Monday, September 21, 2015
The briefs are in the appeal of Vergara v. State. Amici in support of the state are exposing a huge evidentiary flaw in the plaintiffs' case: the lack of causation. For those who are new to the case, last year a California trial court held that teacher tenure was unconstitutional, concluding that tenure prevented schools from removing grossly ineffective teachers. The court reached a similar conclusion in regard to the state's "last-in-first-out" statute, which requires reassignment and retention be based on seniority during reductions in force.
The San Francisco Lawyers' Committee for Civil Rights and the Education Law Center wrote:
Plaintiffs . . . did not show, nor can they show, that the challenged statutes require the retention of clearly ineffective teachers or that those statutes resulted in assignment of teachers incapable of delivering curriculum and instruction to students in particular classrooms, schools, or districts. That is, plaintiffs did not show that the “Permanent Status Statutes,” and in particular, Education Code section 44929.21, subdivision (b), requires districts to reelect ineffective teachers at the expiration of their two-year probationary period. . . . Plaintiffs focused on the processes for dismissing teachers . . . . While plaintiffs critiqued these processes as a matter of public policy, they did not produce sufficient record evidence establishing that the statutes required districts to retain unqualified and ineffective teachers. . . .
At best, plaintiffs presented anecdotal evidence that in some instances, the challenged statutes could contribute to retention of ineffective teachers. However, the trial court’s analysis, given the record below, does not show or support a causal connection between these statutes as compared to the many other factors linked to teacher quality, and the deprivation of a constitutional education in specific California districts or schools.
Erwin Chemerinsky and Catherine Fisk's brief on behalf of constitutional law professors was even more specific:
Friday, August 21, 2015
A new study by Seth Gershenson, Stephen Holt, and Nicholas Papageorge finds a disturbing trend of racially disparate expectations for students based on race. The abstract offers this summary:
Teachers are an important source of information for traditionally disadvantaged students. However, little is known about how teachers form expectations and whether they are systematically biased. We investigate whether student-teacher demographic mismatch affects high school teachers’ expectations for students’ educational attainment. Using a student fixed effects strategy that exploits expectations data from two teachers per student, we find that nonblack teachers of black students have significantly lower expectations than do black teachers. These effects are larger for black male students and math teachers. Our findings add to a growing literature on the role of limited information in perpetuating educational attainment gaps.
More specifically, they find that "relative to teachers of the same race and sex as the student, other-race teachers were 12 percentage points less likely to expect black students to complete a four-year college degree. Such effects were even larger for other-race and other-sex teachers, for black male students, and for math teachers. In addition to being statistically significant, these effects are arguably practically significant as well, as they constitute more than half of the black-white gap in teacher expectations."
Read the full study here.
Tuesday, August 18, 2015
The New York State Education Department has released the data from the standardized tests administered to elementary students at the end of this past academic year. The opt-out movement scored a much bigger victory (if victory was its goal) than I ever would have imagined. Some students opted out for valid health and other reasons, but a whopping twenty percent of students refused to take the tests without any valid excuse. Presumably they objected based on principle.
A five or so percent opt out would have done little to upset the status quo, but one of this size has enormous ramifications. First, as a condition of receiving federal education money, the Elementary and Secondary Education Act (No Child Left Behind) mandates that 95% of students take the test. The Secretary of Education has the power to waive a number of requirements, but the Secretary cannot waive this requirement. Congress wanted this one to stick. As analyzed in an earlier post, this poses a real quandary. The purpose of the provision was to make sure that schools did not conveniently exempt their weakest students from the test to push up their pass rate. But when students simply refuse to take the test, holding the school accountable seems unfair and contrary to the purpose of the Act. The Secretary could take a page from the reasoning of King v. Burwell (the recent Affordable Care Act decision offering a creative reading of the Act to save individual tax credits) and ignore the statutory language and violation. But absent creative reasoning, New York is in violation it cannot escape.
Wednesday, August 12, 2015
Sheri Lederman, a 4th grade teacher in Great Neck, New York, with 17 years of experience, is challenging New York's value added method (VAM) for evaluating teachers. In 2013-14, the system rated her as "ineffective." This struck her as implausible due to her long track record of strong student achievement results and positive evaluations by her superiors.
Monday, July 20, 2015
In The Constitutional Challenge to Tenure, I spend an extended amount of time evaluating the merits of teacher evaluation systems that rely on students' standardized test scores work. This might appear to some as a digression, but the the attacks on tenure are premised on the assumption that these new evaluation systems can tell us who needs to be fired. If only it were so. Thus far, these evaluation systems have proven speculative and unreliable. Yet elevating the prominence of teacher evaluation systems would appear to be a primary goal of the movement.
