Wednesday, May 29, 2019

We file an appeal in our class size lawsuit to require NYC Department of Education to lower class size in all grades

On Thursday May 23, 2019 the Education Law Center filed an appeal on behalf of nine NYC parents, Class Size Matters and the Alliance for Quality Education, urging the Appellate court to order the Department of Education to reduce class size in all grades as the Contracts for Excellence law requires. Our original lawsuit, Agostini vs. Elia, was filed in April 2018 when the State Education Commissioner refused to take action and enforce the law.   

In December 2018, Acting Supreme Court Judge Henry Zwack ruled against us in a brief decision that engaged with neither the law or the facts of the case, and merely claimed that this was a matter for Commissioner Elia to decide.  The Commissioner in turn had argued that any class size obligations on the part of the DOE had expired years ago. Our appeal demonstrates how that view is false -- and if the Legislature wanted to eliminate DOE's legal obligation to lower class size on they would have changed the law.  Oral arguments in the case will likely occur late this summer.

The press release from ELC is here and below. -- Leonie Haimson 

The plaintiffs in a legal action to enforce a mandate to reduce class size in New York City public schools filed their brief on May 23 in an Albany appellate court. The lawsuit began in June 2017 as an administrative petition demanding that the State Commissioner of Education, MaryEllen Elia, order the NYC Schools Chancellor, the New York City Department of Education, and the New York City Board of Education to comply with the law. When the Commissioner dismissed the petition, the plaintiffs brought the case to court.
The plaintiffs in the case are nine New York City public school parents, as well as Class Size Matters and the Alliance for Quality Education, two prominent New York public school advocacy organizations. Education Law Center Senior Attorney Wendy Lecker is representing the plaintiffs.
Under a state law known as the Contract for Excellence, or "C4E," the NYC Chancellor and the Department and Board of Education are required to develop a five-year plan to reduce class size to target averages in three grade spans: K-3, 4-8, and 9-12. After the law was enacted in 2007, New York City developed a plan which was approved by the Commissioner in 2007.
The City never fulfilled the 2007 plan within five years, or by 2012. Nor has the City implemented the 2007 plan or any other plan that complies with the C4E law. As a result, class sizes now are as large or even larger than they were in 2007. Between 2007-2016, for example, the number of students in classes of 30 or more in grades 1-3 increased by 4,000% to over 40,000.
In dismissing the Petition in 2017, the Commissioner ruled that since the 2007 plan "concluded" in 2012, or five years after it was approved, the petition was moot even though the City never implemented the plan. The plaintiffs challenged the Commissioner's decision in State Supreme Court, which "deferred" to the Commissioner's interpretation of the term "within five years" in the C4E law.
The plaintiffs have now appealed to the Appellate Division. They argue that the Commissioner misinterpreted the C4E law. The five-year endpoint in the law was the deadline the Legislature imposed to accomplish class size reduction. It was not the date at which the City's legal obligation would magically disappear. Moreover, the lower court wrongly deferred to the Commissioner's interpretation of the C4E law.
"The NYC Department of Education has violated the Contract for Excellence Law for over a decade because of its refusal to reduce class size," said Leonie Haimson, Executive Director of Class Size Matters, a plaintiff in the lawsuit. "As a result, more than 336,000 students were crammed into classes of thirty or more this fall. Our thanks to the Education Law Center for representing Class Size Matters and nine NYC parent plaintiffs in this important appeal. If the Appellate Court decides on the basis of the law and the facts, it will require that NYC students finally receive their right to a sound basic education with the smaller classes they need and deserve."
"Class size is an important factor in determining whether students have the opportunity to succeed in school. Ensuring that every student has a chance to succeed is our moral duty. Following the law shouldn't be a choice. We hope the court ensures that the students of New York receive their constitutionally granted right to 'a sound basic education,'" said Marina Marcou-O'Malley, Operations and Policy Director for the Alliance for Quality Education.
Oral argument in the appeal will likely take place in the late summer.
Education Law Center Press Contact:
Sharon Krengel
Policy and Outreach Director
973-624-1815, x 24

Saturday, May 25, 2019

Warning: stand-alone field tests ahead & how you can support opt-out bills in Legislature

Note: You can send letters to your state legislators in support of the Right to Opt Out of High-stake testing bills mentioned below, Senate bill S5394 and Assembly bill A7744, with the help of NYSAPE here.  The following is by Fred Smith, testing expert, focused on the upcoming stand-alone field tests. You can see which grade in your child's school is targeted for field tests and in which subject here.

