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Censorship: The ELA Exposed

Legal Action: Consortium vs. the SED

Summary of the NY Performance Standards Consortium Lawsuit

In May, 2001, the New York State Commissioner of Education, Richard Mills, removed the variance from the Regents tests granted by the previous Education Commissioner, Thomas Sobol, thereby forcing small innovative schools to become Regents high schools. The New York Performance Standards Consortium believes this act violated the terms of the variance and filed a lawsuit against the Commissioner and the State Education Department.

Here, in more detail, is why:

1. The variance called for the State Education Department to conduct a 5-year of schools covered by the variance. The variance specifically states that the variance would continue indefinitely if no 5-year study was conducted. The SED never conducted such a study.

2. Commissioner Mills appointed a Blue Ribbon Panel, a group 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 be conducted of Consortium and Regents schools. The Commissioner rejected the advice of his own panel.

3. Consortium schools outperform New York City high schools in a number of categories which suggest they are more successful at preparing students for post-secondary school experiences and in keeping their students in school until graduation.. The dropout rate at Consortium schools is far lower and the college going rate far higher than at Regents schools across the city.

4. Commissioner Mills has charged 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.

5. Last winter, parents of 8th graders made decisions about their children's high school placement based on published information about the schools's curriculum and assessment system. Commissioner Mills's 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. Their children's rights to due process was violated.

On August 19, 2001, the lawyers representing the Consortium filed suit, claiming that the Commissioner had acted in an "arbitrary and capricious manner." The legal papers number almost 3000 pages and include twelve volumes of affidavits. Affidavits from Dr. Ted Sizer, Dr. Walt Haney, Dr. Linda Darling-Hammond, Deborah Meier, Dr. Linda Mabry, Dr. Robert Stake and many others are included in the court papers.

The State must file its papers in response by October 12; the Consortium must respond to the State^? response by October 26. At that point the judge will make a decision on how to proceed with the case.

The law firm of Weil, Gotshal and Manges represents the Consortium pro bono.

Download the documents of this lawsuit.



Students in New York State public high schools are denied a graduation diploma if they fail just one high-stakes Regents test, regardless of their overall class performance.

Seniors will have to pass 5 high-stakes Regents exams this year in order to graduate.