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California Court Moves to End Tenure

June 12, 2014

This post was written by Natalie Jersak, a rising senior at Siena College and summer intern at the Government Law Center.

On Tuesday, June 11, 2014, the Los Angeles Superior Court moved to end the California’s public schools tenure system. The court cited Brown vs. Board of Education case’s holding that all students have a fundamental right to equal education as the basis for ending the tenure system. Under that standard, the court held that students were denied their fundamental right to education because the tenure system had the effect of retaining poor teachers who failed to supply students with a competent education. The most severe cases of teacher incompetency was overwhelmingly present in schools with a large base of minority and low-income students

Tenure rights were first enacted in 1910 with New Jersey legislation granting fair-dismissal rights to college professors. Tenure legislation for primary and secondary schools was not established until the 1920s.

Today, there are roughly 2.3 million public school teachers in the U.S. who have tenure rights. The tenure question has two sides. Opponents of tenure argue that this system protects subpar educators because the only way to dismiss them is via a mandated and costly process. On the other hand, proponents argue that teachers need protection like this because without it, at will employment can subject teachers to dismissal at the whim of schools administration. The most common example cited in support of tenure rights is to protect teachers who wish to teach their curriculum without the interference of extra-curricular forces—e.g. they want to teach according to national or state curriculum standards as opposed to locally-encouraged criterion.

The push to remove tenure rights has been quieted for over a decade. The last state to abolish tenure was Oregon in 1997. There, the state eradicated tenure and adopted a system providing two-year renewable contracts along with a rehabilitation program for underachieving teachers.

In California, the court compiled a list of items evidencing how the California tenure system denied students their fundamental right to education. Mainly the procedure protecting tenured teachers made it difficult to terminate ineffective educators. According to the court, the hearing-like process granted to every tenured teacher costs districts between $250,000 and $450,000 per tenure complaint; the process itself takes, on average, two years to complete.

Representatives from the California Teachers Association will appeal the decision on the grounds that the court has interrupted the principles of checks and balances by circumventing the legislature to end tenure.


New York Seeks to Strengthen Its Business Economy through START-UP NY

November 20, 2013

     Governor Cuomo of New York State has a new economic development plan called START-UP New York.  This program was organized to strengthen the private-public partnership between business and the government of New York State as well as help fuel innovation and economic growth and development.  In short, New York State is encouraging new and expanding businesses to organize in New York through business-friendly tax incentives.  These incentives are only available if the business aligns its business mission with the sponsoring organization’s mission; all sponsoring organizations are public and private colleges or universities. 

     This is an overview of the business eligibility requirements as set forth in the draft regulations issued under the START-UP NY program.  The draft regulations are available for public comment until 5PM Monday, December 30, 2013.  More information about the program and the public comment contact is available here.

Sponsoring Organizations

     Under START-UP NY, the legislature has set aside a lot of space for entrepreneurs to set up their offices.  All office space is part of public and private NY university/college property.   Colleges and universities may offer existing vacant space for the program; schools in certain geographic regions are permitted to also use off-campus land for START-UP NY applicants.  To make sure education resources are not overextended, the program restricts college/university campuses from offering too much office space for entrepreneurs.  For example, SUNY colleges upstate of Westchester may use vacant space and land on campus for this program, and only up to 200,000 square feet of additional land within one mile of campus for applicant office space.[i]

Tax Benefits under START-UP NY

     START-UP NY assists organizations that contribute to New York’s economic development and innovation.  Under this program, eligible businesses (eligibility is described below) will be permitted to operate tax free for ten years.  This includes business, corporate, state, local, sales, and property taxes.  Employees of those businesses would not pay personal income tax (state tax) on their wages for the first five years.  After five years, employees will not pay tax on their income up to $200,000 – $300,000 depending on their filing preferences.

