Education Law Prof Blog

New Jersey Supreme Court Ends Challenge to Teacher Tenure Laws

In a short one-pager, the New Jersey Supreme Court just ended the litigation war on teachers tenure in the state.  By my count, this marks at least the fourth major loss for those using the courts to pursue their anti-teacher tenure agenda.  And they have still yet to win a single case before a high court. What started as a big splash in California in Vergara--and rippled into places like Minnesota, New York, and New Jersey--has turned into a frivolous theory that is now sinking like a rock to the bottom of the ocean, likely to never be seen again.  As I pointed out more than three years ago in The Constitutional Challenge to Teacher Tenure, the evidence simply did not support their claims.

Here's the Education Law Center's take on the New Jersey decision:

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If Classroom Observations Are Biased and Value Added Assessments Are Flawed, Where Do We Go Next to Measure Teacher Quality?

Shanyce L. Campbell and Matthew Ronfeldt have published a new study: Observational Evaluation of Teachers: Measuring More Than We Bargained for? They "provide the strongest evidence to date that teachers’ ratings are significantly related to the sociodemographic characteristics of the students they teach apart from differences in teacher quality."  Their abstract offers this longer explanation:

Our secondary analysis of Measures of Effective Teaching data contributes to growing evidence that observation ratings, used as part of comprehensive teacher evaluation systems across the nation, may measure factors outside of a teacher’s performance or control. Specifically, men and teachers in classrooms with high concentrations of Black, Hispanic, male, and low-performing students receive significantly lower observation ratings. By using various methodological approaches and a subsample of teachers randomly assigned to classrooms, we demonstrate that these differences are unlikely due to actual differences in teacher quality. These results suggest that policymakers consider the unintended consequences of using observational ratings to evaluate teachers and consider ways to adjust ratings to ensure they are fair.

This is bad news for those who would replace the flawed statistical assessments of teacher quality with in person evaluations.  As I detail here, attempts to measure teacher effectiveness based on how their students perform on standardized exams haven't worked.  While these statistical evaluations make intuitive sense, the devil is in the detail.  It is very difficult, if not impossible, to isolate the effect that a single teacher has on students in a single subject matter areas. This is not to say that teaching effectiveness doesn't matter.  Of course, it does.  But pinpointing precise effects and isolating them from what student may have learned from another teacher this year, last year, and other classes is not easy.  This is to say nothing of the factors that are not even included in the data, but likely explain a lot--home factors, peer groups, etc.

Now this.  We can't even accurately assess teacher quality when we go in the room and what them because racial and socio-economic biases appear to get in the way. 

To their credit, Campbell and Ronfeldt seem to have found a way to filter the bias out.  Once they took classroom demographics into account and adjusted the scores that teachers received based on the demographics of the students they taught, the evaluations made more sense.  But this is not something a state would likely ever do. 

Unfortunately, I don't have an answer to the question I posed in the title to this blog post, but I welcome your thoughts or suggestions regarding other new research.

   --image by Dscot018 at en.wikibooks

Eight Lessons Learned from the Teacher Protests

A new essay by Daniel Krutka, Tutaleni Asino, and Scott Haselwood offers lessons learned from the Oklahoma teacher walkout.  The abstract states:

Teacher activism is increasingly occurring in online spaces, but the implications for educators are unclear. The authors use the recent Oklahoma Teachers Walkout and the active #OklaEd network to offer an illustrative example of the power and fragility of socially networked teacher movements. They offer eight lessons educators may take from the #OklaEd network and the walkout.

Here is a run down of the lesson they draw:

• Teacher Networks Can Offer Support
• Teacher Participation Can Disrupt Narratives
• Teacher Networks Can Amplify Mobilization
• Teacher Networks Can Encourage Tactical Flexibility
• Leadership is Critical, but Must Be Representative
• Online Activities of Teacher Networks Are Not Enough
• Legislative and Electoral Change are Piecemeal and Ongoing
• Misinformation and Distraction Tactics Not Evident… Yet

I would emphasize that legislative and electoral change is piecemeal.  As I wrote in the LA Times, “The Arizona teacher walkouts are just a skirmish in the larger war on public education.”  The recent concessions by states like Oklahoma and Arizona do not mean that their fundamental positions have changed.  “State leaders like Ducey are so dead set on privatizing education or spending school funds elsewhere that they are ready to change any rules — even longstanding constitutional and democratic norms — to further that agenda.”  So efforts to resist these attacks on public education must be ongoing.  Education advocates must start guarding the very idea of public education and the various constitutional and democratic norms designed to protect it just as jealously as they are guarding teachers' salaries. Otherwise, they will wake up one day with nothing left to defend.

