September 16, 2011 NYSUT, et al. v. Board of Regents, et al. (APPR Regulations Decision)
KEEPING YOU INFORMED…
A State Supreme Court Justice recently issued a decision invalidating some of the regulatory provisions adopted by the Board of Regents implementing the new annual professional performance review (“APPR”) legislation. The decision subjects more of the APPR evaluation categories to collective bargaining than had been envisioned by the Regulations and requires that an overall poor rating must be based on more than a single performance rating category. In addition, the Court held that the regulatory authorization for school districts to terminate probationary teachers and principals and to deny tenure pending an evaluation appeal is invalid, to the extent that these personnel actions would make annual reviews less than a “significant factor” in termination and tenure decisions.
Specifically, the Court said that:
1. The Regulations were inconsistent with the statute by permitting exactly the same data from state assessments, which will count as 20%o (20 of 100 total points) of an overall rating score, to be adopted as one of the locally selected measures of student achievement that will constitute another 20% (20 points) of the overall evaluation score. Still, the Court did find that, consistent with the collective bargaining process, those locally selected measures could include different data derived from state assessments;
2. The regulatory prescription that 40 of the 60 remaining points in an overall evaluation score must be based on classroom evaluations is an “intrusion” upon collective bargaining as required by the statute. Thus, the factors on which those 60 remaining points will be based must be locally determined through collective bargaining;
3. The Regulations authorizing the New York State Education Department (“SED”) to monitor the new evaluation system and to order corrective action plans where appropriate were consistent with the law, and thus enforceable, though SED may not appoint or require the use of independent evaluators by school districts;
4. While upholding a regulatory requirement that evaluation appeal procedures provide for the timely and expeditious resolution of any appeal,” the Court ruled that authorization to terminate or deny tenure pending an appeal is invalid, to the extent that APPRs would not be a “significant factor” in those employment decisions. (Presumably, however, employees committing non-competence-based acts could still be terminated or denied tenure pending their appeal of an APPR score, though that remains to be tested in the courts); and
5. The Regulations authorizing the SED’s Commissioner to prescribe minimum and maximum scoring ranges for each performance category are inconsistent with the statute’s intent of having scoring based on “multiple measures of effectiveness,” to the extent that they permit an overall score to be effectively determined by a single rating category.
The Board of Regents and SED are appealing the decision. SED has just announced that, pending the outcome of the appeal, it will not enforce the provisions which were overturned by the Court and that school districts and BOCES will be required to implement only those provisions of the Regulations not impacted by the Court’s decision.
SED has posted on its website an updated guidance document, which addresses the litigation as well as other issues. http://www.nysed.gov/rttt/teacher-leaders/fieldguidance/
Please contact us if you have any questions regarding this decision or the APPR statute and Regulations.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF TIIE CURRENT LAV/ AS INTERPRETED BY THE RECENT COURT DECISION. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP, 2011