News From SWW

January 7, 2002 - Brief for the Consortium's appeal of our lawsuit

Appellants, the New York Performance Standards Consortium (the "NYPSC");^[1] Ann Cook in her official capacity as member of the NYPSC Executive Committee; Dan Drmacich in his official capacity as principal of School Without Walls; Joe Braudus as parent and guardian to Twais Braudus; Claire Smykla as parent and guardian to Laura Smykla; and Mindy Gerbush as parent and guardian to John Choomchaiyo (collectively, the "Appellants") respectfully submit this Memorandum of Law in support of their Appeal in the above-captioned matter. Appellants respectfully request that this Court reverse Justice Anthony J. Kane's ("Justice Kane") decision in the New York State Supreme Court for Albany County upholding the arbitrary and capricious determination made on April 25, 2001 by respondents Commissioner of Education Richard Mills ("Mills") and the New York State Education Department (the "SED") to terminate the NYPSC's Variance (herein, the "Variance") which had permitted its member schools to substitute their highly effective performance-based assessments for the State's Regents Exams.

Pursuant to Civil Practice Law and Rules ("CPLR") Rule 5528(a)2, Appellants submit that the questions raised by this appeal are as follows:

1. Do the terms of the 1995 Variance – that (i) grants the NYPSC schools a waiver from Regents Exam requirements; (ii) states that the SED shall perform a 4-year formative review and a 1-year summative review of the NYPSC schools assessments; and (iii) states that "if for any reason the SED does not conduct a review or reviews, the waiver shall nonetheless continue in effect"^[2] – allow the Variance to be terminated even if the SED refuses, without any stated justification, to perform those reviews? In the court below, Justice Kane concluded, in error, that it does.
   
2. Given that it is uncontested that (i) the NYPSC schools have an exemplary record in raising educational standards, even among some of the State's most disadvantaged student groups; (ii) Commissioner Mills's decision to terminate the Variance will effectively destroy this highly successful system of education; (iii) Commissioner Mills's decision was made without the benefit of the mandatory 5-year review process that was required by the express terms of the Variance; and (iv) the only alleged basis for Commissioner Mills's decision -- the Commissioner's own Blue Ribbon Panel Report – found that there was no adequate basis to terminate the Variance, was the Commissioner's decision to terminate the NYPSC schools' Variance made without regard to the facts and therefore arbitrary and capricious? In the court below, Justice Kane concluded, in error, that it was not, and did so without an evidentiary hearing to resolve disputed facts.
   
3. Was Commissioner Mills's decision to terminate the Variance – thereby forcing the NYPSC schools to administer the Regents Exams in place of their highly successful system of performance assessment – arbitrary and capricious because the overwhelming evidence demonstrates that the Regents Exams have not been shown to meet the criteria that the Commissioner applied to the NYPSC schools assessments? In the court below, Justice Kane concluded, in error, that the answer to this question is no, and did so without an evidentiary hearing to resolve disputed facts.
   
4. Were Appellants' due process or other rights violated by (i) Respondents' failure to give Appellants proper notice of the types of data and information they would be required to provide in order to continue the Variance; (ii) Commissioner Mills's decision to terminate the Variance without first completing the 5-year review process set forth in the Variance; and (iii) Justice Kane's failure to hold an evidentiary hearing on disputed factual issues which were before him? In the court below, Justice Kane concluded, in error, that they were not.
   

In 1995, Thomas Sobol, then-Commissioner of the State Education Department, granted the Variance to a group of New York public high schools dedicated to raising educational standards in New York State. The Variance permitted these schools – the NYPSC schools – to assess their students' fitness for graduation using performance-based assessments instead of the State's Regents Exams. These assessments involve the rigorous examination of students' written and oral work product in the principal areas of learning.

It is undisputed that the NYPSC schools and their students have flourished under the Variance. The NYPSC schools have raised educational standards, lowered drop-out rates, improved graduation rates, and raised go-to-college rates and college success rates – even among the State's most disadvantaged students. It is also undisputed that Commissioner Mills's decision – upheld below – to require the NYPSC schools to replace their performance-based assessments with the State's Regents Exams will effectively destroy this extraordinary network of public high schools.

The terms of the Variance explicitly require that the SED perform a 5-year review process, including four crucial years of formative review, and that the Variance remain in effect until completion of that process. The formative review was to include a collaborative relationship between the NYPSC schools and the SED in which the SED would acquire a better understanding of the NYPSC schools' assessments and assist in "developing and fine-tuning the design" of the assessments to ensure alignment with State standards. R. 103. Respondents – the SED and Commissioner Mills – admit that this process was never even undertaken, much less completed, and offer no justification for this failure other than the arbitrary decision not to do what the Variance expressly required. Further, both the State's own Assessment Panel (the "SAP") and the Blue Ribbon Panel appointed by Commissioner Mills to do a truncated study of the NYPSC schools' assessments (which Respondents admit was not a substitute for the reviews specified in the Variance) concluded that there was an inadequate basis to terminate the Variance and that the Variance should be continued pending completion of a proper review. Repeated requests that the SED uphold its obligation to conduct the required review process were unavailing.

The data that do exist regarding the NYPSC schools overwhelmingly support the conclusion that the NYPSC schools have raised educational standards in New York. New York City Board of Education data demonstrate that NYPSC schools consistently outperform New York City schools overall in terms of lowering drop-out rates and increasing college attendance and success rates. Academic studies of NYPSC schools have demonstrated that the schools have extraordinary success in preparing students for college and for life after high school generally.

Further, the State's own Technical Advisory Group ("TAG"), the Blue Ribbon Panel, and two of the nation's leading testing experts, have all concluded that the Regents Exams themselves have not been demonstrated to meet the criteria that Commissioner Mills and the SED applied to the NYPSC schools' assessments. The Respondents have provided the affidavit of an SED employee in an attempt to rebut this overwhelming evidence. That affidavit provides no rational basis for the Respondents' position.

Despite these facts, Commissioner Mills decided to (i) terminate the Variance and force the NYPSC schools to substitute the Regents Exams for their highly successful system of assessment; (ii) ignore the SAP's and the Blue Ribbon Panel's finding that the Variance should be continued; (iii) terminate the Variance without completing the required review process, basing that termination on an alleged dearth of information that only could have been generated had the SED undertaken the required reviews; and (iv) ignore the success of the NYPSC schools and the destructive effect his decision will have on them and their students. Commissioner Mills's decision to terminate the Variance in these circumstances was both irrational and arbitrary.

In the New York State Supreme Court for Albany County, the Appellants challenged this decision as arbitrary, capricious and a violation of due process. In the Supreme Court, without holding an evidentiary hearing of any kind, which Appellants requested in order to resolve disputed issues of fact, Justice Kane declined to disturb Commissioner Mills's decision and the Appellants filed this appeal.

Justice Kane made five clear errors that warrant reversal of this appeal. First, Justice Kane misinterpreted the plain meaning of the Variance. He ruled that, even though the Variance states that the SED will undertake a 5-year review process, the SED could opt not to undertake that process without consequence. This error of interpretation renders meaningless an entire paragraph of the Variance. Moreover, Justice Kane found this illogical interpretation of the Variance to be "unambiguous" even though it is directly contradicted by the sworn statement of the public official who granted and authored the Variance – former Commissioner Sobol – as well as the parties requesting the Variance. Justice Kane explicitly declined to consider such evidence.

Second, Justice Kane found that Commissioner Mills's decision to terminate the Variance was rationally based on the facts even though Mills asserts that his decision was based entirely on the Blue Ribbon Panel Report, and that Report itself both declares that there is not enough evidence to make a well-grounded decision and recommends that the Variance continue while an appropriate study is undertaken.

Third, despite the fact that the SED refused to undertake the review process required by the Variance and that the Blue Ribbon Panel found that any lack of information was not the fault of the NYPSC, Justice Kane made a contrary factual finding without holding an evidentiary hearing. In effect, Justice Kane's decision inappropriately placed the burden of generating data and information on the NYPSC schools when, in fact, the Variance explicitly placed that burden on the Respondents by requiring the SED to undertake four years of formative review in cooperation with the NYPSC schools. Having, without any stated justification, refused to undertake the review process specified in the Variance, it is the definition of arbitrariness for the SED then to terminate the Variance on the grounds that the NYPSC schools did not come forward with the data and information that the SED review was supposed to produce.

Fourth, Justice Kane failed to consider the overwhelming weight of evidence demonstrating that the Regents Exams have not been shown to meet the criteria to which the NYPSC schools' assessments have been held – a fact which, by itself, renders Commissioner Mills's decision arbitrary and capricious. The lower court's finding that the mere assertion of a State official that the Regents Exams meet such criteria is enough to support the Respondents' position renders all Article 78 review meaningless. The proper judicial inquiry is whether the State's position is rationally supported by the evidence. Here, two of the nation's leading experts as well as the State's own advisory group and the Commissioner's own Blue Ribbon Panel have concluded that the Regents Exams have not been shown to meet the relevant criteria. Neither the affidavit of the State official relied upon by Respondents nor the lower court's opinion even addresses – much less rebuts – any of the key factual issues raised by the experts, by the TAG or by the Blue Ribbon Panel. Further, even if there were a genuine factual dispute on these points, Appellants were legally entitled to an evidentiary hearing to resolve the dispute. Their request for such a hearing was denied.

Fifth, Justice Kane erred in denying Appellants' due process claims. In doing so, Justice Kane improperly made findings of fact without having held an evidentiary hearing. In doing so, he relied on the existence of two opportunities Appellants allegedly had to have their grievances heard. However, it is these very "opportunities" that Appellants have demonstrated violated their due process rights because Appellants submitted detailed affidavits demonstrating that they were never given adequate notice of the information that would be required of them or the standards they would be required to meet.

For all of these reasons, and as further detailed below, Appellants respectfully request that this Court set aside Justice Kane's ruling and reinstate the Variance pending completion of the required reviews. In the alternative, Appellants request that this Court order the evidentiary hearing that Justice Kane improperly refused to conduct to resolve disputed issues of fact.

I. Origins Of The New York Performance Standards Consortium

The NYPSC is a coalition whose members are high schools from across New York State that have developed a system of education centered around performance-based assessment. The NYPSC fully embraces the goal of raising educational standards in New York. In order to graduate from an NYPSC school, students must exhibit proficiency in a wide range of areas (including English, social studies, history, mathematics, and science) by demonstrating skills such as analytical reasoning, the ability to conduct in-depth research and scientific experimentation, the ability to synthesize information and the ability to express conclusions both orally and in writing.^[3]

The NYPSC grew out of several related efforts to use performance-based assessment to improve educational standards in the New York public schools. In the early 1990s, the state of New York was in the process of revising its Learning Standards and its statewide assessments.^[4] As part of that effort, the Board of Regents (the "Regents") appointed a school reform panel known as the Curriculum and Assessment Council (the "CAC") to study and make recommendations about ways to raise educational standards in the state.^[5] At the end of its study, the CAC issued a report emphasizing the importance of performance-based assessment systems as a means of raising educational standards in New York.

