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Provision may save school receivership law even as reformers fear its demise

Most people agree struggling school systems need to take steps to improve educational outcomes for students, and that’s just what the creators of the state’s receivership law hoped it would accomplish.

But after a lawsuit challenging the statute was filed Tuesday in State Supreme Court, those on both sides of education’s ideological divide took unexpected positions, with some reformers questioning whether the law will stand up in court since its key components seem to contradict existing state and federal laws – including New York’s Taylor Law and its Triborough Amendment – that dictate workers rights for bargaining contracts.

“One wonders if this new legislation may be nothing more than the ‘emperor’s new clothes,’ as it appears that the legislature had no intent to revise, amend or in any way alter the provisions of the Taylor Law and its Triborough amendment,” attorney Steve Polowitz, who has been active in Buffalo’s school reform movement, wrote in a cautionary memo when the legislation was passed last year.

The Buffalo Teachers Federation and its parent union, the New York State United Teachers, filed the long-awaited complaint Tuesday, arguing the law denies teachers their collective bargaining rights by allowing the state education commissioner to impose reforms that override contract terms. That’s what is happening in Buffalo, where failed attempts to negotiate plans for 20 receivership schools led Education Commissioner MaryEllen Elia to grant Superintendent Kriner Cash power to make certain contractual changes without union consent.

Even some likely supporters, including reform-minded School Board Member Carl Paladino, have said the law will not survive the court challenge, sending educators and politicians alike back to the drawing board.

Polowitz agreed on Tuesday.

“This simply puts us back where we started, with no real effective or significant tools to address the worst of Buffalo’s failing schools, the ones that have been failing for years, the ones that have been designated as failing under a number of different evaluation regimes over the years,” Polowitz said.

Yet some usual critics of reform said the law’s breadth could result in the statute – or at least key parts of it – being preserved.

New York courts have been inconsistent in their rulings on whether subsequent laws can overrule the state’s long-standing Taylor Law. Often times, it depends whether the creators of a subsequent law and accompanying guidelines specifically note that its provisions take precedent over an existing law, as has been done with the receivership statute.

“This is a very tricky situation in how it can work,” said Lee Adler, a labor law professor at Cornell University who also handles contract negotiations on behalf of unions. “There’s this question of successive legislation. In times past, New York courts have both acknowledged the Taylor Law’s influence, but also ruled it doesn’t have as much impact.”

“This is a very important case for the union,” he added.

While targeting the abrogation of contracts, the lawsuit also takes aim at a number of other components of receivership, including its framework, how the state Education Department implemented it, Elia’s apparent bias toward the district and the use of test scores that have since been deemed unreliable by a state task force.

The legal challenge argues that the state developed the receivership law based on the federal No Child Left Behind Act, which has since expired.

It also raises the question of how the Education Department can use test scores that a state task force deemed unreliable to place schools in the hands of a receiver, who can then make changes without the approval of the school board or teachers union.

That vast scope could ultimately give the judge an opportunity to rule in a way that preserves the law as a whole and Cash’s plans, said David C. Bloomfield, a professor of education leadership at Brooklyn College and the City University of New York Graduate Center, who also has applied for a seat on the Board of Regents.

“The breadth of the lawsuit, attacking the receivership statute on its face and as applied, will give the court the ability to either render a broad decision or one that picks and chooses among its separate provisions, leaving the law and Superintendent Cash’s plan largely intact,” said Bloomfield, often a critic of reform efforts.

The lawsuit asks a judge to nullify Elia’s decision, essentially striking one of the core tenets of the law and affecting how it is implemented not only in Buffalo but in 16 other districts with schools in receivership. Should that happen, changes at those schools – such as extending the school day, requiring training and making staff changes – could come to a standstill until the issue works its way through the courts.

“This is huge,” said BTF President Philip Rumore. “It’s not about our contract. It’s about a superintendent and a commissioner making decisions without having to negotiate them.”

Meanwhile, NYSUT is also lobbying the State Legislature and Board of Regents to change the law and accompanying guidelines.

The lawsuit, and the receivership statute itself, follow decades of trouble for some of the state’s largest school systems, which by most measures have failed to show meaningful gains in student performance, their efforts dogged by politics, shifting expectations and a growing ideological divide about the direction of education. Schools that have consistently failed to meet state standards for a prolonged period of time now find themselves in receivership, and could ultimately be turned over to an outside entity.

In few places have the problems – and politics – been as bad as in Buffalo, which is second only to much-larger New York City in the number of schools in receivership and at risk of an outside takeover. Buffalo has the greatest percentage of schools – about 45 percent – in receivership.

“The schools that we’re talking about certainly have been in dire straits for a long time,” Elia said in an interview last year. “I don’t think we can say this is all related to one assessment. In Buffalo, we can’t go another generation with these schools failing.”

Even similarly sized Rochester has half as many receivership schools, although that district typically fares worse on state standardized tests and by graduation measures. That’s largely because, in recent years, Rochester officials have been more aggressive in closing schools deemed failing by the state and replacing them with new models, which by and large have not been any more successful.

Buffalo, meanwhile, has been reluctant to take that course, resulting in the vast majority of schools that remain in bad standing with the state and 25 now facing a takeover if they don’t improve quickly.

Test scores aside, a litany of other measures suggest the Buffalo Public Schools do not set students up for success.

About one in five students drops out of high school. Those who do graduate and go on to college need remedial coursework, which research suggests makes it more likely they will not finish. One data set shows that young students’ abilities actually decline the longer they remain in the system.

Past leaders who attempted to address these issues have run into opposition from School Board members and the union, who argue the solution lies in more support to help students cope with the issues they face outside of school – not dramatically upsetting what happens in the classroom.

“Buffalo’s teachers are dedicated professionals who work with some of our state’s neediest students,” said NYSUT President Karen E. Magee. “Day in and day out, they are on the front line, helping children overcome numerous societal obstacles so they have the chance to succeed. When it comes to enhancing our schools, it is critical that the voice of our teachers is heard.”

Although district and state leaders declined to comment specifically on the litigation, both Cash and Elia have previously insisted that the flexibility granted in the receivership law is essential to make changes – such as lengthening the school day and replacing staff – that will help improve student performance. Too often, they have said, progress is hampered by stringent union contract terms, such as those in the Buffalo Teachers Federation contract, which expired more than a decade ago.

Now, whether Cash can make – and maintain – those changes lies in the hands of a judge.

“We don’t know how long anything will last,” Cash said in an interview last year. “What I do know is that children, families and the entire economic health of this region are depending on us at this point, and depending on my leadership.”