Thursday, September 7, 2017
Minnesota Court of Appeals Rejects Constitutional Challenge to Teacher Tenure, But Did It Focus on the Wrong Reasons?
Earlier this week in Forslund v. Minnesota, the Minnesota Court of Appeals upheld the dismissal of plaintiffs’ challenge to the teacher tenure statutes in the state. As in Vergara v. California, the Forslund plaintiffs had argued that teacher tenure statutes violate their right to education under the state constitution because they keep ineffective teachers in the classroom. The Minnesota Court of Appeals held that plaintiffs’ claim was non-justiciable. More specifically, the court reasoned that considering plaintiffs’ claim on the merits would require the court to adopt qualitative standards regarding what amounts to an adequate education and ineffective teaching. Judgments regarding those standards, according to the court, were reserved to the legislature, which had yet to set those standards.
In reaching its decision, the court relied heavily on another recent court of appeals case, Cruz-Guzman v. State. In Cruz-Guzman, the court had rejected, as non-justiciable, plaintiffs claim that school segregation violated their right to education. The Minnesota Supreme Court has since granted certiorari in Cruz-Guzman. Before the Supreme Court, education law scholars and the Education Law Center point out in an amicus brief that the court of appeals wrongly decided Cruz-Guzman. High courts routinely adjudicate educational adequacy and equality claims. The Minnesota Court of Appeals refusal to do so in Cruz-Guzman marks it as an outlier. Moreover, Minnesota Supreme Court precedent in Skeen v. State recognized that these types of claims are justiciable in Minnesota as well.
The Court of Appeals in Forsland does identify some potential statutory standards for assessing plaintiffs’ claims, but reasons that they are insufficient. While the court correctly indicates that those statutes do not definitively resolve plaintiffs’ claim, they do provide baselines for the court to rely on. Rather than justiciability, the problem seems to be an unwillingness of this court to engage statutory and constitutional interpretation. But that is the exact type of inquiry that other courts have undertaken.
Putting those justiciability critiques to the side, the court of appeals does deserve some credit. In a few instances, it skirts close to the merits of the case and hints at what I believe is the fatal flaw in teacher tenure challenges: “ineffective teachers will remain in the education system even if the teacher-tenure statutes are held unconstitutional” and “Appellants do not identify what percentage of ineffective teachers would demonstrate an unconstitutional burden on children’s right to an adequate education.”
As I explain in The Constitutional Challenge to Teacher Tenure,
First, plaintiffs lack evidence to demonstrate that tenure is causally connected to ineffective teaching. Ineffective teaching might persist with or without tenure. For instance, labor market forces, segregation, school funding, and school leadership significantly contribute to ineffective teaching. No evidence suggests that tenure supersedes these factors. Moreover, even if eliminating tenure allowed administrators to more easily remove ineffective teachers, eliminating tenure could also produce indirect effects that might undermine the teaching profession overall. If so, the net result of eliminating tenure could be negative, and tenure would not play the causal role that plaintiffs assume.
Second, even if tenure causes ineffective teaching, plaintiffs have not demonstrated that the number of ineffective teachers that tenure protects rises to the level of a substantial and systematic educational deprivation. For instance, one out of a student’s ten teachers may be ineffective, but that teacher does not necessarily undermine the student’s overall educational opportunity to the extent necessary for a court to deem the student’s education inadequate. Even if inadequate, plaintiffs may need to show systematic repetition of the problem. Otherwise, random local variation, rather than state policy, would be the cause of the inadequacy. . .
Third, ignoring these and other serious causal questions, plaintiffs rely on generalized social science about the effects of quality teachers on student outcomes. This generalized research does not address the effects of tenure on student outcomes. Even if it did, generalized evidence of this sort is insufficient to establish the specific state level causation that courts have required in school funding cases.
