Wednesday, February 8, 2017

Teachers' Bid to Roll Back Attack on Teacher Tenure in Kansas Fails, But the Overall Resistance Remains Strong

In 2014, the Kansas legislature significantly changed teachers' due process and tenure rights.  The new law "amended the Teacher Due Process Act, K.S.A. 72–5436 et seq., to remove many elementary and secondary public school teachers from long-standing statutory protections regarding the termination or nonrenewal of their annual employment contracts."  Of particular note was the elimination of notice to teachers of how they might improve any teaching deficiencies and an opportunity to actually do so.

Rather than directly challenge the substance of the new law, teachers argued that it violated a constitutional rule in the state that prohibits legislation from addressing more than one subject.  The bill stripping teachers of rights was also an appropriations bill.  Thus, teachers argued it violated the one subject rule.  The Kansas Supreme Court disagreed, reasoning that the appropriations related to education as well and, thus, did not violate the one subject rule. Kansas Nat'l Educ. Ass'n v. State, No. 114,135, 2017 WL 242658 (Kan. Jan. 20, 2017):

[The teachers' union] decries the adverse impact it alleges results to its members and public education in general by H.B. 2506's tampering with the Teacher Due Process Act. But the wisdom of the public policy choices reflected in any individual part of a bill is irrelevant to whether the legislation as a whole contains more than one subject. In this instance, H.B. 2506 does not “ ‘embrace[ ] two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other.’ 

Of course, several other states have attempted to undermine teacher rights and tenure in recent years.  Teachers efforts to resist those changes through litigation have been relatively successful.  See New Jersey, North Carolina.  Courts have also finally begun to turn against those lawsuits that have argued that teacher rights and tenure deprive students of their constitutional right to education. See Minnesota, California.  For more on the overall attack on teacher rights and its fundamental flaws, see here.

 

 

February 8, 2017 in Teachers | Permalink | Comments (0)

Tuesday, February 7, 2017

With Ninth Supreme Court Justice Waiting in the Wings, Lawsuit Revives Movement to Eliminate Mandatory Teacher Union Dues

A little over a year ago, teacher unions across the nation were bracing for a serious blow.  The Supreme Court had granted certiorari in Friedrichs v. California Teachers Association. The case involved a challenge to a California statute that required all teachers to contribute to the union.  Non-union members could opt-out of certain fees, but all teachers were required to pay those fees associated with the basic negotiation of the teachers' contract because all teachers benefit from that contract.  Plaintiffs argued that these forced union dues violates their First Amendment rights.  While the Ninth Circuit had upheld the fees, oral argument strongly suggested the Court would strike down the statute.  Before the Court could issue a decision, however, Justice Scalia passed away.  The Court came to a 4-4 tie, the effect of which was to leave the lower court decision in place.  The Orange County Register reports:

Eight California teachers filed a federal lawsuit Monday against their school districts and the California Teachers Association, challenging mandatory union membership and the union dues that come with it.

“Our basic goal is to regain our power, our speech and our right to not associate with an organization that harms us and our students,” said Ryan Yohn, 38, lead plaintiff and an eighth-grade American history teacher at Stacey Middle School in the Westminster School District.

The Center for Individual Rights, a nonprofit libertarian law firm, filed the lawsuit in federal court Monday in Los Angeles on behalf of Yohn and other teachers, including Allen Osborn with the Riverside Unified School District, against various school district superintendents and unions.

They suit aims to resurrect issues raised in an earlier case that ended last year with a 4-4 deadlock before the U.S. Supreme Court.

“It’s really the same case with different plaintiffs,” said Terence Pell, the center’s president.

. . . .

 

Union leaders, meanwhile, said a decision against them could impact government workers beyond the teachers’ groups, threatening union membership across the country.

“Unions are made up of teachers, firefighters and other working people,” said Claudia Briggs, spokeswoman for the California Teachers Association. “Whatever happens to us happens to everybody else.”

“If a politically driven agenda trumps that hard work, the ones who suffer will be our children and others who benefit from the service of public employees,” she said.

 

February 7, 2017 in Teachers | Permalink | Comments (0)

Wednesday, February 1, 2017

New Jersey Supreme Court Denies Gov. Christie's Bid to Change Teachers' Rights by The Education Law Center

This from the Education Law Center:

The NJ Supreme Court issued an order yesterday denying Governor Christie's motion to reopen the landmark Abbott v. Burke litigation. ELC, counsel to the plaintiff school children, vigorously opposed the Governor's action.

In the September filing, Governor Christie asked the Court to modify prior Abbott rulings by giving the Commissioner of Education unlimited authority to over-ride terms of teacher collective bargaining agreements and the law requiring teacher layoffs by seniority. The Governor also asked the Court to "freeze" state aid at current levels under the funding formula - the School Funding Reform Act (SFRA) which was upheld and enforced by the Court in the 2009 and 2011 Abbott XX and XXI - while the Executive and Legislature developed a new wholly undefined formula to be adopted at some indeterminate future date.

In denying the Governor's motion, the Court noted the challenges to collective bargaining and seniority in layoffs "have not been subject to prior litigation in the Abbott line of cases."
The Court, in its order, "declines to exercise original jurisdiction" to hear the motion "in the first instance," thus deciding not to consider the merits of the Governor's request.
"We are pleased the Court has turned down the Governor's request. Issues related to collective bargaining and teacher layoffs were never in the Abbott case, which has been singularly focused on ensuring adequate funding and resources for students in New Jersey's poorest schools," said David Sciarra, ELC Executive Director and lead Abbott counsel.
Denying the Governor's request to freeze school funding means that the Court's directives in the Abbott XX (2009) and Abbott XXI (2011) rulings requiring the State to continue to use the SFRA formula to fund New Jersey's public schools remain in full force and effect.

