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Schools fight fund cutoff; District officials question state action at hearing in Albany

Buffalo school officials argued at a state Education Department hearing Thursday that the department was arbitrary and capricious in deciding to withhold $5.6 million in federal grants from the district over its teacher evaluation plan.

The department cited several problems in various versions of the plan that Buffalo had submitted, detailing the flaws and emphasizing the amount of time state officials spent assisting Buffalo as it developed its plan.

Since state Education Commissioner John B. King Jr. rejected Buffalo's teacher evaluation plan in January, the district has submitted three formal revisions, along with several informal revisions. Each time, the state found new problems with the plan, district officials said.

"[State Education Department] feedback as to what would be necessary for approval could only be described as arbitrary," said Christopher Putrino, general counsel for the Buffalo Public Schools.

Thursday's hearing was the first time in New York that any district that had lost its school improvement grants challenged the legality of the state's decision to pull the funds.

Sharon Cates-Williams, the associate commissioner who acted as impartial hearing officer, said King would issue a written decision around the end of May.

During questioning by Louise DeCandia, the attorney representing the state Education Department, Anita Murphy, an associate education commissioner, acknowledged that state officials identified a problem with the evaluation plan in late March that they had failed to identify in previous versions. The problem related to the district's plan for adjusting how it awarded points for teachers in schools with severe student attendance issues.

"We missed it," Murphy said. "The attendance issue became what everyone was discussing."

She also acknowledged that the state initially told Buffalo officials that the teacher evaluation plan could not include any provision adjusting expectations in schools with major student absentee problems. But later, state officials decided allowances could be made, as long as every student was counted.

"It's in the local provision. The local portion is negotiated locally, and therefore an attendance provision is allowable," Murphy said. "But regulations clearly state you can't discount children. It needs to take all kids into account."

The district's plan submitted in late March also omitted several possible point configurations in one section relating to high school teachers. For instance, it did not spell out how teachers could get 13 out of 20 points in one section. Murphy said the law requires that every possible point be articulated.

Later in the hearing, when Buffalo called its witnesses, Associate Superintendent Debra Sykes conceded that one of the charts omitted certain point scores for high school teachers.

If a teacher earned 80 out of 80 other possible points in their evaluation, there was no mathematical way they could score an 86, 87, 89, 90, 92, 93, 95, 96, 98 or 99, Sykes said. "By having a few numbers missing, you could not get an 86 or 87. You could get an 88," she said.

The hearing struck a contentious note when Putrino questioned Murphy about one portion of the agreement that she interpreted as applying to the section that followed it. He cut her off in the middle of her explanation, saying, "Do you read books backwards?"

The state also called Assistant Commissioners Ira Schwartz and Sally Bachofer and Regents research fellow Amy McIntosh to testify on the extent of the guidance the state provided Buffalo over the past few months, as well as specific problems that were found in Buffalo's evaluation plan.

McIntosh contradicted testimony Murphy had given about whether the attendance provision could be applied to the state growth measure for some teachers this year.

Buffalo officials argued that the state kept raising the bar for the evaluation plan, consistently requiring more and more specificity.

Interim Superintendent Amber M. Dixon said the district complied in December with what it had agreed to do a year ago as a condition of receiving the funds. The district provided the state with documentation that district and union officials agreed to amend contracts to implement new principal and teacher evaluations.

Putrino asked Schwartz to clarify exactly what Buffalo had agreed to a year ago, when the district applied for the grant.

"You didn't really require that there be an agreement between the district and the union, did you?" Putrino asked.

"We required there be this commitment to enter into such agreements and provide evidence they had been entered into no later than Jan. 1," Schwartz said.

The state, Dixon said, for the past five months kept raising its expectations of what local officials had to provide. "Their requirements became more and more specific and started encompassing the entirety of an evaluation plan," she said. "It went from providing evidence to providing the plan."

Thursday's hearing had been scheduled for Feb. 22, but it was rescheduled several times. Buffalo's final opportunity to submit an approvable teacher evaluation plan was 5 p.m. Tuesday.

The district submitted a plan that several state officials, during their testimony, confirmed would be approved -- if Buffalo Teachers Federation President Philip Rumore were to sign it. He has said repeatedly that teachers will not approve any plan at this point, because they believe no matter what the district submits, the state will find fault with it.

"The teachers have become disillusioned with [the state Education Department]," Putrino said at the hearing. "No longer would Buffalo be able to coax the BTF to agree to any additional changes."

Buffalo Schools Chief Financial Officer Barbara J. Smith said 70 to 80 full-time positions are funded by the grant, but she added that at this point in the school year, layoffs are not being considered. "It is April. We do not believe it is in best interest of students to lay off employees at this point," she said.

The district has curtailed spending in other budget lines to compensate for the loss of grant funds, she said, and will dip into reserves if necessary.

Meanwhile, Mayor Byron W. Brown met Thursday in a closed session at City Hall with members of the District Parent Coordinating Council and other student advocates who enlisted his help to restore state funding. He said he will try to meet with King, who is to be in Buffalo today for the New York State United Teachers conference.