Last week, the advocates and attorneys who brought us Vergara v. California made this more obvious. They filed a second lawsuit to force sixteen California school districts to do more to evaluate their teachers based on students' test scores. They argue that collective bargaining agreements in those districts are prohibiting the districts from evaluating teachers in accordance with state statute. The complaint is here.
Tuesday, July 14, 2015
This blog's title is the bottom line takeaway from Dan Goldhaber, Lesley Lavery, and Roddy Theobald's new study Uneven Playing Field? Assessing the Teacher Quality Gap Between Advantaged and Disadvantaged Students. The abstract explains:
Policymakers aiming to close the well-documented achievement gap between advantaged and disadvantaged students have increasingly turned their attention to issues of teacher quality. A number of studies have demonstrated that teachers are inequitably distributed across student subgroups by input measures, like experience and qualifications, as well as output measures, like value-added estimates of teacher performance, but these tend to focus on either individual measures of teacher quality or particular school districts. In this study, we present a comprehensive, descriptive analysis of the inequitable distribution of both input and output measures of teacher quality across various indicators of student disadvantage across all school districts in Washington State. We demonstrate that in elementary school, middle school, and high school classrooms, virtually every measure of teacher quality we examine—experience, licensure exam scores, and value added—is inequitably distributed across every indicator of student disadvantage—free/reduced-price lunch status, underrepresented minority, and low prior academic performance. Finally, we decompose these inequities to the district, school, and classroom levels and find that patterns in teacher sorting at all three levels contribute to the overall teacher quality gaps.
Friday, July 10, 2015
With Watered Down Analysis, Eleventh Circuit Holds Florida Can Evaluate Teachers Based on Their Students' Scores In Someone Else's Course
Thursday, July 2, 2015
The Supreme Court granted certiorari Monday to hear Friedrichs v. California Teachers Association, the case about compulsory teachers' union dues that some observers say will threaten union financing. Friedrichs challenges California's “agency shop” laws, which require public employees to pay union dues as a condition of employment, Friedrichs argues that state's agency shop laws violate the First Amendment particularly when the union's positions conflict with individual teachers' on-the-job interests or personal beliefs. Friedrichs' certiorari petition presents two issues:
(1) whether Abood v. Detroit Board of Education (1977) should be overruled and public-sector “agency shop” arrangements (that require teachers to join the union or pay the equivalent of union dues) should be invalidated under the First Amendment; and
(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.
In Abood, the Supreme Court held that nonunion public sectors employees could not be required to fund political or social activities to which they objected, but employees could be required to fund activities that benefitted all employees related to “collective bargaining, contract administration, and grievance adjustment purposes.” Because Abood controlled the outcome of Friedrich's claims, the Ninth Circuit summarily affirmed the district court's ruling against Friedrich.
Wednesday, June 17, 2015
Last year, the Second Circuit Court of Appeals held that the claims against the New York Board of Education could move forward. Plaintiffs had alleged the Liberal Arts and Sciences Test (“LAST”) had a disparate impact on African Americans, was not validated as job related, and, thus, the state's use of it violated Title VII. The case was remanded back to the trial court. Earlier this month, the trial court in Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, 2015 WL 3536694 (S.D.N.Y. June 5, 2015), found:
After reviewing all of the evidence offered by Dr. Outtz and the parties, including expert opinions and the Equal Employment Opportunity Commission's Uniform Guidelines on Employee Selection Procedures, . . . that the BOE unfairly discriminated against African–American and Latino applicants by requiring them to pass the LAST–2. Like its predecessor, the LAST–2 had a disparate impact on African–American and Latino test takers. And like its predecessor, the LAST–2 was not properly validated as job related, because the exam's designers did not employ procedures to identify the specific areas and depth of knowledge of the liberal arts and sciences that any competent teacher would need to understand. The BOE's use of the LAST–2 was thus unfairly discriminatory under Title VII.
Thursday, June 11, 2015
In 2013, North Carolina achieved, through legislation, what the plaintiffs in Vergara v. State in California are trying to achieve through litigation: the elimination of tenure and the minimization of due process limitations on terminating teachers. Last year, a North Carolina trial court struck down the legislature's attempt. The court held that the changes violated the state constitution's contracts clause. Given the prevailing pressures in the state and the legal theory upon which plaintiffs had prevailed, whether the decision would hold on appeal was far from clear.
