December 2006 Vol. XX, No. 11*

 BOARD OF
DIRECTORS MEET
IN
ALBANY

The Association Board of Directors met in Albany on November 27^th. Executive Director Bob Biggerstaff gave the board a report on the various hearing and meetings he participated in on behalf of the Association over the past several months. On November 16^th, the Assembly Education Committee held a hearing on the Future of Education in New York (see article below). He and Association President Judith Johnson (Superintendent, Peekskill CSD) gave testimony. Bob said the hearing was primarily held to gather feedback on EXCEL aid, Ladder aid and the Assembly Education Reform proposal. The Association testimony emphasized the need to continue to target aid to high need districts. Bob felt they were “preaching to the choir” but that it was important to continue to maintain contact with Assemblywoman Nolan (Chair of the Assembly Education Committee) as she, along with Jocelyn Dax (Assembly Ways and Means staff) will be the Governor’s main allies working against Senate resistance to reforming state aid to education.

The Association also submitted written testimony at the hearings held by the Assembly Cities Committee on Finances in Upstate Cities held from September through November 2006. The Association testimony made the point that a strong school system is essential to attracting business to a city. The testimony also stressed that school taxed in small cities are much higher than in the average district and that education reform is necessary to address this problem. 

Bob Biggerstaff then reported on meetings he and Charlie Winters attended recently with Regent James Tallon and the new CFE executive director, Geri Palast. In May, Tom McGowan, Superintendent Glens Falls CSD,  suggested the Association start working with Ms. Palast. The Association is a member of the Regents State Aid Advisory Committee chaired by Regent Tallon. These meetings were productive and both Tallon and Palast are interested in working with the Association on its goal of reforming state aid and targeting high need school districts statewide. Bob and Charlie subsequently spoke Governor-elect Spitzer’s staff via conference call on the Association’s issues and goals. Spitzer’s staff encouraged the Association to continue these contacts through the next several months at least.

Bob Biggerstaff and Charlie Winters also went to the Capitol to meet with key staff in the Assembly, Senate and SED to discuss state aid reform. They will continue holding similar meetings during the coming months as the Governor’s Budget 2007-08 comes together and as the Assembly and Senate develop their positions on education reform more fully.

As a side note, both Charlie and Bob were interviewed that day (November 20^th) by Albany’s CBS affiliate. They were asked to comment on behalf of the Association and as experts on the latest CFE decision which had been handed down that morning and their comments were aired that night repeatedly.

NEW BOARD POLICY – LEGAL ADVISORY SERVICES

Back at the May Board of Directors meeting, the need for an official board policy on requests for legal opinions from Association members was discussed. From time to time, member districts make requests of Association counsel for legal opinions. While many of these requests are fairly straightforward, they often take time for research and preparation of the opinion. The Board adopted the following policy for these requests. 

BOARD POLICY

Re: Legal Advisory Services                               November 27, 2006

From time to time, Association members seek to obtain legal opinions, advice or consultation on matters of specific concern to an individual member district from Association counsel. The Association through its counsel have been providing such opinions, advice and consultation on an ad hoc basis without charge to the district. The Board wishes to continue providing such services to individual member districts at Association expense within certain parameters so that such services may be provided evenly throughout the membership and within the Association budget.

Therefore, it is approved that Association counsel may provide district specific legal services to individual member districts as requested by them, including but not limited to legal opinions, advice and consultation., provided as follows:

1) the first five hours of such services in any year shall be provided without charge to the requesting district,

2) requests for such services which require work exceeding five hours may be provided by counsel at the district’s expense as may be agreed by and between the district and counsel, and

3) such expense shall be payable to the Association upon terms and conditions specified in the agreement between the district and Association counsel, shall be evidenced by a district purchase order, and shall be characterized as ‘Association dues-legal services.’

Please feel free to contact the Association with questions or comments about this policy (518-475-9500 or via email, beb@biggerstaff-firm.com).

LITIGATION STEERING COMMITTEE MEETS

The Association’s Litigation Steering Committee met in Albany prior to the Board of Directors meeting on November 27^th.  The committee discussed the future of the small city school districts’ litigation. At this point, Association Counsel is preparing the appellate brief in the appeal of Justice Thomas McNamara’s decision to grant the State’s Motion to Dismiss. As reported before, the motion was granted on technical grounds and did not address any substantive issues raised in the litigation.

