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An appellate panel in Albany, N.Y., has upheld a State Education Department mandate requiring students at alternative public schools to take Regents examinations. Although the ruling was limited to a few dozen institutions, mainly in New York City, in upholding that authority, the Appellate Division, 3rd Department, has handed the education commissioner a significant victory. “This is the first real challenge to the new state testing requirements and the higher learning standards,” said Kathy A. Ahearn, counsel to the education commissioner and the Board of Regents. “We were very concerned to get a win under our belt.” International High School v. Mills,87349, directly involves so-called “twenty-first century schools,” which were set up under a federal program adopted by New York State under Section 309-a of the Education Law. The schools are part of the public school system and under the control of the local board of education, but are designed to function outside of the traditional academic setting. For instance, instead of relying on examinations to measure student progress, many of the alternative schools require year-end projects or “portfolios.” In 1995, the schools in this case were granted a five-year variance to develop alternative evaluative tools to measure student performance. Two subsequent State acts gave rise to the controversy addressed by the 3rd Department last week. In 1998, the Legislature enacted Article 56 of the Education Law, which provides for the creation of so-called “charter schools.” That legislation allows for the establishment of public educational institutions that function independently of the local school district and board of education. Charter schools differ from twenty-first-century schools in that they are separate legal corporations generally exempt from most public school regulations. Although charter schools are governed primarily in accordance with an agreement, or “charter,” with a chartering entity, such as the public school chancellor, the Charter School Act specifically requires students in those schools to take the State Regents Examinations. Additionally, the State Board of Regents imposed new, tougher standards, which include a requirement that students pass the more rigid Regents tests. After the 1998 legislation took effect, many schools created under Section 309-a sought identity under the Charter School Act, which would grant them considerably more self-governing authority. The schools in this case received such approval, and their charters were issued in August 1999. Commissioner Richard P. Mills, in an administrative determination, held that the schools would have to administer Regents tests, with the exams being phased in over several years. Although other schools had to begin giving the English Regents test this past June, Mills waived that requirement for a year, and instead ordered the schools to administer a more basic proficiency test. However, he mandated that, over time, the alternative schools would have to administer Regents exams in English, social studies, science, math and foreign languages. DUAL STATUS DENIED The alternative schools challenged the commissioner’s authority. They claimed that the tests were contrary to their educational philosophy, and that the commissioner’s order violated their rights under the Education Law. In June, New York Supreme Court Justice James B. Canfield of Troy, N.Y., ruled in favor of the commissioner in a decision upheld by the 3rd Department last week. Justice Karen K. Peters, writing for the court, said that a school cannot enjoy dual status under the Twenty-First Century School Act and the Charter Schools Act. “Evidenced by the obvious difference in corporate structure, government and accountability, the statutory requirement that students attending a charter school be required to take the State Regents examinations logically implicates, in our view, the only standardized means by which assessments can be made of the charter school’s educational plan and its students’ success therewith,” Peters wrote. The court also upheld the power of the commissioner to enforce the standards adopted by the Board of Regents. Also on the panel were Judges Thomas E. Mercure, Edward O. Spain, Anthony J. Carpinello and Victoria A. Graffeo. Bonnie Steingart, of Fried, Frank, Harris, Shriver & Jacobson of Manhattan, represented the schools. The State was defended by Assistant Attorney General Marcus J. Mastracco.

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