribed in the regulations of the commissioner, through negotiations conducted pursuant to article fourteen of the civil service law. Complaint 49-50. The STA and the District negotiated an APPR Implementation Agreement dated July 1, 2012 governing the portions of the APPR process for the 2012-2013 school year that are subject to bargaining. Complaint 51; Exhibit C. Thereafter, the District and the STA submitted an APPR plan for the 2012-2013 school year to the defendant commissioner of education for approval. That APPR plan was executed by the parties on August 8, 2012, and approved by the commissioner on or about August 22, 2012. Complaint 52; Exhibit D. B. The Subcomponents Based on Student Achievement In the 2012-13 school year, the first 20% subcomponent for teachers of 4th-8th grade Math and/or ELA was determined by SED, using student performance on state standardized Math and/or ELA assessments. The measurement method SED prescribed for classroom teachers other than 4-8th grade Math and ELA teachers (other comparable measures) were state-determined goal setting processes. 8 NYCRR 30-2.5(b)(1)(iii)-(iv). SED issued the following guidance for how these other comparable measures must be determined: GROWTH IN SUBJECTS WITHOUT STATE-PROVIDED GROWTH MEASURES (20%): [Student Learning Objectives] SLOs will be used for teachers of subjects where there is no State-provided measure of student growth. The Regulations call this the State-determined growth goal-setting process. Each SLO will be built around one of the following assessment options as the evidence of student learning:

(1)

List of State-approved 3rd party, State, or Regents-equivalent assessments; District or BOCES-developed assessments, provided the District or BOCES verifies comparability and rigor; School or BOCES-wide, group, or team results based on State assessments.

(2)

(3)

This guidance was in effect during 2012-13 school year. Complaint 53-54. The process for assigning points to educators for the state growth or other comparable measures (SLO) subcomponent is entirely State determined. (Education Law 3012-c (2)(j) (1) (i)). The scoring ranges determining the 20% of a teachers APPR that is comprised of the growth data on state assessments and other comparable measures are the following: A classroom teacher and building principal shall receive: A. a highly effective rating in this subcomponent if the teacher's or principal's results are well-above the state average for similar students and they achieve a subcomponent score of 18-20; an effective rating in this subcomponent if the teacher's or principal's results meet the state average for similar students and they achieve a subcomponent score of 9-17; or, a developing rating in this subcomponent if the teacher's or principal's results are below the state average for similar students and they achieve a subcomponent score of 3-8; or, an ineffective rating in this subcomponent, if the teacher or principal's results are well-below the state average for similar students and they achieve a subcomponent score of 0-2. (Education Law 3012-c(2)(a)(3)(A-D) (emphasis added)).

B.

C.

D.

The scoring bands for the locally selected measures of student achievement, or second 20% subcomponent, were the same as for the first 20% subcomponent (Section 3012-c(2)(a)(5)(A-D)). Complaint 55-57.

Upon information and belief, 98% of all Syracuse teachers subject to the APPR received effective ratings in the 60% other measures subcomponent not tied to student achievement subcomponents. Complaint 58. C. Student Poverty, The Achievement Gap, and Plaintiffs APPR Scores as Compared with Teachers from More Affluent Areas In comparing the APPR scores in Syracuse to the statewide average of all teachers and to the ratings in other school districts in the Syracuse area, plaintiffs were limited by lack of access to relevant information. Specifically, SED is required by Section 3012-c(10)(a) to disclose final ratings and composite scores by school district, by region, district wealth, district need category, . . . student need (e.g., poverty level), and district spending . . , but that data has not yet been released, although SED has released the statewide breakdown of HEDI ratings for teachers subject to the APPR. Complaint 59-60. In the absence of official SED data, New York State United Teachers (NYSUT), the statewide labor organization with which STA is affiliated, gathered data in the Fall of 2013 from the STA and other NYSUT affiliated local unions with the assistance of NYSUT regional offices. While NYSUT was not able to gather complete information, it is likely that the percentage distribution of teachers among the HEDI categories reflected in NYSUTs data approximates the official data in SEDs possession. Complaint 61. The achievement gap, i.e., the fact that students in high poverty school districts perform less well on state tests than students in wealthier districts, is evident in Syracuse. The Grades 3-8 standardized assessment results released by SED pertaining to the 2012-13 tests revealed that [i]n Syracuse, 8.7% of students met or exceeded the ELA proficiency standard [level 3 or 4] [and] 6.9%

10

met or exceeded the math proficiency standard [level 3 or 4] as compared to 31.1% of students across the State who met or exceeded the ELA proficiency Standard and 31% who met or exceeded the math proficiency standard. New York State Education Department Press Release (August 7, 2013). Complaint 62-63; Exhibit E. In a recent report released by the Association of Small City School Districts, Syracuse City School District is listed among the 50 most underfunded schools in the state. The report also stated that the District is receiving $4,455.00 less per student than it would have received under the 200708 budget agreement. Complaint 64; Exhibit F. The total number of STA unit members rated less than effective (i.e., Developing or Ineffective) was severely disproportionate to the State average. Only 5.4% of teachers statewide were rated less than effective based on data released by SED. In stark contrast, approximately 34.7% of teachers in the Syracuse City School District were rated less than effective. Complaint 65. The disproportion was even starker when comparing Syracuse to the surrounding Onondaga County districts.2 Only 1.8% of teachers in these nearby districts were rated less than effective (compared to one-third in Syracuse) based on data gathered by NYSUT. Complaint 66. Combined Wealth Ratio (CWR) is a measure of relative wealth, indexing each district against the statewide average on a combination of two factors, property wealth per pupil and income wealth per pupil. (SED Fiscal Analysis and Research Unit, Examining Individual School Districts District Wealth, available at http://www.oms.nysed.gov/faru/Profiles/18th/wealt_indicators.htm). The overall

The nearby school districts being compared with Syracuse in this complaint are the following: West Genesee CSD, North Syracuse CSD, East Syracuse-Minoa CSD, Jamesville-Dewitt CSD, Jordan Elbridge CSD, Fabius-Pompey CSD, Westhill CSD, Onondaga CSD, Liverpool CSD, Lyncourt UFSD, Skaneateles CSD, Tully CSD.

