Syracuse Teachers Association lawsuit

5/27/2018 Syracuse Teachers Association lawsuit

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STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

_____________________________________________________________

KEVIN AHERN, as President, SYRACUSE TEACHERS ASSOCIATION;

et al.,

Plaintiffs/Petitioners,

-against-

JOHN 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


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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. Education Law 3102-c and the Syracuse APPR Plan. . . . . . . . . . . . . . . . . . . . . . 5

B. The Subcomponents Based on Student Achievement. . . . . . . . . . . . . . . . . . . . . . . 8

C. Student Poverty, The Achievement ap, and Plaintiffs APPR

Scores as Compared with Teachers from More Affluent Areas. . . . . . . . . . . . . . 10

D. Defendants Actions Purporting to Account for Poverty and Related Factors

i. Math and ELA Teachers (4th and 8thGrade). . . . . . . . . . . . . . . . . . . . . . 14

ii. Plaintiffs Subject to Other Comparable Measures

(Student Learning Objectives). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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 RELATEDFACTORS 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

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B. Failure to Account for the Effects of Poverty and Related Factors

On Plaintiffs Subject to Other Comparable Measures

(Student Learning Objectives). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

C. Defendants Failure to Account for the Effects of Low School

District Wealth on Plaintiffs Scores for the State Assessmentsand Other Comparable Measures Subcomponent. . . . . . . . . . . . . . . . . . 36

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,

-against-

JOHN 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

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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

1This statement of facts is derived from the verified complaint/petition, and affidavit of

Aaron Pallas, Ph.D.

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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

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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. The necessary party defendants/respondents are referred to

collectively as the District.

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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

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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 2011-

2012 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 theq u a l i t y o f e d u c a t i o n a c r o s s t h e S t a t e . "

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 fourteenof 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 school year, be placed on a teacher

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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 solelyupon 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

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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 ofsubjects 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:

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(1) List of State-approved 3rd party, State, or Regents-equivalent

assessments;

(2) District or BOCES-developed assessments, provided the

District or BOCES verifies comparability and rigor;

(3) School or BOCES-wide, group, or team results based on State

assessments.

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 averagefor similar students and they achieve a subcomponent

score of 18-20;

B. an effective rating in this subcomponent if the teacher's or principal's results meet the

state averagefor similar students and they achieve a subcomponent score of 9-17;

or,

C. a developing rating in this subcomponent if the teacher's or principal's results are

below the state averagefor similar students and they achieve a subcomponent score

of 3-8; or,

D. an ineffective rating in this subcomponent, if the teacher or principal's results are

well-below the state averagefor similar students and they achieve a subcomponent

score of 0-2. (Education Law 3012-c(2)(a)(3)(A-D) (emphasis added)).

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.

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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%

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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 2007-

08 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.2Only 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

2The 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.

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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

sample

# of teachers# of I&D % of

I&D

LARGE CITIES 4 8669 1675 19%

MEDIUM CITIES 6 3594 415 12%

SMALL CITIES 38 10635 942 9%

LARGE CENTRAL DISTRICTS AND

VILLAGE DISTRICTS

117 43658 708 2%

MEDIUM CENTRAL DISTRICTS 156 20963 559 3%

SMALL CENTRAL DISTRICTS 147 8155 390 5%

468

3Table 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.

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Table #2

%FRPL # districts

in sample

# teachers # I&D % I&D

0-19 129 35494 362 1%

20-39 131 22823 573 3%40-59 155 20126 1062 5%

60-79 38 11207 1325 12%

80+ 14 6024 1521 25%

total 467

Table #3

CWR # districts in

sample

# teachers # I&D % I&D

0-.499 77 16414 2022 12%

.5-.999 227 43049 2303 5%1-1.499 78 20443 331 2%

1.5-2.499 49 9297 116 1%

2.5+ 25 4795 44 1%

456

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 Nearby Districts

FRPL Average 80% 26.88%

Combined Wealth Ratio 0.32 0.76

% of Teachers Rated Less than

Effective 2012-13434.7% 1.8%

2010-11 ELA % at level 1 &2 77.5% 37.2%

4Percentages of teachers rated less than effective are based on NYSUT data. All other data in

this chart come from SED information.

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2010-11 Math % at level 1 & 2 74.7% 28%

2011-12 ELA % at level 1 &2 75.8% 36.2%

2011-12 Math % at level 1 & 2 73.1% 28.1%

2012-13 ELA % at level 1 &2 91.4% 61.7%

2012-13 Math % at level 1 & 2 93.2% 61.5%

D. Defendants Actions Purporting to Account for Poverty and Related Factors.

(i). Math and ELA Teachers (4ththrough 8thgrade)

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 EvaluationTechnical 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

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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-student-

growth-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 ofsimilar 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 5thgrade ELA test of the Common Core who earned a

score of 690 on last years 4thgrade 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 anSGP of 45. Explaining Student Growth Scores to Teachers and

Principals (Key Discussion Points) 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).

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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

H E D I R a t i n g s a n d S c o r e s 2 0 1 2 - 1 3 ( A u g u s t 2 0 1 3 ) a v a i l a b l e a t

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 adjustedbased on the following characteristics: prior academic history,

disability status, poverty status and status as an English Language

L e a r n e r . P g . 3 4 ( D 1 ) a v a i l a b l e a t

www.engageny.org/sites/default/files/resource/.../appr-field-guidan

ce.pdf. Complaint 80; Exhibit K.

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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)

Student with Disability (SWD) 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

English Language Leaner (ELL) ELL (yes/no)

New York State English as a Second Language

Achievement Test scores

Percentage of ELLs in students class/course

Economic Disadvantage

(Poverty)

Poverty (yes/no)

Percentage of students in poverty in students class/course

(New York State Education Department,A Teachers Guide to Interpreting State-Provided Growth

S c o r e s f o r G r a d e s 4 - 8 i n 2 0 1 2 - 1 3 a n d 2 0 1 3 - 1 4 a v a i l a b l e a t

http://www.engageny.org/resource/teacher-s-guide-to-interpreting-state-provided-growth-scores-

2012-13-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 onstudent 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

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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 studentto 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 EducatorEvaluation 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

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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.

5New York State Office of Information and Reporting Services, The New York State Report Card(Syracuse City school District 2011-2012), p. 3available at

https://reportcards.nysed.gov/schools.php?district=800000050065&year=2012.

6www.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

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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.

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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 ComparableMeasures (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 poverty-

related 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 proofbefore 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,quotingMatter 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).

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In addition, when implementing a law, if an agency identifies an area needing regulation, any

action it takes must be consonant with that need. InNYS 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.)

InAssociation 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 (citingAssociation 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

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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 districts7demonstrate that the actions of defendants and their contractor AIR in

developing and implementing these adjustments were contrary to the APPR statute, arbitrary,

7It 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%.

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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 PlaintiffsSubject 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

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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 anypoints 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 orrepeal 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

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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) (citingMatter 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

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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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Syracuse Teachers Association lawsuit

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