A little over a week ago, however, the Court of Appeals of North Carolina affirmed the trial court, agreeing that the elimination of tenure and certain processes violated the state contracts clause. The contracts clause precedent in the state is not necessarily important in an of itself, at least not outside the state. States vary in how and whether they treat tenure as a vested contractual right. (See pages 17 to 18 of this article for more on that point). What is important nationally is the factual necessity analysis that occurs within contract clause analysis, regardless of the state. Even if tenure or due process creates a vested right, precedent still allows states to take the right away if they can establish an important state interest in doing so and that the particular action the state took was reasonable and necessary to achieve that state interest.
This North Carolina court's analysis on this last point-the reasonableness and necessity of eliminating tenure--is a direct repudiation of the theory of Vergara. The North Carolina court accepts that improving teacher quality and education quality are important interests, but rejects the state's argument that eliminating tenure and process are reasonable or necessary means of achieving that end. The court's analysis is sufficient lucid that it bears an extended quote here:
Tuesday, June 9, 2015
Florida Gov. Rick Scott acquiesced in April to complaints that teachers' evaluations were too heavily weighted to how well their students performed on state standardized tests, signing into law a measure to the reduce the percentage that student scores made up of teachers' evaluations from half to one-third. But one Florida county, Polk County, recently announced that student standardized scores would have no impact on its teachers' evaluations this year. Polk County says that it is bound by a clause in a collective bargaining agreement with a teachers union and therefore it cannot follow state law. The clause prevents the Polk County school district from using student scores as a job-performance factor until both the district and the union, the Polk Education Association, mutually agree on the evaluation system. If the contract provision prevails, similar clauses could impact Florida's teacher evaluation system throughout the state. Read the article about the district's stance here.
Tuesday, June 2, 2015
On May 22nd, the district court in Brewer v. District of Columbia Public Schools, 2015 WL 2438069 (D.C. 2015), dismissed a former music teacher and union member’s case against the District of Columbia Public Schools (“DCPS”). The teacher had retired after learning that his position was being eliminated due to a Reduction in Force (“RIF”) employment action by the DCPS. He then brought suit.
Wednesday, May 6, 2015
The Department of Education's new longitudinal study on teacher attrition indicates that the conventional wisdom is wrong. Past research has indicated that new teachers leave the profession in droves. The common refrain is that half of new teachers leave within five years. Looking at five years of data (from 2007–08 through 2011–12), the Department found that 83% of the new teachers in the first year of the study were still teaching 5 years later. The biggest hit was in the first year, after which 10 percent of teachers left the profession. In subsequent years, however, attrition fell to only two to three percent. The study also found that two factors appeared to play a role in those schools with the lowest attrition rates: salary and mentorship.
Monday, April 20, 2015
Bruce Baker posted what may be the best school finance and teacher quality post in a while. He was responding to the New York State Education Department's most recent response to the fact that students in high poverty schools in the state have teachers whose salary is $21,000 per year less than teachers in the lowest poverty schools. The state also acknowledge that "students in high poverty schools are nearly three times more likely to have a first-year teacher, 22 times more likely to have an unlicensed teacher, and 11 times more likely to have a teacher who is not highly qualified." NYSED's proposed strategy to resolve the problem, however, was troubling. Its sole solutions were:
Thursday, April 16, 2015
Female Teacher’s Discrimination Suit Can Proceed Against District Alleged to Prefer Male Coaches as Driver’s Ed Teachers
A federal district court in Alabama recently allowed a female teacher’s gender discrimination claim to proceed upon her sufficient showing that a school district preferred male employees as a driver’s education teachers. A female teacher in Mobile County, Alabama sought a driver’s education teaching position to allow her more free time to pursue coaching opportunities. She was turned down for two driver’s ed jobs and was told by school officials that male employees were preferred because they could also coach male sports. At a motion for summary judgment in federal court, the school district countered the plaintiff's claim, saying that the actual reason for the decisions was that the male employees had “good working relationships with the administrators at each school” and were held in high esteem. The Southern District of Alabama found that the plaintiff showed that the district’s reasons were pretextual because the jobs were never posted or interview procedures followed. The case is Shaw v. Mobile Cnty. Pub. Sch. Sys., No. CIV.A. 14-0111-CG-B, 2015 WL 419805 (S.D. Ala. Feb. 2, 2015).