11

rating results for Syracuse as compared to nearby districts are consistent with percentages across the State showing that large and medium sized city and other school districts with high levels of student poverty (eligible for free or reduced price lunch - FRPL) and low CWR have a significantly higher percentage of teachers receiving HEDI ratings of Ineffective or Developing. Syracuses CWR is 0.32, while the CWR of the nearby districts is 0.76 on average. Syracuses FRPL rate is 80%; that of nearby districts is 27%. Complaint 67. The statewide correlation between poverty/low wealth, and low APPR scores is reflected in the following tables:3

Table #1 Type of District # of districts in # of teachers # of I&D % of sample 4 6 38 I&D 19% 12% 9% 2%

LARGE CITIES MEDIUM CITIES SMALL CITIES

8669 3594 10635 43658

1675 415 942 708

LARGE CENTRAL DISTRICTS AND 117 VILLAGE DISTRICTS MEDIUM CENTRAL DISTRICTS SMALL CENTRAL DISTRICTS

156 147 468

20963 8155

559 390

3% 5%

Table 1 is derived from data gathered by NYSUT. I&D in all three tables denotes the teachers rated ineffective or developing. The data in Tables 2 and 3 is derived from SED except for the numbers and percentages of teachers rated Ineffective or Developing (I&D) listed in those tables.

12

Table #2 %FRPL # districts # teachers # I&D in sample 129 131 155 38 14 467

% I&D

0-19 20-39 40-59 60-79 80+ total Table #3 CWR 0-.499 .5-.999 1-1.499 1.5-2.499 2.5+

35494 22823 20126 11207 6024

362 573 1062 1325 1521

1% 3% 5% 12% 25%

# districts in sample 77 227 78 49 25 456

# teachers # I&D % I&D 16414 43049 20443 9297 4795 2022 2303 331 116 44 12% 5% 2% 1% 1%

The disparity between APPR scores of Syracuse teachers including the plaintiffs, and the statewide average for all teachers, is also directly aligned with the district wealth gap, student wealth gap and the student achievement gap between Syracuse and nearby school districts, as seen in the following: Syracuse CSD FRPL Average Combined Wealth Ratio % of Teachers Rated Less than Effective 2012-134 2010-11 ELA % at level 1 &2 80% 0.32 34.7% 77.5% Nearby Districts 26.88% 0.76 1.8% 37.2%

Percentages of teachers rated less than effective are based on NYSUT data. All other data in this chart come from SED information.

13

2010-11 Math % at level 1 & 2 2011-12 ELA % at level 1 &2 2011-12 Math % at level 1 & 2 2012-13 ELA % at level 1 &2 2012-13 Math % at level 1 & 2

74.7% 75.8% 73.1% 91.4% 93.2%

28% 36.2% 28.1% 61.7% 61.5%

D. Defendants Actions Purporting to Account for Poverty and Related Factors. (i). Math and ELA Teachers (4th through 8th grade) Teachers receive points for the first 20% student-achievement subcomponent in one of two ways. First, all teachers including a sub-group of the plaintiffs, who teach grades 4-8 ELA or Math receive a growth score calculated by averaging individual Student Growth Percentiles derived from student performance on standardized state assessments. The growth model developed for defendants by American Institute for Research (AIR) examines up to three years of prior student test scores. As applied to individual teachers, it purports to isolate and measure the effect of a single teacher on a students academic growth over the school year. Further, the model purports to control for the influence of classroom and/or student characteristics outside the teachers control so that a percentage of growth can be attributed to a particular teacher over a specified period of time. There are many other entities that provide growth model analyses, using different methodologies. Complaint 71-72. A report issued by AIR in 2010 recognizes that as the percentage of students with disabilities and students of poverty in a class or school increases, the average teacher growth score decreases. See AIR, 2010-11 Beta Growth Model for Educator Evaluation Technical Report (prepared for the New York State Education Department). Complaint 73; Exhibit G, pp. 23-24, 35. In 2011, SED stated the need to ensure that educator results are even less likely than before

14

to be related to characteristics of classrooms and schools. Accordingly, the characteristics used to define similar students were refined for the 2012-2013 and 2013-2014 school years to include more information than was used for the Student Growth Percentiles provided in 2011-2012. (Explaining Student Growth Scores to Teachers and Principals (Key Discussion Points) available at http://www.engageny.org/resource/frequently-asked-questions-about-state-provided-studentgrowth-scores-2012-13. Complaint 74; Exhibit H. The most recent Technical Report by AIR acknowledged that poverty is a factor outside of an educators control which, along with SWD and ELL status, may impact student learning gains. 2012-2013 Growth Model for Educator Evaluation Technical Report available at www.engageny.org/.../2012-13-technical-report-for-growth-measures.pdf. Complaint 75; Exhibit I. The growth model process is defined by the State as follows: [A] Student Growth Percentile (SGP) score will be calculated based on his or her ELA and Math State Assessment results in the current year compared to the current year results of similar students (students with similar past test scores and other student characteristics). The student growth measures result from a statistical model that assigns a percentile ranking, also known as a Student Growth Percentile (SGP) to each student by comparing his/her performance on this years test to that of similar students. As a simplified example of the calculation, consider a student Henry, who earned a score of 300 this year on the 5th grade ELA test of the Common Core who earned a score of 690 on last years 4th grade ELA test. The student will be compared only to students statewide who scored a 690 like he did on last years test. And of those student, illustratively, Henrys result this year is better than 45% of these similar students so he earns an SGP of 45. Explaining Student Growth Scores to Teachers and Principals (Key Di s cus s i on Poi nt s ) available at http://www.engageny.org/resource/frequently-asked-questions-abo ut-state-provided-student-growth-scores-2012-13. Complaint 76; Exhibit H (emphasis added). 15

