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.
Wednesday, February 25, 2015
My Dynarksi's recent essay summarizes new studies on teacher mobility, particular the mobility of high quality teachers. A North Carolina study and federal pilot program demonstrate the capacity of public policy to incentivize some teachers to move where they are most needed. From these findings, he proposes that the Elementary and Secondary Education Act require schools to monitor teacher effectiveness and reassign them based on effectiveness.
The Institute of Education Sciences tested something like this approach on a small scale. As part of its study, high-performing teachers were offered financial incentives to move to low-performing schools. Only one or two teachers were moved to any one school. The study found that high performers resulted in an improvement of an entire grade level’s test scores. If the high performer were a fifth grade teacher, for example, the entire fifth grade improved its test scores from fourth to fifth grade. The high performer’s class generally improved the most, but that improvement was so large it was enough to move the whole grade level up.
This fix is about as low-risk as one can get to improve performance of a whole school, like ensuring the U.S. wins an Olympic gold medal in basketball by putting ten NBA all-stars on its team.
Tuesday, February 24, 2015
This past summer the trial court in Vergara v. State struck down California's tenure statutes and its last-in-first-out rules for layoffs. A copycat suit followed in New York shortly thereafter. You can find posts on those cases here and here. Given the momentous nature of the case and the litigants' intent to spread the theory across other states, serious consideration of the issues the case and theory raise are incumbent. Here is a summary of my analysis:
Reformers argue that ineffective teaching is the linchpin of educational inequality and failure. Starting in 2010, they successfully sought important changes in teacher evaluation systems at the state and federal levels. But a fundamental source of teachers’ strength to resist more aggressive reform remained in place: tenure. Thus, in 2012, reformers theorized a novel constitutional strategy to eliminate tenure. They argued that tenure leads to the retention of ineffective teachers, and that ineffective teaching deprives students of the constitutional right to education embedded in state constitutions. This theory immediately caught hold, with a California trial court striking down tenure in 2014 and litigation commencing in other states weeks thereafter.
The outcome of this litigation movement will determine both the future of the teaching profession and the scope of the constitutional right to education. To date, however, no high court or scholar has thoroughly analyzed the theory. This article offers that first analysis, concluding that the constitutional challenge to tenure raises a theoretically valid claim, but lacks a sufficient empirical basis. At the theoretical level, the tenure challenge easily falls within broadly worded precedent that establishes students’ constitutional right to an equal and adequate education. If ineffective teaching deprives students of equal or adequate education, state constitutions should protect against it. But in the context of school funding cases—where the relevant precedent was first developed—courts have demanded that litigants precisely demonstrate multiple aspects of causation and harm. Evidence on those points is lacking in regard to tenure.
This split between theory and fact requires courts to proceed cautiously. Rejecting current tenure challenges on their face would unfairly prejudice future legal challenges to teacher quality, particularly those predicated on potential empirical advances in social science. A facial rejection would also require courts to narrow the existing scope of the constitutional right to education. This narrowing would negatively affect education rights in other important and developing contexts. The solution is to insist on more detailed evidence to support plaintiffs’ causal theories and presumed remedies. By doing so, courts can validate students’ constitutional right to education without venturing into unsettled policy debates.
My full analysis and article, The Constitutional Challenge to Tenure, are available here.
Tuesday, February 10, 2015
In its bid to win a Race-to-the-Top grant from the U.S. Department of Education, Tennessee was one of the first states to substantially alter the way it evaluates teachers. Under the state's new system, fifty percent of teachers' evaluation were to be based on student scores on standard exams. The state later reduced it to forty percent. The lawsuit alleges several serious flaws in the the system. First, the system does not control for student demographic factors, such a socio-economic status. Thus, teachers' evaluations will be substantially affected by who they teach, not how well they teach. Second, several estimates and projections about student performance are included in the system, which reduces the confidence intervals or reliability of the scores. Third and most fatal is the fact that the system applies to teachers who teach courses for which the state does not even administer a standardized test. These teachers' evaluations are based on composite school wide performance. In other words, they are assessed, in large part, on how students do in other classes.