Yet, on their face, teacher tenure challenges present plausible and justiciable claims. If plaintiffs state plausible and justiciable claims, rules of civil procedure in many states provide them the right to attempt to make their claim in court, even if plaintiffs are probably wrong. Therein lies the quandary in teacher tenure challenges. When they present claims that will almost certainly fail when we dig into the facts, should courts be required to expend their resources on the case? As a matter of practicality, that seems like a bad idea. But given that plaintiffs dispute the facts, some state rules of procedure would allow them to move forward anyway.
The one saving grace for dismissing these cases is that the particular remedy plaintiffs ask for in these cases raise serious separation of powers concerns. As I explain,
Plaintiffs identify tenure as a singular flaw in state law and its elimination as a singular solution. No prior litigation to enforce the right to education has ever narrowed its focus so far, and for good reason. The details of educational policy, including solutions to constitutional violations, rest within the discretion of legislatures. Where more than one solution to a constitutional violation is possible or reasonable, constitutions vest legislatures with the discretion to choose among them.
The potential solutions to ineffective teaching and teacher removal are multifaceted, placing them within the domain of the legislature and making them ill-suited to judicial prerogative. Moreover, plaintiffs assume that some other better alternative to a tenure system exists, but current research and litigation indicate serious practical and constitutional due process flaws in the alternatives. None of the foregoing is to minimize the problem of ineffective teaching. Ineffective teaching demands a solution, but presuming that eliminating tenure through constitutional litigation is a solution, much less the best among many competing possibilities, is dangerous.
Read my full analysis of teacher tenure challenges here.
Thursday, August 24, 2017
For the third year in a row, public schools will begin the year with too few qualified teachers to cover their classes. Every state in the country has reported a shortage to the U.S. Department of Education. The shortage appears to have eased in some places and intensified in others. Edweek reports
[Oklahoma] issued a record-setting 1,160 emergency certifications in 2016-17 and 855 by the beginning of August for this academic year. These certifications allow people without a teaching certificate to teach for one year, or allow a certified teacher to teach a new subject before getting recertified.
And in Nevada, the fast-growing Clark County district, which includes Las Vegas and is the fifth-largest in the country, is starting its school year with almost 400 teaching vacancies—significant, though a far cry from the more than 900 openings the district had at the start of 2015-16.
Numbers like these, however, vastly understate the problem in some states. Confronting an unmanageable shortfall, states like California, Arizona, and others have simply changed the law regarding the credentials it takes to step foot in the classroom. California developed a program that allowed interns to become full-time teachers so long as they promised to complete their studies on the weekends. And by intern, I mean someone who is just starting their education studies. This summer Arizona passed a law to allow people without any formal teacher training to enter the classroom, so long as they had a bachelor's degree or five years of experience in a relevant field. In other words, those schools that report a fully staffed faculty may have a group of teachers who are far less qualified than they were in past years.
As I explain in a recent article, this shortage is not simply part of the regular ebb and flow of the market. It is of states' own making. During the recession, they over-gouged public education budgets, went to war on teachers themselves, and took money that could have went to traditional public schools and drove it to choice programs. The effect was to scare new and prospective teachers away from the profession. The teacher pipeline was more than cut in half in California. And when states' revenues rebounded following the recession, states refused to undo the damage they had done. Instead, they simply set a new normal, continuing to fund education at levels lower than before the recession. Even today, roughly half of states spend less in real dollar terms on education than they did in 2008. This is to say nothing of the war on teachers that some states are still willing to wage.
So while I bemoan the struggles that individual districts are facing, the real culprit is their state legislatures. And while court have no direct responsibility for education, they have, at least, enabled these legislatures. In prior decades, courts have forcefully intervened to block these types of assaults on public education and insisted on state legislatures adopting rational policies to carry out their constitutional duties regarding education. Over the last decade, however, courts have increasingly looked the other way.