Once calculated, Student Growth Percentiles (SGPs) are converted into a teachers Mean Growth Percentile (MGP) using the weighted average of the SGPs of the students assigned to a teacher. A final score is assigned to each teacher in this subcomponent by ranking the MGP on the same scale used for all other teachers across the state. NYS Teacher Growth Scores: From MGP to HEDI Ratings and Scores 2012-13 (August 2013) available at

www.engageny.org/sites/default/files/resource/attachments/2012-13. Complaint 77; Exhibit J. The defendant Board of Regents has defined a teacher or principal growth percentile score as: [A] measure of central tendency of the student growth percentile [SGP] scores for a teachers or principals students after one or more of the following student characteristics are taken into consideration: poverty, students with disabilities and English language learners. (8 N.Y.C.R.R. 30-2.2 (r)). Then, by emergency and subsequently permanent rulemaking in July and October 2013, SED amended this regulation by adding: "Additional factors related to poverty, students with disabilities and English language learners may be added by the Commissioner, subject to approval by the Board of Regents." (8 N.Y.C.R.R. 30-2.2 [r]). Complaint 78-79. SEDs Guidance on New York States Annual Professional Performance Review For Teachers and Principals to Implement Education Law 3012-c and the Commissioners Regulations states: Before determining teacher or principal growth scores and ratings based on [Student Growth Percentiles] the results will be adjusted based on the following characteristics: prior academic history, disability status, poverty status and status as an English Language Learner. Pg. 3 4 ( D 1 ) a v a i l a b l e at www.engageny.org/sites/default/files/resource/.../appr-field-guidan ce.pdf. Complaint 80; Exhibit K. 16

The following is the list of variables used to calculate Student Growth Percentiles (SGPs) and teachers Mean Growth Percentiles (MGPs) in the 2012-2013 school year: Grades 4-8 ELA/Math Academic History Up to three years of student State exam scores, same subject Prior year test score, different subject Retained in grade Average prior achievement and range around average prior score in students class/course (same subject) SWD (yes/no) SWD spends less than 40 percent of time in general education setting for the entire day Percentage of SWDs in students class/course ELL (yes/no) New York State English as a Second Language Achievement Test scores Percentage of ELLs in students class/course Poverty (yes/no) Percentage of students in poverty in students class/course

Student with Disability (SWD)

English Language Leaner (ELL)

Economic Disadvantage (Poverty)

(New York State Education Department, A Teachers Guide to Interpreting State-Provided Growth Scores for Grades 4-8 in 2012-13 and 2013-14 available at http://www.engageny.org/resource/teacher-s-guide-to-interpreting-state-provided-growth-scores2012-13-grades-4-8. P. 4. Complaint 81; Exhibit L. On or about December 20, 2013, SED released the 2012-2013 Growth Model for Educator Evaluation Technical Report (Exhibit I) which was compiled by AIR for SED. In that report, it is explained that: The results of growth models are used to measure the effects of educators on student learning gains, taking into account a students prior achievement; however, some factors outside of an educators control may impact student learning gains. For example, different learning trajectories are often statistically related to students living in poverty, beyond what would be expected based only on the students prior achievement. (Available at 17

www.engageny.org/.../2012-13-technical-report-for-growth-measures.pdf. Pg. 9.) Complaint 82; Exhibit I at 9. In explaining further how poverty would be accounted for, the Report states: Economic disadvantage (poverty). A yes/no variable for each student to indicate whether the student is identified as economically disadvantaged based on eligibility for a variety of State economic assistance programs. This flag is set to yes for students whose families participate in economic assistance programs, such as the free- or reduced- price lunch programs, Social Security Insurance, food stamps, foster care, refugee assistance, earned income tax credit, the Home Energy Assistance Program, Safety Net Assistance, the Bureau of Indian Affairs, or Temporary Assistance for Needy Families, based on district-provided information. This variable is derived directly from the test score file, representing data that districts report to the State. 2012-2013 Growth Model for Educator Evaluation Technical Report. Pp. 13-14. Exhibit I at 13-14.

In the process for calculating growth scores and mean growth percentiles that affect teachers growth scores, school districts are responsible for providing to SED for AIRs use, student demographics as well as information to link teachers to particular students. AIR then merges data and performs a statistical analysis using the data. Complaint 84; Exhibit I. Upon information and belief, SED does not independently verify the accuracy of the data reporting done by the districts. Upon information and belief, there is bound to be variation among school districts ability both to ascertain that a students family participates in one of the listed economic assistance programs, and to transmit that information to the State Education Department. Moreover, the stigma associated with poverty makes it likely that parents will under-report participation in public assistance, and high-needs districts like Syracuse may lack the resources to adequately obtain, process and transmit to SED the data necessary to demonstrate the extent of economic disadvantage in the district. Upon information and belief, such under-reporting would 18

reduce the extent to which students are being accurately compared to other similar students, jeopardizing the accuracy of the growth model for teachers, such as plaintiffs, teaching in districts with high concentrations of students who are economically disadvantaged. Affidavit of Aaron Pallas, Ph.D. sworn to on April 11, 2014 (Pallas Aff.) 14. Further, SEDs growth model is also deficient with regard to taking poverty into account, because, on information and belief, it does not accurately measure the academic growth of a student who is performing well below grade-level. Many students coming from backgrounds of economic disadvantage perform below their nominal grade of school. This is true in the Syracuse City School District, where approximately 80% of students are impoverished enough to be eligible for free or reduced price lunch,5 and 54.7% of children under 18 are in households below the federal poverty line. Pallas Aff. 8 As already noted, only 8.7% of District students met or exceeded the English Language Arts proficiency standard and only 6.9% met or exceeded the Math proficiency standard, in the 2012-13 assessments.6 Pallas Aff. 8. The proficiency standards in place for the fourth- through eighth-grade English Language Arts and Math tests are determined by reference to grade-level. Specifically, students are classified into one of four levels based on their performance: excel[ling] in standards for their grade (Level 4), proficient in standards for their grade (Level 3), below proficient in standards for their grade (Level 2), or well below proficient in standards for their grade (Level 1). Pallas Aff. 9.

New York State Office of Information and Reporting Services, The New York State Report Card (Syracuse City school District 2011-2012), p. 3 available at https://reportcards.nysed.gov/schools.php?district=800000050065&year=2012.
6

www.oms.nysed.gov/press/grades-3-8-assessment-results-2013.html.