"With this ruling, we anticipate the Governor will follow the Abbott rulings and SFRA statute by using the formula to determine state aid for school districts in the FY18 State Budget," Mr. Sciarra added. "We're prepared to work with the Governor and Legislature to ensure the budget includes a long overdue increase in state aid, targeted to districts most in need."

February 1, 2017 in School Funding, Teachers | Permalink | Comments (0)

Thursday, January 5, 2017

Assessing the Effectiveness of Obama's Education Policies

Secretary of Education John King is set to give his final reflections on the work that the U.S. Department of Education has accomplished over the past eight years.  The Atlantic reports that he will release a 14 page exit memo titled "Giving Every Student a Fair Shot: Progress Under the Obama Administration’s Education Agenda.”  I would expect that it is largely a summary of the 60 page document the White House released back in May under the exact same title.  Get that report here.

The most notable accomplishments it will tout are Race to the Top, changes to the teaching profession, expansion of pre-kindergarten education, the Every Student Succeeds Act, and civil rights enforcement.  With the new administration that lies ahead,  many on both sides of the aisle will soon enough long for the one that just left and, thus, I hesitate to be critical. Nonetheless, I cannot count many of this administrations accomplishments as positives.  

An overarching theme of this administration is what I would call the econometrics and corporatization of education. I use econometrics to refer to the notion that we could precisely measure student growth and teacher effectiveness.  These notions became the basis for using extremely complicated mathematical analysis to compare one teacher to another, one school to another, and to take action against them when officials did not think the results were good enough.  

Intuitively, the approach made perfect sense--far more than No Child Left Behind's nonsensical assumption that it could force schools to make 100 percent of students proficient by 2014.  The problem is that the Obama administration's policies rested on the same fundamental flaw as No Child Left Behind.  They both assumed that standardized tests are an accurate measure of learning.  In many ways, the Obama administration made things worse because it upped the ante.  Not only would it rely on the test results, it would attempt to draw far more information and conclusions from them.  As I detail here, this approach is inherently unfair in a number of ways and produces random and unreliable results. What the Department should have done is the opposite.  Keep the tests but use them only for what they are good for: rough global measures of a slice of student learning that can serve as a trigger for further inquiry into a school (and maybe a teacher).  

Corporatization is somewhat of a rough characterization, but I use it as a proxy for the notion that schools can run like businesses and on the whole operate like markets. This notion led the Department to demand that states lift caps on the number of charter schools and resulted in an enormous expansion.  Charter school enrollments roughly doubled during the Obama administration.  While it is true that there are scores of very high performing and beat-the-odds charter schools across this nation, they are the exception, not the norm.  There is no evidence to show that a school, simply by virtue of being a charter, is likely to perform any better than a traditional public school.  Rather, the evidence shows quite the contrary.  

And even putting achievement results aside, the profit motives, potential corruption, lack of transparency, and lack of legal protection are, in fact, inherent risk in charters as currently structured.  Thus, these past several years saw a sharp spike in these problems.  What charter schools require and neither the federal nor state governments have been willing to impose are serious oversight and standards that align them with the core values of public education.  As I detail here, without that oversight and alignment, they can undermine public education itself.

Finally, the Department is quite proud of the fact that it got rid of No Child Left Behind.  I concede that is an accomplishment.  The problem is that the Department overreached so much through Race to the Top and the waivers of No Child Left Behind, that the final legislation that replaced No Child Left Behind was more about eliminating the federal role in education than it was improving it.  In that respect, the Every Student Succeeds Act is a major step backward for the students who need federal leadership the most.  That is no accomplishment at all. For a full explanation, see here.

Those critiques, however, do not mean that the Department was without success.  To be absolutely clear and reiterate what I wrote a few weeks ago, the Office for Civil Rights in the Department of Education has done an outstanding job, particularly in the past four years.  For the first time in a very long time, the Office for Civil Rights once again became an institution that families believed would take their claims of discrimination seriously.  The Office once again became an institution that would insist that districts comply with anti-discrimination law, regardless of the politics that surrounded doing so.  Thus, it is no surprise that the cases filed with the Department grew, so much so that the Department requested additional resources to do the work that the law demanded of it.

As we turn to the next administration, signals indicate that we will miss the Office for Civil Rights more than most appreciate now.  Whether we will miss the general Department of Education's substantive policies remains to be seen, but things can certainly get a lot worse.

January 5, 2017 in Charters and Vouchers, ESEA/NCLB, Teachers | Permalink | Comments (0)

Tuesday, November 29, 2016

Bilingual Education Returns to California--Kind Of

For those who have taught or taken education law in recent years, you have probably touched on the seesaw history of bilingual education in our schools.  The trend of the last two decades has included the banning or limiting of bilingual education and the move toward immersion programs.  That shift came to a head in Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002)--a rather complicated case to teach.  More than sixty percent of Californian's had voted to ban bilingual instruction.  This prompted a legal challenge, alleging that the ban was discriminatory and motivated by ethnic animus.  The court rejected the challenge, reasoning that the motivation behind the legislation was to improve education.  The case involved the same political inequality theory that was recently taken up by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action--the case challenging Michigan's ban on affirmative action. 

While Valeria and Schuette turned out poorly for civil rights advocates, they have now secured a win in the court of public opinion.  California, by a vote of 73-27 percent, just reversed course again and ended the era of English-only instruction in its public schools.  Nuance and problems, however, still loom.  First, as NPR explains,

[I]t'll be up to school districts to decide locally whether they want to offer bilingual education or not, based on parents' demand for it. Under the new measure, if at least 20-30 parents want bilingual instruction for their children, their school will have to provide it. Even if only a few parents want it — less than 20 — that could put pressure on schools to make and force school district officials to intervene and come up with an accommodation.