    -image source: https://twitter.com/okea/status/980172899788230658

Democrats New Multi-Billion Dollar Promise to Teacher Has Been a Long Time Coming; Shows Just How Much Power Teachers Have Now

Democrats are finally sympathetic to the plight of teachers.  This morning, Chuck Schumer and Nancy Pelosi penned an oped in the USA Today titled Democrats have a better deal for teachers and our kids, too.  They go on to outline a strong starting point for a better deal.  It's a five part platform:

First, we will dedicate $50 billion for states and school districts to increase teacher compensation and recruit and retain a strong, diverse workforce over the next 10 years. During the recession, public investment in K-12 schools declined dramatically. We should support states and school districts who want to reverse the trend and bolster teacher and school staff salaries.

Second, we will establish a new $50 billion fund for school infrastructure and resources. Students and educators deserve 21st century classrooms and up-to-date educational technology and materials. We tell children that education is important and send them a different message by putting them in substandard schools. Improving our nation’s school infrastructure will help retain our best educators.

Third, we will give additional support to initiatives that improve Title I schools serving low-income children, and ensure that all students have access to academic opportunities like computer science, music and civics. We need to provide all students with a well-rounded education to get them ready for today’s changing economy.

Fourth, we will protect teachers’ freedom to negotiate for better pay and conditions by safeguarding the right of public employees to join unions, collectively bargain, and engage in collective action to support each other. Currently, no federal law provides teachers and other public servants with collective bargaining rights. Democrats want to guarantee teachers the same freedoms that private sector workers have to negotiate collectively for a better deal.

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No Wonder Teachers Are Protesting; North Carolina's War on Education May Have Been the Biggest

North Carolina used to be remarkable for achieving the most integrated and stable schools in the nation.  Save a couple of small exceptions, the state ran its school systems on a county-wide basis, which allowed more integrated, less white flight, and more shared interests in support of public education.  This structure alone made North Carolina stand out.  And this structure helped facilitate some of the lowest racial achievement gaps in the nation in places like Raleigh.  North Carolina also funded it education system relatively well.  Its teacher salaries, for instance, were right around the national average—in a state with a relatively low cost of living.

In the last decade, the state legislature has proven bound and determined to undo its successful public education system.  First were budget cuts in excess of 20%.  In a span of just three years, North Carolina reduced its per-pupil funding from over $10,015 to $7,235.

Next was the enormous growth of charters. Immediately before the recession, North Carolina spent $169 million on charter schools.   By 2014-2015, the state had more than doubled its commitment to charters, spending $366 million a year.   

Next was the attempt to eliminate teacher tenure. The state passed legislation to take it away from all teachers, although the state supreme court held that taking it away from teachers who already had it was unconstitutional. North Carolina was once a great place for teachers, but policies like these caused the rate of departure to other states jump by 30%.  

Next was a voucher program. While seriously constitutional problems existed with it as well, the court allowed the state to move forward.

Next were huge tax cuts. While the state was cutting its education budget, it was also enacting massive new tax cuts for the state’s highest income earners.  Those cuts were some of the largest state level tax cuts ever seen. 

The state’s economy, however, has done well enough that it eventually began to produce tax revenue surpluses notwithstanding its low tax rates.  The reason was that it was refusing to fairly fund public education. Even the poorest of states could run surpluses if they simply started eliminating state funded programs.  North Carolina inexplicably maintained its education cuts in 2015 even though it had a half-billion dollar surplus in tax receipts.   

Next was a change in the appointment process of statewide education officials.  A lame duck legislature changed various rules to deprive the new Democratic governor of the authority to begin reversing regressive policies.  

With policies like these, the question is not why North Carolina teachers are protesting, but what took them so long?

What Do the War on Teachers, Charter Schools, Vouchers, School Accountability, and Standardized Testing All Have in Common?

What do the war on teachers, charter schools, vouchers, school accountability, and standardized testing all have in common?  They ignore school segregation.  At worst, they each harbor the assumption that their given policy prescription is the magic bullet to educational opportunity—that if we could just solve this one policy problem, educational opportunity would become equal.  At best, they assume that their respective issues are more important to student achievement than other factors.  In other words, poor teaching, a lack of school choice, or unaccountable schools are the primary cause of low student achievement and inequality.

Take teacher tenure.  Education reformers are convinced that eliminating teacher tenure is the necessary first step to any meaningful reform because tenure locks in the status quo. Their argument is simple. If teachers could not hide behind tenure, schools could easily remove the worst teachers and the rest would be motivated to improve. Given what we know about the effects of quality teaching, this, they say, would dramatically improve student outcomes and shrink achievement gaps.