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If students are well below grade-level, they may not be learning the material that will be assessed on the test they take; in fact, they may be learning material that appeared on an earlier grade-level assessment. Assessing their performance with a test that is designed to measure performance well above their grade-level cannot be said to accurately measure growth or lack of growth. They may have indeed grown, from perhaps two years behind grade-level to one year behind grade-level, but such growth is likely to be measured imprecisely in their score on the test they are given. The result would be a growth score in name only that does not measure growth accurately, and therefore should not be used to evaluate the students progress or the teachers performance in a system supposedly based on student growth. Pallas Aff. 10. This problem was likely exacerbated by the introduction of the Common Core Learning Standards. Because the 2013 state assessments were aligned with the Common Core standards, and most students across the state had not mastered the standards in their grade, student proficiency across the state on these new assessments was far lower than in previous years. Pallas Aff. 10;, Technical Report (Exhibit I) at 6. In this way, the growth model applies differently to teachers, like plaintiffs, who teach in high-needs classrooms, where a significantly higher number of students are performing below grade level at the beginning and end of the year, as compared to teachers in more affluent districts. Pallas Aff. 10. SEDs growth model also does not account for the fact that there is a range of severity within the general category of economic disadvantage. The Technical Report describes (Exhibit I at 14) economic disadvantage as being reflected in participation of the students family in economic assistance programs, including not only the free- or reduced-price lunch program, but also in a 20

number of other programs indicating financial distress (eligibility for Social Security Insurance, [SSI] food stamps, refugee assistance, the earned income tax credit, the Home Energy Assistance Program, Safety Net Assistance, or Temporary Assistance for Needy Families). Also listed is family participation in foster care and refugee assistance, which could involve stressors of a non-financial nature. Pallas Aff. 11. According to the Technical Report (Exhibit I), if a students family participates in any one of these programs, the formula that is used to determine the Student Growth Percentile will flag that fact. The purpose of incorporating the flag into the growth model is to gauge a students performance on the test against other similar students that is, other students who have been flagged as economically disadvantaged. This single flag does not take into account the likelihood that students whose families participate in multiple programs may have much greater economic disadvantages than those whose families participate in just one need-based program. Pallas Aff. 12. This failure to take account of the severity of economic disadvantage would only affect teachers, like plaintiffs, who teach in high-needs classrooms where there are many more students who are severely disadvantaged economically, and whose families participate in multiple need-based programs, compared to teachers in more affluent districts. Id. Further, the list of indicators of economic disadvantage in the growth model omits other family characteristics that are also likely to drive low student performance, such as homelessness and child abuse, and, when present in an impoverished community, factors such as incarceration of a parent, divorce and health problems that are serious but not serious enough to result in eligibility for S.S.I. Pallas Aff. 13. 21

In addition, the methods in the growth model for taking poverty factors into account were never subjected to notice, comment, and other requirements of Article 2 of SAPA, the Executive Law, and the New York State Constitution. Other than adopting the regulation stating that student growth percentiles would take student poverty into consideration (8NYCRR 30-2.2(r)), the Board of Regents has not promulgated nor approved any particular method by which economic disadvantage is to be taken into consideration, nor has it approved any additional factors adopted by the commissioner as referenced in its APPR rule making; rather, AIR and SED merely created new rules. Complaint 100-101. ii. Plaintiffs Subject to Other Comparable Measures (Student Learning Objectives) All plaintiffs except those who teach ELA and Math 4-8 received a score for the first 20% of the APPR calculated according to SLOs. Pursuant to the APPR law, SLOs were determined by the District. However, this was done within the strict parameters set out by SED in the APPR template (the form used for online filing with SED or APPR plans), and in SED guidance. Complaint 103-104. According to SED guidance, in determining the SLOs for individual students in a teachers classroom, districts could not take into account student poverty except in this limited way: [t]he only adjustments that a district or BOCES can consider for Student Learning Objectives for growth are those also used in State-provided growth measures, which include students with disabilities, English language learners, students in poverty, and prior academic history (see Question D1). Complaint 105; Exhibit K at 45, D22, (emphasis added). The only means identified by SED for school districts to make adjustments in teachers SLO

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scores for student poverty was the option to assign additional points to a teacher or principal's performance in the State Growth or Other Comparable Measures subcomponent. However, SED placed a two (2) point limit on the number of points that could be assigned. According to SED, the reason for this limitation was that any additional points would make it impossible to receive a rating of ineffective'." Complaint 106; Exhibit K, at 76 (E6" and E7"). SEDs reference to the possibility of receiving a rating of ineffective, presumably derives from Section 3012-c(2)(j)(i), which provides that APPR plans must be fashioned so that it is possible for a teacher . . . to obtain each point in the applicable scoring ranges, including zero. However, the guidance does allow for points to be added for poverty, which would presumably make it not possible to receive a zero. Complaint 109. Moreover, SED did not require school districts to make allowances for student povertyrelated factors in the development of SLOs. Complaint 110. Finally, the way SED acted to account for student poverty in the SLOs (e.g., the two point limit) in effect a rule that was imposed without Board of Regents action, i.e., without notice, comment or other requirement of SAPA Article 2, the Executive Law, and the New York State Constitution. Complaint 112. ARGUMENT POINT I THE STATE DEFENDANTS VIOLATED EDUCATION LAW SECTION 3012-c AND ACTED IN AN ARBITRARY, CAPRICIOUS AND UNLAWFUL MANNER BY FAILING TO PROPERLY ACCOUNT FOR THE EFFECTS OF POVERTY AND RELATED FACTORS ON PLAINTIFFS APPR RATINGS. The actions taken, and some not taken, by the State defendants relating to student poverty as a factor in implementing the APPR, including issuance of guidance for school districts to follow,