Plaintiffs allege that these flaws render the system arbitrary and unconstitutional under due process standards. The complaint is here.
Thursday, January 29, 2015
Last spring, Middlebury Community Schools in Indiana terminated Kevin Pack, a probationary teacher. It cited immorality, insubordination, incompetence, neglect of duty, and other just cause as the basis. Pack fired back, arguing that he was terminated because he is an atheist and had objected to the principal's comments and actions in regard to religion. For instance, Pack indicates that the principal had sent an email to the entire staff, saying “May God grant you [safe] travel,” and “Please get on your knees and pray for good weather days during finals.” At one point, Pack lodged a formal religious harassment complaint against the principal.
The district later withdrew the charge of incompetence, but remained steadfast in allegations regarding Pack's poor teaching, his intermittent failure to discharge certain duties, and his inappropriate language and choice of material in the classroom. I, of course, have no basis for knowing who is correct here, but the case does raise important questions of mixed motives. First, assuming that Pack is a poor teacher, would Pack's shortcomings have generated his termination had he never expressed his religious objections? In other words, has the district dismissed other teachers with similar performance? Second, was the manner in which he expressed his religious objections, rather than the objections themselves, the basis for his termination? It is possible that he has very poor interpersonal skills and did not work well with other or follow the rules.
His employment situation aside, did the principal's behavior ever rise to the level of an Establishment Clause violation? Pack has not raised this last point, but has filed an employment discrimination suit against the district.
Friday, January 23, 2015
Whether one supports state statutes that require schools to include student test scores in teacher evaluations or not, a new report detailing the extent to which some schools have failed to implement the pertinent California law is shocking. The Ed Voice Institute's new report, Student Progress Ignored: An Examination of California School Districts' Compliance with the Stull Act, finds:
- The majority of districts do not formally assess whether or not a student is actually learning when considering the job performance of that student’s teacher.
- The San Ramon Valley and Upland Unified School Districts are in violation of the law by explicitly prohibiting the use of mandatory measures of pupil progress.
- Overall, 86.5% of evaluations did not include a connection to pupil progress in their comments. Even in the best district, only 36% of district’s teachers had an evaluation that included any mention of pupil progress.
- In one district, 100% of teachers received a rating of “meets standards”; however, the overwhelming majority of actual evaluations provided no evidence that students in the teacher’s classroom made any progress in reaching grade level expectations.
A key policy question is whether this is akin to massive resistance or just another example of the slow uptake of new education policies. My guess is that it is a little of both.
Wednesday, January 21, 2015
Over the past few years, states have begun revamping their teacher evaluation systems and heavily relying on data driven assessment. Prior to Illinois' new system, a pilot program in Chicago Public Schools relied on highly structured classroom observations in evaluating teachers. A new study analyzes the impact those observations had on teacher and student performance, and emphasizes the continuing importance of those observations, notwithstanding the new rush to have data systems dominate teacher evaluations. The study concludes:
The implementation of the EITP [ Excellence in Teaching Project] pilot in Chicago occurred prior to the nationwide shift toward more rigorous teacher-evaluation systems. These new teacher-evaluation systems incorporate multiple measures of teacher performance, including value-added metrics based on standardized tests or teacher-designed assessments and, in some cases, student feedback on teacher performance and peer evaluations. Unlike these systems, the EITP was focused solely on classroom observation. What is notable about the version of teacher evaluation systems currently evolving in districts throughout the nation, however, is the continued emphasis on classroom observations, with many systems employing the same observation tool used in CPS under the EITP initiative.
Tuesday, December 2, 2014
Forbes magazine commissioned a study of the cost and benefits of the five big ideas for reforming education. The five big ideas will cost $6.2 trillion over 20 years and produce $225 trillion in additional gross domestic product. So what is the plan? Universal pre-k, teacher efficacy (attract, retain, and measure good teachers), school leadership (raise their salaries and give them the power to act like any other division head, including hiring and firing), blended learning (delivering rote information through technology and relying on teachers for value added instruction, which requires increasing computer and internet access), and common core curriculum.
