NY Consortium Files Lawsuit

K-12 Testing

A coalition of 28 New York public high schools, the New York Performance Standards Consortium, filed suit in state court in August against Commissioner of Education Richard Mills and the State Education Department after Mills revoked the Consortium schools’ waiver from the requirement that all students pass the state’s standardized Regents tests in order to graduate. The variance had been granted to the schools by the previous Commissioner, Thomas Sobol. The plaintiff schools, most in New York City and many with national reputations for excellence, will be forced to change their innovative curricula, instruction and assessment systems in order to focus on the state’s standardized tests. The schools believe this will effectively destroy them.


Charging that the Commissioner had acted in an “arbitrary and capricious manner,” the Consortium focused on five key points:


• The original variance from Comm. Sobol called for the State Education Department (SED) to conduct a 5-year study of schools covered by the policy. The variance specifically states it would continue indefinitely if no 5-year study was conducted. The SED never conducted the study.
• Commissioner Mills appointed a Blue Ribbon Panel of six test experts to review the Consortium schools. After examining Consortium data and conducting a two-day review, the Panel recommended that the variance continue for three years while a study was conducted of both Consortium and regular Regents schools. The Commissioner rejected the advice of his own panel.
• New York City Consortium schools outperform city high schools. For example, the dropout rate at Consortium schools is far lower and the college enrollment rate is far higher than at Regents schools across the city.
• Commissioner Mills claimed that the Consortium’s performance assessments do not meet standards of validity and reliability. Experts disagree. In detailed affidavits, they have presented evidence that the Regents exams do not meet industry standards of validity and reliability. The lawsuit charges the Commissioner with using a double standard to judge performance assessment.
• Last winter, parents of 8th graders made decisions about their children’s high school placement based on published information about the schools’ curriculum and assessment systems. Commissioner Mills’ decision, issued in May, effectively ended performance assessment for students entering Consortium high schools. The decision occurred so late in the selection process that it was not possible for parents to make alternate decisions about high school selection, violating their due process rights.
The legal papers filed in the suit include affidavits from Dr. Ted Sizer, Dr. Walt Haney, Dr. Robert Hauser, Dr. Linda Darling-Hammond, Dr. Deborah Meier, Dr. Linda Mabry, Dr. Robert Stake and many others. These affidavits provide a rich description of the schools, of authentic assessment, and a detailed critique of the Regents exams. They are on the web at http://www.performanceassessment.org


The court will decide the course of the case later this fall.