Business Eligibility

     The proposed regulations set forth the following eligibility requirements for businesses seeking to participate in START-UP NY.  At the outset, it is important to note that there are thirteen types of businesses that are ineligible for this program:

  1. Retail/Wholesale business
  2. Restaurants
  3. Real estate brokers
  4. Legal services (i.e. law firms)
  5. Medical practices, including dentistry
  6. Real estate management
  7. Hospitality
  8. Financial services
  9. Personal services (i.e. dry cleaning or photofinishing)
  10. Administrative or support services[ii]
  11. Accounting firms or services
  12. Businesses providing utilities
  13. Businesses distributing utilities

     As long as a business is not found within one of the proscribed thirteen sectors set forth above, entrepreneurs may begin assessing their eligibility according to the following six items: business start date, business form, legal compliance, business mission, business growth, and business originality.  This is a summary of those six eligibility components.[iii]

     Start Date

     Generally, a business must be new if it is to participate in START-UP NY.  There are a couple of definitions for “new business.”  At first, it means that the business is not operating in New York at the time it applies to START-UP NY.  The definition does not exclude businesses currently operating in other states, but, in those circumstances, currently operating businesses cannot transfer existing jobs into the tax free areas.  If a business outside of NY wants to apply to START-UP NY, it must create new employee positions here in this state.

     Businesses that have graduated from a NY Incubator are new businesses for the purpose of this program.  Businesses that operated in state but moved out of New York on or before June 1, 2013 may take advantage of the program if the Commissioner of Economic Development finds that the business will substantially restore jobs in New York that were lost in the move out of state.  If a business wants to expand into a tax-free area, the owners can apply to the program; if the Commissioner determines that the business will create new jobs in the tax-free area and that jobs will not be eliminated in connection with the expansion it may be accepted into a tax-free area.

     Business Form

     Any business organized as a sole proprietorship, partnership, limited liability company, or a corporation may apply to the program.  This appears to eliminate certain business forms that professional organizations usually take, such as a limited liability partnership.  In any event, many of those business forms are ineligible under the program as it is currently conceived.

     Legal Compliance

     New businesses applying to START-UP NY must comply with workers compensation rules, unemployment insurance, environmental laws, and all other employment laws and regulations.  Applicants must also be up to date on their taxes—federal, state, and local property taxes.

     Business Mission

     START-UP NY is a public-private partnership between the government and industry.  Therefore, business mission statements of the applying entities must align with the purpose of the sponsoring organization.  Sponsor organizations under START-UP NY are academic institutions all over the state. 

     In addition to aligning mission statements, each applicant must show its business will contribute to the community in some positive way.  One example of such a contribution is stimulating the economy.  This could include offering internships or vocational training, as well as collaborating with the local economy and fostering entrepreneurship.  Community contribution is a broad concept, but revolves around promoting and creating economic opportunity within the sponsor’s community.

     Applicants must also be involved with the sponsoring organization.  This can be through scholarship, teaching, or sharing intellectual property with the sponsor.  START-UP NY is focused on establishing a strong entrepreneurial economy through this collaboration.  So applicant involvement can vary as long as there is some sort of direct collaboration with the sponsoring institution. 

     Business Growth

     Applicants must show that their business will create new net jobs.  Under START-UP NY, a new net job is a job created by the applicant under the program that is:

  1. New to New York;
  2. Is not transferred from a business outside New York through reorganization or transfer;
  3. Is not given to a person employed in New York within the past five years by a related person;
  4. Mandates at least thirty-five hours of work time a week;
  5. Is located within one of the tax-free areas; and
  6. Is filled for at least six months of the year in the tax-free area.

     Business Originality

     In general, the business must be a new business.  It should not be a business that used to exist in New York within the last five years that is being reinvigorated through the program by the same business owner.  If the applicant wishes to bring in a pre-existing business, the applicant is only eligible to participate in START-UP NY if the business moved outside of New York on or before June 1, 2013 and the Commissioner determines that the applicant will restore the jobs that were lost when the business moved.  Other local existing businesses seeking to expand into a tax-free area are eligible if the Commissioner determines that the business will make new net jobs with the move and that it will not eliminate jobs within the state when it expands to the new area.

Maintaining Eligibility under START-UP NY

     Once accepted under START-UP NY, businesses must continue to meet standards imposed under the program in order to continue receiving the tax-free benefit.  The program requires that all businesses at least maintain the number of new net jobs that were created under the incentive.  Specifically, the average number of employees must reflect or exceed the average numbers from the year before the business submitted an application for START-UP NY plus any new net jobs created during the business’s tenure in the program.  Numbers should be gathered quarterly, at the end of March, June, September and December, to get the average.  Businesses must submit an annual report of their numbers to the Commissioner of Economic Development.

