rta complaint

8/12/2019 RTA complaint

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STATE OF NEW YORKSUPREME COURT COUNTY OF ALBANYADAM URBANSKI, as President, ROCHESTER TEACHERS ASSOCIATION; andTHOMAS ALAIMO, RICK AMICO, DENISE ANDERSON, JILL ANGLE,WINDSOR ASAMOAH-WADE, FARAI ASHTON, BANKE A WOPETUMCCULLOUGH, RENE AYERS, PETER BAILLARGEON, DORIS BAILEYGORDON, TRACEY BARNWELL, RYAN BARRY, LAURA BARSTOW, AMYBATEMAN, ROBERT BEAUCHAMP, NATASHA BELL, CHRISTOPHERBIANCHI, LISA BUCK, MARY BLYTHE, MARY CATHERINE BOSNER, A}, NBOUNDS,JOSIEBRADLEY, WILLV\MBRALEY,PAULBRANDWEIN,BRIDGETBRONSON, JOHN BRUMAGHIM, KENISHA CAMPBELL, MICHELECARBALLADA, ROXAl\TNE CAREY, PENNY CARLSON, KARL CARPENTER,DA VID CERVINI, PATRICK CHIERI CHELLA, HILL CHUKWU, JOANNCOLLER, BENJAMIN CONA WAY, NANCY COONS, CARLA COTRONEO,KATHRYN COLYE, EMILY CROWLEY, EILEEN DALY, DIANA DANIELANTONIA DELGADO, ROBBIN DeHOLLANDER, DANA DELONG,CHANTAL CELORM-FERRARA, JOAN DEMARLE-OBERLIN, GARYDERMODY, CHAD DEWITZ, ENRIQUE DIAZ, CHAD DOW, DANIELDUNNE, LIANNE DUPREE, EDWARD DYMINSKI, JOANNE ECCLES,LOUIS ENGLERT, AUSTRIALIA ESTRELLA-BRAZIL, CLEVELANDEVANS, SAMUEL EYGABORD, ROBERT FAULKNOR, AlDEN FICI,PATRICK FINK, TODD FLEMMING, MARY GAGNIER, CAROLINE GAL V ANO,ANDREW GARDNER, BIAGIO GIARDINA, DAVID GIBBARDO, JEANETTEGILBERT, KAREN GRANN, DONNA GRAYSON, MARIANNE GRECO, ANAGUEVERA, SANDHYA GUPTA, BETH HALL, SHELL Y HASSELL, MARGARETHASTINGS, MARY HAYES, TIMOTHY HENSEL, MARY ANN HOLCOMB,JOSEPHHORTON,AMIJARIWALA,DARLEKEJOHANSON,CHLOEJOHKSON,JEROME JOHNSON, NICOLE JOHNSON, PAUL JONASEE, PATRICIA KEENE,WILLIAMKRYSTAN,LORILALOGGIA,AARONLANE,GEORGELANGFORD,WENDY LAWTHER,SCOTT LAZAREK, STEVEN LEONE, AMY LEWIS, KELL YLIBERA TORE, ALICE LOMBARDO, MARIA LOPEZ, VIRGINIA LUDWIG,ED\VThi LUMA, DEBORAH MACPHERSON, MARASILES MARX, ERIN MASON,PAMELA MCMINDES, SARAH MEADE, MICHAEL MEISE, CARNEA THEAMELSON, DEBORAH MERRITT, DONNA MINEO, MICHAEL MOLLERING,ROSS MORELLI, MARK MORRISON, CHARLES MORROW, JAMES MUCHARD,LAIQA ML'NA WAR, THOMAS MUELLER, TIMOTHY MULTER, LAIQAMUNA WAR, KEVIN MURPHY, JODY NAGLE, AMIE NANNINI, MELISSANEIL-ADAMS, GERALD NOETH, JOHN OLIVERI, EILEEN PARK, SANYAPELRAH, A' '.'NETTE PENNELLA-MARTINEZ, HOLLI PHILLIPS, M RY NNREED,MARYREILLY,SALLYRILEY,FRANKRINERE, LAURA RODRIGUEZACOSTS, ELIZABETH ROEMER, JENNIFER ROTHFUSS, KAREN SAMIS,MAR YJO SANDY, FABIAN SERVENTI, MATTIERE SHAW-ELLIOTT, CYNTHIASHEAR, CECILLE SHORTER, CRYSTAL,SHORTER, MICHAEL SICIENSKI,

SUMMONS/NOTICE OFPETITIONIndex No.:

Date Filed:


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WARREN SINCLAIR, COREY SKI1\J'NER, OLIVIA SMITH, ALEXIS SOTO,THERESA SURACE, GARFIELD TA YLOR, KAREN STEELE-AVERY, BROOKETHOMAS, NEGUSSIE TSADKAN, AL YSON ULRICH, MAUREEN V AN BUREN,JUDY VIA-WOLFF, JENNIFER WARRICK, DIANE WATKINS, CATHERINEWELLS, MICHELLE WHELEN, ALANNA WILCOXX, GREGORY WILKES,MARK WILLIAMS, GUILLAUME YOBOUE, JULIANN ZELAZNY, on behalf ofthemselves and as representatives of a class of all other persons similarly situated,

Plaintiffs/Petitioners,-against-

JOHN B KING, JR as Commissioner of the New YorkState Education Department; BOARD OF REGENTS OFTIIE UNIVERSITY OF THE STATE OF NEW YORK;and NEW YORK STATE EDUCATION DEPARTMENT,

Defendants/Respondents,and

ROCHESTER CITY SCHOOL DISTRICT, BOARD OF EDUCATIONOF THE ROCHESTER CITY SCHOOL DISTRICT, and DR. BOLGENV ARGAS, in His Capacity as Superintendent of theRochester City School District,

Necessary Pruiy Defendants/Respondents.

TO THE DEFENDANTS/RESPONDENTS:PLEASE TAKE NOTICE, that you are hereby summoned and required to serve upon

plaintiffs/petitioners' attorney an answer to the complaint in this action within twenty days after theservice of this summons, exclusive of the day of service, or within thirty days after service iscomplete if this summons is not personally delivered to you within the State ofNew York. In case

ofyour failure to answer, judgment will be taken against you by default for the relief demanded inthe complaint; and

PLEASE TAKE FURTHER NOTICE, that Albany County is designated as the venue ofthis

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action/proceeding as it is the COlmty in which State defendants/respondents have their principalplace of business, and in which the State defendants/respondents engaged in the acts giving rise tothis complaint.

PLEASE TAKE FURTHER NOTICE, that upon the annexed petition verif ied on March 4,2014 and upon the exhibits annexed thereto, and the Affidavit ofAaron Pallas sworn to on February28 2014 and the exhibit attached thereto, the undersigned will move this Court on the 18th day ofApril, 2014 at the Albany County Courthouse, Albany, New York at 9:30 a.m. on that date or as soonthereafter as counsel can be heard, for an order and judgment pursuant to CPLR Article 78: (A)ordering that plaintiffs/petitioners be permitted to maintain this hybrid action and Article 78proceeding as a class; (B) declaring that the State defendantslrespondents by their actions haveviolated Education Law 3012-c and have acted in an arbitrary, capricious and unlawful manner; (C)declaring that the final APPRratings ofplaintiffs for the 2012-2013 school year are invalid, void andwithout legal effect; (D) permanently enjoining the defendants/respondents from taking any adverse

employment action against plaintiffs based on their final ratings for the 2012-13 school year; (E)ordering that any necessary disclosure be had pursuant to CPLR 408; (F) ordering the trial of anytriable issues of fact raised in the Article 78 proceeding pursuant to CPLR 7804(h); and (F)ordering such other, further and different rel ief as the Court may deemjust and proper, together withreasonable costs.

