Thе Massachusetts Federation of Teachers and the Massachusetts Teachers Association/NEA (collectively, Teachers) filed a complaint for declaratory and injunctive relief against the Board of Education (board) and the Commissioner of Education (commissioner) (collectively, the defendants) challenging the validity of 603 Code Mass. Regs. §§ 2.01, 2.02, 2.05, 44.02, 44.03, 44.04 (2000), regulations promulgated by the board that require mathematics teachers in certain schools to take a Mathematics Content Assessment test (assessment test) to evaluate their mastery of the subject matter prior to renewal of their licenses. A Superior Court judge denied the defendants’ motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6),
An important focus of the Act is the accountability of teachers, schools, and school districts for student performance. See G. L. c. 69, § IB, twenty-first par. (“The board shall carry out its responsibilities with a view toward increasing the accountability and effectiveness of public early childhood, elementary, secondary and vocational-technical schools and school districts for the performance of the students they serve”). See also G. L. c. 69, §§ II, 1J, IK (school and district accountability); G. L. c. 71, § 38 (teacher accountability). General Laws c. 69, § II, first par., provides that the board “shall adopt a system for evaluating on an annual basis the performance of both public school districts and individual public schools.” That system “shall be designed both to measure outcomes and results regarding student performance, and to improve the effectiveness of curriculum and instruction.” G. L. c. 69, § II, second par. The Massachusetts Comprehensive Assessment System (MCAS) was adopted by the board for Statewide assessment of individual students’ academic performance. See 603 Code Mass. Regs. §§ 30.00 (2000).
Pursuant to its broad statutory authority in this area of school accountability, the board promulgated detailed regulations, 603 Code Mass. Regs. §§ 2.00, for reviewing “the adequacy of the educational opportunities and services provided by the Commonwealth’s public schools” and for identifying “the circumstances under which the [bjoard may declare a school or school district chronically under-performing and intervene.”
Individuals employed in Massachusetts public schools as teachers, or other enumerated professionals, must hold a license (also referred to as a “[standard educator certificate”) granted by the commissioner. See G. L. c. 71, § 38G, tenth and twenty-ninth pars. “The commissioner of education shall have the authority to grant, upon application . . . standard educator certificates to persons who have satisfied the requirements for such certificates as established by the board. The board shall define the knowledge of subject matter and demonstration of competencies commensurate with attainment and renewal of such certificates.” G. L. c. 71, § 38G, eleventh par. See G. L. c. 69, § IB, third par. (board shall establish standards for certifying public schoоl teachers as set forth in G. L. c. 71, § 38G). A teaching license is valid for five years and must be renewed every five years thereafter.
2. Procedural background. In their six-count complaint brought pursuant to G. L. c. 30A, § 7, and G. L. c. 231 A, the Teachers challenged the regulations relating to the mandatory assessment of mathematics teachers in certain schools, 603 Code Mass. Regs. §§ 2.01, 2.02, 2.05, 44.02, 44.03, 44.04, as facially invalid.
The defendants filed a motion to dismiss the Teachers’ complaint pursuant to rule 12 (b) (6), asserting that the regulations were well within the board’s broad statutory authority to hold schools accountable for the performance of their students and to recertify teachers. A Superior Court judge denied the defendants’ motion to dismiss but entered a judgment declaring that (1) the board had the authority, pursuant to G. L. c. 69, §§ IB, 1J, and G. L. c. 71, §§ 38, 38G, to promulgate the challenged regulations; and (2) thе regulations, on their face, did not violate the Teachers’ due process or equal protection rights, did not conflict with collective bargaining laws, were not arbitrary and capricious, and were otherwise constitutionally sound.
