House Committee on Education

Success Academy founder Eva Moskowitz, seen at a 2010 appearance. She first proposed the policy shift, the author says.

This fall, Eva Moskowitz, the face of charter schools in New York, proved that if you spread enough PAC money around Albany, you can do amazing things, for example inventing special new “shortcut” teaching licenses, just for your charter network. But is it legal?

The State University of New York (SUNY) system has some of the best colleges in the state for Education (seven SUNY schools are ranked in the top twenty here), particularly for the cost, less than half the tuition of comparable universities. So it might seem bizarre SUNY would eliminate its own well-respected education degrees from requirements for teaching in SUNY charter schools. But that’s just what they did.

On October 11, the five trustees of the SUNY Charter School committee, comprised of Governor Andrew Cuomo appointees (and former Regents Chancellor Merryl Tisch), voted to allow SUNY charter schools to waive state requirements for teacher certification and hire unlicensed teachers without education degrees. They also invented a new type of teaching license, only valid within the SUNY charter network (which serves over 80 percent students in poverty).

A day later, a lawsuit was filed by New York State United Teachers (NYSUT), joined by the New York City union, the United Federation of Teachers (UFT), quoting statutory language that requires charters to have comparable certification to other schools.

Scores’ validity in doubt

On the day the policy was unveiled, video captured a heated exchange as attendees characterized the policy as “racist”. Joseph Belluck, the chair of the SUNY charter school committee, a prominent asbestos lawyer (and $150,000 Cuomo donor), moved the proposal forward, declaring that superior student outcomes, gauged by standardized Math and ELA test scores, will allow SUNY charter schools a new license-issuing privilege, irrespective of which teachers in which subjects contributed to a school’s high scores.

The use of student test scores in high stakes decisions was already a sore point, motivating one fifth of New York parents to boycott the annual state tests for the last three years. The missing data has made school comparisons across the state even less accurate.

Using controversial Common Core scores to claim “superiority” is also brazen in light of a statewide moratorium on the use of state test scores for educator rankings. Annual Professional Performance Review (APPR) has sat in legal limbo since the state lost a lawsuit to Long Island teacher Sheri Lederman. The case exposed that “invisible” formulas were behind the state’s widely lambasted teacher evaluation system. In 2016, Lederman’s disputed “growth score” rating was ruled “arbitrary and capricious” in NY Supreme Court and APPR was subsequently suspended for four years, with a promised review now months overdue.

Just one week after SUNY announced this policy, a federal court in Texas also ruled test-based rankings invalid. In the Texas case, it was decided that any test-based formulas or proprietary “computer codes” that are invisible to teachers are “unverifiable” and therefore unconstitutional. New York’s test-based ranking algorithms are just as invisible.

Scores count even more

In major contention since 2011 is whether student test scores can reliably measure instructor quality apart from privilege or any number of other factors. SUNY Charter institute Executive Director Susie Miller Carello told the Washington Post:

“The best definitions of high quality teachers center on how well students who spend a year with that teacher grow in their abilities and confidence to read, write, know history, mathematics, science and the arts. More than 80 percent of SUNY charters outperform the districts in which they are located. Should any SUNY charter have the opportunity to establish a SUNY charter school teacher certification program, the strength of such a program will directly link to how well students perform.”

Although Carello mentions history and the arts, state tests are not given in these subjects (science is tested twice between grades 3-8), so the words don’t match the reality. Charter advocates are linking teacher quality to state test results in only two subjects when there is no reliable correlation. A recent Forbes article by scientist Ethan Siegel reinforces this.

Since most teachers do not teach the tested subjects of Math and English Language Arts (ELA), their school’s scores say little about their practice. SUNY charter schools with high Math and ELA scores will nonetheless issue licenses in all subject areas. But even for probationary Math and English teachers, their students’ scores are averaged in with others, diluting their impact and making the pseudo-science behind the policy a quantum leap of faith.

