The fact that New York prohibits the use of student test scores in teacher tenure decisions would seem to axe the state from the race for Race to the Top dollars. But there are growing suggestions that the state could take home a share after all.

Race to the Top is a special $5 billion federal stimulus fund meant to spur innovation in public schools. It is available only to states and districts that meet certain requirements. One of those requirements is that they allow teacher evaluations to be tied to student performance.

New York State’s tenure law, passed last year under pressure from teachers unions, says student test score data can’t be the sole determinant of whether a teacher gets tenure. But three top officials — teachers union president Randi Weingarten, Board of Regents Chancellor Merryl Tisch, and incoming State Education Commissioner David Steiner — are arguing that the law will not disqualify New York from the fund.

“It is our firm belief that the language of Race to the Top funding does not preclude New York,” Steiner said today. “New York has a law on the books that relates strictly to tenure.”

Weingarten noted that a second section of the same law explicitly requires teachers’ annual evaluations, which take place even after they receive tenure, to be based in part on how they use test score data to improve their instruction.

“The way in which teachers use data in their classroom instruction is specifically included in the definition of what confers tenure onto a classroom teacher,” she said. “How teachers use data is one of the criteria for getting tenure. Just not the data in and of itself.”

A spokesman for the federal Department of Education would not say whether or not the draft regulations would disqualify New York.

“Just in the same way that we’re not going to pre-judge who’s going to win, we’re not going to pre-judge who isn’t,” Justin Hamilton, a USDOE spokesman said.

U.S. Secretary of Education Arne Duncan has continued to emphasize the teacher evaluation requirement as a non-negotiable element of the Race to the Top requirements, saying that states that need time to change their laws can apply for a second round of funding. The make-or-break stipulation was personally approved by President Obama himself, Education Week reported.

The responsibility of determining whether a state meets the eligibility requirements will fall to its attorney general, who must sign off on the application, according to the draft regulations. 

Here’s the relevant section of the state education law, found in Section 3012-B: 

The regents shall, prescribe rules for the manner in which the process for evaluation of a candidate for tenure is to be conducted. Such rules shall include a combination of the following minimum standards: 

a. evaluation of the extent to which the teacher successfully utilized analysis of available student performance data and other relevant information when providing instruction but the teacher shall not be granted or denied tenure based on student performance data; 

The second half of clause a, beginning with the word “but,” is set to expire on July 1, 2010, two years after going into effect.