PLEASE TAKE FURTHER NOTICE that defendants/respondents' papers in opposition tothe Article 78 petition must be served no later than five (5) days before the return date hereof, and

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PLEASETAKE FURTHER NOTICEthatAlbanyCountyisdesignatedasthevenueof thisproceeding pursuant to CPLR 506(b), as Albany County is the principal office of the Statedefendants/respondents.DATED: March4 2014

Latham,New York Respectfullysubmitted,RICHARD CASAGRANDE,ESQ.AttorneyforPlaintiffs/Petitioners800Troy-SchenectadyRoadLatham,NewYork12110-2455Telephone:(518)213-6000

: } .>c1 " - - - - -__By: _U VTO: JOHNB.KING,JR.,asCommissioner

of theNew YorkStateEducationDepartmentEducationBuilding89WashingtonAvenueAlbany,NY 12234

BOARDOFREGENTSOFTHEUNIVERSITYOFTHE STATEOF NEW YORKEducationBuilding89WashingtonAvenue,Room110Albany,NY 12234NEW YORKSTATEEDUCATIONDEPARTMENTEducationBuilding89WashingtonAvenueAlbany,NY 12234HON.ERICT. SCHNEIDERMANAttorneyGeneralJusticeBuildingEmpireStatePlazaAlbany,NY 12224

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STATE OF NEW YORKSUPREME COURT COUNTY OF ALBANYADAM URBANSKI, as President, ROCHESTER TEACHERS ASSOCIATION; andTHOMAS ALAIMO, RICK AMICO, DENISE ANDERSON, J LL ANGLE,WINDSOR ASAMOAH-WADE, FARAI ASHTON, BANKE AWOPETU:\.1CCULLOUGH, RENE AYERS, PETER BAILLARGEON, DORIS BAILEYGORDON, TRACEY BARJ. \JWELL, RYAN BARRY,LAURA BARSTOW, AMYBATEMAN, ROBERT BEAUCHAMP,NATASHA BELL, CHRISTOPHERBIANCHI, LISA BUCK, MARY BLYTHE, MARY CATHERINE BOSNER, ANNBOlJ NDS, JOSIE BRADLEY, WILLIAM BRALEY, PAUL BRANDWEIN, BRIDGETBRONSON JOHN BRUMAGHIM, KENISHA CAMPBELL, MICHELECARBALLADA, ROXANNE CAREY, PEN NY CARLSON, KARL CARPENTER,DAVID CERVINI, PATRICK CHIERI CHELLA, HILL CHUKWU, JOANNCOLLER, BENJAMIN CONAWAY, NANCY COONS, CARLA COTRONEO,KATHRYN COL YE, EMILY CROWLEY, EILEEN DALY, DIANA DANIEL VERIFIEDANTONIA DELGADO, ROBBIN DeHOLLANDER, DANA DELONG, COMPLAINTCHANTAL CELORJ.\1-FERRARA, JOAN DEMARLE-OBERLIN, GARY PETITIONDERc\10DY, CHAD DEWITZ, ENRIQUE DIAZ, CHAD DOW, DANIEL Index No.:DUNNE, LIANNE DUPREE, EDWARD DYMINSKI, JOANNE ECCLES,LOUIS ENGLERT, AUSTRIALIA ESTRELLA-BRAZIL, CLEVELANDEVANS, SAMUEL EYGABORD, ROBERT FAULKNOR, AlDEN FICI, Date Filed:PATRICK FINK, TODD FLEMMING, MARY GAGNIER, CAROLINE GALVANO,ANDREW GARDNER, BIAGIO GIARDINA, DAVrD GIBBARDO, JEANETTEGILBERT, KAREN GRANN, DONNA GRAYSON, MARIANNE GRECO, ANAGUEVERA, SANDHY A GUPTA, BETH HALL, SHELL Y HASSELL, MARGARETHASTINGS, MARY HAYES, TIMOTHY HENSEL, MARY ANl\J HOLCOMB,JOSEPH HORTON, l JARIW ALA, DARLENE JOHANSON, CHLOE JOI-INSON,JEROME JOHNSON, NICOLE JOHNSON, PAUL JONASEE, PATRICIA KEENE,WILLIAMKRYSTAN,LORILALOGGIA,AARONLANE,GEORGELANGFORD,WENDY LA WTHER,SCOTT LAZAREK, STEVEN LEONE, AMY LEWIS, KELL YLIBERATORE, ALICE LOMBARDO, MARIA LOPEZ, VIRGINIA LUDWIG,EDWIN LUMA, DEBORAH MACPHERSON, MARASILES MARX, ERIN MASON,PAMELA MCMINDES, SARAH MEADE, MICHAEL MEISE, CARNEATHEAMELSON, DEBORAH MERRITT, DO N'NA MINEO, MICHAEL MOLLERING,ROSS MORELLI, MARK MORRISON, CHARLES MORROW, JAMES MUCHARD,LAIQA MUNA WAR, THOMAS MUELLER, TIMOTHY MULTER, LAIQAMUNA WAR, KEVIN MURPHY, JODY NAGLE, AMIE NANNINI, MELISSANEIL-ADAMS, GERALD NOETH, JOHN OLIVERI, EILEEN PARK, SANY APELRAH, ANNETTE PENNELLA-MARTINEZ, HOLLI PHILLIPS, MARY ANNREED,MARYREILLY,SALLYRILEY,FRANKRINERE,LAURARODRIGUEZACOSTS, ELIZABETH ROEMER, JENNIFER ROTHFUSS, KAREN SAMIS,MARYJOSANDY,FABIANSERVENTI,MATTIERESHAW-ELLIOTT, CYNTHIASHEAR, CECILLE SHORTER, CRYSTAL,SHORTER, MICHAEL SICIENSKI,WARREN SINCLAIR, COREY SKI N'NER, OLIVIA SMITH, ALEXIS SOTO,


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THERESA SURACE, GARFIELD TAYLOR, KAREN STEELE-AVERY, BROOKETHOMAS, NEGUSSIE TSADKAN, AL YSON ULRICH, MAUREEN V AN BUREN,JUDY VIA-WOLFF, JENNIFER WARRICK, DIANE WATKINS, CATHERINEWELLS, MICHELLE WHELEN, ALANNA WILCOXX, GREGORY WILKES,MARK WILLIAMS, GUILLAUME YOBOUE, JULIANN ZELAZNY, on behalf othemselves and as representatives o a class o all other persons similarly situated,

Plaintiffs/Petitioners,-against

JOI IN B. KING, JR., as Commissioner o the New YorkState Education Department; BOARD OF REGENTS OFTHE UNIVERSITY OF THE STATE OF NEW YORK;and NEW YORK STATE EDUCATION DEPARTMENT,


ROCHESTER CITY SCHOOL DISTRlCT, BOARD OF EDUCATIONOF THE ROCHESTER CITY SCHOOL DISTRICT, and DR. BOLGENVARGAS, in His Capacity as Superintendent o theRochester City School District,

Necessary Party Defendants/Respondents.

Plaintiffs/petitioners, ADAM URBANSKI, et al. by their attorney, Richard Casagrande,Esq. (James D. Bilik, Matthew Bergeron and Christina M. French, Esqs., o counsel), for theircomplaint/petition, respectfully allege as follows:

PRELIMINARY STATEMENT1. 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' failurein their duties conferred by Education Law 3012-c to adequately account and correct for studentpoverty and low district wealth in implementing the annual professional performance review (APPR)

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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 andplaintiffs/petitioners' constitutional rights to Equal Protection under the United States and NewYork State Constitutions, and also acting in an arbitrary and unlawful maimer. The Statedefendants/respondents' inadequate and arbitrary actions with regard to accounting and correctingfor student poverty and low district wealth constituted improper rule making in violation of the NewYork State Administrative Procedure Act (SAPA), the Executive Law, and the New York StateConstitution. Because ofthe above, plaintiffs/petitioners' 2012-13 APPR scores are invalid and void.