At the time the CAC issued its report, several New York educators, such as Deborah Meier, had already spent years developing and teaching with performance-based methods of student assessment in New York public elementary schools. Parents of students who had been educated in these elementary schools were searching for ways to provide the same style of education for their children in junior and senior high school. Since many of these parents could not afford to send their children to a private school – which use performance-based assessments and are exempt from the Regents Exams^[6] – there was a strong demand and need for performance-based assessments within the public school system. R. 211, at ¶ 12.

The NYPSC was formed in response to these concerns. To become a member of the NYPSC, a high school must satisfy all of the following requirements:

1. Affiliation with one of the Annenberg Networks;^[7]
   
2. Relatively small size;
   
3. Commitment to the concepts and standards of A New Compact for Learning;
   
4. Enrollment determined by a "school of choice" system, rather than a "zoned, mandatory attendance" system;^[8]
   
5. Commitment to educational reform and innovation;
   
6. Commitment to the cooperative inter-school processes outlined in the Networks for School Reform charter; and
   
7. Commitment to meeting or exceeding Regents-level skills and expectations.
   

R. 214, at ¶ 20; R. 2542, at ¶ 6.

II. The NYPSC Performance-Based Assessment System

A. What is Performance-based Assessment

Performance-based assessment in the NYPSC schools requires students to demonstrate accomplishment in analytic thinking, reading comprehension, research and writing, the application of mathematical computation and problem-solving skills, computer technology, the utilization of the scientific method in scientific research, appreciation and performance skills in the arts, and school-to-career skills.^[9] Whereas public high schools often do not require any papers of more than a few pages, or any substantial scientific or social science research projects, NYPSC schools require all of these. In order to graduate, students must successfully complete five performance-based assessment tasks in core academic disciplines. These tasks are:

1. the Research Paper – students write, revise and present an original research paper using sources from a variety of media;
   
2. the Literary Essay – students write and present a literary essay that interprets and evaluates a minimum of two works of literature;
   
3. a Science Experiment/Project – students undertake an extended project or original experiment demonstrating the ability to use scientific methodology and technology to investigate and analyze a problem in the sciences or natural world;
   
4. an Application of Highest Level of Math Attainment – students conduct an analysis of a life system, organization, or structure that demonstrates their ability to use mathematics; and
   
5. an Oral Portfolio Presentation/Defense.

All Consortium students also must engage in some form of community service. R. 2543, at ¶ 8.

The students' performance of each of these key tasks is evaluated by a combination of teachers and external assessors according to nine criteria, with a specified level of performance necessary for a student to pass. Id. The work of the NYPSC schools is overseen by an external and independent panel of experts from around the nation known as the Performance Assessment Review Board (the "PAR Board"), appointed to monitor and evaluate the assessment system being utilized in the member schools.^[10]

The NYPSC schools offer an educational choice to public school students that would otherwise be available only to private school students. Many of New York's finest private schools use largely performance-based assessment, and do not require their students to take Regents Exams. (Under State law, they are exempt from the Regents Exam requirements). Thus, children who can afford to go to private school can opt for the benefits of performance-based assessment if their parents believe such assessments would be best for their children. See Statement of Fred Calder, the director of the New York Association of Independent Schools ("NYAIS").^[11] Prior to the Mills decision, the NYPSC schools enabled public school children and their parents to have the same choices about performance-based assessment as those available in the private schools.

B. Performance-Based Assessments: The Record of Success

Appellants have demonstrated on the record, and the Respondents have not even contested, that performance-based assessments in general, and those at the NYPSC schools in particular, have achieved a tremendous record of success. In a study of more than 2,000 students at 23 schools employing performance-based assessments in mostly urban districts, it was found that:

students attained much higher levels of achievement on complex performance tasks when their instruction focused on active learning in real-world contexts. Such instruction included performance-based assessments that require higher order thinking, consideration of alternatives, extended writing, and opportunity for substantive feedback.

R. 2859, at ¶ 25 (emphasis supplied).^[12]

NYPSC schools have been nationally recognized as "Blue Ribbon Schools of Excellence" and "National Showcase Sight for 21st Century Schools" by the United States Department of Education. They have also had dramatic and documented success in lowering drop-out rates, raising "go-on-to-college" rates and preparing students for success in college and in their life after high school generally.^[13] Particularly impressive is the NYPSC's success with low-income, "high-risk" students who have not performed as well under other assessment systems.^[14] As explained in the accompanying affidavit of Professor Michelle Fine, the NYPSC schools "enhance academic achievement of youth, urban youth, youth of color and poor youth in particular." R. 2776-77, at ¶ 4.

In her study of several NYPSC schools, Professor Darling-Hammond found that, as a result of the performance-based assessment system, the rate of students going on to college at these schools has remained at above 90% for more than a decade, and that such students stay in college and succeed at a rate above the norm. R. 2859-60, at ¶ 27. As explained by the Professor:

Although their students typically come from neighborhoods where the zoned high schools they would attend have high school drop out rates of more than 50%, most of the NYPSC schools have graduation rates of over 90%. Students who graduate from these schools have a [sic] much higher levels of post-high school academic achievement than students in the Regents Exam schools serving similar populations.

R. 2859, at ¶ 26.

Current data provided by the New York City Board of Education further substantiate the success of the NYPSC schools. The NYPSC schools outpace the citywide schools both in terms of the percentage of students going to four-year colleges and the percentage going to two-year colleges. Citywide, 62% of New York City high school students go on to college. Overall, 72% percent of NYPSC students go on to college immediately upon graduation, and an additional 15%-20% ultimately go on to college. Many NYPSC schools send over 90% of their students to college. And, perhaps most critically, the NYPSC schools' overall drop-out rate is half that of schools citywide.^[15]

NYPSC schools are exceedingly popular, resulting in many applications and long waiting lists for enrollment.^[16] Acceptance at the schools, however, is not based on selection of those perceived to have the greatest chance of succeeding. In fact, the schools cater to some of the State's most disadvantaged populations. R. 2540, 2565-71. As detailed in the numerous affidavits submitted by parents of children who began high school at an NYPSC school in the fall of 2001,^[17] the decision to withdraw the NYPSC's Variance deprives these freshmen of the performance-based assessment system they expected to benefit from in the NYPSC schools. These students applied to NYPSC schools, and relinquished their opportunity to go to another school, based on the expectation that they would profit from the NYPSC's performance-based assessment system.^[18] That expectation was thwarted by the Commissioner's decision to arbitrarily withdraw the Variance. As stated by Mindy Gerbush, whose son entered the ninth grade in September 2001 at the Institute of Collaborative Education – an NYPSC school:

Commissioner Mills' decision has changed the rules of the game for my son and I after we had made our choice of school. After being enrolled in an alternative school program, we now discover that our school will have to prepare for and give my son's class Regents examinations…. I thought I had found a school that would work for my child, but now it is not the school we bargained for.

R. 3426, at ¶ 4.

III. The New York State Regents Exams

A. The Structure Of The Regents Exams

The five Regents examinations that New York high school students are required to take and pass in order to graduate are: 1) English, 2) mathematics, 3) global history and geography, 4) United States history and government, and 5) science. As demonstrated on the record, and as uncontested by Respondents, these examinations (collectively herein, the "Regents Exams") focus on fact-based multiple choice and some short-answer essay questions.

The Regents Exams are what is known as "high-stakes" tests. Where the score on a test determines whether a student graduates or is promoted to the next grade, or whether a school receives increased funding, the test is considered "high-stakes." R. 3248, at ¶ 7. In the case of the Regents Exams, a non-passing score on any one test means the student cannot graduate.

B. The Regents Exams Have Not Been Shown To Meet The Criteria That The State Applied To The NYPSC Performance-Based Assessments

There is no evidence on the record that the Regents Exams meet the professional criteria for reliability, validity and alignment with the Learning Standards to which the NYPSC schools' assessments were held. The SED's own Technical Advisory Group ("TAG"), which advises the State on implementation of the Regents Exams, has pointed out that the Regents Exams have never been shown to meet the criteria that the SED and Mills applied to the NYPSC schools' performance-based assessments. See R. 432-34 (citing TAG Memo of April 2, 2000). Appellants provided this evidence to the court below and Respondents did not contest it in any way.

As explained in detailed affidavits by Professors Walter Haney and Robert Hauser, two of the nation's leading testing experts, it has not been demonstrated that the Regents Exams meet the types of criteria for validity, reliability and alignment with the State learning standards that Mills and the SED applied to the NYPSC schools' assessments in withdrawing the NYPSC's Variance.^[19] And, the Blue Ribbon Panel agreed with this conclusion, finding, for example, that:

[T]he degree of alignment shown by Regents examinations over time [with the Learning Standards] has not yet been documented. This leaves us without a firm standard against which to judge alignment in Consortium schools.

R. 117.^[31]

In contesting this conclusion Respondents rely entirely on the affidavit of Gerald DeMauro ("DeMauro"), which asserts that the Regents Exams do meet the applicable standards. DeMauro argues that the Regents Exams meet the State criteria simply because they were developed with those criteria in mind. However, as demonstrated in the reply affidavits of professors Haney and Hauser, and as is plain on the face of DeMauro's affidavit itself, DeMauro's affidavit fails to address in any way, much less rebut, the shortcomings of the Regents Exams. For example, DeMauro's affidavit does not even mention, much less rebut in any way, the fact that:

1. The Regents Exams have not been validated as high stakes tests – a flaw fatal to the State's claim that the exams are valid (R. 4866; R. 4857-60, at ¶ 5-6, 9, 12);
   
2. Several of the State Learning Standards are not measured by the Regents Exams at all, calling into question the alignment of the Regents Exams with those standards (R. 419-445);
   
3. The Regents Exams' system of 'component retesting' – in which students who fail the Regents Exam are allowed to retake certain sections – has not been examined for validity or reliability, thereby calling the validity and reliability of the entire exams into question (R. 4863, 4866-67, 4870; R. 4858-59, at ¶ 9);
   
4. The cutoff scores used to determine passing grades on the Regents Exams have not been shown to demonstrate attainment of the State Learning Standards, and appear to have been set in order to protect against high rates of failure (R. 4866-67; R. 4858-59, at ¶ 9);
   
5. There are serious statistical flaws in the SED's methodology which belie the Respondents' claim that the validity and reliability of the Regents Exams have been established. In fact, the reliability of any given student's score is tantamount to a coin-flip, and the reliability of scores for different administrations of the exams are dubious given the widely different scoring matrices used. (R. 4863, 4865-68; R. 4858-59, at ¶¶ 8-9); and
   
6. The Respondents' claim that the validity and reliability of the new Regents examinations has been established is disputed by all observers independent of the SED (R. 4863, 4870; R. 4856-60, at ¶¶ 3, 6, 8, 11, 12).
   

