The State University of New York acted unlawfully when it promulgated regulations that would have allowed it to set its own, separate, teacher certification standards for educators at charter schools under its control, a state appellate court ruled Thursday.

The Appellate Division, Third Department rejected arguments from attorneys for the statewide university system that a section of state education law should be interpreted to grant that power.

Judges on the panel, based in Albany, agreed with attorneys for the state Department of Education, that the word "operation" in a section of state education law shouldn't be viewed to mean that SUNY officials had the authority to set their own standards for certifying teachers.

"The Committee therefore exceeded its authority in promulgating the regulations," the appellate court wrote.

The state Department of Education, which brought the litigation against SUNY, cheered the decision in a statement Thursday afternoon.

"We commend the Court's decision, which preserves the Board of Regents and Commissioner's authority to ensure that there are rigorous teacher preparation programs and ensures that all students, of every color and economic status, have access to high quality certified teachers, which is paramount to a student's success," the department said.

SUNY's Charter School Institute said in a statement Thursday afternoon that its attorneys were still reviewing the decision before it decided whether to appeal it to the Court of Appeals, the state's highest court.

"The Institute is certainly disappointed in the outcome of today's ruling," SUNY said. "Once we thoroughly review the court's decision we will determine the appropriate next steps."

The state Department of Education was represented before the Third Department by Hank Greenberg, a shareholder at Greenberg Traurig who's currently the president of the New York State Bar Association.

SUNY was represented by Matthew Didora, a partner at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone.

The litigation stems from regulations adopted by SUNY nearly two years ago that were intended to allow charter schools under their control to create their own teacher certification programs. The regulations were promulgated to address a shortage of educators at those schools.

Teachers certified through the separate set of standards, unlike others, would not have had to earn a graduate degree and could have avoided a longer period of practice teaching before certification.

Attorneys for SUNY have argued that a section of state education law, § 355, gave the statewide university system authority to promulgate those regulations.

That law, approved by the state Legislature three years ago, gave SUNY officials additional power to "promulgate regulations with respect to governance, structure and operation of charter schools" they oversee.

The Third Department, in its decision Thursday, pointed to the Merriam-Webster dictionary definition of the word "operation" to invalidate the regulations since the Legislature failed to define it in statute.

"This definition, with its emphasis on practical function, does not support respondents' interpretation," the appellate court wrote.

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.

The Third Department came to the same conclusion in its decision Thursday, saying that a separate section of state education law requires most charter school teachers to be certified at the same level as other public school teachers, not through lower standards.

"We further find that the regulations conflict with provisions of the Education Law that authorize the Commissioner to prescribe regulations governing the certification of teachers and that require most teachers in charter schools and pre-kindergartens to be certified in the same manner as other public school teachers," the court wrote.

That doesn't mean charter school teachers in New York won't ever be held to lower certification standards in the future, but SUNY's regulations were an unlawful avenue to go about addressing a shortage of educators in those schools, the Third Department wrote.

The Legislature, instead, could approve a measure in the future to allow separate certification standards for charter school teachers, the court said.

"We agree with [State] Supreme Court that the regulations constituted a product of improper legislative policymaking by an administrative agency," the decision said.

Even if the regulations were allowed, the Third Department wrote, SUNY didn't follow the proper procedure for finalizing such a rule. The State Administrative Procedure Act, or SAPA, requires a notice of revised rulemaking and an opportunity for public comment if "substantial revisions" are made before adoption. That didn't happen here, the court said.

While the ruling is largely a win for the state Department of Education and NYSUT, the Third Department chose to dismiss the latter lawsuit in its decision, saying  the teachers union didn't have standing to sue over the regulations.

NYSUT President Andy Pallotta said in a statement Thursday that if SUNY seeks to appeal the decision to the Court of Appeals, they'll continue to oppose their efforts in court.

"Should this decision be appealed yet again, we will continue to support the state Board of Regents' and Education Department's efforts in this matter, and we will keep up our own fight to ensure excellence in education at all schools," Pallotta said.

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