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were inconsistent with defendants stated goal of properly accounting for student poverty as well as contrary to the APPR laws and the central purpose of the law of creating a teacher evaluation system that is both comprehensive and fair. An agency is not free to implement or interpret a statute or regulation without regard to rationality and the terms and intent of the statute at issue. E.g., Jennings v. Commissioner, N.Y.S. Dept of Social Services, 71 A.D. 3d 98 (2d Dept 2010) and cases cited therein. The rule has been articulated as follows: In a proceeding such as this, which challenges a determination made by an administrative agency as to the proper interpretation of statutes and regulations, the courts function is to ascertain upon the proof before the agency, whether its determination had a rational basis in the record or, conversely, was arbitrary and capricious or affected by an error of law. Id., 71 A.D. 3d at 109 (citing County of Monroe v. Kaladjian, 83 N.Y. 185, 189 [1994]); Heintz v. Brown, 80 N.Y. 2d 998, 1001 [1992]; Sunrise Manor Center for Nursing and Rehabilitation v. Novello, 19 A.D. 3d 426, 427 [2d Dept 2005]; Matter of University Hgts. Nursing Home v. Chassin, 245 A.D. 2d 776, 777 [3d Dept 1997]; Matter of Boyland v. Perales, 205 A.D. 2d 759, 763 [2d Dept 1994]). In addition, [a]n agency action is deemed to be arbitrary if it is taken without a sound basis in reason . . . without regard to the facts. (Jennings, supra, quoting Matter of Pell v. Bd. of Educ., 34 N.Y. 2d 222 [1974]). While the Legislature may delegate rulemaking authority to an administrative agency, [t]he delegation of such rule-making authority does not . . . encompass the right to enact regulations in conflict with a statute or at odds with a clearly defined statutory policy. (Hodgkins v Central School

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Dist. No. 1 of Towns of Conklin, Binghamton, Kirkwood & Vestal, 78 Misc 2d 91, 97 (Sup. Ct., Broome Co. 1974), affd, 48 AD2d 302 [3rd Dept 1975]). Even when broad rule-making authority has been granted, an agency cannot promulgate rules in contravention of the will of the Legislature (Matter of Beer Garden v New York State Liq. Auth, 79 NY2d 266, 276 [1992] [internal quotation and citation omitted]). Stated another way, an administrative agency may only adopt regulations that are consistent and in harmony with the statutory language or its underlying purposes (Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals Tax Appeals Trib., 2 NY3d 249, 254 [2004]). Under these principles, [a]n agency cannot create rules, through its own interstitial declaration, that were not contemplated or authorized by the Legislature (Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505, 510 [1989]). Indeed, an administrative agency may not promulgate a regulation that adds a requirement that does not exist under the statute (Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194, 204 [1991]). If a regulation adds a requirement that does not exist under state law, such regulation must be deemed invalid (see Matter of Jones v Berman, 37 NY2d 42, 53 [1975]). The Court of Appeals, in fact, has stated that the Regents rule-making authority is not unbridled, and has characterized the Regents authority over educational matters as limited to powers granted by the Legislature (Moore v Board of Regents of Univ of State of N.Y., 44 NY2d 593, 602 [1978]). The Court of Appeals has warned that to allow the Regents to go beyond the statutory limits on their powers would violate the constitutional prohibition against the Legislatures delegation of lawmaking powers to other bodies, Id.; see also, Iannuzzi v. Board Regents, 33 Misc. 3d 989 (Sup. Ct. Albany Co. 2011). -25-

In addition, when implementing a law, if an agency identifies an area needing regulation, any action it takes must be consonant with that need. In NYS Association of Counties v Axelrod, 78 NY2d 158 (1991), the Court of Appeals struck down as irrational, Department of Health regulations which imposed an across-the-board decrease in certain Medicaid reimbursement rates. In doing so, it explained that a regulation will be upheld only if it has a rational basis, and is not unreasonable, arbitrary or capricious. (Id. at 166, internal citations omitted). Moreover, [a]dministrative rules are not judicially reviewed pro forma in a vacuum, but are scrutinized for genuine reasonableness and rationality in the specific context. (Id.) In Association of Counties, supra, the Court struck the regulation down, finding that the DOH had implemented it without adequate record support or correlation to the reasons for facilities change in [cases]clashes with the design and intendment of the [new reimbursement] methodology. Id., at 167. In Kelly v. Kaladjian, 155 Misc.2d 652 (Sup. Ct. Westchester Co. 1992), the state Department of Social Services (DSS) promulgated a regulation that assistance under its Emergency Home Relief program (EHR) would be restricted to those that had a family income of 125 percent or less of the federal income poverty line. The regulation was challenged as arbitrary. There, the regulation was struck down because DSS had offered no evidentiary basis for its determination that the Amendments bright-line test reasonably distinguishes those EHR applicants who could have prepared for emergencies from those who could not. The record contains no study, analysis or report used to arrive at 125 percent of the poverty level as an appropriate guideline. Id., at 656. The court concluded that DSSs determination that its monetary guideline meaningfully distinguishes between worthy and unworthy EHR applicants is no more than unsubstantiated theory. Lacking any empirical

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basis, the determination is impermissibly arbitrary. Id., at 657 (citing Association of Counties, supra.) Education Law 3012-c established for the first time in New York State, a comprehensive framework for the performance evaluation of all classroom teachers and building principals employed by all public school districts in the State. That APPR was to be not only comprehensive but also fair and equitable to all teachers, was expressed by the defendant Board of Regents in a May 16, 2011 press release in which it was stated that the law and SEDs regulations were meant to develop a fair and equitable system for evaluating teacher performance across the State. Petition Exhibit B. In the APPR law, the Legislature conferred upon the defendants specific responsibility for implementing particular parts of the law. This included Education Law 3012-c (2)(j)(I), in which the defendant Commissioner was charged with the responsibility of formulating the process by which points are assigned and scoring ranges are set, for the first 20% subcomponent of the APPR (for plaintiffs who were teachers of ELA and/or Math in grades 4-8, that subcomponent score was based on the growth score generated from standardized state assessments, and for all other plaintiffs, from Student Learning Objectives, or SLOs). Defendants were also required by Section 3012-c(2)(a)(3)(A-D) of the APPR law to ensure that the first 20% subcomponent for all teachers (i.e., those subject to State standardized assessments, as well as those subject to SLOs), be based on a comparison between a given teachers students and other similar students. Student poverty is a factor beyond the teachers control, that is associated with low student test scores, which can then unfairly and adversely affect the teachers subcomponent scores in the