As another test-burdened school year comes to an end, we still have extra exams to give massive numbers of children.  These tests are not mandated.  Parents don’t know about them.
They are known as stand-alone field tests (SAFT) and are being given so a commercial publisher can assemble next year’s ELA and math exams. 
The testing program and the need to find out how many Level 1s, 2s, 3s, and 4s there are have become inexorable.  Only the test results are vacuous.
It’s time to sound an alarm bell about SAFT again to alert New York City public school parents about them and explain why they should exercise the right to opt their children out.
The New York State Education Department, under Commissioner MaryEllen Elia, has identified 869 schools in New York City this year to give the field tests to 91,565 students.  Here’s how the statewide and citywide picture looks.

The scope of this effort is vast.  The field tests began on May 20, when schools assigned to give computer-based tests (CBTs) could choose a day to administer them.  All schools giving CBTs are self-selected. 
The paper and pencil versions of the tests (PBTs) are due to start this coming Tuesday, May 28,and may be given on any day through June 7. These assignments are made by NYSED in conjunction with the testing company, Questar Assessment, Inc.
Since most of tests that remain to be given are paper-based, let’s focus on them.  The following chart accounts for PBT schools and targeted students in New York City:

70,648 unwitting NYC students in 698 schools are the target of the upcoming PBTs.  They have been volunteered to take them by NYSED with the complicity of City Hall and Tweed which have not let parents in on the plan. 
A chart pinpointing the schools and number of students expected to take the PBTs is linked here to lets you in on the secret.  You can look up schools and the grades that are involved in your district, find out if your children are targeted and opt them out of the field tests if you choose.  The detailed chart was posted by NYC Opt Out with this admonition about the field tests:
Computer-based stand-alone field testing starts next week, with paper testing following a week later. (Exact dates vary by school.) Check the chart to whether any grades in your school have been slated for field tests. If they have, you can: (a) ask your principal to refuse giving them--there are principals who send the boxes of field tests back unopened year after year or (b) send in a note saying you refuse to let your child participate (and let other parents know to do the same).
Why? Stand-alone field tests are a further waste of our children's time. They are not very good at determining item difficulty, plus our children are not being compensated for what is essentially product research. There are already field test items embedded in the actual spring tests.
On May 16, the Daily News ran my opinion piece about the fundamental flaws in stand-alone field testing.  I indicated that neither the state nor City Hall had taken steps to ensure that parents are informed about the extra round of testing, which is arranged without their consent—and which is unethical and disrespectful. 
The Op-Ed refers to an SED expert conceding in 2009 that there are shortcomings in the stand-alone method.  It also cites a barely noticeable statement in the technical reports prepared by the test publisher.  The two discredit the use of SAFT in test development. 
The first points out that SED knew about the fundamental weaknesses of stand-alone field testing years before the current testing program began.  It contrasts the practice of embedding field test items among operational test items with stand-alone field testing instead, issued at a time when the annual test results were getting preposterously high.  
From Making state tests public may also make them easier by Maura Walz, Gotham Schools Sept. 24, 2009:
Field tests allow test makers to figure out how hard questions should be and set the scale used to judge students. Exams like the SAT include field-test questions folded into the actual exam, but students don’t know which questions won’t count toward their scores. The experimental questions are then used again on future tests to gauge their difficulty.
Unable to field test questions in this real-world setting, the state must rely on no-stakes tests given to a sample of students on a different date. [NYSED spokesman Tom] Dunn said that students who sit for the field tests are told that the exams are only experimental.
Top of Form Bottom of Form
But when students know they won’t get a grade for the field test, they might be less motivated to do their best, [Howard] Everson chair of the state’s Technical Advisory Group, an oversight committee that monitors state testing said.