As Professor Hauser concludes:

DeMauro's affidavit of October 15, 2001 is weak where it is not highly selective. It fails to make a convincing case for the validity, reliability, or fairness of the Regents examinations – the key criteria that apply to the Regents examinations and alternatives to them. Neither does it make a case that those elements are absent in the accountability system of the New York Performance Standards Consortium. Moreover, the affidavit selectively ignores other key standards of appropriate test use that appear in the joint standards (American Educational Research Association and National Council on Measurement in Education 1999) and in other statements of technical and professional standards for test use, and the Regents examinations fail to meet those standards.

R. 4870.

As Professor Haney states:

[T]he Regents examinations do not meet relevant standards for validity, reliability and alignment with the Learning Standards to which the NYPSC assessments were held. The new Regents exams clearly do not meet the Joint Standards of the professional education measurement community or the AERA standards, both of which are rightfully considered important by Dr. DeMauro.

R. 4856, at ¶ 3.

Justice Kane's decision ignores these points, and accepts DeMauro's unsubstantiated conclusions, without even addressing, much less resolving, the factual dispute raised by the Haney and Hauser reports. Most critically, it does so without holding an evidentiary hearing to resolve the disputed facts.

IV. Imposing The Regents Exam Requirements On The NYPSC Schools Will Destroy Their Performance-Based Assessment Systems

In [sic] is uncontested that requiring that NYPSC students take and pass the Regents Exams is mutually exclusive with preserving the NYPSC schools' alternative performance-based assessment systems. There is not enough time in the school year to prepare students for both the Regents Exams and the performance-based assessments of the NYPSC schools. Preparing students to pass standardized multiple-choice tests requires hours of work geared toward test-taking strategy and the broad-based coverage of the Regents Exams. Preparing students to succeed at performance-based assessment requires that this same time be spent on other more in-depth studies which, among other things, are designed to enhance the analytical thinking capabilities of the students.

Abundant evidence of these facts was introduced into the record below. See, e.g. R. 2545, 2563-67. Respondents did not even attempt to rebut any of this evidence, and do not deny that imposing the Regents Exams on the NYPSC schools would mean the end of the schools' highly successful performance-based assessment system.

V. The Variance

In the early and mid-1990s the NYPSC schools worked to insure that they could continue to use and refine their performance-based assessment systems. As part of this process, they sought a Variance from then-Commissioner of Education Sobol. On April 27, 1995, Deborah Meier, who was then Director of the Coalition Campus School Project and Principal of CPESS, along with then-Superintendent of New York City Alternative High Schools Steve Phillips, petitioned Commissioner Sobol for a Variance on behalf of the schools that now belong to the NYPSC. The Petition requested that these schools be exempt from State-mandated standardized testing requirements so that they could continue to use and develop their successful performance-based assessment systems.^[20]

The petition for a Variance requested that the SED assign members of its staff to meet regularly with each participating school and to participate in the development, revision and field-testing of the alternative assessments offered at the schools. The petition requested that there be a review by the SED of this program. During the first four years the review would be "formative" – that is, that it would assist the schools in developing and fine-tuning the design of the alternative assessment systems. In the fifth year, the petition requested a "summative" review that would assess the success and effectiveness of the schools' performance-based assessments.^[21]

Commissioner Sobol granted the petition for a Variance. The Variance took effect at the beginning of the 1995-1996 school year, and was to remain in effect for five years, or until the 5-year review process was completed. In approving the Variance, Commissioner Sobol stated that "the participating schools have a record of success in helping students learn" using alternative assessments and are "part of a dynamic network, deriving sustenance from one and other and from their expert advisors." R. 97-98. The Variance reflected an understanding by Commissioner Sobol and the SED that the Regents Exams requirements and the performance-based assessment systems used by the NYPSC could not co-exist in the same schools. R. 146-50, at ¶¶ 13-18, 23-26.

The Variance also explicitly required the SED to conduct the 5-year review process requested in the petition, and explicitly stated that the Variance would continue in effect until that review process was complete. In the words of the Variance itself: "For the first four years, SED's evaluation will be formative. In the fifth year, it will be summative. However, if for any reason the SED does not conduct a review or reviews, the waiver shall nonetheless continue in effect." Id. The four-year formative review process mandated in the Variance was central to the structure of the Variance as a whole. The process would require involvement of SED officials working with the NYPSC schools to help them align their assessments with SED standards, and provide the SED with a basis to understand what worked in the NYPSC schools and why.^[22]

Both those petitioning for the Variance, and Commissioner Sobol in granting the Variance, expressly understood that if SED failed to undertake and complete this specified review process, the Variance would remain in effect until such time as the SED did undertake and complete both the formative and summative reviews.^[23] In Commissioner Sobol's words, this meant that

should the SED fail to undertake the required reviews, the NYPSC schools' waiver from the Regents examinations would continue until such time the SED completed its reviews. I did not want the NYPSC schools to be penalized for the SED's failure to gather the necessary data and study the NYPSC's system of performance-based assessments.

R. 4844-45, at ¶ 5. The Respondents admit that as of this date, no such review process has been undertaken or completed.^[24]

Justice Kane found it significant that, in his words, "absent from the record herein is any indication that prior to the commencement of the instant proceeding, petitioners requested that the SED conduct the formative or summative reviews in question." Contrary to Justice Kane's finding, the record is replete with evidence that, throughout the term of the Variance, the NYPSC requested that the SED perform the review process specified in the Variance. Affidavits describing the nature and timing of these requests were submitted to Justice Kane and were uncontested by Respondents. These affidavits establish that:

• The petition for the Variance requested that the SED undertake a "formative" review, in which the SED would assist the schools in "developing and fine-tuning the design" of their assessment system. R. 103.
  
• It was not until February of 1998 that the NYPSC received word from Mills that the NYPSC schools assessments would be subject to new and unspecified criteria. R. 2547-48, at ¶ 16. In response, the NYPSC asked that SED personnel be assigned to help them define, gather and prepare the relevant evidence, as was required by the Variance. Id. The SED and Mills refused. Id.
  
• The NYPSC repeatedly requested that SED officials attend NYPSC schools to observe the assessments, including, for example, the students' oral defenses of their projects and portfolios. This request was initially granted (R. 2622), but never followed through upon.
  
• On July 9, 1999, NYPSC Executive Committee member Ann Cook wrote to Deputy Commissioner Kadamus to suggest ways in which the schools and the SED might collaborate to ascertain the best method of evaluating the NYPSC schools exams. R. 2552-53, at ¶ 26; R. 2648-49. Respondents refused to engage in such collaboration.
  
• On February 14, 2000, NYPSC representatives wrote to Mills complaining that the Blue Ribbon Panel's review process was at odds with the formative review process set forth in the terms of the Variance because it shifted the evidentiary burden to the NYPSC schools. R. 2556, at ¶ 34, R. 2658-62.
  
• On May 12, 2000, representatives of the NYPSC met with members of the SED to voice concerns over the proposed Blue Ribbon Panel study and to request that the SED construct a study that would "accurately and fairly consider both Consortium and Regents schools in helping the Consortium schools to gather data" as the Variance had envisioned. R. 2558, at ¶ 38.
  

The SED denied these concerns and requests. Absent from the record in this case is any justification of any kind for this refusal, other than the arbitrary decision by Mills that he simply did not want to do what the SED's own Variance plainly required.

VI. The SED's Arbitrary Evaluation Of The NYPSC Assessments

The NYPSC schools made every effort to comply with all requests and requirements of the SED, Mills and the Blue Ribbon Panel for information regarding the NYPSC schools' assessments. However, the SED gave the NYPSC schools contradictory, confusing and untimely requests, making it impossible to provide all of the data and information sought.

An SED memorandum dated May 5, 1999 (R. 2642-43) first indicated that entities eligible to apply for approval of their assessments as permanent Regents Exam alternatives included: "1) organizations that have developed an assessment currently being taken by New York State students; and 2) schools/school districts/consortia that have developed an assessment and are seeking approval to substitute the alternative test(s) for a Regents examination." (emphasis supplied). However, in a subsequent August 31, 1999 memorandum (R. 2646-47), the SED reversed course and stated that: "A local school or school district is not eligible to apply." Since the NYPSC's system of performance-based assessment was originally developed at the individual school level, with the SED's approval, it appeared that the SED was trying to arbitrarily and retroactively prevent the NYPSC schools from presenting their systems of assessment for approval as permanent alternatives to the Regents Exams.

In 1999, Ann Cook approached Kadamus, the Deputy Commissioner of the SED, to inquire about the standards that would be applied to determine whether the NYPSC schools' assessment systems could be approved as permanent alternatives to the Regents Exams. Kadamus conceded that the criteria applied to standardized tests were ill-fitted to the NYPSC's performance-based assessments and that the SED would have to employ different criteria to properly evaluate the performance-based assessment systems as alternatives to the Regents Exams. R. 2552-53, at ¶ 26. The Respondents never provided the Appellants with proper notice of what the proper criteria would be and what types of information would be required to meet them.

Not until January of 2001 did the NYPSC school receive notice – from Commissioner Mills's Blue Ribbon Panel – of the specific types of information and data required to satisfy the Respondents. R. 4852-53, at ¶ 15. Such information and data, which could have been compiled in cooperation with the SED over a 5-year period had the SED engaged in the required review process, could not possibly be collected by educators and school administrators in a few weeks time in the middle of the school year.

The Blue Ribbon Panel itself concluded that fault for the inability of the schools to provide all of the requested data did not lie with them. R. 134-37. As Professor Robert Stake, one of the Panel members, stated in his affidavit:

We concluded that we did not have negative information about the alignment, reliability and validity of the performance-based assessments, rather that we were faced with an insufficiency of data to make the relevant determinations. Given the small size of the schools involved and the history of the NYSED's variance process, we concluded that the schools could not be blamed for that dearth of psychometric information.^[25]

Despite this finding, and without holding an evidentiary hearing, the court below found the schools responsible for the alleged lack of information. This determination arbitrarily punished the Appellants for the Respondents' failure to conduct the required reviews.

