Cuomo moves to take control of education policy

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Cuomo. (AP Photo/Mike Groll)
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ALBANY—Between the lines of a Thursday letter from a top Cuomo administration aide to state education leaders about education reform was a plan to overhaul the Board of Regents.

It wasn't the first time Governor Andrew Cuomo, a Democrat, suggested changes to the powerful education policy-making panel, and he's hardly the first governor to seek influence on the independent board. But the governor's plan would effectively give him ownership of the state’s massive public school system, and would be among the most ambitious changes he’s pursued in his governorship, a tenure that so far has included legalizing same-sex marriage, strengthening gun control, creating a statewide property-tax cap and reforming the state pension system.

Despite the tremendous challenges he would face, several political realities will create opportunities for Cuomo in the upcoming legislative session: Education commissioner John King is leaving the department for a federal post. There’s a vacancy on the Board of Regents, and additionally, six members are up for re-election in March, including at least one who won’t seek reappointment. The Cuomo-allied Senate Republicans, including lawmakers who have previously proposed reforms to the Regents selection process, won an outright majority in the chamber. The state teachers’ union is heading into session in a weakened state after spending millions in an unsuccessful effort to elect Democrats to the Senate, alienating Republicans in the process. All of those changes are set against the backdrop of a simmering but still-present public unrest over the rollout of the Common Core standards.

There’s one major obstacle: Assembly Speaker Sheldon Silver.

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State law directs the Legislature to elect the 17-member board in a joint session. Since the Assembly Democratic conference is most numerous, Silver has tremendous power over who leads the Regents, and, by extension, education policy writ large. It’s difficult to imagine a situation in which Silver would relinquish that much power to Cuomo, but it seems that the governor will try anyway.

Education leaders, stakeholder groups and political analysts doubt he’ll be successful.

“In four decades, I have never met a governor—whether it was Hugh Carey or Mario Cuomo, George Pataki, Eliot Spitzer, David Paterson or Andrew Cuomo—who did not want to make the argument that the governor’s office ought to have a different role in education, more commensurate with other departments,” said Regent Jim Tallon, a former Assembly majority leader who represents the Southern Tier on the board.

“And after 40 years, and especially as a former legislator and having served 12 years on the Board of Regents, I think the current arrangements in New York benefit the people," he continued. "I don’t think that politicizing educational policy improves our ability to meet the real challenges ... of the educational system. I think that the balance that we have right now that was created in New York more than 200 years ago and affirmed in the constitution is the right one.”

Unlike other state agencies, the Education Department is not under the governor’s purview, and its commissioner is not a gubernatorial appointment. The state constitution gives the Board of Regents the power to appoint the education commissioner and set education policy through regulation.

“I wish I could say I run education in this state. I don't,” Cuomo said at an event in Schenectady on Thursday, explaining the letter, in which he sought advice from King and Board of Regents chancellor Merryl Tisch on a series of education topics. He asked for answers by the end of the year so he could consider them while writing his State of the State address.

“It's run by the Board of Regents," he continued. "I don't even appoint anyone to the Board of Regents. But I want them on record with what they believe is the best advice to reform the education system.”

The fact that Cuomo doesn’t have direct control over education has come in handy for him at times. He has often blamed the Board of Regents for problems, such as with the Common Core rollout, in order to distance himself from controversy. Even recently, he blamed King for a teacher-evaluation system that the governor negotiated with lawmakers after the vast majority of teachers ended up with high ratings, an outcome that Cuomo said “doesn’t reflect reality.”

The argument could be made that the governor would like to keep that distance, because it gives him cover.

But he has also said recently that he wants education reform to be among the achievements that define his tenure, along with his legacy same-sex marriage and gun control legislation. He is expected to present an aggressive education agenda in his second term, one that he previewed in Thursday's letter.

Abolishing the Board of Regents altogether, so the education department would report to the governor’s office instead, would be difficult. It would require a constitutional amendment, which means it would have to be passed twice by the Legislature in successive terms and then approved by the public in a referendum.

Even if Cuomo were able to push the change through the Legislature in 2015, the whole process would take nearly the entire length of his term, and there would be many variables that would affect its chances of success. It’s unclear whether Republicans will retain control of the State Senate in 2016, when a presidential election will drive Democrats to the polls. More importantly, Cuomo couldn’t guarantee that he’d have the political capital to convince the Assembly to approve the measure twice. Also, the public could vote it down, and then the years-long process would have been for nothing.

But changing how the Regents are elected requires only a statutory amendment, and so Cuomo could arguably achieve it this session.

In the letter on Thursday, director of state operations Jim Malatras suggested that the governor might try to change the process with the following question: “As you know, the appointment and selection process of the Board of Regents is unique in that, unlike other agencies, selections and appointments are made by the Legislature. Would you make changes to the selection and appointment process? If so, what are they?”

This is not the first suggestion from Cuomo that the board needs an overhaul.