But as I explain in the Constitutional Challenge to Teacher Tenure,

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Large Teacher Salary Increases Reveal the Depth of States’ War on Teachers, Not a Commitment to Make Things Better

Are the raises that states have given teachers recently fair?  The size of the raises ought to disturb the public not because teachers are reaping windfalls, but because they reveal just how dismissively states have dealt with education in recent years.  And these raises—large though they may be—do not indicate that states will act differently in the future. Arizona Gov. Doug Ducey, for instance, supports a 20 percent pay raise for the state’s teachers by 2020, but also touts a school voucher referendum that could drain millions of dollars out of the public education system.

The raises started at five percent in West Virginia, then jumped to 15 and 20 percent in Oklahoma and Arizona.  Teachers in other states are now expecting something similar and those states are surely asking themselves how much is enough.

Given that very few Americans have ever seen a raise of 15 or 20 percent, some are criticizing them for holding states hostage for salary increases that they don’t deserve. Others might think the raises are fair might and give states credit for “doing the right thing.” Neither is true.

These salary increases should not even be called raises.  They are not pats on the back for a job well done, cost of living adjustments, or estimates of teachers’ market value.

They are closer to being compensatory damages that states are willing to pay now rather than the verdict that the jury of public opinion would award if it heard all the facts.  The full picture of what states have done to public education and teachers, in particular, is shocking.  The mistreatment of teachers stretches well beyond salaries to include changes to tenure, union rights, and statistical evaluation systems.  Magazine covers called it a war on teachers. 

Teacher salary increases don’t grapple with these other issues.  They are just a partial payout to teachers.  The teachers who are protesting have been underpaid for so long that they are far below their peers in neighboring states.  But that understates the problem because teacher salaries have fallen nationwide.  That’s why teachers in West Virginia and Oklahoma continued to march even after their states initially offered increases that would look generous to the outside world. Those raises would not repair the damage done. 

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How States' Obsession with School Choice Is Fueling an Education Crisis--And Increasing Teacher Salaries Won't Fix It

States are favoring school choice at a steep cost to public education

Colorado teachers rally outside the state Capitol April 16 to demand more funding for schools. Colleen Slevin/AP

Derek W. Black, University of South Carolina

Teacher strikes are generating a healthy focus on how far public education funding has fallen over the past decade. The full explanation, however, goes beyond basic funding cuts. It involves systematic advantages in terms of funding, students and teachers for charter schools and voucher programs as compared to traditional public schools. Increasing public teacher salaries may end the current protests, but speaking as an expert in education law and policy, I believe it won’t touch the new normal in which public education is no longer many states’ first priority.

My forthcoming research shows that, from funding and management practices to teacher and student policies, states are giving charter schools and private schools a better deal than public schools. These better deals have fueled enormous growth in charter schools and voucher programs that is now nearly impossible to unwind.

The most basic shift occurred between 2008 and 2012. Florida and North Carolina illustrate the nationwide trend. Each cut public education funding by 20 percent or more in three years. During the same period, North Carolina lifted its cap on new charter schools and quickly doubled its charter school spending. Florida similarly changed the rules for its voucher program and quadrupled its size.

Favorable funding practices

States also passed laws to offer charters and private schools more money for each student they took. Florida increased the value of each voucher by roughly US$2,000. Nevada went even further, passing legislation that would convert every single public education dollar into a voucher dollar. While the state Supreme Court later declared the program unconstitutional, it has not stopped other states like Arizona from pursuing similar programs.

Several states also began lifting income eligibility limits. Previously, states had provided vouchers only for low-income students. But new voucher programs made them available to wealthy students as well, even those who already had access to excellent public schools.

Charter schools benefited from similar advantages in some states. Ohio and New Jersey funneled charter school funding through school districts, but the states’ antiquated funding formulas and charter reimbursement rates force districts to send charter schools more per pupil than they receive from the state.

Pennsylvania has a similar scheme, but it has proven so lopsided that it expanded deficits in Philadelphia and nearly bankrupted the Chester School District. Chester was paying the local charter school roughly $40,000 per special education student, including for those students with relatively low-cost needs. Arizona took a simpler route. It shielded charter schools from the budget cuts it was imposing on traditional public schools.

Less oversight

Once they receive the money, charter schools and private schools receiving vouchers can spend it almost any way they want. Private schools operate just as they had before. And charter schools – though technically public schools – are exempt from typical financial oversight.

Laws require public schools to award contracts through a transparent process and prohibit public schools from entering contracts that pose conflicts of interest. Charters can award contracts to almost anyone they like – and on any terms they like. This includes awarding contracts to companies that have close financial ties with the charter. A person can start a purportedly nonprofit charter school and then have that charter purchase all of its services and supplies from a company owned by that same person. As a result, the person can turn a profit on staffing, facilities, technology and supplies. National Heritage Academies runs this exact type of business model in North Carolina and continues to grow its campuses.