VII. The Blue Ribbon Panel Finds That There Is Not Enough Information to Make a Well-Grounded Decision and Recommends A Continuation Of The Variance

Commissioner Mills acknowledges that the Variance requires a "comprehensive evaluation of the schools' alternative assessments,"^[26] and he admits that he never carried out this review. Instead, during the sixth year of the Variance, Commissioner Mills appointed a Blue Ribbon Panel to conduct a six-month study of the NYPSC performance-based assessments. The first three months of the study were scheduled for the summer, when schools were out of session and many key personnel were out of town.^[27] At the request of the Blue Ribbon Panel members, the study was then extended to nine months, a time period the panel members ultimately concluded was still too short for completion of the required review. As stated in their final report, the Blue Ribbon Panel members determined that they had "insufficient time and resources to explore some important questions in depth."^[28]

Further, despite having had no notice of the need to collect certain types of data during the period of the Variance, the NYPSC schools were asked to gather and compile this data in a truncated timeframe, while at the same time performing their usual duties as educators.^[29]

At the conclusion of its study, the Blue Ribbon Panel issued a report – which Mills states served as the sole support for his decision – that recommended extending the Variance for a three year period. It did so for several reasons. First, the Blue Ribbon Panel found that the short time-period allotted for its study by the SED – and for the schools to provide the evidence required by Commissioner Mills – as well as a lack of proper notice regarding the specific types of data to be provided, did not permit the necessary evidence to be gathered or analyzed. R. 133.^[30] In the words of Professor Robert Stake, one of the Panel members:

We concluded that we did not have negative information about the alignment, reliability and validity of the performance-based assessments, rather that we were faced with an insufficiency of data to make the relevant determinations. Given the small size of the schools involved and the history of the NYSED's variance process, we concluded that the schools could not be blamed for that dearth of psychometric information.

R. 2728, at ¶ 6.

Second, the Blue Ribbon Panel found that a study assessing the alignment, reliability and validity of the Regents Exams had never been completed, thereby making it impossible to know what to measure the NYPSC schools' performance-based assessments against. R. 137. "[T]o our knowledge," the report concluded:

[T]he degree of alignment shown by Regents examinations over time [with the Learning Standards] has not yet been documented. This leaves us without a firm standard against which to judge alignment in Consortium schools.

R. 117. In the words of Panel member Robert Stake, had the required 4-year formative review required by the Variance been completed:

it would have enabled the schools to assemble the data the [Blue Ribbon Panel] claimed necessary to determine whether the Consortium's assessment system is an acceptable substitute for the Regents exams.

R. 2732, at ¶ 14.

Finally, the Blue Ribbon Panel concluded that its initial evaluation showed that the NYPSC schools had submitted "considerable evidence" of success, and that such success should not be jeopardized by a revocation of the Variance, an action which would have "serious negative effects which could echo throughout the state." R. 134. Thus, the Blue Ribbon Panel recommended that the Variance be extended for three-years and that the SED provide sufficient staff and funding for a full and proper study to be completed during that three-year period. R. 135-37; R. 2731, at ¶ 12.

VIII. Commissioner Mills's Arbitrary Decision To Ignore The Blue Ribbon Panel And Terminate The Variance

Ignoring his own Blue Ribbon Panel's recommendations, and without undertaking the required 5-year review, Commissioner Mills arbitrarily and capriciously decided that the NYPSC's Variance would be withdrawn at the beginning of the 2001 school year. In his decision, Mills admits that the Variance expressly required certain comprehensive reviews, and that "if for any reason the [SED] did not conduct a review or reviews, the waiver would nonetheless continue in effect." R. 89. Still, Mills went on to ignore this requirement and terminated the Variance.

Throughout his decision to revoke the Variance, Mills contradicts the findings of the Blue Ribbon Panel, but cites no evidence and gives no rationale for doing so. For example, while the Blue Ribbon Panel found their inquiry to be inconclusive due to lack of time, resources and proper criteria, Mills somehow deemed this determinative evidence that the NYPSC schools had failed to meet applicable standards. See, e.g., R. 91, 93. Further, Mills declined to extend the Variance to any NYPSC school, even though he has admitted that some of the NYPSC schools' assessments could meet the criteria he was applying.^[32]

In explaining why he chose to ignore the findings of the Blue Ribbon Panel, Mills simply asserted that "it is not appropriate or feasible for the State to provide for the development of the Consortium schools' assessments." R. 96. Mills thus ignored the fact that the Variance itself requires that the SED perform a 5-year review, including a 4-year formative study that would include the participation of the SED in the development of the NYPSC schools' performance-based assessments.

IX. The Supreme Court Proceedings

As a result of Commissioner Mills's arbitrary and capricious decision, on August 16, 2001, the Appellants filed their Petition and Complaint in New York State Supreme Court for Albany County. That Petition and Complaint set forth five causes of action against the Respondents. The first three causes of action alleged that Commissioner Mills's decision was arbitrary and capricious because, respectively:

1. The SED failed, without any justification, to conduct the reviews mandated by the Variance as a precondition to considering its withdrawal;
   
2. Commissioner Mills's Decision was made without regard to the facts; and
   
3. Commissioner Mills's decision was discriminatorily based on criteria that even the Regents Exams have not met. Appellants requested that this issue, if reached by the court, be resolved in an evidentiary hearing that would address disputed issues of fact, including conflicting affidavits.
   

The fourth and fifth causes of action in the Petition and Complaint alleged that Commissioner Mills's decision violates the Appellants' New York State and Federal Constitutional due process rights because it was made with inadequate notice and without conducting the 5-year review process required by the Variance.

A hearing was held on October 26, 2001, before Justice Kane. The hearing consisted of a session of oral argument. It included no witness testimony and no other evidentiary presentation of any kind. In their appearance before the court, Appellants argued that Justice Kane could decide the matter in the Appellants favor without an evidentiary hearing based on the SED's failure to undertake the review required by the text of the Variance or based on Commissioner Mills's plain disregard for the findings of the Blue Ribbon Report, which he admits was the sole support for his decision. However, in the event the court declined to do so, Appellants requested an evidentiary hearing be held to resolve disputed issues of fact, particularly on the issue of the Regents Exams' failure to meet the applicable criteria. Justice Kane rejected Appellants' legal arguments and then, without holding an evidentiary hearing, made numerous findings resolving contested factual issues against the NYPSC which he then used to reject each of Appellants' causes of action.

On November 20, 2001, the Appellants filed and served their notice of appeal of Justice Kane's decision.

In an Article 78 proceeding, courts overturn the decision of an administrative agency or official when the decision is made "in violation of lawful procedure … or was arbitrary and capricious or an abuse of discretion. . . ." CPLR. § 7803 (3). Determinations of the Commissioner of Education do not escape such judicial review.^[33] Even in matters "of purely educational concern," courts must still determine "whether the Commissioner of Education has acted arbitrarily or illegally." Allen, 48 Misc.2d at 344, 264 N.Y.S.2d at 815. On an appeal from a nonjury determination, the Appellate Division's scope of review is as broad as that of the trial judge. See, e.g., Lozada v. State, 700 N.Y.S.2d 38 (N.Y.A.D. 2 Dept., 1999); Chiaro v. Chiaro, 623 N.Y.S.2d 312 (N.Y.A.D., 2 Dept. 1995); U.S. No. 1 Laffey Real Estate v. Hanna, 627 N.Y.S.2d 54 (N.Y.A.D., 2 Dept. 1995).^[34]

There are three independent reasons why the decision of Commissioner Mills to revoke the NYPSC's Variance violates Article 78: (i) the decision was made without completing the required reviews set forth in the Variance; (ii) the decision contravenes and ignores all relevant evidence, including the findings of the Commissioner's own Blue Ribbon Panel; and (iii) the decision judges the NYPSC schools' performance-based assessments using criteria that the Regents Exams themselves have not met. For each of these reasons, there was no rational basis for the Commissioner to terminate the Variance and thereby threaten to destroy the performance-based assessment system that has been so successfully employed at the NYPSC schools. Justice Kane's ruling -- upholding Commissioner Mills's decision -- is based on clear errors of law and the improper resolution of factual disputes which require a reversal by this Court.

A. The SED Arbitrarily Failed To Conduct The Reviews Mandated By The Variance As A Precondition To Considering Its Withdrawal

Respondents admit that the SED failed to conduct the reviews set forth in the Variance. As Justice Kane states in his ruling, "it is undisputed that the SED did not conduct formative reviews or the summative review as set forth by Commissioner Sobol" in the Variance.^[35] It also is undisputed that Respondents provided no explanation for this failure, other than that the SED simply did not want to undertake what its own Variance required. By arbitrarily ignoring this express requirement, Commissioner Mills's decision is a violation of lawful procedure and is arbitrary and capricious in violation of § 7803 (3) of the CPLR.

It is well-established that a Commissioner of Education's determinations are arbitrary and capricious when inconsistent with prior precedent, policies, or earlier decisions. See Matter of Charles A. Field Delivery Serv., 66 N.Y.2d 516, 516-17, 498 N.Y.S.2d 111, 113 (N.Y. 1985)("A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious.") A Commissioner of Education's determinations are arbitrary and capricious when inconsistent with prior precedent, policies, or earlier decisions.^[36] In Avila, for example, the court reviewed the termination of a teacher whose position had been abolished. The teacher sought to be placed on the eligibility list for new positions, but the Board of Education refused. In reversing the Board's decision, the court held that the Board's action "ran so afoul of the rationale" of "prior pronouncements of the New York State Commissioner of Education as to render respondent's actions arbitrary and capricious." 647 N.Y.S.2d at 926, aff'd, 240 A.D.2d 661, 658 N.Y.S.2d 703 (2d Dep't 1997).

The exact same analysis applies to Commissioner Mills's decision to revoke the Variance prior to the commencement, much less the completion, of the required reviews. The express purpose of the 4-year formative review process was to assist the NYPSC schools in the data collection process and to help them demonstrate alignment of their assessments to the applicable standards.^[37] The express purpose of the fifth-year summative review was to study this data and the schools' success in educating students in order to determine whether the Variance should continue. Id. Mills's decision to revoke the Variance without such reviews is fundamentally inconsistent with the rationale of the prior pronouncements of the Commissioner's office -- namely, the Variance itself. Such a radical departure from a prior SED pronouncement is clearly an arbitrary and capricious act.^[38]

Neither the Respondents nor the lower court contests these points of law.^[39] Still, the lower court ruled that it was permissible to terminate the Variance without undertaking the required reviews. R. 44-48. Although the Variance explicitly states that: "if for any reason the SED does not conduct a review or reviews, the waiver shall nonetheless continue in effect" (R. 98), the court below found that this sentence means only that the Variance shall continue for five years whether or not the SED performs the required reviews, and not that the Variance shall continue in effect until the required review process is completed. Although the author of the Variance – former Commissioner Sobol – provided unequivocal sworn testimony that withdrawing the Variance without first completing the specified review process violates the terms of the Variance, the court below chose to ignore that testimony. This position is untenable, and should therefore be set aside, for several reasons:

1. The Lower Court's Ruling Violates Rules of Construction

Whether construing the language of either a contract, regulation or statute, it is axiomatic that terms and sections within the writing must be interpreted to give meaning to all terms. See Bed N' Bath of Spring Valley, Inc. v. Spring Valley Partnership, 185 A.D.2d 584, 586 N.Y.S.2d 416 (3d Dep't 1992); Morton Bldgs., Inc. v. Chu, 126 A.D.2d 828, 830 510 N.Y.S.2d 320, 321 (3d Dep't 1987), aff'd, 70 N.Y.2d 725 (N.Y. 1987) (court in Article 78 proceeding overruled interpretation of a statute section which rendered a substantial portion of another statutory section meaningless). Courts must not construe one portion of a statute or contract in such a manner as to render another portion meaningless. See R.A. Bronson, Inc. v. Franklin Correctional Facility, 255 A.D.2d 723, 680 N.Y.S.2d 719 (3d Dep't 1998); Browning-Ferris Indus. of New York, Inc. v. County of Munroe, 103 A.D.2d 1040, 478 N.Y.S.2d 428 (4th Dep't 1984), aff'd, 64 N.Y.2d 1046, 489 N.Y.S.2d 902 (N.Y. 1985) (county's interpretation of contract was rejected by court because it rendered a provision in the contract meaningless).