The abstract to Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education offers this summary of trends as they stood in 2016 and teases a few solutions:
Two-thirds of states are funding education at a lower level today than they did in 2008. Some states are a full twenty percent or more below levels of just a few years earlier. The effect on schools has been dramatic. States have only exacerbated the problem by reducing teachers’ rights and benefits. These attacks on teachers, combined with funding decreases, have scared many prospective teachers away from the profession all together. The net result has been an extreme shortage of teachers nationwide. This past fall, large numbers of public schools opened without enough certified teachers to fill classrooms, relying instead on substitutes and interns on a full-time basis. In other instances, schools simply stopped offering certain classes. Decades of social science demonstrate these funding and teaching policies will have serious academic impacts on students. They will likely widen achievement gaps and impose learning deficits that some students will never overcome.
In the face of analogous threats, courts in the past have regularly intervened to protect educational quality and funding. Yet this time around, courts have almost uniformly refused to intervene and rarely offered a compelling reasoning for the refusal. This judicial passivism regarding education marks a troubling new trend. It suggests that the constitutional right to education may exist only in theory and that students are losing the constitutional leverage to demand that states repair the damage that they have caused. Likewise, nothing will prevent states from pursuing similar retractions again in the future.
This Article offers a doctrinal approach to reverse both educational retractions and judicial disengagement. Current trends, however, cannot be reversed without acknowledging the potential limits of judicial intervention during crisis. In particular, a serious crisis incites fear and political expediency, which can prompt legislatures to ignore court orders that purport to remedy the crisis. This disregard is inherently problematic for both education rights and the basic legitimacy of judicial authority, regardless of the subject matter. In this respect, the solution to the devaluation of education rights is also a step toward strengthening judicial authority. In education, courts must begin to incorporate prospective doctrines and rules that reduce the likelihood of judicial standoffs with legislatures. Simply put, future court orders should seek to avert crises by addressing them before they occur. This Article proposes three specific steps courts can take to achieve this end.
On one level, this may all sound like lofty theorizing, but the point of the paper is far more practical: the immediate crises that schools face are not ones that courts or states can easily fix after-the-fact. Recessions will come no matter what. The risk of shortages will always be present. The solution, then, is to plan ahead.
Schools deliver education not as single year chunks, but as collective thirteen year experiences. States must have processes and plans in place that anticipate problems, allowing them to weather recessions. This is no easy thing to do. The politics are predisposed against it. But I argue in the article that by consistently holding states accountable and adopting a few common sense standards, courts can begin to prompt states toward better decision making. States might protect their teacher pipelines through thick and thin so that they might not need to issue emergency waivers and establish alternative teacher programs every decade or so.
Wednesday, August 9, 2017
Federal Court Finds Texas Teacher Evaluation System Is a "House of Cards," Issuing Ruling That Helps It Fall
The federal district court in Houston Federation of Teachers v. Houston Independent School District handed the “war on teachers” a huge loss this summer, acknowledging the major flaws in the district’s teacher evaluation system. Similar to many other states, Texas operates a Value Added Teacher Assessment system. Under Houston’s implementation policy:
student growth will whenever possible be calculated by a value-added statistical model called the Educational Value–Added Assessment System (EVAAS), developed by private software company SAS and licensed for use by [the district]. The EVAAS system measures teacher effectiveness by attempting to track the teacher's impact on student test scores over time. The details are more complicated, but in general a teacher's EVAAS score is based on comparing the average test score growth of students taught by the teacher compared to the statewide average for students in that grade or course. The raw EVAAS score is generated by SAS's proprietary software and is then converted to a test statistic referred to as the “Teacher Gain Index” (TGI), based on the ratio of the EVAAS score to its standard error. The TGI is sorted into one of five “value-added” effectiveness ratings.
The district then uses those ratings to make employment decisions for teachers, including termination.
Some may recall that lawsuit grabbing headlines when it was first filed. Of particular note was that the district had recognized one of its teachers as award-winning just one year prior to ranking him as low-performing based on his student growth percentile model.
As I detail in The Constitutional Challenge to Teacher Tenure, 104 Cal. L. Rev. 75 (2016), these value added systems, along with their close cousins (student growth percentile models), are riddled with several fundamental flaws: tests that do not match the curriculum, failing to account for demographic variables, instability in ratings across years, arbitrary cut-off scores in the effectiveness ratings, and conflating correlation with causation.