JURISDICTION2 This Court has jurisdiction to grant plaintiffs/petitioners a declaratory judgment under

3001 and 3017 of the CPLR, injunctive relief pursuant to CPLR Article 63, and an order andjudgment under Article 78 of the CPLR.

3. There has been no prior application for the relief requested in this complaint/petition.4. Plaintiffs/petitioners have exhausted any administrative remedies that may be

applicable prior to commencing this action/proceeding, namely the local appeals process in place inthe Rochester City School District, which concluded on or about November 4 2013.

VENUE5 Pursuant to CPLR Sections 504 and 506, the venue of this action and Article 78

proceeding is Albany County, the county where the State defendants/respondents have their principalplace of business, and where the material events occurred.

PLAINTIFFS/PETITIONERS6. The plaintiff/petitioner ( plaintiff ') Rochester Teachers Association (RTA) is an

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unincorporated association, and a labor organizat ion for purposes ofCiviI Service Law 200 t seq(the Taylor Law). The RTA represents a bargaining unit including all teachers employed by theRochester School District. The District and the RTA are parties to a Collective BargainingAgreement covering the period July 1,2010 through June 30,2013. Said agreement remains in fulleffect pursuant to Section 209-a l) e) of the Taylor Law.

7. Plaintiff Adam Urbanski is the President of the R T A.8. Under Education Law 3012-c and the Taylor Law, the RTA has the right and duty

to negotiate with the Rochester City School District concerning certain teacher evaluation and APPRmatters.

9. The plaintiffs other than the RTA are classroom teachers employed by the RochesterCity School District, who were subject to the APPR under Education Law 30l2-c and Regentsregulations, and received final ratings ofless than Effective (i.e., either Ineffective or Developing)for the 2012-2013 school year.

COLLECTIVE BARGAINING REPRESENTATrVE10. As shown above, this actionispecial proceeding is instituted, in part, by the RTA, by

its President Adam Urbanski, on behalf ofemployees of the Rochester City School District who aremembers of the RTA and who have been harmed by defendants actions.

11 The interests advanced herein are germane to the purpose of the RTA because it isthe exclusive bargaining representative for a collective bargaining unit including the plaintiffs.

The RTA is an appropriate representative of its members interests because aprincipal purpose of the RTA is that of ensuring the improvement ofpublic education n New York,which is inextricably tied to protecting the employment rights of its members.


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13. Approximately 580 teachers who are RTA members were aggrieved by the actionsof the defendants set forth in this complaint/petition.

14. One or more members of the RTA have standing to sue.15. The paliicipation of every individual member of the RTA affected by the State

defendantslrespondents' unlawful actions, as detailed herein, is not required to assert this claim orto afford the RTA or its members complete relief.

16. As such, the RTA has associational standing to protect the interests of its members.CLASS ACTION

17. Plaintiffs commence this hybrid declaratory/injunctive action and Article 78proceeding as a class.

18. The description ofthe class is all classroom teachers employed by the Rochester CitySchool District who were subject to the 2012-2013 APPR and who received a final APPR rating ofless than effective (i.e., Developing or Ineffective) for the 2012-13 school year.

19. The class is so numerous that joinder of all members is impracticable.20. There are questions ofl w and fact common to the class which predominate over any

questions affecting only individual members.21. The claims of the representative parties are typical of the claims of the class.22. The representative parties will fairly and adequately protect the interests of the class.23. A class action is superior to other available methods for fair and efficient adjudication

of the controversy.24. Upon information and belief, the members of the class are not interested in

individually controlling the prosecution of separate actions or proceedings, as all members of the

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class will be affected equally by the outcome of the litigation.25. t would be impracticable and inefficient to prosecute separate actions, given the

predominate common questions of law and fact.26. There is no other litigation commenced by members of the class concerning the

controversy alleged herein.27. t is desirable that the litigation be concentrated in this forum where the State

defendants/respondents are located.28. There are no difficulties likely to be encountered in the management ofa class action.

DEFENDANTS/RESPONDENTS29. Defendants/respondent ("defendant") Jolm B. King, Jr is the Commissioner of

Education of the State of New York, and exercises those powers and duties authorized by theLegislature pursuant to Education aw Article 7

30. Defendant New York State Education Department is a depaliment of state

government established under Education Law 101. It has such powers and duties as are set forthin the Education Law, including the duty to generally manage and supervise New York's publicschools.

31. Defendant Board of Regents of the University of the State of New York wasestablished by the Legislature as the governing body of the University of the State ofNew York andexercises those powers and duties authorized by the Legislature pursuant 10 Education Law Article5

32. Defendant Rochester City School District is a necessary party and is a city schooldistrict and municipal corporation located in the City ofRochester, County ofMonroe, State ofNewYork and is organized and existing under Article 37 of the Education Law.

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33. Defendant Board of Education of the Rochester City School District is a necessaryparty and is a body corporate, responsible under Article 37 ofth Education Law for the managementand control of the affairs of the District, and has its primary place of business located in the City ofRochester, County of Monroe, State of New York.

34. Defendant Bolgen Vargas is a necessary party and is the Superintendent of theRochester City School District and, as such, is the chief executive officer of the school districtpursuant to Article 37 of the Education Law and has a principal place of business in the City ofRochester, County of Monroe, State of New York. The necessary party defendants/respondents arereferred to collectively as the "District."

NOTICE OF CLAIM35. Upon information and belief, there is no requirement that notices of claim be served

upon th necessary party-defendant board of education in order to maintain this action/proceeding.36. Nevertheless, on February 4, 2014, plaintiffs Adam Urbanski; Rick Amico; Jill

Angle; Laura Barstow; Amy Bateman; Natasha Bell; Lisa Buck; Eileen Daly; Andrew Gardner;David Gibbardo; Wendy Lmvther; Alice Lombardo; Virginia Ludwig; Michael Moellering; ThomasMueller; Timothy Multer; Laiqa Munawar; Mary Reilley; Sally Riley; Elizabeth Roemer; MattiereShaw-Elliott; and Judy Via-Wolff; on their own behalf and on behalf of those similarly situated,presented the defendant board ofeducation with verified notices ofclaim that referenced plaintiffs'claims against the State defendants and stated that the Board of Education is named only as anecessary party and only n order to afford the plaintiffs complete re lief or as an entity that might beinequitably affected by a judgment in this action/proceeding pursuant to CPLR 1001.

37. As of the return date of the Article 8 petition, thirty days will have elapsed since the

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plaintiffs referenced in paragraph 36 presented notices of claim to the District, and plaintiffs' claimswill not have not been adjusted.

FACTSEducation Law 3012-c and the Rochester APPR Plan

38. Education Law 3012-c, entitled "Annual Professional Performance Review ofClassroom Teachers and Building Principals," was enacted by the Legislature by Chapter 1 3 of theLaws of 2010, and became effective on July 1,2010. t was amended in 2012 (Laws of2012 ch.21 57 and 68).

39. Section 3012-c established for the first time in New York State, a comprehensiveframework for the performance evaluation of "all classroom teachers and building principals"employed by all public school districts in the State.

40. Section 3012-c provides for a rating system using a "single composite teachereffectiveness score" and final rating of"highly effective," "effective," "developing," or "ineffective"

(commonly known as a HEDI rating). (Education Law 3012-c(2)(a.41. Implementations 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 andthe issuance of final composite scores and HEDI ratings took place in all districts except New YorkCity.