Under the lower court's interpretation of the Variance, the force and effect of the Variance would be identical even if it never mentioned the 5-year SED study at all. According to Justice Kane, the SED can, without justification, ignore the express terms of the Variance granted by the Commissioner of Education and the effected schools have no recourse whatsoever. Such an interpretation, which attaches no meaning to the 5-year review process specified in the Variance, is entirely arbitrary and capricious, and inconsistent with basic rules of statutory construction.^[40] The only reading of the Variance which gives meaning and effect to all its terms is a reading requiring the SED to complete the specified reviews before the Variance can be terminated. This is what Commissioner Sobol and the SED intended in granting the Variance (R. 4843-46, at ¶¶ 3-7) and what Petitioners relied upon in following the Variance. R. 4847, 4849-51, at ¶¶ 2, 8, 12.

2. The Lower Court's Interpretation of The Variance is Illogical

Justice Kane ruled that when the Variance states that "if for any reason the SED does not conduct a review or reviews, the waiver shall nonetheless continue in effect" (R. 98), it actually means that, whether or not the required 5-year review takes place, the Variance will still continue for only five years. Respectfully, this interpretation makes no sense. First, as a matter of logic, it would by definition take five years to know whether the SED had completed the required 5-year review. Thus, the failure of the SED to complete that review could never have resulted in the Variance ending before the end of the 5-year period. Further, even if it were clear earlier that the review was not being undertaken, it makes no sense to think that the SED could unilaterally have ended the NYPSC schools' Variance by deciding not to undertake the review process mandated in the Variance itself. Thus, there was no need for the language in question if this was its purpose. The only logical interpretation is that when the Variance states that, absent completion of the SED review process, the Variance "shall nonetheless remain in effect," it means that it shall remain in effect until the required SED review is completed.

Justice Kane emphasized that a key to his contrary decision was what he called the absence "from the record of any indication that prior to the commencement of the instant proceeding, petitioners requested that the SED conduct the formative or summative reviews in question." R. 46. This position is untenable. To begin with, it is unclear why this would be of any relevance to the legal meaning of the Variance. There is no dispute that the NYPSC petitioned for a 4-year formative review and a 1-year summative review, and was granted such reviews by the terms of the Variance. Justice Kane seems to require the NYPSC to then repeatedly request the SED to follow through on this obligation in order to preserve their right to such reviews. Even if such repeated request were required, however, the record before Justice Kane was replete with evidence of such requests by the NYPSC throughout the term of the Variance. See, Statement of Facts, § V., infra. Thus, Justice Kane's decision rests on a clear error that he himself deemed significant. R. 46.

Justice Kane also found that the Variance was clear on its face that it would last only five years. However, Justice Kane himself found that the five year term of the Variance was "conditional" (R. 38), and that the 5-year review process was one of the four "conditions" set forth by Commissioner Sobol. Id.. If the 5-year review process is one of four conditions, then something must be conditioned upon it. Under Justice Kane's interpretation, however, nothing is conditioned upon it. Whether the SED performs or does not perform the specified review is of no consequence – the Variance lasts for five years either way. Such an interpretation defies the language of the Variance and is self-contradictory. At the very least, there is enough ambiguity present in the meaning of the disputed terms to warrant consideration of the sworn testimony of the author of the Variance. Justice Kane refused to do so.

3. The Lower Court Failed to Consider the Affidavits Submitted By Former Commissioner Sobol, Who Granted and Wrote the Variance

In matters of statutory interpretation, legislative intent is "the great and controlling principle." Sutka v. Conners, 73 N.Y.2d 395, 403, 541 N.Y.S.2d 191 (N.Y. 1989), quoting People v. Ryan, 274 N.Y. 149, 152. The "essence of proper contract interpretation" is to ascertain the "true expectations" and "true intentions" of the parties to the contract. Reiss v. Financial Performance Corp., 279 A.D.2d 13, 19, 715 N.Y.S.2d 29, 34 (N.Y. 2000).

Here, the intent of both former Commissioner of Education Sobol – who granted and wrote the Variance – and of those requesting the Variance is undisputed. Commissioner Sobol has testified that to terminate the Variance prior to completion of the 5-year review process "is inconsistent with the express terms and spirit of the Variance."^[41] As he further states in his reply affidavit:

It was my intention for the Variance to continue even beyond the five years if the SED failed to do its evaluations…I granted the variance for a period of five years because that seemed to be a reasonable time in which to assess the effectiveness of NYPSC's program of instruction and assessment. However, my intention was never that the variance should be automatically discontinued at the end of the five-year period. On the contrary, that is why the variance stated that in the absence of an SED review the variance should be continued. I did not wish the decision as to whether this program should be continued or discontinued to be made in ignorance.

R. 4845-46, at ¶¶ 6-7 (emphasis supplied).

Stephen Phillips and Deborah Meier, who petitioned for the Variance, similarly testified that they understood the terms of the Variance to require that the SED would perform the 5-year review process prior to the termination of the Variance.^[42] Justice Kane declined to consider these affidavits and instead ruled that the Variance unambiguously means something directly contrary to what its author states. R. 46-47.

At the very least, the Court should find that the language of the Variance is ambiguous as to whether the Variance shall continue in effect for five years or until the required reviews are completed. Where such language is ambiguous, parole evidence should be used to discern the intent and the meaning of the writing. See Williams Press, Inc. v. State of New York, 37 N.Y.2d 434, 373 N.Y.S.2d 72 (N.Y. 1975). When "doubt or ambiguity exists, an elementary principle provides that courts may look behind the words of a statute" for its meaning.^[43] Similarly, when construing the language of contracts and other instruments, courts find ambiguity where "[r]easonable minds could differ" as to the meaning of the express language of the writing.^[44]

Here, as detailed above, all external evidence points to one conclusion: that the Variance must remain in effect until the SED completes the required reviews. Respondents do not contest this fact, nor do they point to any evidence to contradict former Commissioner Sobol's testimony.

4. Even If the Lower Court's Interpretation of the Variance Were Correct, It is Arbitrary and Capricious to Terminate the Variance Without Completing the Review Process Set Forth in the Variance

Regardless of the meaning of the contested language, it is plainly arbitrary and capricious to fail to undertake the review process set forth in the Variance and then terminate the Variance on the grounds that data which would have been generated by that review process has not yet been generated. This punishes the Appellants for the Respondents' failings.

The Variance explicitly states that the SED "will" undertake and complete a 5-year review of the NYPSC schools' assessments. Thus, even absent the contested sentence -- stating that "if for any reason the SED does not conduct a review or reviews, the waiver shall nonetheless continue in effect" (R. 98) -- the SED would still be under an obligation to complete the 5-year review. This requirement – as attested to by Commissioner Sobol, who wrote and granted the Variance – was designed "to protect the NYPSC efforts in the event the SED failed in its charge." R. 4844-45, at ¶ 5.

Commissioner Sobol "did not want the NYPSC schools to be penalized for the SED's failure to gather the necessary data and study the NYPSC's system of performance-based assessments." Id. Yet that is exactly what Commissioner Mills has done in this case. Indeed, regardless of the meaning of the contested sentence, the SED has willfully refused to undertake the mandatory review without offering any justification of any kind. Such arbitrary action by the SED must be set aside.

A Commissioner of Education's decision is also arbitrary and capricious – and therefore a violation of Article 78 – when made "without regard to the facts" (Conetta v. Bd. of Educ. of Patchogue-Medford Union Free Sch. Dist., 165 Misc.2d 329, 331, 629 N.Y.S.2d 640, 641 (N.Y. Sup. 1995)), or when unsupported by the evidence before him. See Bd. of Educ. of Monticello Cent. Sch. Dist., 91 N.Y.2d at 141 (Commissioner's conclusion was arbitrary when contradicted by the evidence).^[45]

This is precisely the situation here. Commissioner Mills decided to terminate the Variance because, he decided, there was not enough evidence that the NYPSC schools' assessments meet the State's criteria. Yet, Mills admits that he refused to undertake the review process set forth in the Variance for the purpose of generating such evidence. Having failed to undertake the required review process, Respondents now seek to blame the NYPSC schools for not being able to gather and present the data that only the required review process could have generated. Not only are the Respondents – and Justice Kane – improperly shifting the burden to the Appellants – Respondents are also attempting to benefit from their own failure to do what the Variance required them to do: conduct a proper study.

Commissioner Mills also admits that he based his decision to terminate the Variance entirely on the Blue Ribbon Panel Report. This admission is fatal, since the Panel concluded that there was not enough information to make a well-grounded decision and that the Variance should be extended for three years because a proper review process had not yet been undertaken. Further, Mills does not contest that the NYPSC have an extraordinary record of success and that their assessment system is a vital part of that success, but nevertheless has made an administrative decision that he admits will destroy the schools, thereby lowering educational standards.

As discussed above, to the extent that evidence of the NYPSC schools' assessments' alignment, validity or reliability was lacking, it was due to the failure of the SED to undertake the specified reviews, especially the formative review requiring the SED to aid the NYPSC in identifying and gathering relevant data. R. 2732, at ¶¶ 14-15. It was for this reason that the Blue Ribbon Panel explicitly decided not to "consider the weakness or absence of evidence to be equivalent to negative evidence."^[46] The Blue Ribbon Panel went on to state that it "does not believe that a simple decision about the adequacy of the Consortium assessment systems as substitutes for the Regents examinations is warranted."^[47]

Commissioner Mills attempts to obscure the complete lack of factual support for his decision by characterizing the Blue Ribbon Panel's non-findings as findings against the NYPSC schools. Specifically, in those instances where the Panel concluded that more information was needed to determine whether state criteria had been satisfied, Mills concludes that the Panel was "really" concluding that the criteria had not been met. This is a complete distortion of the Panel's Report.