Reduced to those headlines, it sounds simple. Reduced to the impressive financial spreadsheet, it sounds like a no brainer. To make sure, Forbes convened the top leaders from the four key constituent groups to ask whether the five big ideas are doable. The leaders were Arne Duncan, Governor Andrew Cuomo, Randi Weingarten, and D.C. public schools chancellor Kaya Henderson. They generally agree that the plan is doable.
Monday, November 10, 2014
New Issue of Law and Education: Value-Added Assessments in Untested Courses and Boarding Schools for Disadvantaged Students
Below are the abstracts for two forthcoming articles in the Winter 2015 issue of the Journal of Law and Education.
Michelle Croft, Ph.D, J.D. & Richard Buddin, Ph.D, Applying Value-Added Methods to Teachers in Untested Grades and Subjects
As more states begin to adopt teacher evaluation systems based on value-added measures, states face challenges in how to include teachers in subjects other than math and English language arts in the evaluation systems. This article reviews value-added methods with a particular focus on alternative approaches to improve teacher evaluation in untested grades and subjects. The article discusses the traditional teacher evaluation system; describes the history of student growth as part of teacher evaluations; provides background on research related to value-added measures generally; and gives information on how value-added measures are being incorporated into evaluations for teachers in non-tested grades and subjects, highlighting where recent lawsuits have been filed.
Shelaswau Bushnell Crier, Beyond Money: Public Urban Boarding Schools and the State's Obligation to Make an Adequate Education Attainable
This article argues that states should add PUB schools to their educational program offerings in order to provide an adequate education to those students for whom the cohesive educational and residential environment of a boarding school would address the unique disadvantages presently hindering their educational attainment. The article analyzes various factors affecting public education and identifies present state efforts to address areas of concern where states fall short. It explains how PUB schools effectively address areas of concern and discusses the utility of the “urban” portion of the PUB school. This article also looks at the cost of a PUB school and presents a dollars and cents cost-benefit analysis, while finishing with a snapshot of current PUB schools and a brief commentary on other public boarding schools in the United States. The article concludes with a statement regarding further areas of exploration regarding PUB schools.
Thursday, November 6, 2014
Michael Petrilli, of the Fordham Institute, has offered his post-election prognostication for education reform. He points out that, following the gains by Republicans in the 2010 midterm elections, we saw increases in teacher evaluation systems, the lifting of charter school caps, the expansion of voucher programs, and limitations on "last-in-first-out" teacher retention policies. He labels these changes positive education reform and predicts that this week's election results will spell more good news on these issues.
While I would contest the notion that these are all "good" reforms, I have little doubt that we will see more movement on these fronts. It, however, may not be as robust as 2010. Several important trends have developed since 2010 that may create more roadblocks or speed-bumps for these reforms. First, teachers have fired back with lawsuits in several states, challenging the constitutionality of certain teacher evaluation systems. In North Carolina, teachers won. In Florida, they stand a good chance of winning before the 11th Circuit. Teacher, of course, have lost in other places like Colorado. Overall, the results of the lawsuits will likely be mixed, but the represent an important concerted counter-force and demonstrate that some of these measures may be unconstitutional. Second, charter schools remain popular, but the increase in their number has also brought an increase in scandals and implosions. This has generated more conversation about the appropriate level of oversight state officials should exercise over charters. In some locations, it has led to moratoriums on the riskiest charters--online charters. Third, the aggressiveness with which the Department of Education has pushed these policies has eased considerably, particularly in regard to teacher evaluation systems, due to serious questions as to their validity. States like Utah and Florida have also pushed back and questioned the legal authority of the Department to compel reforms of this sort, absent new legislation at the federal level.