The main change under Proposition 58 is that parents no longer have to sign a waiver in order to enroll their children in a dual language or bilingual classroom. Under English-only policies, teachers were prohibited from making any recommendation on bilingual education, so that could change too.

Second, California has an enormous capacity problem.  When it banned bilingual education two decades ago, it helped dry up the pipeline of teachers with the training and skills to offer bilingual instruction.  That problem is only further amplified by the fact the general teacher pipeline was also decimated by the recession and state policy in response to it.  As I detail in Taking Teacher Quality Seriously and Averting Educational Crises: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, California, along with a number of other states, have a very big hole to dig themselves out of.  In other words, there are not enough qualified teachers to fill basic education spots, much less bilingual education.

 

November 29, 2016 in English Language Learners, Teachers | Permalink | Comments (0)

Tuesday, October 4, 2016

Teacher Shortages Require Coordinated Strategies, Not Silver Bullets

Last fall, teacher shortages swept states across the nation and caught the attention of major media outlets. Linda Darling-Hammond, Leib Sutcher, and Desiree Carver-Thomas's new essay in Huffington Post reminds us that the shortages are far from over.  This fall is bringing a spate of stories similar to last year.  As they write:

After years of layoffs during the fiscal recession, an upturn in the economy has allowed districts to begin hiring again. The problem is that many districts cannot find qualified teachers to fill the new positions. . . .

Teacher shortages were the topic of a recent gubernatorial debate in Indiana, with the Democratic challenger blaming the policies of the former governor for current shortages, while his Republican opponent pointed to a national crisis as a source of Indiana’s woes. With more than 40 states, plus the District of Columbia, reporting severe shortages in special education, math, and science, and states reporting the hiring of substitutes and individuals without credentials by the thousands, a national shortage seems plausible. Last spring, Indiana Governor Pence (now a vice-presidential candidate) signed into law a major scholarship bill subsidizing the preparation of prospective teachers in an effort to boost supply.

Two weeks ago, the Learning Policy Institute (LPI) released a report on teacher supply and demand that examines the data behind these shortages. We set out to understand the sources of these difficulties and what might be done to resolve them.

They also offer a set of solutions:

  1. Creating competitive, equitable compensation packages that allow teachers to make a reasonable living across all kinds of communities. 
  2. Enhancing the supply of qualified teachers for high-need fields and locations through targeted training subsidies and high-retention pathways. 
  3. Improving teacher retention, especially in hard-to-staff schools, through improved mentoring, induction, working conditions, and career development.
  4. Developing a national teacher supply market that can facilitate getting and keeping teachers in the places they are needed over the course of their careers. 

To my relief, these solutions are very similar to those I pose in Taking Teacher Quality Seriously.  The problem, I point out, is that past reforms have been premised on silver bullet solutions.  Courts, moreover, have often encouraged this type of thinking.  The needs of our students, teachers, and their learning environments are too complex for singular solutions.  

October 4, 2016 in School Funding, Teachers | Permalink | Comments (0)

Thursday, September 29, 2016

Has School Funding Litigation Had a Positive Effect on Teachers and Their Salaries?

Wallet Hub recently ranked the best and worst states to be a teacher.  The states with the lowest cost adjusted salaries are:

  1. Hawaii — $34,063
  2. South Dakota — $41,000
  3. Maine — $43,792
  4. West Virginia — $44,337
  5. Arizona — $46,029

Business Insider pointed out that "the two lowest-paying states happen to be on opposite ends of the cost-of-living spectrum: While Hawaii is notoriously expensive, South Dakota often ranks as one of the cheaper places to live in America."

It is also worth filtering these states through the lens of school finance litigation.  New Jersey ranks as the best place to teach and, incidentally, has had the most effective school finance litigation in the nation.  Illinois and Virginia, however, rank as the 3rd and 6th best states and yet have had some of the most miserable school finance results, with courts never acting to enforce their constitutions in any respect.  The same could be said of Pennsylvania, which ranked 12.

At the bottom of the ranking is a more consistent list of states that have not experienced wins in school finance litigation or where courts have recently refused to enforce earlier decisions.  Looking at the bottom and top of the list together, one might posit that the presence of school finance litigation and victories alone do not lead to good teaching environments, but the absence of litigation victories make poor environments more likely.  Running that complicated analysis is beyond the scope of this short essay, but another more likely possibility is that most courts have simply mismanaged the issue of teachers in the context of school finance litigation. Thus, winning or loosing a school finance case has relatively little effect on the issues that matter the most in teaching.

In Taking Teacher Quality Seriously, I argue:

Although access to quality teachers is one of the most important aspects of a quality education, explicit concern with teacher quality too often has been conspicuously absent from past [court decisions] over the right to education. Instead, past [court decisions have] focused more on the broader question of funding. Though that litigation has narrowed gross funding gaps between schools in many states, it has not been enough to change what matters most: access to quality teachers.

This Article proposes that courts ensure access to quality teaching rather than the more amorphous right to adequate educational opportunities. The recent constitutional challenge to tenure suggests a theoretical step in this direction, but the focus on teacher tenure alone is misplaced. Eliminating tenure, without addressing more important fundamental challenges for the teaching profession, may just make matters worse. Thus, this Article argues for a broader intervention strategy that focuses on whether states equally distribute existing quality teachers and whether states take the various steps necessary to ensure the supply of quality teachers.

A more detailed discussion of the key issues involved in improving teaching quality is available here.