The actual findings of the Blue Ribbon Panel were that there was a need to collect more information before making an informed decision, that "no negative inference" about the NYPSC schools' assessments could be drawn from any missing data and that a key reason for any lack of data necessary to fully evaluate the NYPSC schools' assessments was the failure of the SED to undertake and complete the proper review process. See R. 134-37. As Professor Robert Stake, one of the Panel members, stated in his affidavit:

We concluded that we did not have negative information about the alignment, reliability and validity of the performance-based assessments, rather that we were faced with an insufficiency of data to make the relevant determinations. Given the small size of the schools involved and the history of the NYSED's variance process, we concluded that the schools could not be blamed for that dearth of psychometric information.^[48]

Further, Mills's decision ignores the conclusion of the Blue Ribbon Panel that there was "considerable evidence of positive effects of the Consortium programs" and "a poorly grounded decision about [whether to terminate the Variance] could have serious negative effects which could echo throughout the state." R. 134. It is ironic, to say the least, that Respondents have conceded that the overall state educational system is failing, particularly for at-risk students,^[49] yet now want to terminate a variance which uncontestedly has helped these very students to stay in school, graduate and successfully go to college.

Having disregarded all of these facts, Commissioner Mills had no basis to support his arbitrary and capricious decision. The lower court nevertheless upheld Mills's decision based on several errors.

First, Justice Kane found that the Blue Ribbon Panel Report provides support for Mills's decision. This is plainly incorrect. The Blue Ribbon Panel concluded (i) that there is substantial evidence of the NYPSC schools' success (R. 46, 50, 52, 56); (ii) that more information is required to make a well-grounded decision about the NYPSC schools' assessments (R. 122); (iii) that a more in-depth review process is required to determine if the NYPSC schools assessment meet the State's criteria; and (iv) at worst, "in some, but not all, instances, the assessment systems in a number of Consortium schools may not" meet certain State criteria (R. 52 (quoting Blue Ribbon Panel, emphasis added). Such findings cannot rationally support a decision to immediately terminate the Variance with regard to all Consortium schools without further study, especially given that the any missing data was due in large part to the SED's failure to conduct the review process specified in the Variance. It was for this reason that the Blue Ribbon Panel itself found that a 3-year extension of the Variance was warranted pending completion of a proper review.

At the very least, the Variance should be continued for those schools and for those assessments which do meet the State criteria. Even Commissioner Mills himself admits that some of the NYPSC schools' assessments meet even those criteria.^[50]

Second, like Commissioner Mills, Justice Kane improperly shifted the burden to the NYPSC schools. This was wrong for two reasons. The SED was terminating an existing Variance, not granting a new one. And, any inability of the schools to meet any burden was the result of the SED's arbitrary decision not to undertake the required review process. Indeed, the Variance itself placed upon the SED – not the NYPSC schools -- the burden of conducting a detailed, cooperative, formative review in order to generate the data and information that the SED now claims it needs.

Third, Justice Kane found that the Blue Ribbon Panel Report was merely rendered in an advisory capacity (R. 53) and that Mills was therefore free to disregard it. However, Mills admits that he used the Report as the sole support for his decision. Thus, if that report does not in fact support his decision, then the decision was arbitrary.

C. Commissioner Mills's Decision Judged the NYPSC Assessments According to Criteria That The Regents Exams Have Not Met

It is also uncontested that an agency decision is arbitrary and capricious when based upon improper standards. See, e.g., Baker v. Brownie 705 N.Y.S.2d 611, 614 (N.Y. 2000). Indeed, it is prima facie evidence of arbitrary and capricious action when an agency applies a discriminatory standard to decide similar cases differently. See, e.g., Lefrak Forest Hills Corp., 40 A.D.2d at 217-18, 338 N.Y.S.2d at 938, aff'd, 32 N.Y.2d 796, 345 N.Y.S.2d 547 (N.Y. 1973); Camperlango v. State Liquor Auth., 16 A.D.2d 342, 228 N.Y.S.2d 115 (1st Dep't 1962).

Here, Commissioner Mills's decision to revoke the Variance was clearly arbitrary and capricious given that the Regents Exams themselves have not been shown to meet the criteria of validity, reliability and alignment with the State learning standards that the State imposed on the NYPSC schools' assessments. While it is true that the wisdom and effectiveness of the Regents Exams are not a matter for this Court to decide, forcing the NYPSC schools to use the Regents Exams in lieu of performance-based assessments -- despite the failure of the Regents Exams to meet the standards applied to the NYPSC schools' assessments -- is the very essence of arbitrary action. Thus, the failure of the Respondents to demonstrate that the Regents Exams meet the criteria that Commissioner Mills used to reject the NYPSC schools' assessments renders the termination of the Variance a violation of Article 78.

In ruling on this issue Justice Kane: (i) ignored the overwhelming weight of the evidence; and (ii) failed to grant Appellants the evidentiary hearing to which they would be entitled in the event of a genuine issue of fact.

Justice Kane based his decision on the premise that the affidavit of Gerald DeMauro, submitted by Respondents, "demonstrates how the Regents examinations meet the required criteria." R. 56. In fact, DeMauro's affidavit does no such thing. While the affidavit asserts that the Regents Exams meet the applicable criteria, it fails to address in any way at least five major reasons why they, in fact, fail to meet those criteria. Summarily, declaring examinations to be valid, reliable and aligned to the Learning Standards does not make them so.^[51] Under such a standard of review, no administrative finding – no matter how absurd -- could ever be arbitrary or capricious so long as a State employee is willing to author an affidavit declaring it to be true. This cannot be the proper standard. Rather, the content of the evidence in question – here, the affidavit of Mr. DeMauro – must be examined to see if it actually provides a rationale basis for the decision in question. Here, it clearly does not.

As highlighted in the Reply Reports of professors Walter Haney and Robert Hauser,^[52] the DeMauro Affidavit does not even address, much less rebut, the many points made in the original expert reports submitted by professors Haney and Hauser demonstrating that the Regents Exams fail to meet the standards that the Respondents applied to the NYPSC schools' assessments.^[53] For example, DeMauro does not contest that:

• The Regents Exams have not been validated as high stakes tests – a flaw fatal to the State's claim that the exams are valid (R. 4866; R. 4857-60, at ¶ 5-6, 9, 12);
  
• Several of the State Learning Standards are not measured by the Regents Exams at all, calling into question the alignment of the Regents Exams with those standards (R. 419-45);
  
• The Regents Exams' system of 'component retesting' – in which students who fail the Regents Exam are allowed to retake certain sections – has not been examined for validity or reliability, thereby calling the validity and reliability of the entire exams into question (R. 4863, 4866-67, 4870; R. 4858-59, at ¶ 9);
  
• The cutoff scores used to determine passing grades on the Regents Exams have not been shown to demonstrate attainment of the State Learning Standards, and appear to have been set in order to protect against high rates of failure (R. 4866-67; R. 4858-59, at ¶ 9);
  
• There are serious statistical flaws in the SED's methodology which belie the Respondents' claim that the validity and reliability of the Regents Exams have been established. In fact, the reliability of any given student's score is tantamount to a coin-flip, and the reliability of scores for different administrations of the exams are dubious given the widely different scoring matrices used. (R. 4863, 4865-68; R. 4858-59, at ¶¶ 8-9); and
  
• The Respondents' claim that the validity and reliability of the new Regents examinations has been established is disputed by all observers independent of the SED (R. 4863, 4870; R. 4856-60, at ¶¶ 3, 6, 8, 11, 12).
  

As Professor Haney states:

[T]he Regents examinations do not meet relevant standards for validity, reliability and alignment with the Learning Standards to which the NYPSC assessments were held. The new Regents exams clearly do not meet the Joint Standards of the professional education measurement community or the AERA standards, both of which are rightfully considered important by Dr. DeMauro.

R. 4856, at ¶ 3.

Although each of these points was made by Professor Haney, Professor Hauser, or both, in their initial reports submitted with Appellants Petition and Complaint, DeMauro's affidavit fails to mention, much less rebut any of them. Each alone would demonstrate the failure of the Regents Exams to meet the criteria to which the NYPSC schools' assessments were held.

Further, it is undisputed that the State's Technical Advisory Group, which advises the State on implementation of the Regents Exams, has found that the Regents Exams have never been shown to meet the criteria that the SED and Mills applied to the NYPSC schools' performance-based assessments. See R. 433-34 (citing TAG Memo of April 2, 2000). The same conclusion was reached by the Blue Ribbon Panel, the only source of evidence claimed to be relied upon by Commissioner Mills in making his decision to terminate the Variance:

[T]he degree of alignment shown by Regents examinations over time [with the Learning Standards] has not yet been documented. This leaves us without a firm standard against which to judge alignment in Consortium schools.

R. 117. The Panel further noted that:

[W]e know of no predictive validity evidence supporting the Regents Examinations. Thus, when we look for validity evidence based on criteria such as college attendance for the [NYPSC] alternative assessment system, we are in a sense, asking more of the alternative assessment system than the [SED] has to date demanded of the Regents examinations.

R. 127.

In short, the record provides no evidentiary support for Justice Kane's finding that the Respondents have demonstrated that the Regents Exams meet the criteria applied to the NYPSC schools' assessments. Thus, the decision to require the NYPSC schools to substitute the Regents Exams for their own highly successful assessments is arbitrary and capricious and must be set aside.

Moreover, even if DeMauro's affidavit were deemed to create a genuine issue of fact with regard to whether the Regents Exams meet the criteria applied to the NYPSC schools' assessments, Appellants would be entitled to an evidentiary hearing on the matter. Where there is a genuine issue of fact in dispute, due process requires that an evidentiary hearing must be held to settle the matter. See, e.g., People v. DeAmo, 721 N.Y.S.2d 706 (N.Y.A.D. 3 Dep't., 2001); Atlantic Mutual Insurance Company v. Shaw, 635 N.Y.S.2d 297 (N.Y.A.D., 2 Dep't. 1999); LaBarbera v. D'Amico, 659 N.Y.S.2d 96 (N.Y.A.D., 2 Dep't. 1997); Weichert, v. Kimber, 645 N.Y.S.2d 674, 675 (N.Y.A.D. 4 Dep't., 1996); Miciotta, v. Mcmickens, 499 N.Y.S.2d 960, 962 (N.Y.A.D. 1 Dep't., 1986).

Here, Appellants submitted (i) detailed reports from professors Hauser and Haney – two of the nation's leading experts on testing issues; (ii) documentary evidence from the State's own Technical Advisory Group; and (iii) observations made by the Commissioners own Blue Ribbon Panel, all of which demonstrate that the Respondents had no rational basis on which to conclude that the Regents Exams meet the criteria by which the NYPSC schools' assessments were judged. At the very least, these affidavits and other evidence create a genuine issue of fact with regard to whether the Regents Exams meet these criteria. Still, Justice Kane found that "the Regents examinations meet the required criteria" based solely on the DeMauro affidavit submitted by Respondents. Assuming the DeMauro affidavit were enough to create a genuine issue of fact, that issue would have to be resolved by an evidentiary hearing. Justice Kane's failure to hold such a hearing deprived the Petitioners of their due process rights.