All of these substantive problems in the systems translate into serious constitutional concerns, most notably procedural due process. The constitution entitles teachers to notice and an opportunity to respond when their jobs are placed in jeopardy. Yet, these systems do not provide any notice of a particular problem with a teacher’s instruction and, thus, they are in no position to know who to respond in terms of improving their teaching or refuting the statistical evaluation. Classic examples of due process violations.
One of the biggest jokes was in Florida, where some teachers are rated on the test scores students receive in other classes. To be crystal clear, their evaluation score is based on how students perform in someone else’s class.
Reluctant to stand in the way of reforms sweeping the nation and mandated by the federal government, the Eleventh Circuit Court of Appeals was willing to paper over the problems and reason that Florida’s attempt to improve teaching overall was sufficient to justify the program. (I debunk the outcome in that case here.)
The federal district court in Texas made no such excuses for the state's teacher evaluation system, concluding that “cost considerations trump accuracy in teacher evaluation.” In other words, the district new the system was flawed, but did not want to invest the resources to improve it. As a result, the entire state system was a “house-of-cards.”
[T]he wrong score of a single teacher could alter the scores of every other teacher in the district. This interconnectivity means that the accuracy of one score hinges upon the accuracy of all. Thus, without access to data supporting all teacher scores, any teacher facing discharge for a low value-added score will necessarily be unable to verify that her own score is error-free.
. . .
The EVAAS score might be erroneously calculated for any number of reasons, ranging from data-entry mistakes to glitches in the computer code itself. Algorithms are human creations, and subject to error like any other human endeavor. HISD has acknowledged that mistakes can occur in calculating a teacher's EVAAS score; moreover, even when a mistake is found in a particular teacher's score, it will not be promptly corrected. As HISD candidly explained in response to a frequently asked question, “Why can't my value-added analysis be recalculated?”
Once completed, any re-analysis can only occur at the system level. What this means is that if we change information for one teacher, we would have to re-run the analysis for the entire district, which has two effects: one, this would be very costly for the district, as the analysis itself would have to be paid for again; and two, this re-analysis has the potential to change all other teachers' reports.
For these reasons, the court denied the district's motion for summary judgment.
Monday, March 20, 2017
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.
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.
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."
Thursday, January 5, 2017
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.
Tuesday, November 29, 2016
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.
Tuesday, October 4, 2016
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:
- Creating competitive, equitable compensation packages that allow teachers to make a reasonable living across all kinds of communities.
- Enhancing the supply of qualified teachers for high-need fields and locations through targeted training subsidies and high-retention pathways.
- Improving teacher retention, especially in hard-to-staff schools, through improved mentoring, induction, working conditions, and career development.
- 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.
Thursday, September 29, 2016
Wallet Hub recently ranked the best and worst states to be a teacher. The states with the lowest cost adjusted salaries are:
- Hawaii — $34,063
- South Dakota — $41,000
- Maine — $43,792
- West Virginia — $44,337
- 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.
Tuesday, September 20, 2016
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.
Wednesday, August 31, 2016
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.
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:
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.
Thursday, May 12, 2016
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.
Thursday, April 28, 2016
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.
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. From 2008 to 2012, nearly every state in the country imposed budget cuts on education. 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. 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. 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.
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. In some districts, these drastic measures were not enough to stop class cancelations and teaching overloads. The teaching demand in California, for instance, is forty percent higher than the supply of individuals seeking teaching credentials this year. Current projections indicate the shortage may get worse before it gets better.
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.
 Motoko Rich, Across Country, A Scramble Is on to Find Teachers, N.Y. Times, Aug. 10, 2015, at A1.
 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).
 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).
 Bruce D. Baker et al., Is School Funding Fair? A National Report Card 8 (2015).
 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).
 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).
 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).
 Rich, supra note 1 (state issued 15,000 teaching credentials, which was 6,500 short of the open teaching positions).
 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.
Tuesday, April 19, 2016
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.
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: