Lisa Eggert Litvin, a lawyer in the northern suburbs outside New York City, asserts persuasively that the New York State Education Department issued regulations for teacher and principal evaluations in an illegal manner, by declaring an “emergency” and failing to meet the requirements of state law.

I call this post “Note to Bruce Lederman,” because he is the lawyer who is challenging the legitimacy and validity of the state teacher evaluation program on behalf of his wife, teacher Sheri Lederman; if he doesn’t know already, he should be aware that the program was imposed without meeting the requirements of state law.

Litvin is co-president of the Hastings on Hudson PTSA and co-chair of the New York Suburban Consortium for Public Education. She follows the actions of the State Education Department and is an expert on school finance.

She writes:

The state Education Department, with the approval of the Board of Regents, creates rules that school districts legally have to follow. But in doing so, the department has failed to follow the laws that tell it how to make these rules.

Over the past two years, the majority of the Education Department’s rules have been temporary “emergency” rules, which then become permanent — but the vast bulk of these rules haven’t been real emergencies at all. Typically, SED’s reason for the “emergency” is simply that it has run out of time to get something done, and following the legal requirements would take too long. So, SED fast tracks the rules’ adoption process by improperly labeling them as “emergency.” But the law is specific that an “emergency” is rare, and exists only when “necessary for the preservation of the public health, safety or general welfare,” not simply because something is time-sensitive.

Why is this important? Because the legal process for SED to make rules, set forth in the State Administrative Procedure Act, ensures that the public has a right to offer input before rules are finalized, typically in a 45-day window. Also, SED must respond to each of the public’s comments. This is central to our democracy, as this is the only voice the public has in situations where non-elected officials, like the Board of Regents and the Education Department, which the board oversees, make binding rules.

This past June, in response to an impending deadline set by the state Legislature, SED proposed and the Board of Regents adopted new teacher evaluation rules, on an “emergency” basis. There was tremendous outcry over these rules, as they arbitrarily place even more weight on standardized test scores than the prior plan, apparently with no supporting research. Over 25,000 New Yorkers — including many of the state’s most well respected educators — signed a petition urging that the new evaluation plan not be rushed. They called instead for the state to work hand-in-hand with experts on testing and psychometrics to create a thoughtful, well reasoned and research-based plan that would accurately assess teachers, and not harm children’s educations. (Prior plans have not been supported by experts, and have shown erratic and unreliable results.)

The Board of Regents, which is supposed to set state education policy, and SED could have sought an extension to the Legislature’s deadline or presented an alternative vision for creating a better evaluation system. Instead, SED claimed “emergency” — a designation reserved for the “preservation of the general welfare,” even though it was clear that there was no such threat — and pushed the rules through, without any opportunity for public give and take. For this reason, those emergency evaluation rules should be declared invalid.

In its follow-up efforts to make the emergency teacher evaluation rules permanent, SED still continues to disregard the law. The law requires that SED provide the public with critical information about how the rules were created, specifically identifying for the public “each scientific or statistical study, report or analysis that served as the basis for the rule … and the name of the person that produced each study, report or analysis.”

In short, the “emergency” rules were adopted when there was no emergency; public hearings were avoided; and the state continues to break the law by making its “emergency” mandates permanent without public input.

Litvin calls on the Board of Regents and the State Education Department to stop declaring phony “emergencies” and to provide the factual information required by law. It is time, she says, for the new commissioner of education to demonstrate her willingness to consult with experts and practitioners in a collaborative and transparent manner. She should immediately suspend the new evaluation rules and turn to recognized experts to produce a research-based plan. The “emergency” rule-making evades the law and offends democracy by cutting the public out of its role in reviewing policy. Litvin calls for the restoration of a transparent, democratic, open process.