Friday, October 3, 2014
The New Teacher Project has released a new report, Rebalancing Teacher Tenure, as a response to the California trial court ruling striking down the current teacher tenure system there. TNTP proposes "eight common-sense changes to existing laws and regulations that will achieve a more balanced tenure system without stripping teachers of due process," including:
- Lengthen the tryout period and tie tenure to performance. Teachers should become eligible for tenure after five years and they should receive it on the basis of their success in the classroom.
- Hearings should be more efficient and focused on students’ interests. The entire dismissal appeals process should take no more than 90 days, with hearings lasting just one day.
- Lower the professional stakes for teachers—but stop tolerating any instances of egregious misconduct. Formal dismissal from one school shouldn’t cost a teacher his or her license. But the system should have zero tolerance for sexual misconduct and abuse.
Read the full report here.
Wednesday, October 1, 2014
Yesterday, Edweek pointed out that the U.S. Supreme Court has not issued an elementary and secondary school case in the last five years--a dry spell unseen since before Brown v. Board of Education. In contrast, there seems to be major litigation filed in state courts every other day. The NEA just sued New Mexico in regard to its teacher evaluation system. The press release explained:
Wednesday, September 24, 2014
David Boies is making headlines again. This time it is by becoming the chairman of the Partnership for Educational Justice, a group founded by former CNN anchor Campbell Brown to challenge teacher tenure laws. These lawsuits seek to use the precedent and constitutional right to education developed in school finance litigation. David Sciarra, Executive Director of the Education Law Center, has helped establish and develop these educational rights in a number of cases. His response is that if David Boies really wants to help education, he should join school funding lawsuits in New York, Colorado, New Mexico, Kansas, Texas, Connecticut, New Jersey, and Mississippi. Sciarra's comments strike at the irony of the new and impending upsurge in education litigation. Boies purports to be viewing education through a civil rights lens now, but to focus solely in on teacher tenure is to ignore any number of fundamental inequalities that stem from funding and segregation, not tenure. Even if tenure is a problem, eliminating it will do nothing to touch the underlying fundamental inequalities and segregation in schools that purportedly want to get rid of ineffective teachers but cannot.
Tuesday, September 9, 2014
In February, the Associated School Board of South Dakota, together with the School Administrators of South Dakota, sent out a survey to superintendents across South Dakota in all 154 districts. According to the results, almost 75% of the 130 who responded felt that one of the main reasons schools have been having trouble hiring and retaining quality teachers is how low the pay is. In fact, "[a]s of June, more than 30 percent of South Dakota teaching positions posted this year remained open when they probably would have been filled by the end of May in previous years," according to the director of the School Administrators of South Dakota, Rob Monson. As a result, multiple S.D. educational organizations will be presenting a plan to raise teachers' salaries to the legislative planning committee on Monday. The group will be presenting the draft of a bill that "would create a teacher enhancement fund in an effort to raise teacher salaries in the state," using both state and local funding.
Wednesday, September 3, 2014
On its face, the title of this post is rhetorical, but the authors of Badass Teachers Unite! would argue it is the key question dividing themselves and "reformers." For those unfamiliar, Badass Teachers is a group--not quite as radical as their name might suggest-- that "is for every teacher who refuses to be blamed for the failure of our society to erase poverty and inequality, and refuses to accept assessments, tests and evaluations imposed by those who have contempt for real teaching and learning." They charge that reformers are taking the position
that schools in depressed areas can be radically improved without doing anything to improve conditions in the neighborhoods they are located in, [which] flies in the face of the common sense of anyone who lives or works in such communities, so much so that it represents a form of collective madness! The idea that an entire urban school system (not a few favored schools) can be uplifted strictly through school-based reforms, such as eliminating teacher tenure or replacing public schools with charter schools, without changing any of the conditions driving people further into poverty is contrary to anyone’s lived experience and has in fact, never been accomplished anywhere in the world. Let me break down for you what the no excuses approach to school reform means in commonsense terms.