It was decided the Association would go forward with the appeal, since all other suits along the CFE vein have either been withdrawn or dismissed. The Committee felt it was important to continue to apply pressure for state aid reform in light of the recent CFE decision to award the low ball figure of $1.93 billion in increased aid to NYC and the fact that the distribution of aid state outside NYC, is undetermined. Although $600 million in increased aid was provided by the Court’s decision for “the rest of the State”, there are no guidelines as to how this increased aid will be distributed.

The committee also felt that the litigation may give the Governor-elect Eliot Spitzer a legitimized forum to provide increased state aid to education across the state, targeting high need districts.

Below is a summary of the meeting recently emailed to Association members.

The SCSD Litigation Steering Committee met on Monday, Nov. 27th, to review the recent Court of Appeals decision in CFE v. NYS, to discuss the status of the SCSD litigation and to decide what steps to take regarding an SCSD Costing Out Study. The Committee reached consensus on a number of points which are outlined below:

1. The CFE decision disappointed those in the education community by specifying a much lower figure as the cost of reform in NYC than expected ($1.93 billion vs. $4.7 to $5.6 billion). By implication, this would also mean a much lower cost for reform statewide by at least 60%. While the Governor-elect and the Assembly Majority are still firmly behind much higher reform numbers, the Senate Majority will now have a much stronger position from which to argue making settlement of Education Reform in the 2007-08 State Budget more problematic.

2. The Court of Appeals majority (it was a 4 to 2 decision) rested its opinion on the need to give deference to the State's position. They found that the .35 weighting for poverty of the S&P Report and the Zarb Commission Report "not unreasonable." This weighting was advanced by the S&P Report without recommendation and with the caveat that it was merely a weighting commonly used in other states, not a weighting derived from academic or scientific research. The dissenting opinion by Chief Justice Kaye found the .35 weighting to be without sufficient justification.

3. Use of a .35 poverty weighting in any aid formula would fall far short of driving the aid increases necessary for full funding of a sound basic education in small city school districts. And while the CFE decision is now the law for NYC funding, it is not necessarily binding on the rest of the state's districts if subsequently challenged in separate litigation. Therefore, it is imperative that the SCSD litigation be pursued in order to keep alive the possibility of overturning the .35 weighting as precedent. (As a note, the SCSD case is on appeal to the Appellate Division, Third Dept. and we hope that oral argument on the case can be heard in late March or early April, 2007.)

4. The need for an SCSD Costing Out Study was discussed. At trial, SCSD plaintiff districts will need expert testimony to support their factual case. The case must demonstrate shortfalls in educational inputs, outputs and State financial support. Much of the case for each district will be made by the testimony of district personnel. However, independent analyses for each district will also be necessary. The Association's 2004 study, Funding for Achievement, based on 2001-02 data must be updated. In addition, experts from academia will be required. The Committee agreed that an RFP seeking proposals for an independent costing out study and an analysis of best practices for each of the plaintiff districts  should be prepared. When we receive responses to the RFP we will again discuss the necessity of pursuing the study  and the means for underwriting its cost.

5. The Committee also agreed that it was necessary to seek addition parent/student plaintiffs from districts that have not already supplied them. To date, Albany, Beacon, Jamestown and Newburgh parents and students have joined the case as plaintiffs. Additional plaintiffs would enable us to amend the complaint and to re-file the litigation immediately in the event that we are not successful on appeal to the Appellate Division. 

We appreciate those who were able to attend the meeting. For those who could not make it, please contact us with any questions. Thank you all for your support.

ASSEMBLY EDUCATION HEARING:
THE FUTURE
 OF EDUCATION

The Assembly Education Committee held a hearing in Albany on November 16^th on the future of elementary and secondary education in NYS. The hastily called hearing was led by Chairwoman Catherine Nolan, Dem. –Queens, Ranking Member Fred Thiele, Rep. – Sag Harbor, Assemblyman Paul Tonko, Dem. – Schenectady/Amsterdam and Assemblywoman Barbara Clark, Dem – Queens.

Commissioner Mills gave the first speech and began by applauding the Assembly for its recent capital building aid initiative, EXCEL.

He then talked about the huge performance gap between segments of our student population and the need to close that gap. He said that while performance is improving, number 2 or 3 nationally for the Black and Hispanic children, we are not doing enough. While our accountability system is excellent and 80% of graduates proceed to college, more needs to be done.  One third of students do not meet 4^th grade standards and half do not meet standards in the 8^th grade.