In short, SUNY schools can now hire anyone, regardless of qualification, into a school with good Math and ELA scores. Administrators from schools “in good standing” will be the arbiters of who gets permanent SUNY-only licenses—even if those administrators have no certifications, degrees or training in Education themselves.

Worse still, there is no requirement for prospective teachers to hold a bachelor’s degree, to pass the state’s general teaching or content-specific exams, or to have student teaching experience. It’s also not indicated anywhere that new hires are even required to have a high school diploma.

Race not a factor?

Belluck said he took umbrage to statements posted on Twitter pointing out that children of color would be even less likely now to have a certified teacher under his new rules. Belluck warned critics he would strike their comments: “…[E]mailing and attacks on twitter are probably not the best way to get your points across to be considered as part of the record…”

Indeed, public comments were sent to Belluck’s committee during a 45-day period, but results have not been made public. Earlier, Belluck had committed to “…a real process, but I would encourage people not to start from a place of lobbing insults and characterizations about people’s character, it’s not a good place to start. We will consider everything…”

Belluck touted that his teacher policy will increase teacher diversity, promising that more teachers of color will be recruited by his charter schools to be given the special SUNY-only licenses. He blamed current teacher certification requirements for the teacher shortage, and the lack of diversity in the field. But charter school officials tell a different story. From an op-ed in the NY Times in support of the SUNY policy:

“New York’s high-performing charter schools have long complained that rules requiring them to hire state-certified teachers make it difficult to find high-quality applicants in high-demand specialties like math, science and special education. They tell of sorting through hundreds of candidates to fill a few positions, only to find that the strongest candidates have no interest in working in the low-income communities where charters are typically located.”

Dueling interpretations

Responding to the Times, NY State Regents Chancellor Betty Rosa called out the “flawed” op-ed, saying the policy undermines SUNY’s own traditional certification program, TeachNY.

New York State Education Commissioner MaryEllen Elia agreed, pointing out that SUNY’s policy bumps up against Education Law §3004(1), Part 52 of the Commissioner’s Regulations, granting the Commissioner the sole, exclusive authority to change certification regulations or approve teacher certification programs.

Also balking on the plan was the NYS Assembly’s Higher Education Committee and even prominent “ed reform” groups, but The Times editorial board swallowed whole the talking points of chairman Belluck.

The matter is due in court (with taxpayers, students and teachers paying the legal bills) as the policy challenges Article 56 of the NY State Education law. From the UFT: “Article 56 requires that the board of trustees of a charter school, with minimal exceptions, employs teachers who “shall be certified in accordance with the requirements applicable to other public schools.”

To win, Belluck will try to convince the court that he was granted “incredibly broad authority” to “make rules and regulations related to the operations of charter schools” as part of the 2016 budget bill, even though nothing in last year’s law mentions teacher certification. The relevant section in the bill passed by both the State Senate and Assembly says only that the SUNY trustees in the charter committee are “authorized and empowered, to promulgate regulations with respect to governance, structure and operations”.

Belluck admitted early on these vague powers are limited in cases where they bump up against existing law, which they clearly appear to do. So how can he just ignore Article 56 and Part 52 of the Commissioner’s Regulations? He has a note, it seems.

In June of 2016, Republican NYS Senate Leader John Flanagan sent
a letter to Governor Cuomo touting SUNY charters’ high Math and ELA scores, and recommending new flexibility around teacher licensing requirements. In the letter however, Flanagan, who supports Trump and Betsy DeVos, never actually said teachers should skip traditional certification:

“Like all schools around the state, charter schools have been hit hard by a dramatic and abrupt teacher shortage. Allowing these schools flexibility on the rigid certification requirements will enable these schools to continue to function at their high levels of success. The Charter Institute should immediately act to provide a path for highly educated mid-career or college graduates to become certified teachers over a period of time.”