 

September 29, 2016 in School Funding, Teachers | Permalink | Comments (0)

Tuesday, September 20, 2016

Building a Better Teacher

Mark Paige's new book, Building a Better Teacher: Understanding Value-Added Models in the Law of Teacher Evaluation, is now available here.  The promotional materials offer this description:

Mark Paige takes an in-depth look at the interaction of Value Added Models (VAMs) and the law of teacher evaluation. It notes that the hasty adoption of VAMs in evaluation and employment law actually complicates efforts to improve teacher quality, especially at the local level. In brief, VAMs’ costs vastly outweigh their benefits. The book advocates for a complete removal of VAMs in high-stakes decisions. It sets forth numerous recommendations for administrators and policymakers to enable them to effectively deal with the complications created by VAMs.

The book is not simply a criticism of VAMs. It projects a number of solutions for those seeking to improve teacher evaluation. In particular, it recommends the use of a particular method of collective bargaining (interest based bargaining) as a tool to improve evaluation at the local level and empower local stakeholders. The book serves a cautionary message to policymakers and lawmakers: they should exercise extreme caution - now and in the future - before codifying such high stakes policies like VAMs to avoid significant unintended consequences. Paige notes that VAMs' technical faults contribute to the decline of morale among teachers and have the potential to discourage many from entering the profession -- something that may discourage the best teachers from taking on the toughest teaching assignments. In this light, the questionable "reward" of using VAMs in high-stakes matters is outweighed by the risks. He also comments on the role of courts in abolishing VAMs and educational policy in general. With respect to VAMs, he notes that efforts to abolish their use have had a greater success in state legislatures than courts, but court action has been an important mechanism to activate popular opinion around the issue.

The book is definitely a must read for those closely following the court battles over teacher tenure.  As emphasized here, the overconfident belief in the predicative power of VAMs was at the heart of Vergara v. State, which triggered a national litigation movement against teacher tenure.  Vergara, as well as newer lawsuits in New York and Minnesota, ask courts to declare teacher tenure an unconstitutional impediment to a quality education.  Their assumption is that VAMs can reliably tell us who the worst teachers are and, were it not for tenure laws, districts could remove them and improve education. Unfortunately, neither is true.  

This is not to say, however, that improvements in teacher quality are out of reach.  Quality teaching is central to quality education and we have a long way to go.  Both the opponents of tenure and scholars like myself and Paige would agree on that point.  The disagreement is most often over how we get there.  I would say Paige tries to find the middle ground.

September 20, 2016 in Teachers | Permalink | Comments (0)

Wednesday, August 31, 2016

Judge Rules That Detroit Teachers' "Sick-Out" Protest Was Protected Activity

Earlier this spring, Detroit public school teachers made national news by coordinating what was called a "sick-out."  Around 1500 teachers called in sick, which forced 94 of 97 Detroit schools to close for a day.  The sick-out was meant as a protest of the financial troubles the district was facing and the prospect that teachers might not be paid in July.  Less news-catching was a lawsuit by the District against the teachers who apparently helped orchestrate the sick-out.  The District argued that the sick-out was, in effect, a strike, which is prohibited by the Michigan Public Employment Relations Act (PERA).   A trial court in Michigan has now ruled against the District, reasoning that the teachers were exercising their free speech rights and that PERA cannot reach their behavior without creating First Amendment conflicts.  Because it is a state trial court ruling, I have yet to get the opinion, but the Detroit Free Press offered this summary:

In her ruling, Stephens, a Michigan Court of Claims judge, said the district didn't prove that Conn and Conaway violated PERA.

"Here, the vast majority of the speech attributable to defendants concerns complaints to the state government to rectify educational, financial and structural problems in the Detroit Public School District, and not issues concerning the rights, privileges or conditions of their employment," she said.

"Any injunction based on defendants' exercise of their free speech right to petition their government would run afoul of First Amendment protections."

Stephens said that the district's argument that the defendants were precluded from even saying they approved of work stoppages "goes far beyond the scope of PERA and such an interpretation is offensive to fundamental rights of free speech."

The state picked up the district's legal costs, spending about $320,000, Michigan Department of Treasury spokeswoman Danelle Gittus said Aug. 10.

George Butler III, the main attorney for the school district, and district spokeswoman Chrystal Wilson could not immediately be reached for comment late today.

In the weeks after the lawsuit was filed, most of the 28 defendants, including the Detroit Federation of Teachers union, were dismissed by Stephens or withdrawn by the district, leaving only Conn and Conaway. The judge twice denied the district's request for temporary restraining orders.

 

August 31, 2016 in Teachers | Permalink | Comments (0)

Tuesday, August 23, 2016

The Constitutional Challenge to Teacher Tenure Has Failed in California, But Justice Liu Highlights One Problem

The constitutional challenge to tenure in California has ended with a whimper rather than a bang.  Vergara v. State captured the national attention when a trial court held two years ago that teacher tenure and seniority statutes violated students constitutional right to education.  As detailed here, the opinion was riddle with serious flaws.  Thus, it was little surprise that the Court of Appeals overturned the trial court earlier this year.  By then, however, the theory had already spread to New York and Minnesota courts and plans were afoot to bring similar claims elsewhere.  Given the gravity of the trial court decision and the issues it decided, I was sure the California Supreme Court would have the final word no matter what.  Yesterday, proved that theory wrong, as the California Supreme Court denied certiorari and left the Court of Appeals decision in place.  Three Justices did dissent, arguing that the Court should have taken the case.  To no surprise, Justice Liu--the former law professor and leading education scholar--offered this introductory explanation for why the Court should have taken the case:

This case concerns the constitutionality of California's statutes on teacher tenure, retention, and dismissal. . . . . One of our criteria for review is whether we are being asked "to settle an important question of law." (Cal. Rules of Court, rule 8.500(b)(1).) Under any ordinary understanding of that criterion, our review is warranted in this case. As the trial court observed: "All sides to this litigation agree that competent teachers are a critical, if not the most important, component of success of a child's in-school educational experience. All sides also agree that grossly ineffective teachers substantially undermine the ability of that child to succeed in school." The controversy here is whether the challenged statutes are to blame for the hiring, retention, and placement of grossly ineffective teachers. Because the questions presented have obvious statewide importance, and because they involve a significant legal issue on which the Court of Appeal likely erred, this court should grant review. The trial court found, and the Court of Appeal did not dispute, that the evidence in this case demonstrates serious harms. The nine schoolchildren who brought this action, along with the millions of children whose educational opportunities are affected every day by the challenged statutes, deserve to have their claims heard by this state's highest court.