42. The primary purposes of the APPR law included enhancement ofstudent learning andteacher effectiveness through regular evaluation ofclassroom teachers, identification ofany teachingdeficiencies, and professional development and other measures to remediate such deficiencies.

43. The defendant State Education Department (SED), in describing the new APPR,

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stated that its purpose was to implement a statewide comprehensive evaluation system for schooldistricts and BOCES. The evaluation system is designed to measure teacher and principaleffectiveness based on performance, including measures ofstudent achievement. SED, Legislationin Support of Race to the Top, available at http://usny.nysed.gov/rtttlapplicationilegislation.htmi(last updated October 7 2010). A copy is annexed hereto as Exhibit A .

44. That APPR was to be not only comprehensive but also fair and equitable to allteachers, was expressed by the defendant Board of Regents in a May 16,2011 press release:

The New York State Board ofRegents today adopted regulations thatwill implement a statewide teacher and principal performanceevaluation system that includes multiple measures of educatoreffectiveness. The regulations, which will take effect during the 2011-2012 school year, are required by legislation enacted last year. Thenew law establishes a comprehensive evaluation system for allclassroom teachers and building principals in New York.Regents Chancellor Merryl H. Tisch said, With the help of ourpartners in the field, we have taken a critical step today in developinga f ir nd equit ble system for evaluating the performance of NewYork's teachers and principals - a system that will enhance thequal i ty of educ t ion across the Sta te .http://wv Woms .nysed. gov Ipress/Eval uating T eacherPrinci palEffectiveness.BORAdoptRules.htm [emphasis supplied]. (A copy isannexed hereto as a B ).

45. The importance ofan educator's APPR rating to his or her career is explicitly outlinedin the statute:

[AJnnual professional performance reviews shall be a significantfactor for employment decisions including but not limited to,promotion, retention, tenure determination, termination, andsupplemental compensation, which decisions are to be made inaccordance with locally developed procedures negotiated pursuant tothe requirements of article fourteen of the civil service law whereapplicable. . . Such performance reviews shall also be a significantfactor in teacher and principal development, including but not limited

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to, coaching, induction support and differentiated professionaldevelopment, which are to be locally established in accordance withprocedures negotiated pursuant to the requirements ofarticle fourteenof the civil service law. Education Law 3012-c 1).

46. Under Education Law 3 0 12-c(4), plaintiffs, who were all rated either Developingor Ineffective in 2012-13, must, during the 2013-14 school year, be placed on a teacherimprovement plan. This plan must include identification of needed areas of improvement, atimeline for achieving improvement, the manner in which improvement will be assessed and, whereappropriate, differentiated activities to support a teacher's improvement in those areas.

47. Pursuant to Education aw 3020 and 3020-a, which were also amended by Chapter103, any teacher who is rated ineffective during two consecutive school years is deemed to haveexhibited a pattern of ineffective teaching and may be the subject of expedited charges ofincompetence under Education Law 3020-a. Education Law 3012-c (6); 3020-a (3) (i-a) (A).

48. 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 classroomteacher or principal, as defined in section three thousand twelve-c ofthis article the hearing shall be conducted before and by a singlehearing officer in an expedited hearing B) Notwithstandingany other provision of law to the contrary, a pattern of ineffectiveteaching or performance as defined in section three thousand twelve-cof this article shall constitute very significant evidence ofincompetence for purposes of this section.

49. 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 measuresas follows: (a) twenty percent (20%) shall be based upon student growth data on state assessmentsas prescribed by the commissioner, or a comparable measures of student growth if such growth data

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is not available ; and b) twenty percent (20%) shall be based on other locally selected measureso student achievement that are determined to be rigorous and comparable across classrooms inaccordance with the regulations o the commissioner and as are developed locally in a mannerconsistent with procedures negotiated pursuant to the requirements o miicle fourteen o the civilservice law (Education Law 3012-c(2)(f)(1.

50. Under Education Law 3012-c(2)(h), the remaining sixty percent (60%) o thecomposite effectiveness score shall be locally developed, consistent with the standards prescribedin the regulations o the commissioner, through negotiations conducted pursuant to article fourteeno the civil service law.

51. The RTA and the District negotiated an APPR Implementation Agreement datedJune 28, 2012 governing the portions o the APPR process for the 2012-2013 school year that aresubject to bargaining. A copy is annexed hereto as Exhibit C.

52. Thereafter, the District and the RTA submitted an APPR plan for the 20]2-2013school year to the defendant commissioner o education for approvaL That APPR plan was executedby the pmiies on August 27,201 and approved by the commissioner on or about August 30,2012.A copy is annexed hereto as Exhibit D .

B. The Subcomponents Based on Student Achievement53. In the 20 13 school year, the first 20% subcomponent for teachers o 4th-8th grade

Math and/or ELA was determined by SED, using student performance on state standardized Mathand/or ELA assessments.

54. The measurement method SED prescribed for classroom teachers other than 4-8thgrade Math and ELA teachers ( other comparable measures ) were state-determined goal setting

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processes."8NYCRR 30-2.5(b)(I)(iii)-(iv). SEDissuedthefollowingguidanceforhow these"othercomparablemeasures"mustbedetermined:

GROWTH IN SUBJECTS WITHOUT STATE-PROVIDEDGROWTH MEASLiRES(20%):[Student Learning Objectives] SLOswill be usedfor teachers ofsubjectswherethereisnoState-providedmeasureof studentgrovv1hTheRegulationscallthistheState-determinedgroVv1h goal-settingprocess. Each SLO will be built around one of the followingassessmentoptionsastheevidenceof studentlearning:(1) ListofState-approved3rdparty,State,or Regents-equivalent

assessments;(2) District or BOCES-developed assessments, providedthe

Districtor BOCESverifiescomparabilityandrigor;(3) SchoolorBOCES-wide,group,orteamresultsbasedonState

assessments.Guidance on the New York State District Wide Growth Goal SettingProcess or Teachers: Student Learning Objectives (available athttp://wwwengageny.org/sites/default/fileslresource/attaclunents/sloguidance.pdf. Pg. 8 (Thisguidance was ineffect during 201 13schoolyear).

55. Theprocessforassigningpointstoeducatorsforthestategrowthorother comparablemeasures (SLO)subcomponentisentirelyStatedetermined. (EducationLaw 3012-c(2)0) (1)(i)).

56. The scoringrangesdeterminingthe20 ofa teacher's APPR thatiscomprisedof thegrowthdataon stateassessmentsandothercomparablemeasuresarethefollowing:

Aclassroomteacherandbuildingprincipalshallreceive:A. ahighlyeffectiveratinginthissubcomponentifthe teacher'sor principal'sresultsare

well-abovethestateaveragefor similar students andtheyachieveasubcomponentscoreof 18-20;

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B. an effective rating in this subcomponent if the teacher's or principal's results meet thestate average/or simil r 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 arebelow the state average/or simil r students and they achieve a subcomponent scoreof 3-8; or,

D. an ineffective rating in this subcomponent, if the teacher or principal's results arewell-below the state average/or simil r students and they achieve a subcomponentscore of 0-2. (Education Law 3012-c(2)(a)(3)(A-D) (emphasis added)).

57. The scoring bands for the locally selected measures ofstudent achievement, or second20% subcomponent, were the same as for the first 20% subcomponent (Section 3012-c(2)(a)(5)(AD .

58. Upon information and belief, 98% of all Rochester teachers subject to the APPRreceived "effective" ratings in the 60% "other measures" sUbcomponent not tied to studentachievement subcomponents.

C. Student Poverty. The Achievement Gap, and Plaintiffs' APPRScores as Compared with Teachers from ~ o r e Affluent Areas59. In comparing the APPR scores in Rochester to the statewide average of all teachers

and to the ratings inother school districts in the Rochester area, plaintiffs were limited by lack ofaccess to relevant information.