[i] Upstate SUNY schools may go outside the 1-mile radius with approval from Empire State Development.

[ii] Unless the Commissioner of Economic Development grants permission

[iii] The regulations impose additional eligibility requirements for applicants seeking to locate in downstate NY.  Those businesses must be in the formative stage of development or be involved in high technology such as design, development, information technology, advanced materials, processing engineering, etc.

California Releases Cheaper Gasoline…But at What Cost?

October 9, 2012

In California gasoline prices are reaching $4.65 a gallon and as a result Gov. Brown and state agencies decided to take action.  California decided to allow the sale of winter gasoline a month earlier then usually.  Winter Gasoline is less environmentally friendly because if used during warmer temperatures will evaporate into the atmosphere quicker than alternatives.  This is even true for gas that remains in subterranean storage tanks. It was noted that if a major heat wave hits California the switch to winter gasoline may have a large effect on the air quality.

While gas prices always fluctuate, California is seeing a rise in price above the national average because of problems with their state refineries.  The national average was noted to be $3.814 with California prices reaching  $4.65.

This bring an interesting question to state and local government reform.  With the large impacts that gas prices have on the everyday economy and everyday lives of residents, when should a state intervene in the market in an attempt to lower gas prices?  And how much weight should be given to the environmental effects that may result?

The article showcasing this California action is available here,0,7934574.story 

Delaware Combats Cyberbullying

August 10, 2012

In light of recent issues that have come to national attention, Delaware is leading the way in reform against cyberbullying.  Based on proposals from the Attorney General, Lieutenant Governor, and Education Committee Chairs, two bills that combat cyberbullying were signed into law in this state.

Leading up to the signing of SB 193 and HB 268, leaders conducted statewide public hearings.  These hearing were used to gather factual evidence from school officials and parents about bullying.

SB 193 will allow for the Department of Education to issue a final cyberbullying policy.  Each public and private school will be required within a 90 day period to adopt the policy.  SB 193 also allows the Attorney General’s office to defend schools that may face  a legal challenge due to the implementation of the cyberbullying policy.  Lt. Governor Denn said, “This statewide policy will allow schools to clearly tell students what type of social media conduct is unacceptable, and it will provide legal support from the Attorney General’s office for districts where the policy is challenged.”

HB 268 is designed to protect students against cyberbullying by requiring consistency in the reporting of bullying incidents among all schools.  The Department of Education will use this legislation to being auditing a number of schools every year, with the intent of ensuring the schools are properly investigating and reporting all bullying incidents.  HB 268 further requires school to report both substantiated and “unsubstantiated” incidents of bullying to the Department of Education.

Representative Terry Schooley, the lead House sponsor of both bills said, “Bullying in any form creates fear and intimidation in our schools, and it leads to students performing poorly, not going to school for fear of being bullied or in some cases, committing suicide. When you take into account that means of communication such as social media, computers and cell phones post information far more publicly than previous generations could ever imagine, the issue becomes even more serious. By signing these bills into law, we are trying to increase reporting and stay ahead of the curve to protect our children and grandchildren.”

This post was prepared by Chelsea Keenan Albany Law School ’14



State Super Control Board Taking Over Struggling New York Local Governments?

August 8, 2012

In recent news it has been stated that New York Gov. Cuomo and Comptroller Thomas DiNapoli are looking to propose legislation that would create a state super control board.  The board that would take over the finances of struggling local governments on the verge of bankruptcy, including cities, towns, villages, and counties.

Of course public labor unions oppose such legislation because it would allow the state to violate union contracts, which represent one of the largest local government expenditures.

Such control boards are not uncommon in New York and have been set in place at the local level.  The governments of Troy, Buffalo, Yonkers, and Nassau County have been under finance control boards because they were on the verge of an economic crisis.  It was reported that currently 300 local governments ran deficits and more than 100 local governments do not have enough to pay the bills.

The proposed legislation was described as not “…completely replac[ing] the locally elected official.  But it would provide them with the political ‘cover’ many privately say they need to stand up to the powerful unions, which have consistently resisted spending cuts.”