Justice Liu goes on to distinguish the two different groups of students on whose behalf Vergara was brought:

Continue reading

August 23, 2016 in School Funding, Teachers | Permalink | Comments (0)

Wednesday, June 8, 2016

New Civil Rights Data Shows Just How Misguided Attack on Tenure Is; Teacher Quality Problems Run Much Deeper

The Office for Civil Rights' new data collection shows vast disparities in regard to teachers.  Racial minorities were twice as likely to attend schools where one out of five teachers were brand new.  Racial minorities were also more likely to attend schools with unlicensed teachers.  Race aside, about 800,000 student attended a school where one out of five teachers lacked the required state licence.  

Teacher quality is inherently a difficult thing to measure with blunt qualification metrics, but studies have show that some blunt measures matter.  First, there is a learning curve to teaching.  While quality may flatten after about five years of teaching, teachers do tend to improve during the first five years or so.  Second, while "certified" teacher encompasses a broad range of teachers and teaching quality, uncertified is a relatively narrow group who have yet to demonstrate the basic requirements to enter a classroom.  As a result, studies do show that uncertified teachers have a negative impact on student achievement.

 

Interestingly, none of these teacher inequalities have anything to do with tenure.  As very rough measures, they tend to show just how wrong-headed the legal challenges to tenure are.  These numbers show that if ever teacher in the country lost tenure tomorrow and we fired everyone of them on Monday, there are not enough certified teachers to fill our nation's classrooms.  Moreover, this problem is most acute in predominantly minority schools.  Tenure may randomly operate as a burden or disincentive to removing some teachers, but it is not a significant cause of low quality teaching.  For a host of other flaws in the challenges to tenure, see here.

June 8, 2016 in Teachers | Permalink | Comments (0)

Thursday, May 12, 2016

Judge Finds New York's Teacher Evaluation System "Arbitrary and Capricious"

Last year, Sheri Lederman stood up to the state of New York and those who think that teachers can be precisely measured by how their students perform on standardized exams. After 17 years of teaching and positive appraisals of school officials, she must have been shocked when New York's new value added model rated her as ineffective.  She sued, claiming the system was irrational.  This week a trial court agreed.  The court acknowledged how hard the state had worked to develop the system, its complexities, and the court's own limitations in proposing a better solution, but the court concluded it had no choice but to find the system irrational as applied to Lederman.  Based on submissions from a who's who list of education experts, the court found:

that petitioner has met her high burden and established that petitioner's growth score and rating for school year 2013-2014 are arbitrary and capricious.

The Court's conclusion is founded upon: (1) the convincing and detailed evidence of V AM bias against teachers at both ends of the spectrum (e.g. those with high-performing students or those with low-performing students); (2) the disproportionate effect of petitioner's small class size and relatively large percentage of high-performing students; (3) the functional . inability of high-performing students to demonstrate growth akin to lower-performing students; (4) the wholly unexplained swing in petitioner's growth score from 14 to 1, despite the presence of statistically s_imilar scoring students in her respective classes; and, most tellingly, (S) the strict imposition of rating constraints in the form of a "bell curve" that places teachers in four categories via pre-determined percentages regardless of whether the performance of students dramatically rose or dramatically fell from the previous year. 

This makes the trial court in Lederman the second court to reach this conclusion. Late last year, the trial court in New Mexico ex rel. Stewart v. New Mexico Public Education Department, No. D-101-CV-2015-00409 (N.M. Dec. 2, 2015), enjoined New Mexico's value added model of teacher evaluation.  Although the state is free to continue to use its model for diagnostic or other purposes, the court held that the state cannot use it for high stakes purposes of terminating teachers or placing teachers on notice of future termination.  Nor can it use the model to revoke licenses or deny raises.  Throughout its opinion, the court found various aspects of the evaluation system that made it generally unreliable. It emphasized, for instance, the random variations in the model’s results for teachers from district to district and year to year.  As one superintendent admitted, he could not determine why a teacher was rated as ineffective; he just knew that was her rating.

Combined, these two cases would suggest that Cook v. Bennett, 792 F.3d 1294 (11th Cir. 2015), which upheld Florida's value added model, is the odd man out.  As discussed here, Florida's system may be one of the most troubling of all.  It shares many of the same flaws as New York's system, but also assigns value-added scores to teachers whose subjects are not even tested on standardized exams.  For them, it uses a composite of how students performed on other subjects.  If New York's system is arbitrary, one struggles to offer a justification for Florida's.

May 12, 2016 in Teachers | Permalink | Comments (0)

Thursday, April 28, 2016

Huntsville, AL Education Association Sues District For Withholding List of "Ineffective" Teachers

The Huntsville (AL) Education Association (HEA) sued Huntsville City Schools last week alleging the district illegally revised procedures for determining when a teacher will be found ineffective and violated the state's open records act by withholding a list of the names of teachers it considered to be ineffective. The controversy began last December when Huntsville City Schools Superintendent Dr. Casey Wardynski (who is no stranger to controversy) gave a presentation to principals entitled "Guidance for Dealing With Teachers Who Are Not Effective." During that presentation, Dr. Wardynski and the district's attorneys purportedly provided the principals with a list of the district's ineffective teachers. Both the Huntsville Education Assoc. and the state teachers' union requested the names, but the district allegedly refused the request. The HEA has asked the state court for a preliminary injunction allowing the HEA to see the new standards and list before the City Schools takes any action and for injunctive relief requiring the City Schools to turn over the materials under the open records law. The complaint is here.