60. Specifically, SED is required by Section 3012-c(10)(a) to disclose final ratings andcomposite 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, althoughSED has released the statewide breakdown of HEDI ratings for teachers subject to the APPR (see

below).

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61. In the absence of official SED data, New York State United Teachers (NYSUT), thestatewide labor organizations with which RTA is affiliated, gathered data in the Fall of2013 fromthe RTA and other NYSUT affiliated local unions with the assistance ofNYSUT regional offices.While NYSUT was not able to gather complete information, it is likely that the percentagedistribution of teachers among the HEDI categories reflected in NYSUT s data approximates theofficial data in SED s possession.

62. The achievement gap, i.e., the fact that students in high poveliy school districtsperform less well on state tests than students in wealthier districts, is evident in Rochester.

63. The Grades 3-8 standardized assessment results released by SED pertaining to the20 I 13 tests revealed that [i]n Rochester, 5.4% of students met or exceeded the ELA proilciencystandard [level 3 or 4] [and] 5% met or exceeded the math proilciency standard [level 3 or 4] ascompared to 31.1 % of students across the State who met or exceeded the ELA proficiency Standardand 31% who met or exceeded the math proficiency standard. New York State Education

Department Press Release (August 7, 2013) available at http://v.f\vw.oms.nysed.gov/press/grades-3-8assessment-results-2013 .html. (A copy is annexed hereto as Exhibit E ).

64. In a recent report released by the Association of Small City School Districts,Rochester City School District is listed among the 50 most underfunded schools in the state. Thereport also stated that the District is receiving $5,200 less per student than it would have receivedunder the 2007-08 budget agreement. A copy of pertinent parts of the report is attached hereto asExhibit F .

65. The total number ofRTA unit members rated less than effective (i.e., Developing orIneffective) was severely disproportionate to the State average. Only 5.4% of teachers statewide

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were rated less than effective based on data released by SED. In stark contrast, approximately 33,7%of teachers in the Rochester City School District were rated less than effective.

66. The disproportion was even starker when comparing Rochester to the surroundingMonroe County and a group ofnearby non-Monroe County districts. Only 2.9% ofteachers in thesenearby districts were rated less than effective (compared to one-third in Rochester) based on datagathered by NYSUT.

67. Combined Wealth Ratio (CWR) is a measure of relative wealth, indexing each districtagainst the statewide average on a combinationof two factors, property wealth per pupil and incomewealth per pupil. (SED Fiseal Analysis and Research Unit, Examining Individual School DistrictsDistrict Wealth available at http://www.oms.nysed.gov/fam/Profiles/18thiwealtindicators.htm).The overall rating results for Rochester as compared to nearby districts are consistent withpercentages across the State showing that large and medium sized city and other school districts withhigh 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 ofIneffective or Developing.Rochester's CWR is 0.30, while the CWR of the nearby districts is 0.76 on average. Rochester'sFRPL rate is 88%; that of nearby districts is 27%.

68. The statewide correlation between poverty/low wealth, and low APPR scores isref1ected in the following tables: 2

1 The nearby school districts being compared with Rochester in this complaint are the following:Brighton CSD, Gates-Chili CSD, Greece CSD, East Irondequoit CSD, West Irondequoit CSD, HoneoyeFalls CSD, Spencerport CSD, Hilton CSD, Penfield CSD, Fairport CSD, East Rochester CSD, PittsfordCSD, Churchville-Chili CSD, Rush-Henrietta CSD, Brockport CSD, Webster CSD, Wheatland-ChiliCSD, Victor CSD, Holley CSD, Newark CSD, Marion CSD, Canandaigua City SD, Wayne CSD,Williamson CSD.

2 able 1 is derived from data gathered by 1\TYSUT. 1&D in all three tables denotes the teachersrated inefIective or developing. The data in Tables 2 and 3 is derived from SED except for the numbers

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~ a b l e 1Irype of District o districts in

s mpleof teachers f: ofI&D o of

&DI_ARGE CITIES 8669 1675 19%MEDIUM CITIES () 3594 415 12%SMALL CITIES 38 10635 942 9%LARGE CENTRAL DISTRlCTS AND

VILLAGE DISTRlCTS

7 43658 708 2%

MEDIUM CENTRAL DISTRICTS ~ 5 6 20963 )59 3%SMALL CENTRAL DISTRICTS 47 8155 390 ~

~ 6 8Irable 2YoFRPL i districts

n samplei teachers WI&D YoI&D

P-19 129 :35494 ~ 6 2 1%~ 0 - 3 9 3 22823 p73 B%40-59 155 20126 1062 ~(50-79 11207 1325 12%SO+ 14 0024 1521 ~ 5otal ~ 6 7fable 3CWR # districts in

:sample# teachers I&D YoI&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%~ . 5 + 25 4795 44 1%456

and percentages of teachers rated Ineffective or Developing ( I&D ) listed in those tables.16


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69. The disparity between APPR scores o Rochester teachers including the plaintiffs,and the statewide average for all teachers, is also directly aligned with the district wealth gap, studentwealth gap and the student achievement gap between Rochester and nearby school districts, as seenin the following:

Rochester CSD Nearby DistrictsFRPL Average 88% 27.23%Combined Wealth Ratio 0.30 0.76% o Teachers Rated Less thanEffective 2 1 13 3

33.7% 2.9%

2010-11 ELA % at level 1 &2 75.6% 34%2010-11 Math % at level 1 & 2 70.6% 25.5%2011 12 ELA % at level 1 &2 79.3% 32.8%2011 12 Math % at level 1 & 2 72.7% 25.5%2012-13 ELA % at level 1 &2 94.6% 59.8%2012-13 Math % at level 1 & 2 95.1% 61.2%

70. This close negative correlation between student poverty/low district wealth, andlower teacher APPR scores demonstrates that Rochester City School District teachers are unfairlydisadvantaged by factors, like poverty, that are beyond their control, as compared with teachers inmore affluent districts.

D. State Defendants' Actions Purporting to Account forPoverty and Related Factors Were Woefully Flawedi). j\1ath nd ELA Teachers 4 through SI grade

71. Teachers receive points for the first 20% student-achievement subcomponent in one

3Percentages o teachers rated less than effective are based on NYSUT data. All other data inthis chart come from SED information.

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of two ways. First, all teachers including a sub-group of the plaintiffs, who teach grades 4-8 ELAor Math receive a growth score calculated by averaging individual Student Growth Percenti lesderived from student performance on standardized state assessments.

72. 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, itpurports to isolate and measure the effect of a single teacher on a student's academic growth overthe school year. Further, the model purports to control for the influence of classroom and/or studentcharacteristics outside the teacher's control so that a percentage of growth can be attributed to aparticular teacher over a specified period oft ime. There are many other entities that provide growthmodel analyses, using different methodologies.

73. A report issued by AIR in 2010 recognizes that as the percentage of students withdisabilities and students of poverty in a class or school increases, the average teacher growth scoredecreases. See AIR, 2010-11 Beta Growth Model for Educator Evaluation Technical Report

prepared for the New York State Education Department) available atusny.nysed.gov/rttt/docs/nysed-2011-beta-grovvth-tech-report.pdf. Pp. 23-24, 35. (A copy is annexedhereto as Exhibit G ).

