ADVOCATES FOR JUSTICE A Public Interest Organization Elizabeth Turner 225 Broadway, Suite 1902 New York, NY 10007 Executive Director Arthur Z. Schwartz, Esq. TEL: 212-285-1400 FAX: 212-285-1410 Lead Attorney President, Board of Directors Laura D. Barbieri, Esq. info@advocatesforjustice.net Of Counsel Yuqing Tian, Esq. Staff Attorney October 10, 2017 By UPS Overnight By fax: (518) 320-1541 By email: joseph.porter@suny.edu Joseph Porter Senior Vice Chancellor for Legal Affairs and General Counsel State University of New York System Administration State University Plaza 353 Broadway, 3rd Floor Albany, NY 12246 Dear Vice Chancellor Porter: We write to note our intention, as counsel to the Alliance for Quality Education ("AQE"), to seek an injunction should the SUNY Charter Committee proceed to adopt its new rules concerning teacher certification without issuance of a Notice of Revised Rulemaking and a new comment period. We need not repeat what Bill Easton laid out in his letter (attached); the five major changes in the proposed rule "materially alter the purposes, meaning and effect of the Rule." The statute speaks in the alternative and there is no question what while the purpose may be similar, the effect is not. See Motor Vehicle Mfrs. Assn. of U.S., Inc. v. Jorling, 152 Misc.2d 405 (Sup. Ct. Albany County 1991), a.ff'd 181 A.D.23d 83 (3d Dept. 1992). Of critical importance, we believe, is the extreme reduction in the hours of field experience needed to license prospective teachers, Special Ed teachers, and ESL teachers. These changes could not have been anticipated by anyone reading the initial proposed rule. These are not mere clarifications. ADVOCATES FOR JUSTICE A Public Interest Organization Joseph Porter October 10, 2017 Page2 Please advise us, as soon as possible, how the Charter School Committee intends to proceed, so that we can address their action in court, should the need arise. Very truly yours, AZS:dr Encl. cc: Bill Easton Eric Schneiderman, Attorney General 94 Central Avenue, Albany, New York 12206 Phone: (518) 432-5315 October 10, 2017 SUNY Board of Trustees Charter School Committee 41 State St. Albany, NY 12207 Dear SUNY Charter Schools Committee, Messrs. Belluck, Corngold, Spiro and Fatta: We are writing about the revised proposed rule regarding teacher certification requirements for teachers in certain charter schools and we ask that a Notice of Revised Rulemaking be issued, along with a new comment period. (We also note that it's possible that the posted agenda is unclear and that it is in fact your intention to proceed with this notice and new comment period.) As reported yesterday in Cha/kbeat, SUNY Charter Schools Committee Chairman Belluck stated, "We appreciated all of the comments we received and we made significant changes based on those comments." 1 "Significant changes" by law require a new public notice and comment period. The revisions "materially alter the purpose, meaning or effect" of the rule, which under the NY State Administrative Procedure Act, places the revisions squarely in need of revised rulemaking procedures. In fact, someone who commented during the original comment period could not possibly have anticipated these new changes, and therefore couldn't comment about them -- meaning that the law requires that opportunity must now be given to allow the public to have the meaningful comment. This is at the root of the legislature's ability to delegate governance authority to non-elected bodies such as the SUNY Charter Schools Committee. This is in fact at the heart of the democratic process; any vote on these significantly revised regulations without a new public notice and comment period is a violation of the law and of the public's right to influence rulemaking. State law allows regulatory entities to alter a rule without public notice or comment if the alteration "merely defines or clarifies such text." Plainly these revisions go beyond this standard. Drastically reducing field experience generally, and further reducing field experience even more for teachers of students with disabilities and English language learners are material alterations. Changing the class of school that may apply, from any charter with a 3-year renewal to only those with 60% of schools besting their neighborhood schools on state tests radically alters the scope of the rule, and changes the pool of those who may wish to submit comments. Creating a brand new testing requirement is not merely clarifying or defining. We ask that you immediately clarify your agenda, i.e. whether you intend to abide the law's requirements and issue a Revised Notice