April 28, 2016 in News, Teachers | Permalink | Comments (0)

Thursday, April 21, 2016

Can a New Student Loan Forgiveness Program Save the Teaching Profession and the Commitment to Public Education?

Congress is considering a bi-partisan bill to address the national teacher shortage.  The bill would extend additional higher education loan forgiveness to teachers who stay in the classroom for a specified number of years.  Currently, two different federal programs offer loan forgiveness to teachers.  One requires 10 years of service and the other 5 years, but teachers cannot apply for both at the same time, so to take the full benefit, a teacher would need to work 15 years.  Under the new bill, teachers could participate in both programs at once, taking full advantage of them and discharging their loans within 10 years.

The million dollar question is whether this change would have a serious effect on those who might consider entering the profession and whether it would improve the quality of teaching over the long-term.  It surely will not hurt, but given the depth of the structural problems confronting our teaching workforce, this new program is likely to only tinkering around the edges.  As I describe in my forthcoming article Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education,

Extreme teacher shortages swept the nation this past fall, revealing that the education crisis that began during the Great Recession is far from over.[1]  From 2008 to 2012, nearly every state in the country imposed budget cuts on education.[2]  Cuts of more than one-thousand dollars per-pupil in a single year were routine—the equivalent of a teacher aid in every classroom or the entire science and foreign language departments combined.[3]  Some states experienced massive cuts in multiple years.  In North Carolina and Florida, per pupil funding fell from over $10,000 to the $7,000 range in just a few years.[4]  These funding cuts affected a wide array of educational services, but the most significant were regarding teachers.  Lay-offs, pay cuts, and new high-stakes accountability systems dissuaded the next generation of talent from even pursuing a teaching career.[5]

As states finally began to replenish their teaching ranks this past year, they found that teachers were in very short supply. At the same time that states were making cuts to traditional public education, they were enacting huge increases for charter schools and voucher programs.  In many instances, districts struggled to hire even the most minimally qualified individuals.  Just to ensure warm bodies in the classroom, districts resorted to desperate measures—billboard advertising; hiring substitutes and college interns on a full-time basis; and seeking district-wide exemptions from teacher-certification requirements.[6]  In some districts, these drastic measures were not enough to stop class cancelations and teaching overloads.[7]  The teaching demand in California, for instance, is forty percent higher than the supply of individuals seeking teaching credentials this year.[8]  Current projections indicate the shortage may get worse before it gets better.[9]

As suggested in this quote, this shortage is also having a toxic interaction with the way public schools, charters, and vouchers have been funded over the past several years.  While public school funding has dipped tremendously, charter school and voucher funding has doubled and quadrupled in many instances.  More here.

 [1] Motoko Rich, Across Country, A Scramble Is on to Find Teachers, N.Y. Times, Aug. 10, 2015, at A1.

[2] Noelle M. Ellerson, Am. Ass’n of Sch. Admins, A Cliff Hanger: How America’s Public Schools Continue to Feel the Impact of the Economic Downturn 8 (2010) (sixty-six percent of districts reported cuts to state and local revenues between 2008 and 2009 and eighty percent reported cuts between 2009 and 2010).

[3] Bruce D. Baker et al., Is School Funding Fair?: A National Report Card 12–13 t.2 (3d ed. 2014); Marguerite Roza, Breaking Down School Budgets, 9 Educ. Next (Summer 2009) (specifying programing costs in public schools).

[4] Bruce D. Baker et al., Is School Funding Fair? A National Report Card 8 (2015).

[5] Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 Cal. L. Rev. X (forthcoming 2016) (describing new teacher evaluation systems and changes to hiring, firing, and tenure policies); Exec. Office of the President, Investing in Our Future: Returning Teachers to the Classroom (2012) [hereinafter Investing in Our Future], (reporting a loss of 300,000 teachers); Marjorie A. Suckow & Roxann L. Purdue, Cal. Comm’n on Teacher Credentialing, Teacher Supply in California: A Report to the Legislature Annual Report 2013–2014 16 (2015) (finding a 55% drop in the number of persons pursuing and completing education degrees in California).

[6] See, e.g., Kristen A. Graham, Looking for a Few Thousand Substitute Teachers, The Inquirer Daily News, Sept. 1, 2015, http://articles.philly.com/2015-09-01/news/66074823_1_retired-teachers-subs-philadelphia-teachers; State of Cal. Comm. on Teacher Credentialing, District Intern Credentials 3 (2015) (permitting interns to teach after 120 hours of training or six credit hours of course work); Andrea Eger & Nour Habib, Crisis Hits Oklahoma Classrooms with Teacher Shortage, Quality Concerns, Tulsa World (Aug. 16, 2015) (in a month and a half, the Oklahoma Department of Education received 526 requests for teacher certification exemptions).

[7] Eger & Habib, supra note 6; Rebecca Klein, Kansas Underfunded Education and Cut Tenure. Now It Can’t Find Enough Teachers to Fill Classrooms, Huff. Post, July 31, 2015 (reporting school district started year with uncertified teachers and had to use substitutes).

[8] Rich, supra note 1 (state issued 15,000 teaching credentials, which was 6,500 short of the open teaching positions).

[9] See Title II Higher Education Act, Data Tools, https://title2.ed.gov/Public/DataTools/Tables.aspx (last visited Nov. 23, 2015) (finding a sharp drop in the number of students pursuing education degrees); Suckow &Purdue, supra note 5.