74. In 2011, SED stated the need to ensure that educator results are even less likely thanbefore to be related to characteristics of classrooms and schools. Accordingly, the characteristicsused to define similar students were refined for the 2012-2013 and 2013-2014 school years toinclude more information than was used for the Student Growth Percentiles provided in20 11-2012.Explaining Student Grovvth Scores to Teachers nd Principals Key Discussion POints available

at http://wwwengageny. r g r e s o u r e f r e q u e n t l y -asked -questi ons-about-state-provided -studen

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growth-scores-2012-13. A copy is annexed hereto as Exhibit H.The most recent Technical Report by AIR acknowledged that poverty is a factor

"outside of an educator's control" which, along with SWD and ELL status, may impact studentlearning gains." 2012-2013 Growth Model for Educator Evaluation Technical Report available atvv'Ww.engageny .org/ . .I20 1 13-technical-report-for-gro\vth-measures. pdf. A copy of the 2012-13Technical RepOli is annexed hereto as Exhibit 1 .

76. The growth model process is defined by the State as follows:[A] Student OrO\vth Percentile (SOP) score will be calculated basedon his or her ELA and Math State Assessment results in the currentyear compared to the current yearresults ofsimilar students ( iludentswith similar past test scores and other student characteristics). Thestudent gro\\


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to HEDI Ratings and Scores 2012 13 August 2013) available atwww.engageny.org/sites/default/files/resource/attachments/2012-13. (A copy is attached hereto asExhibit j ).

78. The defendant Board ofRegents has defined a "teacher or principal growth percentilescore" as:

[A] measure of central tendency of the student growth percentile[SGP] scores for a teacher's or principal 's students after one or moreofthe following student characteristics are taken into consideration:poverty, students with disabilities and English language learners. (8N.y.C.R.R. 30-2.2 (1 .

79. Then, by emergency and subsequently permanent rulemaking in July and October2013, SED amended this regulation by adding: "Additional factors related to poverty, students withdisabilities and English language learners may be added by the Commissioner, subject to approvalby the Board of Regents." (8 N.y.C.R.R. 30-2.2 [r]).

80. SED's Guidance on New York State s Annual Professional Perfonnance Review For

Teachers andPrincipals to Implenlent Education Law 30 12-c and the Commissioner s Regulationsstates:

Before determining teacher or principal growth scores and ratingsbased 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 LanguageLearner.Pg.34 (D ) available twww.engageny.org/sites/default/fileslresource/.. .lappr-field-guidance.pdf. (Relevant parts are attached hereto as Exhibit "K").

81. The following is the list of variables used to calculate Student GroVvih Percentiles(SGPs) and teachers' Mean Growth Percentiles (MGPs) in the 2012-2013 school year:

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Grades 4-8 ELA/MathAcademic History Up to three years of student State exam scores, same

subjectPrior year test score, different subjectRetained n gradeA verage prior achievement and range around average priorscore in student's class/course (same subject)

Student with Disability (SWD) SWD (yes/no)SWD spends less than 40 percent of time in generaleducation setting for the entire dayPercentage ofSWDs in student's class/course

English Language Leaner (ELL) ELL (yes/no)New York State English as a Second LanguageAchievement Test scoresPercentage ofELLs in student's class/course

Economic Disadvantage(Poverty)

Poverty (yes/no)Percentage of students in poverty in student's class/course

(New York State Education Department, A Teacher s Guide to Interpreting State-Provided GrowthScores for rades 4-8 in 2012 13 and 2013 14 available athttp://wwwengageny org/reso urce/teacher-s-guide-to-interpreting -state-provided -growth -scores201 13-grades-4-8. P.4. (Attached hereto as Exhibit L ).

82. On r about December 20,2013, SED released the 2012-2013 Growth Model/orEducator Evaluation Technical Report (Exhibit I ) which was compiled by AIR for SED. In thatreport, it is explained that:

The results of growth models are used to measure the effects of educators onstudent learning gains, taking into account a student's prior achievement;however, some factors outside of an educator's control may impact studentlearning gains. For example, different learning trajectories are oftenstatistically related to students living in poverty, beyond what would beexpected based only on the student's prior achievement. (Available atwww.engageny.org/.. .12012-13-technical-report-for-growth-measures.pdf.Pg.9. (Exhibit I ).

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83. In explaining further how poverty would be accounted for, the Reportstates:

Economic disadvantage (poverty). A yes/no variable for each studentto indicate whether the student is identified as economicallydisadvantaged based on eligibility for a variety o State economicassistance programs. This flag is set to yes for students whosefamilies participate in economic assistance programs, such as thefree- 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, theBureau o Indian Affairs, or Temporary Assistance for NeedyFamilies, based on district-provided information. This variable isderived directly from the test score file, representing data that districtsreport to the State. 2012 2013 Growth J10del for EducatorEvaluation Technical Report. Pp. 13-14. (Attached in relevant partas [same as above]). Exhibit I , pp. 13-14.

84. In the process for calculating growth scores and mean growth percentiles that affectteachers' gro'wth scores, districts are responsible for providing to SED for AIR's use, studentdemographics as well as information to link teachers to particular students. AIR then merges dataand performs a statistical analysis using the data. Teclmical Report at 14 (Exhibit I ).

85. Upon information and belief, SED does not independently verify the accuracy o thedata reporting done by the districts. Upon information and belief, there is bound to be variationamong school districts' ability both to ascertain that a student's family participates in one o thelisted economic assistance programs, and to transmit that information to the State EducationDepartment.

86. Moreover, the stigma associated with poverty makes it likely that parents will underreport participation in public assistance, and high-needs districts like Rochester may lack theresources to adequately obtain, process and transmit to SED the data necessary to demonstrate the

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extent of economic disadvantage in the district. Upon information and belief, such under-reportingwould reduce the extent to which students are being accurately compared to other similar students,jeopardizing the accuracy of the grov,rth model for teachers, such as plaintiffs, teaching in districtswith high concentrations of students who are economically disadvantaged.

87. SED's grm rth model is also deficient with regard to taking poverty into account,because, on information and belief, it does not accurately measure the academic growth ofa studentwho is performing well below grade-level. Many students coming from backgrounds of economicdisadvantage perform below their nominal gradeofschool. This is true in the Rochester City SchoolDistrict, where approximately 88% of students are impoverished enough to be eligible for free orreduced price lunch,4 and 46.9% of children reside in households below the federal poverty line.5As already noted, only 5.4% of District students met or exceeded the English Language Artsproficiency standard and only 5 met or exceeded the Math proficiency standard, in the 20 12-13

assessments. 6

88. The proficiency standards in place for the fourth- through eighth-grade EnglishLanguage Arts and Math tests are determined by reference to grade-level. Specifically, students areclassified into one of four levels based on their performance: excel[ling] in standards for theirgrade (Level 4 ), proficient in standards for their grade (Level 3), below proficient in standardsfor their grade (Level 2), or well below proficient in standards for their grade (Levell).

4 New York State Office of Information and Reporting Services, The New York State Report CardRochester City school District 2011-2012), p 3 available at

https://reportcards.nvsed.gov/schoo Is php?district=8000000 50065 &year=20 125 American Community Survey, 2008-2012 5-Year Estimates, U.S. Department ofCommerce6 www.oms.nysed.gov/press/grades-3-8-assessment-results-2013.htm1 .
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89. Upon information and belief, if students are well below grade-level, they may not belearning the material that will be assessed on the test they take; in fact, they may be learning materialthat appeared on an earlier grade-level assessment.

90. Upon information and belief, assessing their performance with a test that is designedto measure performance well above their grade-level cannot be said to accurately measure growthor lack of grOv.1h. They may have indeed grown, from perhaps two years behind grade-level to oneyear behind grade-level, but such grov.1h is likely to be measured imprecisely in their score on thetest they are given. Upon information and belief, the result would be a growth score in name onlythat does not measure growth accurately, and therefore should not be used to evaluate the student'sprogress or the teacher s performance in a system supposedly based on student grov.1h.

91. Upon information and belief, this problem was likely exacerbated by the introductionofthe Common Core Learning Standards. Because the 2013 state assessments were aligned with theCommon 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 previousyears (Exhibit I , Technical Rep0l1 at 6).

