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.
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.