Conflicting reports show that Comptroller DiNapoli has not been in discussions with Gov. Cuomo and he believes it is premature for the installation of such a board.   In a press conference DiNapoli emphasized that the idea needs to be examined in more detail.

National Governors Association: Models of Teacher Compensation

June 14, 2012

To add to a previous post discussing how teacher evaluations in New York are going to affect school aid, the Natoinal Governors Association (NGA) has found a growing interest in new models of teacher compensation based on evaluation.  As such the NGA hosted a policy academy focused on the issue designed to provide assistance, advice, experts, and networking opportunities with other states.

NGA selected six states, Florida, Indiana, Kansas, Louisiana, Rhode Island, and Tennessee, to participate in the policy academy.  Collectively the states came up with several recommendations for state action including:

1) ensuring assessment and data systems are capable of measuring student learning growth, providing estimates of value added, and linking student assessment scores to individual teachers, 2) identifying tools and measures for gauging teacher effectiveness that go beyond student test scores (such as classroom observation, aggregate, schoolwide student learning gains, teacher portfolios, student artifacts, teacher value-added scores, and student growth measures), 3) providing high-level leadership and engaging key stakeholders to develop frameworks, guidelines, and details of new compensation structures, and 4) using reform efforts at the state level in ways that complement one another and maximize other opportunities.

Traditionally, teacher compensation was based on the levels of education being tougher and additional years of experience, and pay-for-performance initiatives are bonus based.  However, recently research has shown that although experience matters in student achievement, the impact of experience declines after the first few years of teaching.  Also, with a bonus based pay-for-performance compensation model, when budgets are constrained the bonuses are vulnerable to cuts.


Florida started the policy academy with a comprehensive assessment system including measures to determine how much of an impact a teacher has relative to student learning (“value-added” measures).  Also, a Florida state statute already requires every teacher and administrator to be evaluated at least once a year, with a focus on performance of the educator’s students.  Due to the enactment of the statute Florida has attempted numerous pay-for-performance initiatives, including; A-Plus Education Plan, E-Comp, STAR Program, and MAP Program.  All of these programs have ultimately failed.

The policy academy helped Florida to determine why previous programs had failed, and to open a dialogue between lawmakers and educators in hopes of being able to satisfy everyone’s needs.  Ultimately the legislature passed Senate Bill 6, which was then vetoed by then Governor Charlie Crist.  Bill 6 would have, “eliminated tenure for newly hired teachers, eliminated pay scales based on experience and advanced degrees, and required school districts to establish performance pay for teachers and school leaders.”  Despite the veto, many of the components of Bill 6 were included in the state’s Race to the Top grant application to the U.S. Department of Education.  Those districts that receive part of the grant agreed to incorporate measures of student learning growth into teacher and principal evaluations.

In 2011, Governor Rick Scott signed Senate Bill 736, which was similar in its accomplishments to Bill 6.  Bill 736 ended tenure and replaced the traditional salary schedule with performance pay based on performance evaluations.


Indiana is new to the comprehensive student assessment system, so the policy academy was being used to help the state get started.  Indiana leaders wanted to develop a new teacher compensation plan, and to transition the use of a student growth model in the school accountability system.  However, Indiana law prohibited principals from using student scores on the state assessments in teacher evaluations.

The policy academy helped Indiana learn more about the Teacher Advancement Program (TAP), and to discuss TAP with Tennessee and Louisiana, two states that have already implemented the program.  The state also applied for a Teacher Incentive Fund grant, to support the implementation of the TAP model.  State leaders also began to pursue legislative changes and ended up the Senate Bill 1, requiring new, annual teacher evaluations, and Senate Bill 575, which limits collective bargaining and specifies that districts cannot collectively bargain the procedures or criteria for evaluating teachers.


Kansas formed the Teaching in Kansas Commission in 2007, which was designed to focus on a teacher shortage.  The commission recommended 59 different things that were grouped into three stages of implementation.  The first phase involved teacher training, recruitment, and retention, and was implemented quickly.  At the time of the policy academy the state had not yet implemented the second phase, which involved more significant changes related to compensation.