92. Upon information and belief, in this way, the grov.1h model applies differently toteachers, like plaintiffs, who teach in high-needs classrooms, where a significantly higher numberof students are performing below grade level at the beginning and end of the year, as compared toteachers in more affluent districts.

93. Upon information and belief, SED s growth model is also deficient in that t does notaccount for the fact that there is a range of severity within the general category of economicdisadvantage. The Technical Report describes (at 14) economic disadvantage as being reflected in

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participationofthe student's family in economic assistance programs, including not only the freeor reduced-price lunch program, but also in a number ofother programs indicating financial distress(eligibility for Social Security Insurance, food stamps, refugee assistance, the earned income taxcredit, the Home Energy Assistance Program, Safety Net Assistance, or Temporary Assistance forNeedy Families). Also listed is family participation in foster care and refugee assistance, whichcould involve stressors of a non-financial nature.

94. According to the Technical Report (Exhibit I ), if a student's family participatesin anyone of these programs, the formula that is used t determine the Student Growth Percentilewill flag that fact. The purpose of incorporating the flag into the grovvth model is to gauge astudent 's performance on the test against other similar students - that is, other students who havebeen flagged as economically disadvantaged.

95. However, upon information and belief, this single flag does not take into accountthe likelihood that students whose families participate in mUltiple progran1s may have much greater

economic disadvantages than those whose families participate injust one need-based program. Ifone economic or social stressor affecting a student's performance, but outside of the teacher'scontrol, is accounted for and it properly should be then the presence ofmUltiple stressors shouldalso be accounted for in order to ensure that a student's performance is actually being judged againstthat of other similar students.

96. Upon information and belief, the failure to take account of the severity of economicdisadvantage would only affect teachers, like plaintiffs, who teach in high-needs classrooms wherethere are many more students who are severely disadvantaged economically, and whose familiesparticipate in mUltiple need-based programs, compared to teachers in more affluent districts.

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97. Upon information and belief, another deficiency in the growth model is that the listof indicators of economic disadvantage in the growth model omits other family characteristics thatare also likely to drive low student performance, such as homelessness and child abuse, and, whenpresent in an impoverished community, factors such as incarceration ofa parent, divorce and healthproblems that are serious but not serious enough to result in eligibility for S.S.I.

98. For all these reasons, it is clear that the plaintiffs who were subject to the grovvthmodel in 2012-13 were not evaluated in the context of students similar to those in their classes,in violation ofthe APPR law, and that defendants breached their obligation to account for factorsoutside teachers' control in evaluating them.

99. FUl1her, the low REDI ratings of these plaintiffs in relation to state averages andaverages in nearby districts show that SED s purpo11ed eff0l1s to account for student poverty andother factors bcyond a teacher's control were insufficient, arbitrary and capricious.

100. In addition, upon information and belief, the methods in the growth model for taking

poverty factors into account were never subjected to notice, comment, and other requirements ofArticle 2 of SAP A, the Executive Law, and the New York State Constitution.

101. Upon information and belief, other than adopting the regulation stating that studentgro\vth percentiles would take student poverty into consideration (8NYCRR 30-2.2(r)), the Boardof Regents has not promulgated nor approved any particular method by which economicdisadvantage is10 be taken into consideration, nor has it approved any additional factors adoptedby the commissioner as referenced in its APPR lUle making; rather, AIR and SED mercly creatednew lUles.

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102. The methods in the AIR Technical Report for taking poverty (economic disadvantage)into account in calculating teachers' growth scores constitute a rule as defined in the StateAdministrative Procedure Act (SAPA).

ii Plainti(jS Subjectto Other Comparablelvfeasures (Student Learning Objectives)103. All plaintiffs except those who teach ELA and Math 4-8 received a score for the first

20% calculated according to "SLOs".104. 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 onlinefiling with SED or APPR plans), and in SED guidance.

105. In determining the SLOs for individual students in teachers' classrooms, districtscould not take into account student poverty except in this limited way: "[t]he only adjustments thata district or BOCES can consider for Student Learning Objectives for growth are those also used inState-provided growth measures, which include students with disabilities, English language learners,students in poverty, and prior academic history (see Question Dl). Guidance (Exhibit K at 45,D22, emphasis added).

106. The only means identified by SED for school districts to make adjustments inteachers' SLO scores for student poverty was the option to "assign additional points to a teacher orprincipal'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 itimpossible to receive a rating of 'ineffective'," Guidance, Exhibit K , p 76 ("E6" and "E7").

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107. SED s limitations on consideration of student poveliy factors in SLOs did not ensurethat teachers would be evaluated in the context of students similar to those in their classes.

108. SED s refusal to allow any accounting for student poverty and related factors beyondpossible addition of a maximum of two points was also arbitrary and capricious, in that the statedrationale, that the limitation was necessary so that it would be possible for a teacher to receive arating of ineffective on the other comparable measures subcomponent, was baseless.

109. Specifically, SED s reference to the possibility of receiving a rating of ineffective,presumably derives from Section 30 12-c(2)G)(i), which provides that APPR plans must be fashionedso that it is possible for a teacher . . . to obtain each point in the applicable scoring ranges, includingzero. That section of the APPR law cannot serve as a rationale for SED's directives in theguidance, since the guidance does allow for points for poverty to be added, which would presumablymake it not possible to receive a zero.

110. Moreover, SED should have but did not require school districts to make allowances

for student poverty-related factors in the development of SLOs.111. SED s invalid rationale, and failure to require a meaningful accounting for student

poverty and related factors in the SLO process, violated its duty to ensure that the process is fair andequitable.

In addition, the way SED acted to account for student poverty in the SLOs (e.g., thetwo point limit) was invalid because it was in effect a rule that was imposed without Board ofRegents action, i.e., without notice, comment or other requirement ofSAP A Article 2, the ExecutiveLaw, and the New York State Constitution.

113. For all these reasons, it is clear that plaintiffs subject to SLOs in 2012-13 were not

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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, inevaluating them.

114. Further, the low BEDI ratings of these plaintiffs in relation to state averages andaverages in nearby districts show that SED s purported efforts to account for student poverty andother factors beyond a teacher's control were insufficient, arbitrary and capricious.

S AND FOR A FIRST CAUSE OF ACTIONAGAINST THE STATE DEFENDANTS

115. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 1through 114 as if fully set forth herein.

116. A central purpose of the enactment of Education Law 3012-c was to create aStatewide teacher evaluation system that would be both comprehensive and fair.

117. In the APPR law, the Legislature conferred upon the defendants specificresponsibility 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 formulatingthe process by which points are assigned and scoring ranges are set, for the first 20% subcomponentofthe APPR (for plaintiffs who were teachers ofELA and/or Math in grades 4-8, that subcomponentscore was based on the grovv1h score generated from standardized state assessments, and for all otherplaintiffs, from Student Learning Objectives, or SLOs).

118. Defendants were also required by the APPR law to ensure that the first 20%subcomponent for teachers subject to both the standardized assessments and SLOs, be based on acomparison of a given teacher 's students and other similar students. (Section 3012-c(2)(a)(3)(AD .

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119. All actions taken by the defendants in implementing the APPR law, includingenactment o regulations and issuance o guidance for school districts to follow, were subject to thecentral purpose o the law, o creating a teacher evaluation system that is both comprehensive andfair.