3. Standard of review. A highly deferential standard of review governs a facial challenge to regulations promulgated by a government agency. See Cacicio v. Secretary of Pub. Safety,
In reviewing a regulation, a court cannot “substitute [its] judgment as to the need for a regulation, or the proрriety of the means chosen to implement the statutory goals, for that of the agency, so long as the regulation is rationally related to those goals.” American Family Life Assur Co. v. Commissioner of Ins.,
This deferential approach “is necessary to maintain the separation between the powers of the Legislature and administrative agencies and the powers of the judiciary.” Borden, Inc. v. Commissioner of Pub. Health, supra at 723. Plenary review of administrative regulations “would have an unhealthy tendency to substitute the court for the agency as policymaker.” Cambridge Elec. Light Co. v. Department of Pub. Utils.,
4. Regulations as conflicting with enabling legislation and as ultra vires. The Teachers acknowledge that the Act is a detailed
Contrary to the Teachers’ arguments, promulgation of the challenged regulations was entirely within the board’s authority, and the regulations are fully consistent with the Act’s accountability provisions which they are specifically designed to implement. An administrative agency has the authority to promulgate regulations giving effect to legislative mandates. See Thomas v. Commissioner of the Div. of Med. Assistance,
As its name clearly suggests, the Legislature promulgated the Act to reform public education in this Commonwealth by “establishing and achieving specific educational performance goals for every child” and by “holding educаtors accountable for their achievement.” G. L. c. 69, § 1. In accordance with these stated objectives, the Legislature gave the board broad authority to, among other things, establish policies pertaining to the education of public school students, see G. L. c. 69, § IB, first par.; incréase the accountability of public schools for student performance, see G. L. c. 69, § IB, twenty-first par.; establish the criteria for designating a school as under-performing, see G. L. c. 69, § IB, tenth par.; establish the standards for certifying public school teachers in accordance with G. L. c. 71, § 38G, see G. L. c. 69, § IB, third par.; adopt a system to evaluate schools on an annual basis that would be designed to improve the efficacy of instruction and curriculum, see G. L. c. 69, § II, first, second pars.; and promulgate regulations as necessary to fulfil the purposes of G. L. c. 69, see G. L. c. 69, § IB, twenty-third par. The Legislature also gave the board the authority to set “subject matter knowledge and teaching skill requirements” for inclusion in teacher professional development plans, the successful completion of which is a condition for license renewal. See G. L. c. 71, § 38G, twenty-second par. Pursuant to its statutorily delegated powers, the board used its rule making authority and flexibility to mandate the assessment of teacher competency in mathematics and the
The categorization of “low-performing mathematics programs” is a specific identifying tool to assist the commissioner in determining whether individual schools may be under-performing and reflects a policy decision to focus on a perceived area of particular academic weakness. Contrary to the Teachers’ arguments, the designation of low-performing mathematics programs and the requirement that math teachers in schools with such programs take the assessment test does not infringe on the role of the “Independent Fact-Finding Team.” See 603 Code Mass. Regs. § 2.02. Its role is to conduct a comprehensive on-site inspection of the school for detailed assessment and remediation purposes after the school has been declared to be under-performing. See 603 Code Mass. Regs. § 2.03(5). The assessment test, by contrаst, is merely one factor that shall be considered by the commissioner when initially evaluating whether a school with a low-performing mathematics program should be referred for review to determine if it is under-performing. See 603 Code Mass. Regs. § 2.05(4).
The assessment test is a wholly reasonable exercise of the
5. Regulations as arbitrary and capricious. The Teachers contend that the board acted in an arbitrary and capricious manner when it promulgated the challenged regulations because it failed to exercise its own statutory authority to oversee the teacher certification process. Instead, they assert, the board simply acquiesced in a gubernatorial “directive” to test math teachers.
“If the regulations exceeded the [board’s] statutory authority, then they would be arbitrary and capricious on their face in that they would by definition be unrelated to the achievement of any statutory goals.” American Family Life Assur. Co. v. Commissioner of Ins., supra at 476. We have already concluded that promulgation of the regulations was well within the board’s broad statutory authority to reform public education in this Commonwealth. Where statutory language clearly authorizes actions taken by an agency, the actions are wholly lawful, and we need not look behind them to determine the agency’s
6. Regulations as violating equal protection and due process rights. The Teachers contend that the challenged regulations violate their equal protection and due process rights under the Fourteenth Amendment to the United States Constitution and arts. 1 and 10 of the Massachusetts Declaration of Rights. Their equal protection claim is based on the belief that it is irrational to treat mathematics teachers in communities where math MCAS scores are low differently from mathematics teachers in communities where math MCAS scores are high or from mathematics teachers in charter schools. This court’s review of the Teachers’ equal protection claim is the same under the Fourteenth Amendment as it is under the Massachusetts Declaration of Rights. See Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm’n,