With the state first starting out on its new teacher compensation journey, much of the effect of the policy academy was to open up dialogue among educators, and to conducts surveys determining how individual districts handle performance-based compensation.  The state also prepared its federal Race to the Top grant application.  Kansas now wants to implement a pay-for-performance pilot, but due to economic condition cannot fund such an undertaking.


The state of Louisiana has developed a Blue Ribbon Commission for Education Excellence.  This commission is used to study a problem, produce recommendations, and take policy action.  In 2009-2010 the commission announced its area of focus as teacher compensation.  The state already has in place a value-added assessment model, and was in the efforts of expanding these measures.  Louisiana also has successfully piloted the TAP program in some schools.

Louisiana created the Louisiana Comprehensive Teacher Compensation Framework.  The framework includes principles from the TAP model and is meant to guide districts in developing new compensation models.  After recommendations by the commission legislative changes were made.  Act 54, also known as the Value-Added Bill, changed the way schoolteachers are evaluated.  The state department applied for grants to implement these legislative changes.  Louisiana received a federal TIF grant.

Rhode Island

Rhode Island had previously made efforts to develop a state-wide performance management system for teachers that would include new models of compensation.  The goals of the new model include; 1) evaluation based on statewide professional standards for teachers and school leaders, 2) career advancement opportunities for teacher leaders other than moving into school administration, 3) ongoing, job-embedded professional development tied to evaluation, 4) meaningful awarding of tenure and advanced certification, and 5) performance-based compensation.

With help from the policy academy, Rhode Island accomplished many of its goals.   The state began to build support from stakeholders and school leaders.  The Rhode Island Federation of Teachers received a grant to support the development for a comprehensive teacher evaluation and support system.


Tennessee has a history of creating new models of teacher compensation.  The Tennessee General Assembly adopted legislation that required all school districts to submit differentiated pay plans.  However, due to budget constraints the schools could not initiate their pay plans.  The state was also recognized for its Tennessee Value-Added Assessment System.  This system produced estimates of teacher contribution to growth in student learning.

Tennessee received a Race to the Top grant and a statewide TIF grant.  The state also initiated the Tennessee First to the Top Act of 2010.  This act commits the state to implementing a new annual evaluation system for teachers.  At least 50 percent of a teacher’s evaluation must be based on a student achievement.

From the experiences of each of the six states the NGA came up with recommendations for state action. Other states considering new models of teacher compensation should; “Ensure that assessment and data systems are capable of measuring student growth, providing estimates of value added, and linking student assessment scores to individual teachers.” As well as, “identify additional tools and measures for gauging teacher effectiveness that go beyond student test scores; develop teacher evaluations based on multiple measures; and use evaluation results to identify professional development and other supports for improving effectiveness.”  State must also “leverage reform efforts at the state level to that they complement one another and maximize other opportunities.”

The NGA article can be found here and report found here.

This post was prepared by Chelsea Keenan Albany Law School ’14

Florida’s Unemployment Reform Requires Testing

June 7, 2012

In an effort to create more jobs in today’s tough economy, Florida’s Governor Rick Scott has drafted a Job Creation plan, that some are calling the stingiest in the nation with regards to the state’s unemployment insurance plan.  The plan’s key initiatives include; requiring unemployment recipients who fail basic job skills testing to enter a training program in order to continue receiving benefits, focus on state transportation projects that focus on creating the most number of jobs, reduce business taxes, eliminate over 1,000 state rules and regulations that stifle business growth, remove problem board members of Workforce Boards and clean up irresponsible spending.

In response to this plan legal groups are asking the federal government to investigate the state’s treatment of jobless workers.  A formal complaint was filed with the U.S. Labor Department that claims the changes have not given those eligible the full extent of their benefits.  Approximately 43,000 state residents were denied benefits because they did not finish a test as part of the application process.

The Governor still defends this reform, spokeswoman Jackie Shutz says, “Requiring jobless Floridians to take a skill assessment test is the right thing to do, not just for them, but also to ensure Florida’s tax dollars are spent on making sure our workforce is the most qualified in the nation.”

The report can be found here.

An article concerning the plan can be found here.

This post was prepared by Chelsea Keenan Albany Law School ’14


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