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20% based on state assessments or comparable measures. Defendants intentionally undertook to include adjustments in the APPR process to neutralize the unfair effects of student poverty on teacher APPR scores. SEDs contractor for devising growth scores for teachers took as a given that the higher the percentage of students of poverty in a class or school, the lower the teachers growth scores. Complaint 73; Exhibit G, pp. 23-24, 35. SED itself stated the need to ensure that educator [APPR] results are even less likely than before to be related to characteristics of classrooms and schools including poverty, and set out to accomplish this goal in the implementation of the APPR for 2012-13. See Complaint 74, Exhibit H. The Regents own regulations (8N.Y.C.R.R. 30-2.2[r]) required that student poverty be taken into consideration in devising the growth scores of 4th-8th grade ELA and/or Math teachers. A July 2013 amendment to this same section of the regulations permitted the Commissioner to add additional factors related to poverty subject to the Regents approval. Complaint 78-79. SEDs guidance to Syracuse and all other districts in the state on implementing the APPR stated, similarly, that the results [of ratings based on student growth percentiles] will be adjusted based on [students] . . . poverty status . . . . Petition 80-81, Exhibits K, L. AIRs growth model that was used in generating the first 20% score for all 4th-8th grade ELA and/or Math teachers, also purported to take student poverty into account. Complaint 82-84; Exhibit I. SED also undertook to account for poverty for those teachers who were subject to SLOs (Student Learning Objectives) rather than to AIRs growth score, for the first 20% of their 2012-13

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APPR. Complaint 103-110; Exhibit K at 45, 76. However, the record shows that defendants failed to act in a way that reasonably furthered this stated goal, and failed to implement a fair and equitable system. This is not simply a matter of showing how SED and the other state defendants could have done a better job of ensuring that student poverty did not unfairly decrease plaintiffs scores on the first 20% of their APPR. While it is plainly true that defendants could have done much better, plaintiffs have shown more than that, i.e., they have shown that defendants mishandling of student poverty as a factor in the APPR, was in fact a violation of Section 3012-c (in particular the requirement in Section 3012-c(2)(j)(1)(i) that teachers be judged against teachers with similar students), and a violation of the Legislatures intent that the APPR system be both comprehensive and fair. See, Iannuzzi v. N.Y. State Education Dept, supra; Moore v. Board of Regents, supra. Defendants actions are also unlawful because they were not reasonably consonant with a need defendants themselves identified, i.e., the need to account for poverty in the APPR. See, e.g., N.Y.S. Association of Counties v. Axelrod, supra; Kelly v. Kaladjian, supra. A. Failure to Account for the Effects of Poverty and Related Factors on Plaintiffs Who Teach Fourth Through Eighth Grade ELA and Math.

SEDs methodology for accounting for poverty in the calculation of the growth score for these teachers 2012-13 APPR, has been reviewed by Aaron Pallas, Ph.D. Dr. Pallas is the Arthur I. Gates Professor of Sociology and Education in the Department of Education Policy and Social Analysis at Teachers College, Columbia University. He has been a professor at Teachers College since 2000, and has written and taught extensively on the social context of the education system, specifically the relationship between education and the social circumstances of students. Pallas Aff. 1-2, 4. His numerous publications include topics such as the dropout problem, high stakes testing -29-

of economically disadvantaged students, and other issues that affect such students. Pallas Aff. 4, and Exhibit A. As Dr. Pallas stated in his affidavit, [w]hile the growth model used in New York in 2012-13 incorporated some features that were aimed at reducing the effects of economic disadvantage on teachers mean growth percentiles, the model had several serious shortcomings. First, according to Dr. Pallas, the growth model employed by the defendants failed to fairly and reasonably take into account poverty and related factors, by incorporating into the model, proficiency testing that does not measure growth for students who are achieving well below grade level. Pallas Aff. 8-9. This shortcoming is particularly problematic for those like plaintiffs, who teach in the Syracuse City School District, where the vast majority of students are not performing proficiently at grade level. According to the defendant State Education Department, only 8.7% of Syracuse City School District students met the proficiency standard in English Language Arts and only 6.9% were proficient in Math. Pallas Aff. 8-9. This level of performance is to be expected in a district where approximately 80% of students are impoverished enough to be eligible for free or reduced price lunch, and 54.7% of children reside in households below the federal poverty line. Pallas Aff. 8. In Dr. Pallas view, [A]ssessing [student] performance with a test that is designed to measure performance well above their grade-level cannot be said to accurately measure growth or lack of growth. Pallas Aff. 10. By way of example, a teacher may have contributed one year of growth to a student learning two years behind grade-level. However, a test measuring that students grade-level proficiency will not accurately attribute that growth to the student or her teacher. Accordingly, such tests should not be used to evaluate the students progress or the teachers performance in a system supposedly based on student growth. Pallas Aff. 10. Moreover, This

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problem was likely exacerbated by the introduction of the Common Core Learning Standards . . . . [since] student proficiency across the state on these new assessments was far lower than in previous years. Id. Therefore, by using a growth model that relies upon proficiency examinations that do not capture growth of students achieving well below grade level, defendants failed to implement APPR in a way that would be fair and equitable or that would properly account for student poverty and the achievement gap that flows from student poverty. Second, Dr. Pallas affidavit shows that defendants violated 3012-c by failing to ensure that the first 20% subcomponent for teachers would be based on a comparison of a given teachers students to other similar students. In particular, the growth model has no means of accounting for the range of severity existing within the general category of economic disadvantage. Pallas Aff. 5. In fact, while the growth model used a range of social and economic stressors to classify students as economically disadvantaged, the model failed to differentiate between the number of stressors that apply to one student as compared to another. As a result, students are considered similar for purposes of calculating a teachers score for the first 20%, irrespective of whether that teachers students are eligible for one, two or even or all 10 of the economic assistance programs used by the growth model in identifying disadvantaged students. Pallas Aff. 11-12). This method undermines Section 3012-c(2)(a)(3)(A-D), which require that a teachers students be compared to similar students in calculating the APPR rating. In other words, by making the very same adjustment regardless of whether a student is subject o only one versus more than one of the social and economic stressors that would affect a