April 21, 2016 in School Funding, Teachers | Permalink | Comments (0)

Tuesday, April 19, 2016

North Carolina Supreme Court Overturns Repeal of Teacher Tenure

The North Carolina Supreme Court has overturned a 2013 law that repealed teacher tenure, holding that the repeal violated the Contract Clause of the United States Constitution. For over forty years, North Carolina's teachers were tenured under the Career Status Law, which set the rules for employing, retaining, and firing of public school teachers. In 2013, North Carolina's General Assembly passed a law that revoked the Career Status Law, allowing school boards to decide not to renew a teacher’s contract for any reason except for a few reasons otherwise prohibited by state law. The North Carolina Association of Educators, Inc. and a handful of tenured teachers challenged the law, arguing that the law was a taking because it applied retroactively to previously tenured teachers and prospectively to probationary teachers who were already on track to tenured status. The state supreme court found that the Career Status Law was an implied term of the teachers' employment contracts upon which they relied in accepting lower pay for the anticipated benefits of job security. That security was removed by revoking the Career Status Law and replacing it with a new system that allowed local school boards and teachers to enter into annual term contracts. The court noted that the State's justification for the passing the law, to alleviate difficulties in dismissing ineffective teachers, was unsupported by any evidence that such a problem existed. The court concluded that the State could not show that it had a legitimate purpose, or that if it were legitimate, retroactively ending teacher tenure was nevertheless an unnecessary and unreasonable step to achieve that purpose. The case, North Carolina Association of Educators, Inc. (NCAE) v. North Carolina, No. 228A15 (N.C. April 15, 2016), is available here.

April 19, 2016 in Cases, Teachers | Permalink | Comments (0)

Monday, April 18, 2016

California Court of Appeal Deals Legal Assault on Teacher Tenure a Major Blow, Laying Bare Its Shallow Assumptions

Last week, the California Court of Appeals reversed the trial court that sent shockwaves through the nation when it ruled that California's tenure and seniority statutes were unconstitutional in 2014 in Vergara v. State. As detailed here, the plaintiffs' and trial court's reasoning were riddled with numerous problematic assumptions about the causes of ineffective teaching and the disproportionate number of uncertified and low quality teachers in predominantly poor and minority schools.  The Court of Appeals was nicer in its assessment, but reached the same conclusion.  It wrote:

Plaintiffs failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students. Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers; instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach. Critically, plaintiffs failed to show that the statutes themselves make any certain group of students more likely to be taught by ineffective teachers than any other group of students.
 
With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes. The court's job is merely to determine whether the statutes are constitutional, not if they are “a good idea.” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 388.) Additionally, our review is limited to the particular constitutional challenge that plaintiffs decided to bring. Plaintiffs brought a facial equal protection challenge, meaning they challenged the statutes themselves, not how the statutes are implemented in particular school districts. Since plaintiffs did not demonstrate that the statutes violate equal protection on their face, the judgment cannot be affirmed.
 
In other words, the plaintiffs failed to establish causation.  Students may have low quality teachers, but tenure was not shown to be the cause.  The case will surely make it to the California Supreme Court soon, but in the interim, this decision may help better frame the legal analysis in Minnesota and New York, where trial courts are entertaining similar claims.
 
It is worth emphasizing that the Court of Appeal focused in on the fact that Vergara was a facial challenge to the California statutes, not an as-applied challenge.  This point demonstrates how silly the plaintiffs claim is.  Vergara's claims are the equivalent of saying that California's school funding statutes are unconstitutional without even bothering to track down how the money is spent and the effect it has on students.  If school funding litigation has to prove that money matters to individual schools, then surely tenure challenges must do the same.  The plaintiffs in Vergara, however, have never taken the facts of tenure and educational opportunity seriously.  If the did, they would have noticed what I pointed out last week: segregation and the structural inequalities that create teacher hiring and retention problems matter far far more.

April 18, 2016 in School Funding, Teachers | Permalink | Comments (0)

Thursday, April 14, 2016

New Lawsuit Challenging Teacher Tenure Ignores Basic Facts about Teaching Quality and Segregation

Minnesota is now the third state to entertain the theory that teacher tenure and seniority protections violate students' state constitutional right to education.  Unable to locate the actual complaint, I have had to rely on the initial news reports of the claims, but three points seem pretty clear.  First, the case is modeled on the lawsuits from California and New York and is being funded/coordinated by the same policy and media advocates.  Second, according to the Star Tribune, it claims that "Minnesota laws protect teachers who should no longer be in classrooms, thus preventing thousands of students from getting a high-quality education." Or as one of the plaintiffs' attorneys in the case states, “This is a conversation about students’ fundamental right to an education and the laws that get in the way of that right.” Third, the lawsuit attributes achievement gaps between students to tenure.  “When we look throughout the country at places where there are harmful teacher employment statutes and significant achievement gaps, Minnesota was one of the first states that popped up as a place that could use this kind of help,” said Ralia Polechronis, executive director of Partnership for Educational Justice.

From what I can tell, it also falls victim to all the same simplistic assumptions about teacher quality and equal educational opportunities.  Unless plaintiffs unearthed new data and trends in Minnesota, the plaintiffs have no basis to believe that teacher tenure actually has a negative causal effect on educational opportunity.  As detailed in The Constitutional Challenge to Teacher Tenure, 104 California Law Review 79 (2016), numerous different factors affect teacher quality and educational opportunity.  Prior plaintiffs may marshaled almost no evidence that tenure has any causal effect on the quality of teachers who choose to teach and stay in a particular school, much less evidence that tenure is a significant factor in the quality of education a school offers.  If tenure does not have a significant causal effect, it cannot support a constitutional claim.  It is not enough to argue that tenure is bad policy.  Good or bad, policies of this sort fall within the discretion of the legislature.  