It was undisputed by Respondents below that a variance like the one at issue here can create rights entitled to due process protection.^[54] Further, the fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner."^[55] Due process was denied to Appellants here because Appellants were (i) subjected to unclear and shifting sets of criteria and were given neither adequate time nor resources to respond to information requests when they finally did come; and (ii) deprived of the Variance prior to completion of the required 5-year review process. Here, Justice Kane dismissed these causes of action, again without even holding an evidentiary hearing to resolve disputed issues of fact.

A. Appellants Were Given Inadequate Notice of Information Requested by the Respondents and Were Subjected to Unclear and Shifting Criteria

That the NYPSC schools did not receive proper notice was the conclusion not only of the Appellants, but also of Commissioner Mills's own Blue Ribbon Panel, which stated in its report that they had "insufficient time and resources to explore some important questions in depth" and that there was "a lack of common understanding about the types of evidence that would be needed." R. 133.

In the proceedings below, Respondents cite several documents that they allege constitute the provision of proper notice to the Appellants of the information they would need to gather and provide to the State in order to preserve the Variance. The alleged notices, however, as detailed in the Reply Affidavit of Ann Cook, did no such thing.^[56]

Respondents first point to several SED memoranda purporting to inform educators of the SED's new procedures and criteria for evaluating alternative tests to the Regents. See R. 3853-54, at ¶ 21. These memoranda, however, gave the NYPSC no reason to believe that its system of performance-based assessment would be governed by these criteria. R. 4847-49, at ¶¶ 4-5. All of these memoranda referred only to criteria and procedures for determining alternative "tests" and "examinations" to the Regents Exams. As explained by Commissioner Sobol, the Variance was granted exactly because "existing testing waiver regulations were not adequate to encompass the NYPSC's system of assessment." R. 4843-44, at ¶ 3. The new procedures and criteria established by the SED for Regents Exams "test" alternatives were no different from the regulations existing at the time the Variance was granted, but which were never applied to the Variance. R. 4847-49, at ¶¶ 2-5.

Further, none of the SED memoranda cited by Respondents explained with any specificity the data or evidence the SED would require of the NYPSC schools in order to meet the six criteria which the SED now contends all assessments have to meet. R. 4848-49, at ¶ 5.^[57] Gerald DeMauro claims that the document attached as Exhibit O to the DeFabio Affidavit "set forth the type of documentation required to satisfy technical criteria for validity, reliability and freedom from bias." R. 4069, at ¶ 114. However, this document simply parrots the regulatory criteria and completely fails to detail the kinds of evidence that the Respondents believed should be gathered by the NYPSC schools in order to determine whether the criteria are met.

Similarly, Respondents cite to several letters sent out by the SED,^[58] but these letters too fail to specify the data necessary to satisfy the Respondents. R. 4847-49, at ¶¶ 4-7. Indeed, it was not until January 17, 2001, that Howard Everson of the Blue Ribbon Panel first articulated the specific requirements and pieces of data that were expected by the SED. R. 4852-53, at ¶ 15. The belated notice, lack of a common computer network among the NYPSC schools and the lack of a program designed to report raters' scores on student work – precisely the types of data collection device the SED should have generated during its required formative reviews – made it impossible to compile the data requested by the Blue Ribbon Panel in the time available. As NYPSC Executive Committee member Ann Cook explains:

It was impossible in a matter of months in the middle of the school year to create ex post facto specific data that now the [Blue Ribbon Panel] was seeking. The [Blue Ribbon Panel] recognized these difficulties in finding that there was some absence of evidence but not negative evidence concerning the SED criteria and recommending a further three-year study while the waiver continued.

R. 4853, at ¶ 15.

As concluded by the Blue Ribbon Panel and by other experts in the field of student assessment, any gaps in the information produced by the Appellants was due to (i) the failure of the SED to conduct the required formative reviews; (ii) the rushed manner in which the information had to be compiled; (iii) the lack of specificity of the information requested; (iv) the failure of the Respondents to alert the NYPSC schools as to what types of data would be required far enough in advance; and (v) the unreasonableness of requiring teachers and administrators – who already hold fulltime jobs as educators – to generate and compile years worth of statistical data within a matter of weeks.^[59] In the words of Robert Stake, a member of the Blue Ribbon Panel found, "the schools could not be blamed for that dearth of psychometric information." R. 2728, at ¶ 6.

Justice Kane ruled that, despite these uncontested facts, Appellants' due process rights were not violated solely because (i) Appellants knew that the State was in the process of imposing "tougher standards" in education (R. 58); and (ii) the Appellants had two alleged opportunities to gain approval for their assessments – that is, from the State Assessment Panel and from the Blue Ribbon Panel (R. 58). Neither of these points addresses the relevant legal or factual issues.

First, the fact that the State was developing tougher educational standards begs the question of what those standards are or how Appellants could meet them. It was these questions that the Appellants repeatedly sought to clarify. But, they were never given proper notice of the answers. Meanwhile, the NYPSC schools uncontestedly raised educational standards by outperforming Regents schools in terms of lowering drop-out rates, increasing college attendance rates and college success rates, and other common indicators of meeting "tough standards".

Second, the two alleged opportunities that the Appellants had to demonstrate that their assessments meet the State's criteria are the very proceedings in which they were denied due process because of the failure of the Respondents to provide proper notice of the specific data and information sought in those proceedings. Thus, these were not meaningful opportunities to be heard.

B. The SED's Failure to Conduct the Required Review Process Deprived Respondents of their Due Process Rights

Finally, it was the 5-year review process specified in the Variance that was intended to generate much of the data ultimately identified by Respondents as required pieces of information regarding the NYPSC schools' assessments. This review process, promised to the NYPSC schools in the express terms of the Variance, was to provide the schools with resources, staffing, data gathering systems and information about the types of things that would be required to meet the State's requirements. Despite repeated requests (see Statement of Facts, § V., infra), the Respondents refused to conduct this review process and instead terminated the Variance based on an alleged lack of information that the review process itself was designed to satisfy. This a violation of Appellants due process rights.

The parties to this action all agree that: (i) the Variance specified a 5-year review by the SED, and that the SED did not undertake or complete that review; (ii) that Commissioner Mills based his decision entirely on the report of the Blue Ribbon Panel, and that the Blue Ribbon Panel concluded that there was not enough information to make a well-grounded decision and the Variance should be extended, not terminated; and (iii) that NYPSC schools have succeeded in lowering the drop out rate, increasing graduation, college attendance and college success rates while Commissioner Mills's decision to terminate the Variance will effectively destroy this highly successful system. Given this undisputed record, it is clear that the decision to terminate the Variance was arbitrary and capricious, was made in violation of a lawful procedure, and violates the due process rights of the Appellants. For all of these reasons, the Appellants respectfully request that this Court reverse Justice Kane's ruling below, set aside Commissioner Mills's decision and reinstate the Variance pending completion of the required reviews. In the alternative, Appellants request an evidentiary hearing regarding the issue of whether the Regents Exams meet the criteria applied to the NYPSC schools' assessments, and other issues on which the Court finds there is a factual dispute.

Footnotes:

^[1] The membership of the NYPSC includes twenty eight public high schools in New York City, Bedford, Ithaca and Rochester: Academic Community for Educational Success, Alternative Community School, Beacon School, Bread And Roses Integrated Art High School, Brooklyn International High School, Brooklyn School For Global Studies, City-As-School, Coalition School For Social Change, Daytop Village Secondary School, East Side Community High School, El Puente Academy, Fannie Lou Hamer Freedom High School, Humanities Preparatory Academy, Institute For Collaborative Education, International High School At Laguardia Community College, Landmark High School, Legacy School for Integrated Studies, Manhattan International High School, Manhattan Village Academy, Middle College High School at Laguardia Community College, Satellite Academy (Satellite Queens, Schomburg Satellite, Satellite Forsyth, Satellite Midtown), School for the Physical City, School of the Future, School Without Walls, University Heights High School at Bronx Community College, Urban Academy Laboratory High School, Urban Peace Academy, and Vanguard High School.

^[2] Record ("R.") 98.

^[3] R. 2542-3, at ¶ 7; R. 208, at ¶ 4.

^[4] R. 394-96; R. 209, at ¶ 8.

^[5] R. 2850-51, at ¶¶ 8-10; R. 209-10, at ¶ 9.

^[6] See R. 3352-53.

^[7] The Annenberg Networks are groups of prominent reform-minded schools funded in part by grants from the Annenberg Foundation. R. 213, at ¶ 17.

^[8] A zoned mandatory attendance system is one in which a student's school is determined by his or her home address.

^[9] R. 2542-43, at ¶ 7; R. 2853, at ¶ 14; R. 208, at ¶ 4.

^[10] R. 2554, at ¶ 29; R. 2850, at ¶ 7.

^[11] R. 3352-53.

^[12] See also R. 2831-46 (Affidavit of Professor Linda Mabry). Professor Mabry has completed and published a seven-year study of Walden III high school in Racine, Wisconsin ("Walden"). Walden was among the first high schools to utilize the type of performance-based assessment system adopted by the NYPSC schools. Her findings were dramatic, stressing, in addition to the short term educational benefits, that these students are being taught the skills they need to succeed in life after school. R. 2839-44, at ¶¶ 29-42.

^[13] R. 2859-60, at ¶¶ 26-28; R. 368-69, at ¶ 5; R. 3322-51; R. 211-12, at ¶ 14.

^[14] R. 368-69, at ¶ 5; R. 2785-86, at ¶¶ 24-25.

^[15] See R. 3322-51. Another important benefit of performance-based assessments is their usefulness to teachers in improving their teaching methods. The results of the NYPSC schools' performance-based assessments "help teachers understand, develop, and provide optimal curricula and learning conditions." R. 2839, at ¶ 28.

^[16] R. 2541-42, at ¶ 5.

^[17] R. 3426-68.

^[18] See R. 3426-68.

^[19] These technical criteria include 'validity,' 'reliability' and alignment with the State learning standards. Validity refers to the degree to which an assessment measures what it is supposed to measure. R. 2833-34, at ¶ 10; R. 434-35; R. 1736-39. Reliability refers to the degree to which test scores are consistent between like-students. For example, in a reliable exam, students who make high scores tend to get the same questions right and the same questions wrong. R. 2833, at ¶¶ 7-9;.R. 424-30. The State learning standards are a set of standards published by the State. They are discussed in greater depth in the Haney Report (R. 419-45) and the Hauser Report (R. 1734-40).

^[20] R. 215-17, at ¶¶ 22-29; R. 347-48, at ¶¶ 8-11; R. 146-48, at ¶¶ 13-18.

^[21] R. 217, at ¶ 30; R. 348, at ¶ 12.

^[22] R. 2546, at ¶ 12; R. 148, at ¶ 19.