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students performance, but which are outside of the teachers control, the growth model fails to ensure that a teacher is judged only in relation to other students similar to hers. This violates the APPR statue and fails to further the defendants stated goals in implementing the statute. Another way the growth model fails at identifying similar students in accordance with the statute, is by improperly limiting the amount and type of indicators used to classify students as economically disadvantaged. Specifically, according to Dr. Pallas, the growth model omits other family characteristics that are also likely to drive low student performance, such as homelessness and child abuse, and when present in an impoverished community, factors such as incarceration of a parent, divorce, and health problems that are serious but not serious enough to result in eligibility for S.S.I. Pallas Aff. 13. If the purpose of considering student characteristics before assigning points to teachers based on student growth is to account for factors that negatively impact student scores in ways that are beyond the control of a teacher, surely such additional factors as these should be included. Finally, the process for identification of similar students is unreasonably dependent on school districts accurately collecting and reporting the information [regarding economic disadvantage] to the State Education Department. Pallas Aff. 14. There will inevitably be variation among school districts ability to obtain and transmit such information (id.), and SED does not independently verify the accuracy of the data reporting done by districts (Complaint 85). Morever, such variation may have a distinctly negative impact on high needs districts like Syracuse where the stigma associated with poverty makes it likely that parents will under-report participation in public assistance . . . . [and] Syracuse may lack the resources to adequately obtain, process and transmit to SED the data necessary to demonstrate the extent of economic disadvantage in the

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district. Pallas Aff. 14. The existence of such reporting deficiencies would, again, diminish the extent to which students are being accurately classified and compared as similar, further jeopardizing the accuracy of the growth model for teachers, such as plaintiffs, teaching in districts with high concentrations of students who are economically disadvantaged. Id. Moreover, contrary to the intent and purpose of the law which is to establish a fair and equitable system of evaluating teachers across the state, these deficiencies in the growth model have a distinctly negative impact on teachers, like plaintiffs, who teach in high needs districts like Syracuse City School District, who teach in classrooms where there are many more students who are severely disadvantaged economically, and whose families participate in multiple need-based programs compared to teachers in more affluent districts. Pallas Aff. 10-14. For all these reasons, it is clear that the plaintiffs who were subject to the growth model in 2012-2013 were not evaluated in the context of students similar to those in their classes, in violation of the APPR law, and that defendants breached their obligation to account for factors outside teachers control including student poverty, in evaluating them. Indeed, the low HEDI ratings of these plaintiffs in relation to the state average and the average in nearby districts7 demonstrate that the actions of defendants and their contractor AIR in developing and implementing these adjustments were contrary to the APPR statute, arbitrary,

It bears repeating here that SED has not yet released the HEDI ratings of teachers by school district as SED is required to do by Education Law 3012-c(10), so plaintiffs estimate of ratings of teachers employed in nearby districts (1.8% less than effective), which are based on reporting by NYSUT-affiliated local unions, may be different from SEDs eventual numbers. It appears unlikely that those nearby districts will have substantially more teachers rated ineffective or developing than the statewide average of 5%. Syracuse teachers fell into the less than effective categories at a much higher rate, 34.7%. -33-

capricious and ineffectual, and did not reasonably further the stated goal of SED of neutralizing the unfair effects of student poverty on teacher APPR scores. Therefore, plaintiffs growth scores for 2012-13 are invalid and should be declared null and void. B. Failure to Account for the Effects of Poverty and Related Factors on Plaintiffs Subject to Other Comparable Measures (Student Learning Objectives).

Pursuant to the APPR law, SLOs were determined by the District. However, this was done within the strict parameters set out by SED in the APPR template (the form used for online filing with SED of APPR plans), and in SED guidance. Contrary to the APPR Law, the process defendants prescribed by which points are assigned to teachers who receive an SLO, failed to ensure the fair and equitable implementation of the law. First, defendants, despite acknowledging that student poverty drives down student scores to an extent that is not within teachers control, did not require even minor measures for accounting for this effect on SLOs. Instead, it was left up to school districts whether or not to make any allowance for the achievement gap in formulating SLOs. This violated the APPR laws intent that the system be fair and equitable. It also violated SEDs own stated goal of accounting for poverty and related factors that are beyond teachers control and known by SED to negatively impact students scores. Moreover, even the methods permitted by defendants in their guidance were inadequate. In determining the SLOs for individual students in teachers classrooms, districts could not take into account student poverty except that: [t]he only adjustments that a district or BOCES can consider for Student Learning Objectives for growth are those also used in State-provided growth measures, which include students with disabilities, English language learners, students in poverty, and prior academic history. Complaint, Exhibit K at 45, D22. Further, the only means identified by SED for school districts to make adjustments in -34-

teachers SLO scores for student poverty was the option to assign additional points to a teacher or principal's performance in the State Growth or Other Comparable Measures subcomponent. However, SED placed a two (2) point limit on the number of points that could be assigned. This limit of two out of an available 20 points is arbitrary in and of itself. Further, SEDs rationale for the limitation was irrational. According to SED, the reason was that any additional points would make it impossible to receive a rating of ineffective'." Complaint Exhibit K at 76, (E6, E7). This rationale presumably derives from Section 3012-c(2)(j)(1), which provides that APPR plans must be fashioned so that it is possible for a teacher . . . to obtain each point in the applicable scoring ranges, including zero. However, the rationale is entirely inconsistent with SEDs directives in the guidance since allowing for any points would make it impossible to receive a zero. This makes the two point limitation entirely arbitrary. In these ways, defendants invalid rationale, and their failure to require a meaningful accounting for student poverty and related factors in the SLO process, violated their statutory duty to ensure that the APPR process is fair and equitable. The significance of this failure is reflected in the 2012-2013 APPR results showing plaintiffs as nearly seven times more likely to receive a less than effective HEDI rating than the average teacher statewide, and over ten times more likely to receive a less than effective HEDI rating than other teachers in Onondaga County. In sum, the actions of defendants in developing and implementing their limited and inadequate poverty adjustments for SLOs were arbitrary, capricious and ineffectual, and bore no rational relationship to the stated goal of neutralizing the unfair effects of student poverty on teacher APPR scores. Therefore, plaintiffs SLO scores for the 2012-2013 school year are invalid and should be declared null and void.

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C.

Defendants Failure to Account for the Effects of Low School District Wealth on Plaintiffs Scores for the State Assessments and Other Comparable Measures Subcomponent.