To be very clear, however, none of this is to say that quality teaching does not matter.  Of course, it does.  It matters immensely.  Plaintiffs, however, are either taking advantage of the public's sense of what that basic fact means or they are themselves confusing the notion that quality teachers produce better educational outcomes with the notion that tenure produces poor quality teachers.  First, our schools have been experiencing a national catastrophe in education over the past few years: there are simply not enough teachers to fill open vacancies.  As a result, large numbers of substitutes, uncertified teachers, and individuals simply interested in a new career have been thrown into the classroom.  And states and districts have fought vigorous for those few qualified individuals still on the market.  Getting rid of the so-called bad teachers in classrooms will do nothing to address the fact that there are not any certified teachers waiting in the wings to fill those positions.  In other words, get rid of tenure and fire all the teachers you want.  The quality of teaching in classrooms will not increase.
 
Second and more fundamentally, race and segregation drive unequal access to quality teachers and educational opportunity, not tenure.  For decades, predominantly poor and minority schools have struggled to build quality teaching staffs.  Their problem is not firing teachers.  It is hiring them in the first place.  Even when they succeed in hiring good teachers, they struggle to keep them for more than just a few years, as higher salaries and "more desirable" teaching environments drive them to other schools.  In short, turnover is extremely high in the neediest schools.  The notion that they have stable long-term, low-quality teaching staffs as a result of teacher is fanciful narrative.  They certainly have lower quality teaching staffs, but it has almost nothing to do with tenure. 
 
This focus on tenure is particularly troublesome in Minnesota.  Half a year ago, plaintiffs brought a lawsuit based on the same constitutional clauses that the tenure plaintiffs rely on.  That earlier lawsuit, however, focuses on the right issues.  Segregation and inequality in Minneapolis.  It details a pattern of rapidly expanding charter schools in the metropolitan area that are exacerbating segregation.  In other words, it attacks the real factor driving structural inequalities in teacher quality and various other educational resources. If the tenure advocates really want to help Minnesota's students, they should support that lawsuit and the pressing constitutional issues it raises.

April 14, 2016 in Racial Integration and Diversity, Teachers | Permalink | Comments (0)

Monday, February 22, 2016

Mississippi's Education Chair Introduces Bill That Appears to Limit Teachers' Free Speech; Why?

Mississippi's chairman of the House Committee on Education, John Moore, has renewed his bill to place limits on teacher's activities while at school.  Some call the bill a directive for teachers to "shut up" or to "muzzle teachers." Given the larger context of education budget battles over the past year or two in the state and teachers' role in it, the bill may be aimed at tamping down political activity among teachers while at school. A local reporter offers this summary of the bill:

[The bill levels] $10,000 fines and revok[es] teacher licenses. But without any provision for who can file a complaint, or to whom, it appears the education chairman's bill is reactionary and not well thought out. Snowden's bill, while similar, is not as toxic and is more measured. It only has fines of $100 for the first offense and $250 for each further offense, to be investigated by the secretary of state's office. Complaints can be filed by "any state or federal oversight, enforcement or regulatory governmental entity," which includes those poor, harassed legislators.

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February 22, 2016 in First Amendment, School Funding, Teachers | Permalink | Comments (0)

Thursday, February 18, 2016

Acting Secretary John King Apologizes to Teachers; Can He Take Federal Policy in an Entirely New Direction?

I was skeptical when President Obama first announced John King as the Acting Secretary of Education.  In his previous job as New York's Secretary of Education, King had been the subject of significant criticism and controversy.  He was effectively run out of one town hall meeting in which he was promoting the state's adopting of common core standards.  Coming out of that meeting, he cancelled his next four public appearances.  This was not enough to keep organizations in New York from calling for King's resignation. His rise to the U.S. Department of Education, however, made perfect sense.  He seemed like a guy committed to the administration's vision for education regarding testing, teacher evaluations, and common core standards.  But I have to admit that in his new position King is showing signs of an entirely different vision.

Yesterday, he offered a somewhat stunning apology for the Department's actions over the past several years.  As one media outlet reported:

In his first major speech, the acting U.S. Secretary of Education John King apologized to the nation’s teachers.

Speaking to a small group of teachers, students and local politicians here last month, just three weeks after taking over the post, King admitted the USA’s education debate over the past few years has been “characterized by more heat than light,” and that despite reformers’ best intentions, “teachers and principals, at times, have felt attacked and unfairly blamed for the challenges our nation faces.”

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February 18, 2016 in Federal policy, Teachers | Permalink | Comments (0)

Tuesday, February 2, 2016

The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement

Michele Aronson's student note, The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement, 37 Cardozo L. Rev. 393, 394-96 (2015), is available on westlaw.  She situations Vergara within the historical context of courts as a vehicle for carrying out social reform.  Her introduction offers this summary:
 
In the recent case of Vergara v. State, commonly referred to as Vergara v. California, Judge Treu of the Los Angeles County Superior Court used the court's power to effect a new type of social reform: he became the first judge in any court in the United States to strike down a state's teacher tenure and dismissal laws. He reasoned that California's laws made it impossible to remove ineffective teachers from the classroom. Judge Treu concluded that California's teacher tenure and dismissal statutes “impose a real and appreciable impact on students' fundamental right to equality of education and that they impose a disproportionate burden on poor and minority students.” Vergara is a potentially landmark case, although its ruling is stayed pending appeal. Plaintiffs in New York have filed a similar lawsuit, and commentators expect to see more teacher tenure lawsuits in other states and cities.
 

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February 2, 2016 in School Funding, Teachers | Permalink | Comments (0)