Distinctions between individuals made in the interests of practicality and administrative convenience are permissible and rational purposes for legislation. See Murphy v. Department of Correction,
As we have discussed, the challenged regulations are rationally related to the furtherance of a legitimate State interest in providing a high quality public education to every child of this Commonwealth. Assessment оf the subject matter knowledge of mathematics teachers is a means for evaluating one possible underlying reason for poor student performance on the math MCAS test. To the extent that there may be gaps in teacher knowledge, such deficiencies can be addressed in professional development plans prior to relicensure. Similarly situated teachers are not being treated differently based on irrational criteria. It is permissible for the Legislature and, by extension, the board,
For the reasons just stated, the challenged regulations also do not violate the Teachers’ due process rights under the Federal and State Constitutions. Their substantive due process claim is based on their contention that there is nо rational connection between poor student performance on the math MCAS test and the subject matter knowledge of selected teachers. “The due process clause of the Fourteenth Amendment to the United States Constitution demands that a [regulation] bear a ‘reason- . able relation to a permissible legislative objective.’ ” Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing,
The Teachers contend that they had a right to present evidence to challenge the board’s purported rational basis for the regulations. They assert that they would have demonstrated that student MCAS scores are driven, to an overwhelming degree, by socioeconomic factors and funding inequities, rather than by deficiencies in teacher subject matter knowledge. Even if the Teachers did present such evidence, it would not invalidate the
The Teachers’ procedural due process claim is based on their contention that the challenged regulations are imрermissibly vague. In particular, they point to 603 Code Mass. Regs. § 2.05 (5), which provides that “[t]he Commissioner may waive the Mathematics Content Assessment requirement for individual mathematics teachers based on a finding that such teachers have demonstrated mastery of mathematics or that special circumstances exist that make said assessment requirement inappropriate or immaterial.” The Teachers contend that this provision fails to give them adequate notice of the assessment requirements and exemptions.
A vagueness challenge is usually raised in an effort to invalidate a criminal statute. See Custody of a Minor (No. 2),
The individual interests of teachers that may be affected by the challenged regulatiоns are economic in nature, namely the conditions on the right to practice their profession. The regulations do not forbid any behavior by teachers. They merely set forth the requirements for when a teacher must take the assessment test and provide that, in certain circumstances, the test may be waived. The provisions of 603 Code Mass. Regs. § 2.05, and the statutes that gave the board the authority to promulgate it, clearly inform teachers of their professional responsibilities and obligations. Cf. Gurry v. Board of Pub. Accountancy,
7. Regulations as violating collective bargaining law. The Teachers contend that the challenged regulations conflict with the public sector collective bargaining law, see G. L. c. 150E, and with provisions of the Act requiring collective bargaining over teacher performance evaluations, see G. L. c. 71, § 38. They assert that evaluations constitute a “ ‘term and condition’ of employment” and, as such, are a local matter within the control of individual school districts and are a mandatory subject of bargaining. Therefore, the board cannot unilaterally require that teachers take the assessment test.
Pursuant to G. L. c. 150E, § 6, public employers and employees “shall negotiate in good faith with respect to wages, hours, standards or productivity and performance, and any other
The challenged regulations govern teacher recertification which relates to the relationship between individual teachers and the Commonwealth. The renewal of a teacher’s license by the commissioner simply is not a “local matter” that falls within the province of individual school districts. Cf. Nicholas B. v. School Comm. of Worcester,
Judgment affirmed.
Notes
The Education Reform Act of 1993 (Act), St. 1993, c. 71, made significant changes to the governing structure and financing of the Massachusetts public school systems. These changes were enacted to ensure “(1) that each public school classroom provided the conditions for all pupils to engage fully in learning as an inherently meaningful and enjoyable activity without threats to their sense of security or self-esteem, (2) a consistent commitment of resources sufficient to provide a high quality public education to every child, (3) a deliberate process for establishing and achieving specific educational performance goals for every child, and (4) an effective mechanism for monitoring progress toward those goals and for holding educators accountable for their achievement.” G. L. c. 69, § 1, as appearing in St. 1993, c. 71, § 27.