While taking the inadequate and arbitrary measures they took to purportedly address the effects of student poverty on teacher APPR scores as described above, defendants did not take any measures to account for the effects of low district wealth on student scores and by extension, on teacher APPR scores. The overall APPR rating results for Syracuse as compared to nearby districts are consistent with percentages across the State showing that large and medium sized city and other school districts with low school district wealth (combined wealth ratio or CWR) and high levels of student poverty have a significantly higher percentage of teachers receiving HEDI ratings of Ineffective or Developing. Syracuses CWR is 0.32, while the CWR of the nearby districts is 0.76 on average. Syracuses FRPL rate is 80%; that of nearby districts is 27%. The disparity between APPR scores of Syracuse teachers including the plaintiffs, and the neighboring districts and statewide average for all teachers, is also directly aligned with the district wealth gap. See Complaint 68-70 and associated table. This close correlation between low district wealth/high student poverty, and lower teacher APPR scores, demonstrates that plaintiffs are arbitrarily disadvantaged by factors that are outside their control, as compared with teachers in more affluent districts. The defendants failure to address the effect of low district wealth on the APPR at all was in violation of Section 3012-c and was arbitrary and capricious.

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POINT II THE STATE DEFENDANTS ACTIONS IN PURPORTEDLY ADJUSTING STUDENT GROWTH MEASURES BASED ON POVERTY WERE ARBITRARY, CAPRICIOUS AND UNLAWFUL BECAUSE THEY WERE NOT PROMULGATED AS RULES IN ACCORDANCE WITH LAW. Through their guidance affecting all plaintiffs and their selection and implementation of the growth model that affects plaintiffs who teach 4th-8th grade ELA and/or Math, the defendants undertook to include adjustments in the APPR process to neutralize the unfair effects of student poverty on teacher APPR scores. However, the methods used by defendants were in violation of the State Constitution, the State Administrative Procedure Act, and Section 102 the Executive Law. Because plaintiffs APPR ratings were unfairly affected by defendants unlawfully imposed actions, those ratings should be annulled. Defendants are subject to the provisions of Article 4, 8 of the New York State Constitution, to the State Administrative Procedure Act, and to Section 102 of the Executive Law. According to the State Constitution, [n]o rule or regulation made by any state department, board, bureau, officer, authority or commission, except as relates to the organization or internal management of a state department, board, bureau, officer, authority or commission shall be effective until filed in the office of the department of state. (NY Const. art 4, 8 [emphasis added]). Further, Section 102 of the State Administrative Procedure Act (SAPA), defines a rule as: (a)...(I) the whole or part of each agency statement, regulation or code of general applicability that implements or applies law, or prescribes a fee charged by or paid to any agency or the procedure or practice requirements of any agency, including the amendment, suspension or repeal thereof and (ii) the amendment, suspension, repeal, approval, or prescription for the future of rates, wages, security authorizations, corporate or financial structures or reorganization thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs or accounting, or practices bearing on any of the foregoing -37-

whether of general or particular applicability. State Administrative Procedure Act 102(2). Section 102 of the Executive Law states, No code, rule or regulation shall become effective until it is filed with the secretary of state. The Court of Appeals has explained that only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation. Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health, 66 N.Y.2d 948, 948 (1985); see also, Matter of Rubin v. New York State Educ. Dept., 210 A.D.2d 550, 552 (3d Dept 1994) (citing Matter of Roman Catholic Diocese of Albany, and stating that the purported rule must be a general course of operation to be effective for the future). If a directive constitutes a rule, it must be filed with the Secretary of State as required by the Constitution and Executive Law and be promulgated under the procedures set forth in Article 2 of SAPA, which includes notice of the proposed rule and an opportunity for the public to comment. In its APPR regulations, SED defined a teacher or principal growth percentile scoreas: [A] measure of central tendency of the student growth percentile [SGP] scores for a teacher's or principal's students after one or more of the following student characteristics are taken into consideration: poverty, students with disabilities and English language learners. (8 N.Y.C.R.R. 30-2.2 [r]). This rule was subsequently amended to state as follows: Additional factors related to poverty, students with disabilities and English language learners may be added by the Commissioner, subject to approval by the Board of Regents. Id. Despite the fact that these were the only regulations involving the factoring in of poverty in the APPR, defendants imposed fixed general principles to be applied and guidance on the general -38-

course of operation to be followed with regard to poverty but without going through the proper rulemaking process required by law, including notice and opportunity for public comment. Specifically, defendants adopted AIRs growth model with all of its lack of reasonableness, inadequacy, and inconsistencies with the APPR statutes requirement that teachers be judged in the context of students similar to their own, and defendants did so without following the proper rulemaking processes. Similarly, defendants provided guidance, in effect imposing rules on school districts respecting SLOs. As already noted, defendants left it optional for school districts to factor student poverty into the SLO scoring process at all, and imposed an arbitrary limit (i.e., the right to add up to two points but not more) on what districts could do to account for student poverty. These edicts should be seen as rulemaking, as they functioned as fixed general principles and a general course of operation to be effective in the future. Roman Catholic Diocese; Rubin v. NYS Education Dept, supra. Other than adopting 8 N.Y.C.R.R. 30-2.2(r), the Board of Regents never promulgated nor approved any method by which economic disadvantage is to be accounted for in the SLOs. Instead, defendants simply imposed rules. As already demonstrated, those rules were inadequate and did not reasonably further the stated goal of accounting for student poverty in teacher APPR scores. Defendants imposition of those rules without proper rulemaking also violated Article 4, 8 of the Constitution, SAPA, and Executive Law 102. By virtue of the defendants actions in circumventing the law that requires that rules be adopted only after the requisite notice and comment period, the public was deprived of the opportunity to inform the way the defendants accounted for student poverty in the growth model and

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the SLOs. Allowing for interested parties such as parents, educators and taxpayers to have input into how poverty should have been taken into account to avoid the unfair adverse impact poverty has on student growth and achievement and, accordingly, upon a teachers APPR performance rating, could have prevented or at least ameliorated the arbitrary, capricious and ineffectual system that was used here. CONCLUSION For all of the reasons set forth above, plaintiffs respectfully request that this Court grant the petition in its entirety, together with such other, further, and different relief as it deems appropriate, including the costs and disbursements of this proceeding. DATED: April 14, 2014 Latham, New York

Respectfully submitted, RICHARD E. CASAGRANDE, ESQ. Attorney for Plaintiffs/Petitioners 800 Troy-Schenectady Road Latham, New York 12110-2455 Telephone: (518) 213-6000

By:

_______________________________________ MATTHEW E. BERGERON, ESQ. Of Counsel

113429

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