As a result, field tests often suggest that questions are more difficult than they actually are. And because they’re used to set the scale by which the real tests are graded, the end result is an easier state exam, Everson said.
“This is not ideal,” [Harvard testing expert Daniel] Koretz wrote in an e-mail. “What we don’t know is how much of an impact this has had.”
The next one is from the New York State Testing Program 2017: English Language Arts and Mathematics Grades 3-8 Technical Report, Questar Assessment Inc. (p.7). It was posted by NYSED in April 2019 and acknowledges the preferred method for trying out items–embedding.
Embedded Field-Test Items
In 2010, NYSED announced its commitment to embed multiple-choice items for field testing within the Spring 2012 Grades 3–8 ELA and Mathematics Operational Tests. This commitment continued for the Spring 2017 administrations of the tests. Embedding field-test items allows for a better representation of student responses and provides more reliable field-test data on which to build future operational tests. In other words, since the specific locations of the embedded field-test items were not disclosed and they look the same as operational test items, students were unable to differentiate field-test items from operational test items. Therefore, field-test data derived from embedded items are free of the effects of differential student motivation that characterize stand-alone field-test designs. Embedding field-test items also reduced the number of stand-alone field-test forms during Spring 2017, although it did not eliminate the need for them.
This boilerplate appears in Technical Reports since testing was aligned with the Common Core Standards in 2012 and Pearson was the publisher. 
I emailed each member of the Board of Regents a copy of my Daily News op-ed on May 17, urging them to consider the problematic nature of stand-alone field testing and to take steps to suspend it before it was scheduled to begin on May 20.
It seemed to be the perfect time for the Regents to intervene—reinforced by the timing of two developments that address the need for parents to be notified in advance of all testing.
At the end of April, State Senators Robert Jackson and Jessica Ramos put forth a bill called the "right to opt out of high-stakes testing act" or Senate bill S5394. Their proposal was also introduced as Assembly bill A7744 by Assemblyman Harvey Epstein.  It has broad applicability and affirms two principles:  1- Parents must be informed about all upcoming tests; and 2) Parents may refuse to have their children participate (without fear of punishment or coercion) in testing.
And there was the fact that these principles were expressed by the Board’s esteemed Chancellor Betty Rosa in a statement she issued on April 5.
I felt it was imperative for the Board to be polled on the matter of directing NYSED to suspend the vast, un-mandated testing program until all parents had been given sufficient notification about the tests so that their right to opt out could be honored.  I appeal to the Regents to confer today and to act with dispatch.
There is certainly nothing sacrosanct about having to administer field tests at this late time in the school year. And we know that many, many schools in the rest of the state reject the field test assignment—often returning the test shipments unopened, making SAFT a farce.
An order from the Regents to NYSED to desist would allow ample time to study the merits of the stand-alone approach and to decide whether this method should be discontinued.  At the very least, giving these tests could be deferred until the fall.
I am not privy to what the Regents did.  But Commissioner Elia wrote a letter  in response to my oped that appeared in the Daily News a week later.
I’m not going to parse the irrelevancies and obfuscations in her response.  She fails to address the main issues—continued use of weak field testing methods to perpetuate a bad testing program and failure to notify parents about tests.  If the Regents don’t see through this, my conclusion is that they want to keep doing testing business as usual.  
Dear Readers, if any of you wish, please call or email your Regent member and ask where they stand.
---Fred Smith
Post Script: It is noteworthy and ironic that the percentage of students in NYC targeted for CBTs (23%) is far smaller than the percentage in the rest of the state (60%).  This is an indication of the gap that exists between us and other districts in technological readiness.  They are evidently more prepared to use computers in their classrooms as we lag behind.  This is significant because the original goal of NYSED was that all state testing would be done on computer by the spring of 2020.