Flanagan’s letter was only made public after the bill passed, leaving lawmakers in sharp dispute over the meaning of the bill’s charter language. Soon after, Assembly Majority Speaker Carl Heastie and Education Committee Chair Cathie Nolan sent their own letter to Governor Cuomo, insisting that the language in the bill did not give SUNY any powers to change teacher certification requirements.

Special needs and secret deals

It was Eva Moskowitz who first proposed the policy, ultimately pushed through on a 4-1 vote in October because Moskowitz was “churning” through as many as sixty percent of the teachers in her Success Academy schools every year. In an interview, SUNY chair Joe Belluck said the current teacher shortage is an “emergency” that requires immediate action, but he didn’t explain why SUNY’s 185 charter schools should receive any advantages to attract recruits that the other 4,275 schools in the state cannot get.

Belluck also asserted that his policy is legal because it’s “identical to their alternative pathway, called Transitional B. The requirements match up 100 percent with their requirements.”

Not so. The Transitional B program, used often by Teach For America, requires a bachelor’s degree to apply. SUNY’s new policy does not. As implied by the name, a Transitional B certificate is temporary and expires within three years. To obtain a permanent license, a Transitional B holder must pass state teaching tests, and complete an eventual Master’s degree. Belluck’s policy does not match up with this at all.

Politico’s Eliza Shapiro reported in July that NYC Mayor Bill de Blasio appears to have consented to the SUNY charter policy in an unwritten “side deal” with leader Flanagan renewing mayoral control for two years.

Flanagan, who held the renewal “hostage” throughout the 2017 budget process, was asked if his pro-charter stance was influenced by millions of dollars donated to him and his Republican conference by billionaires like Alice Walton or Puerto Rico “debt vultures” Dan Loeb and Paul Singer. Mr. Flanagan said through a spokesman: “Campaign contributions have no effect whatsoever.” Just a few weeks later, in August, Flanagan checked into a rehab for problems with alcohol.

Into the rat race

According to the language of the proposal, a charter school, (which they call a “SUNY corporation”) gets teacher-licensing privileges provided 60 percent of it’s schools have higher exam scores than neighboring district schools. This language actually codifies competition, meaning there is not just incentive for schools to do well, but also to bet against or even sabotage the competition. High schools need to meet only 60 percent of the measures in it’s own accountability plan, made with SUNY. Next, note this shifty language:

“For schools that primarily serve a special population, including students with disabilities or ELL students, the schools must have performed better than the students of the applicable special population in the school districts in which the charter schools are located;”

Catch that? Here they compare test scores from charter schools (a school wide average) with the test scores of 100 percent disabled public school students across the district. To game this, a SUNY school can mix in ringer test-takers with as few as 51 percent disabled students and win teacher-licensing status.

Belluck has repeatedly avoided the question of charter school cherrypicking in an enrollment process that weeds out 50 percent of lottery winners, the most “at-risk” students, only to then criticize the public schools who accept them. This suggests SUNY as a state charter authorizer is not mindful of the 1998 NY Charter Law (S 2850) that first created charter schools.

The law says charters must place “special emphasis” on students at-risk of failure, something most charters do not do. Right from the start, charters contravened the law by recruiting families with more involved parents. This has intentionally widened achievement gaps, and thus, charters have superior test scores, provided one ignores differences in student populations.

Belluck’s role therefore is tricky. He is being asked to persuade a court to legislate from the bench, finding that the budget 2016 law means something it doesn’t say. And the justification for letting SUNY charters “innovate” and experiment with uncertified teachers will all be based on the school’s test scores, meaning the court will have to accept that standardized test results are a valid measure of teacher quality.

Some argue SUNY could better address both the teacher shortage and diversity imbalance by expanding free tuition for education students. But Belluck’s plan is designed to intensify competition, to produce winners and losers, intentionally widening achievement gaps in a battle for students, resources, and now, teacher recruits.

Jake Jacobs is an art teacher in the Bronx