Judge Rules on NYSUT’s Legal Challenge to APPR

By Laura M. Purcell

As you are likely aware, yesterday, a supreme court judge in Albany ruled on NYSUT’s legal challenge to the Regent’s implementing regulations for the new APPR standards.  This decision is significant in that NYSUT was successful in five of the six major arguments it made.  While the relevant aspects of the court’s decision are summarized below, the chart linked here contains further detail. The determination impacts not only the use of the State assessments to measure student achievement, but impacts the scope of negotiations as well as the position of the State Education Department that the new APPR mandates do not impact local discretion as to the termination and/or tenure decisions for probationary teachers.  The following explains the judge’s decision in a nutshell and provides guidance about what districts and BOCES should do in light of this decision.

Local Measures of Student Achievement: The decision invalidates the portion of the regulation that permits school districts to use the State assessments (the first 20%) as the locally selected measure of student achievement (the second 20%).  The court was persuaded by the idea that the law specifically provides that “other” measures are to be used for these categories and that these “other” measures must be “locally selected” and “developed locally.”  It also found that using the same student growth data for the first and second 20% conflicted with the statutory mandate that multiple measures of effectiveness are to be used to produce the single composite score.  Notably, one caveat to this is that to the extent that data other than student growth data can be derived from the state assessments to define a distinctly different measure of student achievement, such data may be utilized in formulating the second 20% category measure, provided this measure is developed locally through negotiation.

Mandating the Amount of Points within the 60% Subjective Measure:  The decision invalidates the regulatory mandate that 40 of the 60 points used to measure teacher effectiveness be based on classroom observations as well as the requirement that no more than 5 of the 60 points be assigned to a teacher’s professional growth goals.  The court said that whether and to what extent classroom observation and professional growth are utilized in defining the 60 point evaluation component must necessarily be determined through negotiations.  The court noted that classroom observation is an evaluation method, not a standard for defining what makes a teacher a good teacher.

SED Monitoring/Independent Evaluators: The decision invalidates the portion of the Regents’ regulation stating that SED can appoint independent evaluators if it orders a corrective action plan.  The court found that “but for the first 20% component, the evaluation process defined in 3012-c is subject to collective bargaining – a mandate that certainly embraces the identity of the evaluator.” The remainder of the regulation allowing SED to monitor compliance and to impose consequences for non-compliance is still valid.

Employment Decisions for Probationary Teachers:  The decision invalidates the regulations to the extent that they provide that a district/BOCES retains the authority to terminate probationary teachers or deny tenure to a probationary teacher during the pendency of an appeal as to a teacher’s end of year evaluation.  The court quoted the statutory language that APPR “shall be a significant factor for employment decisions including, but not limited to promotion, retention, tenure determination, termination ….”  It concluded that because both the grant and the denial of tenure must be performed in compliance with the statute, the regulations are invalid to the extent that they state otherwise.

Scoring Ranges:  The decision invalidates the scoring ranges promulgated by SED used to determine a teacher’s effectiveness, concluding that the ranges arbitrarily assign a disproportionate weight to the 40% student achievement measures and do not allow the 60 point category to have a meaningful impact.

Given this decision, there seems to be even more uncertainty than previously existed as to the actual implementation of the APPR.  Though we are on a shifting landscape as the validity of the implementing regulations continues to be sorted out through the courts, school districts and BOCES are still under a mandate to implement the new APPR provisions.

The September 1^st date is still in effect for the Board adoption of an APPR plan.  Whatever template has been chosen by your district or BOCES, you should include language that indicates that the provisions of the plan may be subject to change pending the outcome of litigation challenging the implementing regulations.  If you have already adopted a plan, your plan should be amended at your next regularly scheduled Board meeting to include such a statement.  The amendment should be made retroactive to September 1, 2011.

In addition, you should continue to work towards determining a rubric and negotiating those pieces that are not subject to question, such as your appeals process and teacher improvement plans.  A limited and finite appeals process in particular will be important given the apparent implication of the court’s determination on employment decisions for probationary teachers.  If you were not considering the use of the State assessments for the locally selected measures of student achievement, you can continue to move forward to reach an agreement on that aspect of the plan.  A determination regarding the weighting for the 60% subjective measures will need to be placed on hold for the time-being.

Further guidance from the Regents and the State Education Department as to their intended course of action with respect to an appeal and/or changes to the implementing regulations is imperative. It will be interesting to see the Governor’s reaction given that three out of four of his suggested changes to the regulations subsequently implemented by SED were invalidated by the court’s decision.  SED announced today that it plans to appeal. A copy of the governor’s letter to the Chancellor of the Board of Regents, Merryl Tisch, can be found at this link:  http://www.governor.ny.gov/press/lettertoBoardofRegents.