“There is total control of the Board of Regents by the Legislature, which ends up being the Assembly Democrats,” Cuomo said during a February interview on “The Capitol Pressroom,” a public radio program. “I think it is inarguable that we have not made the progress we need to make statewide on education. If you don’t have the results then maybe you have to question the way we’re providing the service."

About a month later, on the same program, Cuomo said: “This is a moment to bring change to the system, and remember how hard change is, especially for a large system like the education system. I welcome it. ... I think the board should receive serious scrutiny."

The state budget could be the vehicle through which Cuomo attempts to change the Regents selection process. Cuomo's role in crafting the state's spending plan provides his primary power over the education system, and it also offers him maximum leverage in negotiating with lawmakers, because he typically has lots of bargaining chips.

“As you know, the Governor has little power over education, which is governed by the Board of Regents. The Governor’s power is through the budget process, and he intends to introduce reforms during that process,” Malatras wrote in the letter on Thursday.

Cuomo's budgetary power isn't just rooted in his ability to withhold financial resources from schools. Cuomo and the Legislature have been more willing in recent years to legislate education policy, sometimes by including provisions in the budget that are seemingly unrelated to funding. For example, in the current state budget, Cuomo and lawmakers enacted amendments to the Board of Regents’ implementation of the Common Core, specifically prohibiting students’ standardized test scores from being included on their permanent records or used in promotion decisions.

And Cuomo has used the budget before to enhance his power. In his first budget, which was finalized in late-March 2011, the governor created the Department of Financial Services, a regulatory agency for the banking and insurance industries. That move was seen as an attempt to shift power from the attorney general’s office to his, and he successfully convinced the Legislature to back him on it. (The attorney general and the comptroller are statewide elected positions, so like with the Board of Regents and education commissioner, the governor doesn’t hold appointment power.)

This coming March, when Cuomo and lawmakers are intensively negotiating the budget in closed-door meetings, the state will likely have a controversial Regents election for the second year in a row.

Regents elections are typically undramatic, and members are re-elected handily. But this year, when four members were up for re-election, Capital Region regent James Jackson stepped down under pressure and was replaced by Josephine Finn. She appeared to be hand-picked by Assembly leadership, much to the dismay of Senate Republicans, many of whom refused to vote, in protest.

The elections in March 2015 could be even more dramatic, since lawmakers will elect at least two and as many as seven new members.

There’s a vacancy on the board; Geraldine Chapey resigned in June, leaving open a seat representing Queens. And six members of the board are up for re-election, including Harry Phillips, who has said he’s stepping down from his Hudson Valley seat.

“Last year was kind of a unique and challenging year on a lot of different levels including looking at and reviewing the Regents,” said Senate education committee chair John Flanagan, a Long Island Republican and prominent member of his conference. “This year you have a vacuum. You have a commissioner who has departed. You have an acting commissioner. We know we’re going to have at least two new members, and for argument’s sake, if all seven were different, you’d have a whole new board.”

It’s also worth noting the board’s national search for a new commissioner, which it began this week after King resigned, might not be concluded before the March elections. So the members who currently make up the board might not be the ones who ultimately choose the new leader.

The upcoming Regents elections could therefore create an opening for Cuomo, as could the second year of Cuomo’s new term, since Tisch and vice chancellor Anthony Bottar will both be up for re-election in March 2016.

Senate Republicans would be likely to support Cuomo, at least conceptually. Senate higher education committee chair Kenneth LaValle, a Long Island Republican, ushered a bill through his chamber during the 2014 session that would change how the Regents are selected, giving the governor and legislative conferences appointment power. (It stalled in the Assembly.)

Flanagan said while some would vehemently disagree, he supports the concept of executives having control over education, “because, ultimately, you hold someone responsible.”

But, under the current system, the power for electing Regents rests squarely with Silver, whose office did not return a request for comment. Silver and his conference members are closely aligned with teachers’ unions, whose priorities are directly at odds with Cuomo’s.

New York State United Teachers, a union that remains powerful by virtue of its 600,000 members regardless of its losses in the recent election cycle, denounced Cuomo’s letter on Thursday, arguing that his apparent priorities—strengthening teacher evaluations, lengthening the probationary period before teachers may get tenure and boosting charter schools—are handouts to pro-charter billionaire hedge funders who give generously to his campaigns.

“If the governor wants a battle, he can take the clueless New York City billionaires,” NYSUT president Karen Magee said in a statement. “We’ll take the parents, teachers, higher education faculty and students in every ZIP code of the state.”

During an interview with Capital earlier this week, Tisch stressed the importance of separating education policymaking from the politics of the governor and the Legislature.

“The politics around what happened last year with the reappointment of the Regents, I hope, is in the past,” she said. “I think that this board has done remarkable work, and our ability not to be part of a political dialogue and conversation continues to be significant to us being effective in our roles. There is a lot of wisdom, I must say, in how the New York State Constitution was written.”

After delivering a farewell speech to his department staff on Thursday, King said the governor has effectively partnered with the board and the department and then outlined their respective roles.

“We have the opportunity through regulation to move things forward, through policy," he said. "The governor, through law making and through the budget process, can move things forward. And together, I think we can get better outcomes for students.”