Mills then reported that last year SED convened a summit of educators, parents and administrators. They developed a list of actions; what every child should be exposed to and achieve which resulted in the Regents 13 Actions: e.g. Sustainable early education system, State Education Aid reform, and accountability actions. The Commissioner said New York needs a comprehensive strategy encompassing early childhood, middle and high schools.

Assemblywoman Catherine Nolan asked what can be done about middle school performance. The Commissioner replied that schools need to challenge them academically despite the developmental changes students go through.

Assemblywoman Nolan then stated that SED should look at class size and asked if there were guidelines. The Commissioner answered that class size reduction is not enough. Schools need after school programs too. But most importantly, schools and students need well prepared teachers. Mills also said to note that special education students in high spending, wealthier district perform better than in other districts.

Assemblyman Fred Thiele asked the Commissioner to comment on the grand jury report recommending an Inspector General for schools. The Commissioner felt that since the Legislature provided additional auditors last year, an Inspector General is not necessarily needed.

Assemblyman Paul Tonko asked the Commissioner what was being done about teacher retention. The Commissioner answered that a teacher’s primary reward is from the kids. Teachers know every day whether kids are learning.

Assemblyman Tonko then asked what dollars are needed to expand CFE reform statewide. The Commissioner recommended $1.5 billion this year with 80% being targeted to high need districts. SED does not have figures for out years.

Assemblywoman Barbara Clark stated that there needs to be something special done now about 8^th grade problems to avoid losing another generation of kids. She then asked, what about a Marshall Plan? The Commissioner replied that a Marshall Plan approach would be a problem. Mills pointed out a huge portion of the Regents’ Aid Proposal is flexible and could be targeted to middle school.

Assemblywoman Clark then stated that NYC has inexperienced teachers to a great extent and needs a large infusion of dollars. The Commissioner replied that $1.5 billion is ambitious and how much could be used effectively is constrained by law. He asked the committee to not ease up on standards at the middle school level and to demand results and accountability.

The hearing format then changed to a panel format where a series of five panels were called to appear. The panels consisted of superintendents, including Eva Joseph of Albany and Eric Ely of Schenectady, teacher unions, educational associations including our association and statewide groups and interests such as “Class Size Matters,” “New York Immigration Coalition” and “Charter Schools Association.”

Issues discussed were the need for charter school funding reforms, overall state aid formula reform, the NYC Capital plan, NYC DOE programs to identify and address graduation rate/dropout problems, need for more experienced teachers in poorer districts, class size reduction and school safety.

Assemblyman Tonko asked if there is a concern that the state support of charter schools will detract from aid to public schools. The NYC representatives said the Mayor strongly supports charters. Eva Joseph said while the district respects NYC’s position, it is concerned about the financial drain on the district. Eric Ely said that charters have no programmatic or financial oversight and there is no “level playing field” between public schools and charters.

Assemblywoman Clark stated that the STAR program gives to the wealthiest areas of the State and asked if residents were aware of this. Superintendent Dominick Jordon, Eldridge CSD, and President of the Mid-States Consortium, said no, she was not.

N.B. The Association testimony delivered by Judith Johnson and Bob Biggerstaff is on our website, http://scsd.neric.org.

BOARD MEETS WITH COMMISSIONER MILLS

The Board of Directors met with Commissioner Richard Mills following its own meeting on November 27^th. Topics discussed included the recent CFE Court of Appeals decision, efforts being made for relief for students presently required and unable to succeed at the ELL exam, extending the length of the school year, and summer school.

The Commissioner began the discussions by saying that the CFE decision is a positive development and gives a clear indication that aid reform should go beyond NYC to include a statewide solution. Mills felt the court made a good decision to use the lower number in its decision ($1.93 v. $5B) because it would have been too expensive to extend statewide aid reform starting from the higher number. Mills then stated that SED would stick with its recommendation of $1.5B in increased aid and that this number will increase with new data. The Court remains respectful of the separation of powers.

Charlie Winters, SCSD Consultant, pointed out to the Commissioner that if the decision does not result in a highly targeted distribution of new aid, it will not accomplish true reform. Bob Biggerstaff, Executive Director, asked the Commissioner if the Regents’ State Aid Reform Proposal would be used as a measure of SBE funding for each district. The Commissioner responded that this was a good idea but commented that accountability is inevitable and the public already expects this.