of Rulemaking (with its additional comment period). We ask that you do indeed comply with the law by issuing a new public notice and opening a new comment period. If this is not your understanding of the law, we ask that you provide us with your understanding as to why the SUNY Charter Schools Committee is not required to follow SAPA Section 202 (4-a). To be clear, in comparing the revised version to the original version that was put out for public comment, we see a number of substantial revisions, including (though not limited to) the following: 1. The group of charters that may apply has been dramatically changed to allow only those charters where 60% of its schools that test in grades 3-8 performed better than their neighborhood peer schools; the original proposed rule was much broader, allowing any charter to participate if at least one of its schools received a renewal of 3 years or more. (700.4(b)(1)(i) 2. The required number of hours of "field experience" for the prospective teacher has been reduced by a whopping 60%, from 100 hours down to a mere 40 hours. 700.4(b)(4)(ii) 3. The number of additional field experience hours for a teacher seeking certification in special education has been cut by almost half, from 75 hours down to 40. See original version at 700.4(b)(4)(v)(c) and new version at 700.4(b)(4)(vi)(c) 4. The number of additional field experience hours for a teacher seeking certification in English for Speakers of Other Languages has been cut by almost half, from 75 hours down to 40. See original version at 700.4(b)(4)(v)(d) and new version at 700.4(b)(4)(vi)(d) 5. A completely new requirement of a test-based final assessment has been added, which can be either the State's teacher certification exam, the Education All Students test ("EAS"), or can be another similar exam that the SUNY Charter Schools Institute approves. 700.4(b)(6) Yet despite these substantial revisions, it appears that the SUNY Charter Schools Committee is preparing to vote on adoption of this revision, without providing a Notice of Revised Rulemaking and an additional public comment period, as required by law. We understand that this is the Committee's first attempt at rulemaking (we believe, and feel free to correct), and we provide some law below to help explain the required procedures. The NY State Administrative Procedure Act ("SAPA") Section 202 (4-a) requires that "an agency shall submit a notice of revised rule making to the secretary of state for publication in the state register for any proposed rule which contains a substantial revision. The public shall be afforded an opportunity to submit comments on the revised text of a proposed rule." http://iaw.onecle.com/new-york/state-administrative-procedureact/SAP0202 202.htmi. SAPA Section 102(9) defines "Substantial revision" as "any addition, deletion or other change in the text of a rule proposed for adoption, which materially alters its purpose, meaning or effect, but shall not include any change which merely defines or clarifies such text and does not materially alter its purpose, meaning or effect. To determine if the revised text of a proposed rule contains a substantial revision, the revised text shall be compared to the text of the rule for which a notice of proposed rule making was published in the state register; provided, however, if a notice of revised rule making was previously published in the state register, the revised text shall be compared to the revised text for which the most recent notice of revised rule making was published." http://law.onecle.com/new-york/state-administrative-procedureact/SAP01 02 102.htm! (See also Department of State, Division of Administrative Rules, which explain "substantial revision" as follows: "A substantial revision is any addition, deletion or other change in the text of a rule proposed for adoption which materially alters its purpose, meaning or effect. This does not include changes which merely define or clarify text." https://www.dos.ny.gov/infolrulemakingmanual.html#chap2 (see chapter 2)). In sum, it is necessary that public notice and comment be provided for the newly revised proposed regulations and that a vote without such notice and comment would be a violation of the law. Please respond immediately with your intentions regarding public notice, comment and voting. I can be reached at beaston@aqeny.org or at the address and phone number on this letterhead. Sincerely yours, Billy Easton Executive Director 'https:llwww. cha!kbea t. orglposts/n v/20 1711 0/08/sun v-revises-con troversia!-proposal-to!et-some-new-york-charter-schoofs-certify-their-own-teachersl