Did Chancellor Tisch Violate the Law and Hijack Public Education Policy?

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On December 18th, just days after the Board of Regents held their last meeting of 2014, Director of State Operations Jim Malatras penned a letter on behalf of Governor Cuomo. Addressed to the NYS Board of Regents Chancellor Merryl Tisch and NYS Commissioner of Education John King, the letter posed a series of pointed questions regarding teacher evaluation and education policy. The Chancellor’s response to this letter would later become the basis for the sweeping and damaging education reforms attached to the 2015 budget by the Governor and voted into law several weeks later.

On December 31st, 2014, Chancellor Merryl Tisch responded to Jim Malatras and the Governor with a twenty-page letter co-signed by Elizabeth Berlin as “Acting Commissioner of Education” although her tenure in this position would not begin for several days. In her response, Chancellor Tisch outlined recommendations that the Governor eliminate the use of locally selected measures in teacher evaluations in favor of a significant increase on the reliance on state test scores, increase the powers of the state to close struggling schools and implement a receivership model, maintain Mayoral control in NYC, implement financial incentives for high performing teachers, and increase the teacher probationary period from 3 to 5 years.

Chancellor Tisch began her response by writing, “The Board of Regents agrees that one of the State’s most important obligations is educating our children” and “…the Board of Regents and the State Education Department (“SED” or “the Department”) appreciate the opportunity to opine on the issues raised in your letter…”

It seems clear that Chancellor Tisch made the reasonable presumption that a letter addressed to the leader of a democratically elected, 17 member board tasked with overseeing public education in NYS sought the input of the entire Board of Regents, not private citizen Merryl Tisch. This presumption is also evidenced by Chancellor Tisch’s use of Board of Regents letterhead and the inclusion of her letter on the NYS Department of Education’s website.

Given the serious nature of the questions posed by the Governor (who only months before characterized public education as a “monopoly” that he vowed to break) and the jarring recommendations contained in Tisch’s response, one might presume that the Chancellor had consulted with her fellow Regents before responding on their behalf.

However, in keeping with what seems to be a pattern of blatant disregard for transparency, the principles of democracy and the concerns of the public, it appears that Chancellor Tisch failed to confer with her fellow Regents when crafting her response and recommendations on their behalf, recommendations made devoid of any basis in research or scholarship and without any chance for public input or debate. To date, there is not a single mention of the Jim Malatras’ December 18th letter or Chancellor Tisch’s December 31st response in ANY Board of Regents agenda or meeting summary.

This raises some troubling questions. Did Chancellor Tisch violate the procedural rules that govern the Board of Regents? And even more troubling, did the Chancellor violate open meeting laws stipulated in Article 7 of the Public Officer’s Law which state:

“It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.”

This apparent violation of the public trust is underscored by the fact that Chancellor Tisch’s response to Jim Malatras and the Governor is directly linked to the crafting of the disastrous legislation that followed. During his state of the state address on January 21st, 2015, Governor Cuomo stated, “We asked the State Department of Education for their ideas and they gave us their feedback and we accept their recommendation” and in a letter to Chancellor Tisch dated February 12th, 2015, Jim Malatras wrote that “…the Governor adopted your recommendation and proposed a law based on the Massachusetts receivership model.”

Although Chancellor Tisch speaks from the perspective of “The Board” several times in her letter, Tisch expressed to the media that her letter was not meant to represent the positions of the entire Board of Regents. Chancellor Tisch is quoted as saying; “I was asked a set of very direct questions…The letter was directed to me.” You can read that here.

Yet despite claims that she responded as an individual, Chancellor Tisch ended her twenty-page response with the following, “As we continue our work to ensure that all students in New York State graduate from high school ready for college and careers, we look forward to continuing this critical dialogue with you and with our stakeholders across the State.” Who is the “our” and the “we”? Certainly not the letter’s co-signer, the not yet instated Acting Commissioner of Education Elizabeth Berlin. And when did any dialogue on the recommendations made on behalf of the Board of Regents take place?

Considering that the Board of Regents is tasked with the oversight of local boards of education and has even issued an informational pamphlet entitled Statement on the Governance Role of a Trustee or Board Member to assist board members in exercising their responsibilities, the Chancellor’s breach of protocol is astounding. According to the NYS School Board Association’s guidance on School District Obligations Under the Open Meetings Law, “Local board of education members in New york State are advised to clearly distinguish their personal views from those of the board they represent” and cautions that “absent a specific delegation of authority by the school board to act as the representative of the board for a particular purpose, individual board members have no greater rights or authority than any other qualified voter of the district.”

Despite hundreds of thousands of letters, emails and phone calls from parents, despite dozens of rallies and forums protesting the over-emphasis on state test scores and decrying the harmful effects on our children, despite a massive test refusal movement, despite overwhelming evidence that test-based accountability systems do not lead to increased academic achievement, and despite the fact that the achievement gap for students in poverty, students of color and students with disabilities has widened since the implementation of Common Core state assessments, Chancellor Tisch usurped the voice of her fellow board members and instructed the Governor to double down on the misuse of these flawed tests.

Chancellor Tisch’s disregard for the concerns of parents and her attempts to steer public education outside of the democratic process must end. The Chancellor must step down and make room for those who will lead with integrity and protect our children from a political agenda that renders them collateral damage. Failing Chancellor Tisch’s willingness to step down, her fellow Regents and members of the Legislature must call for her to be stripped of her Chancellorship and for an immediate inquiry into the ethics and legality of her actions.

The children of New York deserve better.

 

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