Tuesday, April 14, 2015
Dafney Blanca Dabach's new study, Teacher Placement Into Immigrant English Learner Classrooms Limiting Access in Comprehensive High Schools, is now available here. The abstract is as follows:
This qualitative study examined how secondary teachers were assigned to teach courses intended to expand English learners’ (ELs’) access to academic subjects. Theoretically, this research extends the “contexts of reception” framework from immigration studies into the educational realm by investigating how teachers—as one important contextual variable—entered into settings designed for immigrant-origin ELs. Analysis examined institutional processes, norms, and policies as well as participants’ practices. Findings suggest that novice teachers were most likely to be placed into separate EL content-area classrooms, unless more senior teachers requested these assignments or administrators intervened. Ultimately, this article uses teacher assignment processes to illustrate how contexts for immigrant-origin youth are constructed and contested and how ELs’ opportunities to learn were jeopardized in local settings.
Tuesday, April 7, 2015
New Scholarship on School Funding, Segregation, Native American Culture, Formerly Religious Charter Schools, and Tenure
The Brigham Young University Education and Law Journal has released its new issue, which includes several interesting articles. The titles and abstracts are as follows:
Tuesday, March 31, 2015
In recent years, a growing body of evidence has confirmed what personal experience and intuition have long suggested: the quality of a child’s teacher has a profound and lasting impact on the child’s academic achievement. According to one expert, replacing just the least effective five percent of America’s teaching force with average teachers could catapult our nation’s K-12 education system from its current place among the worst performing in the developed world to among the top. Yet for complex reasons related to school culture, administrative inertia, and the time and cost associated with dismissing a teacher for poor performance, schools across the country continue to subject students to chronically ineffective teachers in considerable numbers.
Wednesday, March 18, 2015
Almost immediately after the trial court in Vergara v. State held that California's tenure and last-in-first-out statutes violated students right to education under the California Constitution, litigants filed a similar claim against New York, Davids v. New York. Last week, the trial court denied the state's motion to dismiss and permitted that case to move forward. Campbell Brown, who is helping lead the anti-tenure movement, hailed the decision as “a major victory for New Yorkers, especially for parents and students.” To the extent their claim is alive and they thought it would fail, yes, it is a significant victory. On the other hand, the judge's decision was unsurprising and probably correct.
The complaint in Davids was better written than Vergara. Its causal assertions were more clearly articulated and speak more directly to the prima facia claims that litigants must make in educational adequacy and equity claims. But stating a claim in a complaint and proving that claim with real and compelling evidence are two different things.
As I emphasize in this article, the notion that tenure might violate students' right to education is theoretically valid and, thus, courts should be careful to not peremptorily bar such claims because doing so might also have negative reciprocal effects on other important theories that seek to vindicate the constitutional right to education outside of school funding (in areas such as student discipline, student assignment, and segregation). Yet, courts must also refrain from the allure of the simplicity of the tenure claims. Unfortunately, the latter is exactly what the trial court in Vergara seems to have done.
School quality and equity cases are incredibly complex. Courts have required plaintiffs to demonstrate
- a constitutional duty
- a substantial and systematic deprivation of rights
- input causation: state responsibility for local deprivations
- output causation: whether the deprivation affect pertinent educational outcomes, and
- that the violations are susceptible to a remedy (or the remedy that plaintiffs request)
While the Davids plaintiffs generally make these allegations in the complaint, these allegations are really just assumptions. Demonstrating the truth of these assumptions is going to be extremely difficult, and will require far more nuanced analysis and evidence regarding multiple factors affecting educational and teaching quality, which the plaintiffs have yet to even acknowledge. Nonetheless, under liberal pleading rules, it is most likely plaintiffs' right to try to prove those assumptions. Although as I note in my article, newer more strict pleading rules in federal court might provides a basis to dismiss claims that assume or speculate about key issues. Of course, state education claims proceed in state court and most states have yet to move to the new federal approach.
Download the New York opinion here: Download 2015 March Motion to Dismiss Denied -A-043 - Davids-Wright
Tuesday, March 3, 2015
Los Angeles Unified School District, the nation's second largest school district, is the epicenter of the nation's fight over teacher tenure, with plaintiffs arguing that tenure rights that prevent schools from removing ineffective teachers violate students' constitutional right to education. (More here). In this context, it is no surprise that labor negotiations between the district and its teachers are unusually tense. Last week the teachers' union indicated they had reached an impasse with the state. The next step would be mediation, which could be followed by a strike if deal is not reached.
Teachers are requesting an 8.5% salary increase and the district is offering 5%. The district is claiming a lack of funds to meet teachers' request, and teachers are emphasizing that their pay has been frozen and even decreased over the past 8 years, even for those teachers who would have otherwise received bumps based on experience or education credits. Thus, a sizable increase is only reasonable, they argue. The union is also requesting new hires and smaller class size.