Edward Brown, BOE Albany CSD, asked about changing the school year, making the point it was based on an antiquated agrarian calendar. The Commissioner replied that changing the school year statewide is not necessary and would be very expensive. Mills said districts could start by improving attendance rates, schools should be so attractive that kids will not want to miss school.

Charlie Winters pointed out that school aid penalizes schools with low attendance rates when in reality these schools need more help, not less.

Tom McGowan, Superintendent Glens Falls CSD, informed the Commissioner that districts presently call home to encourage attendance, but the problem is cultural. In his experience, there is a certain percentage of students with a family structure that does not support education.

McGowan then asked the Commissioner if certain identifiable students be allowed to go directly to RCT. The Commissioner replied that for those students in the gray area (8:1:2) might qualify but that any “backing off” from Regents requirements is a problem for the Regents. Mills suggested that in IDEA, there should be additional flexibility beyond the 2% already allowed.

William Lynch, Superintendent Fulton CSD, told the Commissioner that districts need to be able to mandate summer school. The Commissioner replied that the need for a longer school year only applies to certain groups of schools in which there needs to be action to boost attendance. Lynch responded by saying his district is working to do more with current resources.

Fred Wachtmeister, BOE Plattsburgh CSD, pointed out that this is one reason why poverty weighting is so important. Poor districts have disproportionately more difficult and chronic problems. Ed Brown made the point that Elmont CSD has a 99% graduation rate and that their demographics are the same as cities’. All parents want their children to succeed. Mills directed our board to look at the Educational Trust websites for this information.

EXCERPT FROM COMMISSIONER’S DECEMBER 2006 REPORT TO THE BOARD OF REGENTS

At the November 27^th meeting with Commissioner Richard Mills provided the Board with the following excerpt from his upcoming December report to the Board of Regents.

Gap Closing Strategies for English Language Learners

The Regents P-16 strategy to raise achievement and close the gaps points to certain groups of students who need more help. English Language Learners (ELL) are one such group. The Regents will discuss results from the New York State English as a Second Language Achievement Test (NYSESLAT), and the actions that these results demand. The test measures three dimensions of language acquisition: listening and speaking; reading and writing; and overall proficiency. Students must achieve overall proficiency in English to leave ESL and bilingual programs. This year, only 15.4 percent of the 192,425 ELL students attained proficiency.

The P-16 plan outlines actions to improve ELL results, and the Regents item this month is consistent with that plan. It describes four actions, which include holding schools and districts accountable for meeting improvement targets for English Language Learners, increased monitoring to ensure that students receive the required time and services in English, improved instruction through teacher recruitment and professional development, and increased outreach to parents to help them improve their own reading, writing and speaking in English. Regents discussion of this item might focus on whether or not this approach is sufficiently robust, given the data. In my opinion, we must concentrate on these few actions and with greater intensity that in the past. The measures that matter are improved student achievement. This year, the percentage of students achieving proficiency increased only slightly and from a low starting point. This is not sufficient.

We present this item in the context of an on-going disagreement with the U.S. Education Department over one aspect of the implementation of No Child Left Behind. According the USED staff, New York and four other states tried to use their ELP/ELL assessment for Title I purposes; none was accepted. USED has required New York to administer the ELA exams to ELL students who have been in the United States for more than a year. We strongly object to this requirement in discussions responding to the peer review of our assessment, which is a process required of all states under NCLB. USED, however, is the agency responsible for administering No Child Left Behind.

The USED would have imposed financial penalties of 10 percent of New York’s administrative aid if we had not provided an approvable plan, with an additional loss of 25 percent of the aid to follow if New York did not comply with that plan by July 2007. They already withheld funds in other states. In addition, New York depends on flexibility in the use of federal administrative funds from all Titles. Because 54 percent of SED’s operational funding is from federal sources, USED can grant or withhold that flexibility annually. Without an approved plan in response to the peer review, USED will withhold the flexibility, which would have a $4 million negative impact. We have provided a plan and we will make that plan work. Meanwhile, I have spoken repeatedly with Assistant Secretary Henry Johnson about the matter, and followed with a letter proposing at least a two year opportunity for the children. We will continue to advocate publicly and with our Congressional representatives for a change in policy.

UPCOMING
EVENTS

January 21, 2007
Time 1:00 – 4:00 pm
Board of Directors Meeting
Desmond Hotel, Albany at NYSCOSS mid winter meeting

March 13, 2007
Legislative Breakfast
Fort Orange Club
Albany, NY

May 20-21, 2007
Annual Conference
PLACE TBA