^[23] R. 218, at ¶ 33; R. 348-49, at ¶ 14; R. 148-49, at ¶ 20.

^[24] As discussed below, the Blue Ribbon Panel found that the SED's failure to conduct this formative review process was a key reason that the NYPSC schools could not comply with all of the requests for information in the short time frame dictated by Mills. (pp. 32-35, infra).

^[25] R. 2728, at ¶ 6.

^[26] R. 196.

^[27] R. 370, at ¶ 9; R. 2558-59, at ¶ 39.

^[28] R. 133.

^[29] R. 2558-59, at ¶ 39; R. 370, at ¶ 10.

^[30] Moreover, the panel's first two requests for information were made during especially inconvenient time periods for the schools: once near the end of the school year, when teachers and administrators are exceptionally busy finalizing student grades and evaluating year-end projects; and once in July, when almost no school personnel are present due to the summer break. R. 2557-59, at ¶¶ 37, 39; R. 370, at ¶ 9.

^[31] See also, R. 395-96, 400-01; R. 1736-37.

^[32] R. 3378-79, at ¶ 5; R. 3385-90.

^[33] See, e.g., Bd. of Educ. of Monticello Cent. Sch. Dist. v. Commissioner of Educ., 91 N.Y.2d 133, 139, 140-41, 667 N.Y.S.2d 671, 673, 675 (N.Y. 1997) (overruling Commissioner of Education's decision because it was arbitrary and capricious); Bd. of Educ. of City Sch. Dist. v. Allen, 48 Misc.2d 343, 344, 264 N.Y.S.2d 813, 815 (N.Y. Sup. 1965).

^[34] Any deference granted to a lower court judge would be based on that judge's unique ability to examine evidence and weigh the credibility of conflicting witnesses. See, e.g., Universal Leasing Services, Inc. v. Flushing Hae Kwan Restaurant, 565 N.Y.S.2d 199, (N.Y.A.D. 2 Dept., 1991). Here, no such deference is applicable because there was no live testimony of any kind, nor any presentation of evidence in the lower court. This Court is presented with precisely the same factual and evidentiary record, in precisely the same form, as was Justice Kane, below. An error in regard to the facts is just as amenable to correction on appeal as one in regard to the law. Gerson v. Jo White, Inc., 189 N.Y.S.2d 346 (N.Y.Sup., 1959).

^[35] R. 43.

^[36] See Avila v. Bd. of Educ. of N. Babylon Union Free Sch. Dist., 169 Misc.2d 761, 764-65, 647 N.Y.S.2d 923, 925-26 (N.Y. Sup. 1996) (board's decision ran "afoul" of the rationale underlying the Commissioner's prior decisions such that it was arbitrary and capricious), aff'd, 240 A.D.2d 661, 658 N.Y.S.2d 703 (2d Dep't 1997); Martin v. Ambach, 111 A.D.2d 1009, 1011, 490 N.Y.S.2d 328, 329-30 (3d Dep't 1985) (hearing panel's determination was arbitrary and capricious when it departed from applying the usual standard of proof in a disciplinary hearing at the direction of the Commissioner), aff'd as modified, 67 N.Y.2d 975, 502 N.Y.S.2d 991 (N.Y. 1986) ; Lefrak Forest Hills Corp. v. Galvin, 338 N.Y.S.2d 932, 938 (2d Dep't 1972), aff'd, 32 N.Y.2d 796 (N.Y. 1973), cert. denied, Baum v. Lefrak Forest Hills Corp., 414 U.S. 1004 (1973).

^[37] R. 2546, at ¶ 12; R. 148, at ¶ 19; R. 217, at ¶ 30; R. 348-49, at ¶¶ 12-14.

^[38] "[A] regard for the criteria of principled decisions is as applicable to administrative agencies as to courts themselves." Lefrak Forest Hills Corp. v. Galvin, 338 N.Y.S.2d 932, 938 (2d Dep't 1972), aff'd, 32 N.Y.2d 796 (N.Y. 1973), cert. denied, Baum v. Lefrak Forest Hills Corp., 414 U.S. 1004 (1973). Some "measure of legal consistency by the court upon administrative agencies is part of the tariff that must be paid for whatever advantage can be claimed for review by a law court of the work of an administrator." Id. (citation omitted); see also, Claim of Martin, 70 N.Y.2d 679, 681 (N.Y. 1987)(board failed to explain departure from prior determination such that it was arbitrary and capricious); Gonkjur Assoc. v. Abrams, 82 A.D.2d 683, 443 N.Y.S.2d 69 (1st Dep't 1981), aff'd, 455 N.Y.S.2d 761 (N.Y. 1982) (plaintiff entitled to relief because Attorney General had a duty to conduct a review but failed to do so); Engel v. Sobol, 161 A.D.2d 873, 556 N.Y.S.2d 179 (3d Dep't 1990) (Commissioner's decision to suspend teacher was arbitrary and capricious where it failed to conform with prior administrative precedent and policy); Long Island Assoc. for Children with Learning Disabilities v. Sobol, 175 A.D.2d 520, 572 N.Y.S.2d 787 (3d Dep't 1991) (Commissioner acted arbitrarily in setting tuition rates when he did not follow the terms of his offer sent to petitioners in a prior letter); Girard v. City of Glen Falls, 173 A.D.2d 113, 577 N.Y.S.2d 496 (3d Dep't 1991) (annulling decision that dismissed a firefighter for a violation of local law because it departed "from prior administrative policy"); UOP v. U.S., 99 F.3d 344 (9th Cir. 1996) (finding that agency acted arbitrarily and capriciously when it did not conduct a proper study to determine if land was mineral in nature, and remanding to administrative agency to conduct the study).

^[39] Justice Kane sought to distinguish the Lefrak case, cited by Appellants, from the case at bar, but made no mention of the many other cases cited by Appellants for the same proposition. See note 38, supra. Further, Justice Kane incorrectly distinguishes Lefrak. Although the term of the Variance here was set at five years, that five year period was conditioned upon the SED's completion of the required reviews, as Commissioner Sobol's affidavits and the text of the Variance itself make clear. Thus, like Lefrak, Respondents decision here to terminate the Variance is inconsistent with prior stated policy.

^[40] It is "one of the accepted canons of construction that statutes must be read so that each word will have a meaning, and not so read that one word will cancel out and render meaningless another…." Tonis v. Board of Regents, 295 N.Y. 286, 293 (N.Y. 1946). See R.A. Bronson, Inc. v. Franklin Correctional Facility, 255 A.D.2d 723, 680 N.Y.S.2d 719 (3d Dep't 1998); Morton Bldgs., Inc. v. Chu, 126 A.D.2d 828, 830 510 N.Y.S.2d 320, 321 (3d Dep't 1987), aff'd, 70 N.Y.2d 725 (N.Y. 1987) (court in Article 78 proceeding overruled an administrative agency's interpretation of a statute section which rendered a substantial portion of another statutory section meaningless, holding that such result could be avoided with another reasonable interpretation of the statute).

^[41] R. 148-49, at ¶ 20.

^[42] R. 345-51; R. 207-22.

^[43] See Thomas v. Bethlehem Steel Corp., 95 A.D.2d 118, 120, 466 N.Y.S.2d 808, 810 (3d Dep't 1983), aff'd, 63 N.Y.2d 150, 481 N.Y.S.2d 33 (N.Y. 1984). In the context of statutory construction, ambiguity exists where "doubt and uncertainty prevail" with respect to the intent behind the statute. See id. "[D]iametrically opposed interpretations" of the language of the statute support the view that such language is not "clear and unequivocal" and free from ambiguity. See id. (holding that an agency's current interpretation of a statute was irrational and unreasonable, and finding ambiguity where both the parties and separate panels of the agency itself set forth "diametrically opposed interpretations").

^[44] See Van Wagner Advertising Corp. v. S & M Enterprises, 67 N.Y.2d 186, 191, 501 N.Y.S.2d 628, 631 (N.Y. 1986) (contract language was ambiguous where both parties had different, reasonable interpretations), citing Chimart Assoc. v. Paul, 66 N.Y.2d 570, 573, 498 N.Y.S.2d 344 (N.Y. 1986) (in determining ambiguity of contractual language court initially asks whether "the agreement on its face is reasonably susceptible of more than one interpretation").

^[45] At the federal level, the United States Supreme Court has similarly defined the terms "arbitrary" and "capricious." When rendering a decision, an administrative agency:

must examine the relevant data and articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made'... Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency

^[46] R. 133.

^[47] R. 134.

^[48] R. 2728, at ¶ 6.

^[49] R. 3842-43, at ¶¶ 6-7.

^[50] R. 3378-79, at ¶ 5; R. 3385-90.

^[51] If this alone were enough to assure compliance with the applicable standards, then the NYPSC schools' assessments could not have been rejected by Respondents. As detailed in the affidavits of Ann Cook, Deborah Meier, Linda Darling-Hammond, and others, extensive efforts and research went into designing the NYPSC assessments to meet the State's learning standards. R 2542-54, at ¶¶ 7-28; R. 208-18, at ¶¶ 7-33; R. 2850-62, at ¶¶ 8-34.

^[52] R. 4855-62; R. 4863-74.

^[53] See R. 388-458; R. 1733-43.

^[54] Procedural protection of property "is a safeguard of the security of interests" that a party has "already acquired in specific benefits." Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2708-09 (1972). See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970) (finding property interest in welfare benefits); see also Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736 (1975) (finding that once a state extends the right to an education, it is constrained to recognize a student's entitlement to a public education as a property interest). A claim of due process entitlement may also be created by rules promulgated by state officials. Buck v. Bd. of Educ. of City of New York, 553 F.2d 315, 318(2d Cir. 1977), cert. denied, 438 U.S. 904 (1978); Oliver Schools, Inc. v. Foley, 881 F. Supp. 847, 854 (W.D.N.Y. 1994) (finding that plaintiff schools had property interest in continued participation in and eligibility for student loan program, where regulations provided that an institution's participation cannot be suspended, limited, or terminated without notice and an opportunity to be heard).

^[55] Matthews v. Eldridge, 424 U.S. 319, 333 (1990) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Due process thus requires procedures that are tailored to "'the capacities and circumstances of those who are to be heard,' to insure that they are given a meaningful opportunity to present their case." Eldridge, 424 U.S. at 348 (quoting Goldberg v. Kelly, 397 U.S. 201,268-269 (1988)).

^[56] See R. 4847-54.

^[57] The Blue Ribbon Panel recognized that the SED's evaluative criteria "appear to have been written with external standardized examinations in mind." R. 108.)

^[58] R. 4819; R. 4820-25; R. 4826-30; R. 4831-34.

^[59] See R. 134-37; R. 2550-54, at ¶¶ 22-28, 67; R. 4851, at ¶ 12; R. 369-70, at ¶¶ 7-8; R. 2728, 2731-32, at ¶¶ 6, 12, 13-15.

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