Satterlee Hall on the campus of SUNY Potsdam.

Attorneys for the State University of New York took their fight over charter school teacher certification to an Albany appeals court Friday, arguing that it may set standards for schools it oversees, outside of the state Education Department's requirements.

The Appellate Division, Third Department is considering whether to affirm a decision from last year, when a trial court judge rejected the state university system's attempt to set its own standards.

Hank Greenberg, a shareholder at Greenberg Traurig and the current president of the New York State Bar Association, appeared before the panel for the state Department of Education, which has argued that SUNY can not create its own teacher certification rules.

"It could not be any clearer that the Legislature, with incredible specificity, said that the commissioner [of education] has the authority to promulgate these regulations," Greenberg said.

Charter schools in New York can be licensed by both the SUNY Charter School Institute and the board of regents, the state's governing body over education matters.

The litigation stems from regulations SUNY adopted nearly two years ago that would allow charter schools to create their own teacher certification programs. Those teachers, unlike others, would not have to earn a graduate degree and could avoid a longer period of practice teaching before certification under the proposal.

The regulations were the subject of two lawsuits filed last year—one from the state Education Department, and one from New York State United Teachers, the state's largest teachers union.

Both challenges claimed that minimum teacher certification standards in New York can only be set by the state education department, not SUNY. Each has power to regulate the charter schools they oversee, but can not narrow the state's certification requirements, the lawsuits claimed.

Acting Albany County Supreme Court Justice Debra Young agreed with that interpretation of the law in a decision striking down the regulation from SUNY. She wrote that a law approved by the state Legislature in 2016 did not afford the system power to limit the agency's standards.

That law, Education Law § 355, gave SUNY officials additional power to "promulgate regulations with respect to governance, structure and operation of charter schools" they oversee.

Young wrote that the new law provided SUNY with the option to build on the state's certification requirements, not change them.

"While regulations may be promulgated by [SUNY] with regard to teacher certification, those regulations must be at a minimum equivalent, with what petitioners/plaintiffs have already set as the certification requirements," Young wrote.

Matthew Didora, an attorney representing SUNY, urged the Third Department on Friday to reject Young's interpretation of the law. Didora is a partner at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone.

"It doesn't address the problem that the Legislature was dealing with when it passed [the law]," Didora said.

He said, at the time, there was a large demand from parents to enroll their children in charter schools. The problem, he claimed, was that there weren't enough teachers at those schools to meet the demand. That, among other factors, resulted in a waiting list.

The regulation, he said, was promulgated to allow more teachers to be hired, thereby addressing the influx of interested students.

That fell under SUNY's authority, under the law, to regulate the "operation" of its charter schools, Didora argued.

"A school is an institution of learning. That can only be accomplished by teachers in classrooms standing in front of students. That is the core operation of a school—to teach students. Without that, a school is nothing," Didora argued. "The operation of a school, inherently, is teaching."

Success Academy Charter Schools, one of the largest networks of charters in the state, was also represented before the Third Department after being named in both lawsuits against the regulation. Michael Hutter, a partner at Powers & Santola, represented Success Academy.

Hutter argued, like Didora, that the Legislature had intended for SUNY to have autonomous power over the operations of its charter schools, including the authority to create different teacher certification requirements.

"We don't want micromanagement of charter schools by some other entity," Hutter said.

Greenberg, during his arguments, said that the conflict wasn't over micromanagement. It was over whether SUNY had the power, in the first place, to narrow the teacher certification standard at its charter schools, he said.

In this case, Greenberg argued, SUNY exceeded its rulemaking authority by seeking to alter the teacher certification standard set initially by the state Education Department for all public schools, including charter schools.

Granting another entity, such as SUNY, the ability to set new teacher certification standards would essentially allow them to rewrite the law that gives SED that exclusive authority, in violation of the state Administrative Procedure Act, Greenberg argued.

"No agency has ever sought that," Greenberg said. "That is not only wildly, wildy in excess of their statutory authority, it is so clearly unconstitutional it is administrative law 101."

Third Department Presiding Justice Elizabeth Garry appeared skeptical during arguments that the law could be interpreted broadly enough to lump in teacher certification standards with areas like hiring and management when considering the "operation" of a charter school.

"The charter schools could hire and supervise their staff, but isn't that really distinct from setting the certifications?" Garry asked at one point.

Hutter, who was delivering remarks at the time, echoed Didora's point that the regulation would further the operations of charter schools by allowing more teachers into classrooms to serve students seeking to attend those institutions.

The case was heard by Garry and Associate Justices John Egan, Michael Lynch and Stan Pritzker.

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