120. The defendants have violated Section 3012-c and have acted in an arbitrary,capricious and otherwise unlawful manner, in that they have for the 201 13 school year:

a. Developed and implemented a grovvth model with their contractor AIR that failsto fairly and reason,ably take into account the factors relating to poverty which areoutside o a teacher's control, including use o proficiency testing that does notmeasure growth for students who are achieving well below grade level, failing todifferentiate between students who have only one poverty-related characteristic andthose with multiple such characteristics when determining the group o similarstudents with whom plaintiffs' students are being compared in order to generate theteacher's grmvth score, and in basing the determination o who are similar studentsupon data that is provided by school districts and which therefore cannot be deemeduniformly complete or accurate,

b, Placed arbitrary restrictions on the adjustments for student poverty-related factorsthat were pem1itted to be made by school districts in the other comparablemeasures (SLO) subcomponent, and failed to require school districts to make anysuch adjustment whatsoever, thereby failing to ensure that SLOs be based on acomparison with similar students.

c. Failed to account for the effects o low school district wealth on plaintiffs' scores forthe state assessments or other comparable measures subcomponent.

121. By their arbitrary, capricious and unlawful actions as aforesaid, defendants havecaused plaintiffs to receive composite scores and HEDI ratings that are invalid and are lower thanthey would have been had defendants complied with law including Education Law 30I2-c, inaccounting for student-poverty related factors and low district wealth.

AS AND OR A SECOND CAUSE O ACTIONAGAINST THE STATE DEFENDANTS

122. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 130


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through 121 as if fully set forth herein.123. Student poverty is a factor beyond the teacher's control, that is associated with low

student test scores, which can then unfairly and adversely affect the teacher's subcomponent scoresin the 20% based on state assessments or comparable measures.

124. Defendants intentionally undertook to include adjustments in the APPR process toneutralize the unfair effects of student poverty on teacher APPR scores.

125. As described in paragraph ]21 (a-c) above, the actions of defendants and theircontractor AIR in developing and implementing these adjustments were arbitrary, capricious and

ineffectual, and bore no rational relationship to the goal ofneutralizing the unfair effects of studentpoverty on teacher APPR scores.

126. By their actions as aforesaid, defendants have caused plaintiffs to receive compositescores and HEDI ratings that are invalid and are lower than they would have been had defendantscomplied with law including Education Law 301 in accounting for student-poverty relatedfactors.

AS AND FOR A THIRD CAUSE O ACTIONAGAINST THE STATE DEFENDANTS

127. Plaintiffs repeat and reallege each and every allegation set f011h in paragraphs '']''through 126 as iffully set forth herein.

128. Defendants SED and Board of Regents are subject to the provisions of ArticleSection 8 ofthe New York State Constitution, the State Administrative Procedure Act ( SAPA ),and 102 of the Executive Law.

129. According to the State Constitution, [n]o rule or regulation made by anv statedepartment, board, bureau, officer, authority or commission, except as relates to the organization orinternal management ofa state department, board, bureau, officer, authority or commission shall be

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effective until filed in the office of the department of state. N. Y.Con. Art. 4, 8 (emphasis added).130. SAPA requires that all rules be promulgated only after the procedures set forth in

Article 2 thereof.13l. According to the Executive Law, [nlo code. rule or regulation shall become

effective until it is filed with the secretary of state. Executive Law 102 (emphasis added).132. The methodology that defendants SED and Board of Regents used to account for

poverty in determining student growth is a rule.133. This methodology was not filed with the Department of State, nor was it subjected

to the procedures of SAP A Article 2.134. Through the foregoing conduct, defendants SED and Board of Regents are in

violation of the State Constitution, SAPA, and the Executive Law.AS AND FOR A FOURTH CAUSE OF ACTION

AGAINST THE STATE DEFENDANTS135. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 1

through 134 as if fully set forth herein.136. The Fourteenth Amendment to the U.S. Constitution, and Article 1, 11 of the New

Yark State Constitution entitle plaintiffs to equal protection under the law.1 Defendants' actions with regard to the APPR law as described in the First and Second

Causes of Action, without rational or compelling basis, arbitrarily and unequally classify teachersworking in districts with high poverty with respect to teachers in other districts without high levelsofpoverty.

138. Defendants' actions with regard to the APPR law as aforesaid, single out anddisadvantage plaintiffs as teachers working in districts with high poverty by diminishing plaintiffs'

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overall ( composite) PPR scores and their HEDI ratings because of their students' level of poverty,whereas neither these provisions of the PPR law nor defendants' implementation ofthe PPR lawtreat teachers who work in school districts without high levels of poverty in such manner.

139. Defendants ' actions wi th regard to the PPR law as aforesaid, violate plaintiffs' rightto equal protection under the law, in violation of the U.S. and New York State Constitutions.

WHEREFORE, plaintiffs respectfully request that this Couli:a Order that plaintiffs be permitted to maintain this hybrid action and Article 78

proceeding as a class;

b Declare that the state defendants by their actions have violated Education Law 30 1c, have violated the rights of plaintiffs under the Equal protection guarantees of the FourteenthAmendment of the U.S. Constitution and Article I, of theNew York State Constitution and haveacted in an arbitrary, capricious and unlawful maImer;

c, Declare that the final PPR ratings of plaintiffs for the 2012-13 school year areinvalid, void and without legal effect;

d Direct the defendants to annul the final PPR ratings of plaintiffs for the 2012-13school year;

e Permanently enjoin the defendants from taking any adverse employment actionagainst plaintiffs based on their final ratings for the 201 13 school year;

f Order that any necessary disclosure be had pursuant to CPLR 408;g Order the trial ofany triable issues offact raised in the Article 78 proceeding pursuant

to CPLR 7804(h); and

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h. Order such other, further and different relief as the Court may deem just and proper,together with reasonable costs, and attorneys fees pursuant to 42 USC 1988.DATED: March 4, 2014

Latham, New York Respectfully submitted,RICHARD E. CASAGRANDE, ESQ.Attorney for Plaintiffs/Petitioners800 Troy-Schenectady RoadLatham, New York 12110-2455Telephone: (518) 213-6000

}By: //~ .. c c .

D. BILIK, ESQ.f Counsel

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STATE OF NEW YORKSUPREME COURT COUNTY OF ALBANY

ADAM URBANSKI, as President, ROCHESTER TEACHERSASSOCIATION; t at on behalf of themselves and as representativesof a class of all other persons similarly situated,

Plaintiffs/Petitioners,ATTORcl\JEY'S

-against- VERIFICA TIONJOHN B. KING, JR., as Commissioner of the New YorkState Education Department; BOARD OF REGENTS OFTHE UNIVERSITY OF THE STATE OF N W YORK;and N W YORK STATE EDUCATION DEPARTMENT,


ROCHESTER CITY SCHOOL DISTRICT, BOARD OF EDUCATIONOF THE ROCHESTER CITY SCHOOL DISTRICT, and DR. BOLGENVARGAS, IN HIS CAPACITY as Superintendent of theRochester City School District,

Necessary P31iy Defendants/Respondents.STATE OF NEW YORK )

)ss.:COUNTY OF ALBANY )

JAMES D BILIK, being duly sworn, deposes and says that he is of Counsel to RichardCasagrande, Esq., attorney for the Plaintiffs/Petitioners in the above proceeding, that deponent hasread the toregoing Complaint/Petition and knows the contents thereof; and the same is true todeponent 's own knowledge, except as to the matters therein stated to be alleged on information andbelief and as to those matters, deponent believes to be true. The basis of deponent's knowledge ast matters alleged upon information and beliefis conversations with Plaintiffs/Petitioners and reviewof documents and correspondence supplied by Plaintiffs/Petitioners and their representatives.

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The reason this Verification is made by deponent and not by Plaintiffs/Petitioners is that thePlaintiffs/petitioners are not located within the County ofAlbany, the county in which deponent hashis office.

JAMES D. BILIKSworn to me before this

day of March, 2014

GINA ROBINSONNotary Public, State of New YorkNo. 01 R06138977Qualified in Schenectady o u n t ~ _Commission Expires 12/ .:.:-;\ 1-

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rta complaint

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