Monday, August 18, 2014
NPR's piece yesterday on the Atlanta cheating trial touches on broader points of how educators can find themselves moving from an accountability culture to academic rationing of time to meet standardized test expectations. NPR discusses how we may think of cheating as outlandish behavior but that high-stakes testing at any level (bar exam passage rates, anyone?) can lead educators to adopt tactics that fall short of cheating but are also educationally ineffective. From the NPR article:
Daniel Koretz, the Henry Lee Shattuck Professor of Education at the Harvard Graduate School of Education and an expert in educational testing, writes in Measuring Up: What Educational Testing Really Tells Us, that there are seven potential teacher responses to high-stakes tests:
1. Working more effectively (example: finding better methods of teaching)
2. Teaching more (example: spending more time overall)
3. Working harder (example: giving more homework or harder assignments)
4. Reallocation (example: shifting resources, including time, to emphasize the subjects and types of questions on the test)
5. Alignment (example: matching the curriculum more closely to the material covered on the test)
6. Coaching students (example: prepping students using old tests or even the current test)
Strategies 1 through 3 pretty much describe what high-stakes testing is supposed to do: raise standards, ignite harder effort from teachers and students, and produce more learning.
Strategies 6 and 7 clearly undermine the effectiveness of tests as a metric of learning, and hurt students in the process. Perhaps 95 percent of educators will never go there.
Strategy 4 (reallocation) and 5 (alignment) are ambiguous. If the test is high quality — if it captures all the most important subjects students need to know — then changing school to prioritize those subjects is, again, exactly what we want to see. In other words, if the test is excellent, then "teaching to the test" can be a very good thing.
On the other hand, if the test captures only a few of the subjects students need to know, or emphasizes, say, memorization over comprehension, then reallocation and alignment can cause students to miss out on other important parts of learning.
Read more here.
Thursday, August 7, 2014
The Journal of Law and Education's upcoming Fall issue includes a particularly timely set of articles dealing with the new era of teacher evaluation and the ethics of education leadership. The abstract for each is below. I cannot help but mention that this is the third article by Preston Green that I have posted in the last few weeks. Kudos to Professor Green
An Analysis of the Policy, Research, and Legal Issues Surrounding the Exclusion of Charter Schools from the Teacher Evaluation Revolution by Preston Green, John and Carla Klein Professor of Urban Education, University of Connecticut
Abstract: Analysts such as Diane Ravitch have pointed out that charter schools try “to have it both ways” by obtaining public funding under state constitutional law while having private school autonomy with respect to student and teacher rights. This article contributes to the national discussion by analyzing the legal and policy implications of exempting charter schools from the teacher evaluation policies that apply to traditional public schools.
Evaluating Evaluation: Assessing Massachusetts School Districts' Implementation of Educator Evaluation Requirements by Ranjini Govender Dowley, Policy and Government Affairs Director, Stand for Children Massachusetts
Wednesday, July 23, 2014
Seventeen Louisiana legislators have filed suit, alleging that Louisiana State Board of Elementary and Secondary Education's adoption of the Common Core Curriculum did not comply with the necessary process required by the state's Administrative Procedures Act. This case is the inverse of the one dismissed last week by the Oklahoma Supreme Court. There, the legislature had repealed the Common Core and the state board argued that the legislation violated the board's constitutional authority to supervise education. In Louisiana, the legislature is claiming the board acted unlawfully in adopting the common core.
The Common Core, teacher assessment changes, and NCLB waivers--which prompted the first two reforms, are producing schizophrenic litigation. Almost every week has brought new litigation,
Wednesday, July 16, 2014
The Times Union ran this commentary by David Sciarra and Billy Easton yesterday. Thanks to David for sharing.
Sound Education Child's Right
With much fanfare, a novel lawsuit filed in Staten Island alleges teacher tenure, due process and lay-off procedures violate the constitutional right of New York school children to a "sound basic education."
Without offering specifics, the complaint baldly asserts that these procedures result in classrooms filled with "incompetent" teachers, especially in schools serving at-risk students.
The complaint also presents no evidence to suggest that ending tenure or altering due process protections for teachers will somehow improve student outcomes. Nor could it because there is none.