Pursuant to 603 Code Mass. Regs. § 2.03 (1), “[t]he [b]oard shall adopt, and the Department [of Education] shall implement, a School Performance Rating Process to track the performance and improvement demonstrated by Massachusetts public schools on State assessments in core academic subjects.” Schools that fail to meet their assigned “improvement expectations” at the conclusion of each two-year rating cycle “may be referred for review to determine whether the school is under-performing”; priority is given to the review of schools with the highest percentage of students performing at the “failing” and “needs improvement” levels of the MCAS tests. See 603 Code Mass. Regs. § 2.03(4). A review panel will then analyze and evaluate a wide range of documents submitted by the school to the Department of Educatiоn. See 603 Code Mass. Regs. § 2.03(4)(a)-(c). The commissioner will consider the review panel’s assessment of the school and will decide whether to declare the school under-performing or to give the school an academic warning until the end of the next rating cycle. See 603 Code Mass. Regs. § 2.03(4)(d), (e). Once a school is deemed under-performing, an independent fact-finding team is appointed to conduct a comprehensive on-site inspection of the school, 603 Code Mass. Regs. § 2.03(5), and the district in which the school is located must submit, within six months, an improvement plan to the board for its
“Any middle or high school in which 30% or more of the students fail the MCAS mathematics test, excluding those students who are enrolled in special education, who are classified as having limited English proficiency, or who have not been enrolled in the school for at least two years, and which failed to meet or exceed its improvement expectations on the MCAS mathematics test, as established through the School Performance Rating Process, shall be considered to have a Low-Performing Mathematics Program.” 603 Code Mass. Regs. § 2.05(1).
The commissioner shall dеcide whether any school with a low-performing mathematics program should be referred for review to determine whether it is under-performing. See 603 Code Mass. Regs. § 2.05(4). “In making this determination, the [c]ommissioner shall consider the participation rates and performance of the school’s mathematics teachers on the Mathematics Content Assessment, among other factors.” Id.
We note that although math teachers in schools with low-performing mathematics programs must take the assessment test in order to maintain their certification, the regulations do not require that such teachers pass it. That being the case, the regulations do not dictate employment consequences because substandard results can be remediated through continuing professional development prior to recertification.
All teaching licenses granted prior to October 1, 1994, are subject to renewal every five years. See G. L. c. 71, § 38G, twenty-third par. “Teachers who were authorized, permitted or approved to teach in a subject or area for which there was no certification standard before [September 1, 1982,] shall acquire and maintain the development of the skills and training required of persons certified to teach in said subject or areas after that date.” G. L. c. 71, § 38G, fortieth par.
The Teachers’ challenges to the regulations are facial rather than “as applied” because, as they acknowledge, the board has not yet announced the final form of the assessment test, scheduled a date for its initial administration, or specified which teachers will be required to take it.
The judge noted that, when a party brings a declaratory judgment action, a judge should not allow a motion to dismiss where the pleadings show an actual cоntroversy. See Nelson v. Commissioner of Correction,
In 1998 and 1999, Governor Argeo Paul Cellucci proposed legislation that would have mandated, as a prerequisite to recertification, that all currently employed and licensed teachers take and pass the same test requirеd of new teachers. The Legislature declined to enact such legislation, and the Teachers contend that this evinces an intent not to test teachers who are already working in the public schools. However, no inference is possible from this negative history. “The fallacy in th[e] argument is that no one knows why the legislature did not pass the proposed measure[] .... The practicalities of the legislative process furnish many reasons for the lack of success of a measure other than legislative dislike for the principle involved in the legislation.” Franklin v. Albert,
In Ms State of the State address on January 29, 2000, Governor CelMcci stated that “[i]n those schools where more than thirty percent of students are failing mathematics, I am directing the Board of Education to test math teachers.”
In light of this conclusion, the extent to which the Governor or other members of the executive branch may or may not have influenced the board’s promulgation of the challenged regulations need not be explored further through discovery, as suggested by the Teachers.
Occasionally, when protected or fundamental rights have not been involved, this court has invalidated statutes solely for violating State due process standards. See, e.g., Coffee-Rich, Inc. v. Commissioner of Pub. Health,
A “provisional educator certificate” is defined as “a license to teach issued to a person who has successfully met the preparation and eligibility requirements as established by the board. The provisional educator’s certificate shall be valid for five years of employment as an educator in the schools of the commonwealth.” G. L. c. 71, § 38G, fifth par. A “standard educator certificate” is defined as “a license to teach issued to a person who has successfully met the preparation and eligibility requirements as established by the board. The standard educator’s certificate shall be valid for renewable terms of five years.” G. L. c. 71, § 38G, tenth par.
In his memorandum of decision, the Superior Court judge noted that G. L. c. 150E, § 7 (d), provides that if a collective bargaining agreement conflicts with a statute or regulation, the terms of the collective bargaining agreement will prevail if the statute or regulation is listed in § 7 (d). A collective bargaining agreement has not been submitted to the court. In any event, G. L. c. 69, G. L. c. 71, and 603 Code Mass. Regs. §§ 2.01, 2.02, 2.05, 44.02, 44.03, 44.04, are not listed in G. L. c. 150E, § 7 (d).