The same activity could constitute fraud or criminality in a public school. Yet, state law permits it for charters. As Thomas Kelley’s analysis reveals, many of the charter schools that state law calls nonprofits would not qualify for that same label under federal law.

No checks on profiteering

Even well-meaning charter schools have been unable to stop this profit-taking. The Ohio Supreme Court, for instance, found that state law dictates that everything a private charter school company purchases with public dollars – from desks to computers – belongs to the private company, not the public. The same is true of buildings that charter schools lease. Charter school operators reap their largest profits through unreasonably high lease payments on buildings that the public will never own.

States also allow private schools and charters to treat students differently. While public schools must provide disadvantaged students with a host of special services, private schools take vouchers with almost no strings attached. And they are increasingly taking high-achieving middle-income and nondisabled students who cost less to educate and typically do not demand specialized services.

Charter schools’ advantages come in their ability to recruit students and cap enrollment. Public schools must serve everyone in their community. The clearest proof that charters don’t is in the data. For instance, Newark charter schools enroll less than half the percentage of special education students and English language learners as the Newark public schools. Newark charters also enroll significantly fewer low-income students. In North Carolina, charter schools are increasingly enrolling white students, while public schools increasingly enroll students of color. In Minneapolis, 80 percent of charters are racially isolated by race, socioeconomic status or both.

The most obvious advantage, however, is with teachers. Most states exempt charter schools from teacher certification requirements. Half exempt charters from complying with high-stakes teacher evaluation systems. More than three-quarters exempt charters from the teacher salary and collective bargaining rules. In short, states permit charters to hire teachers that would be deemed unqualified in a public school and pay them less.

The need for a structural shift

The current debate over school funding must move beyond teacher salaries and whether the books in public schools are tattered. Those conversations ignore the systematic policies that disadvantage public schools. Increasing public school teachers’ salaries alone won’t fix the problem. The public school teaching force has already shrunk. Class sizes have already risen. And the rules that advantage charter and private schools remain firmly in place.

Long-term solutions require a reexamination of these preferences. As a state constitutional matter, the law requires that states make public education their first priority. It is not enough to make education one of several competing priorities. And as a practical matter, states cannot continue to ask public schools to work with whatever is left over and then criticize them for doing a poor job. This cycle creates a circular justification for dismantling public education when states should be repairing it.

Derek W. Black, Professor of Law, University of South Carolina

 --on Twitter @DerekWBlack

This article was originally published on The Conversation. Read the original article.

Teacher Strikes Are Symptom of Much Larger Education Concerns

West Virginia teachers recently went on strike to challenge salaries that are among the lowest in the nation and won. Teachers in Oklahoma and Kentucky are attempting the same, with rumblings that more states may follow. But these protests are really just a sign of a much bigger problem—states have been gutting public education on multiple levels for a decade. Public school funding is down dramatically. Voucher and charter funding is up exponentially. And brand new studies reveal that by cutting school spending by as little as 10 percent, states “reduced test scores” and graduation rates.

The biggest cuts to public education began during the Great Recession. Early on, teachers and families accepted that states had to make hard economic choices. But states soon did more than just balance their budgets. They increased funding for charter schools and vouchers at the same time that they were cutting public school funding. Between 2008 and 2012, Florida, for instance, increased voucher funding every year. During that same period, the state cut public school funding by 23%.

States also fundamentally changed how they treat teachers. Wisconsin restricted the influence of teacher unions. At least seven states passed legislation to eliminate teacher tenure. Dozens of other states imposed high-stakes evaluation systems on teachers. New laws required districts to hire, fire, and promote teachers—largely based on statistics. They scared so many teachers away that it eventually created a national shortage.

States have done little since the Recession to repair the damage. By 2012, tax revenues rebounded and are substantially up now. But thirty-one states are still funding education at a lower level than before the recession began. The worst offenders are more than 20% below pre-recession levels. Even states that modestly increased funding in recent years have done very little to help the neediest districts. In Pennsylvania, the poorest districts receive 33 percent less funding than wealthier districts. Some poor districts began the 2015-2016 school year by asking teachers to work for free. By 2016, Erie considered closing its school district permanently.

Had the attacks stopped, communities might have accepted a new normal. But several states threatened to cut deeper into the core of public education. In the last two years, states like Texas, Arizona, and Nevada took steps to permit the “voucherization” of the entire school system. Speaking of a 2017 law, the head of the Florida Charter School Alliance proclaimed, “[m]ore was achieved this year for the charter movement than . . . in a very long time.”

This seemingly limitless degradation of public schools pushed many communities too far. In Texas, families and teachers from across the state descended on the capital to protest a pending voucher bill. They could not accept the state adopting an expansive voucher bill without first addressing the basic necessities of struggling school districts. Before the protests, the voucher bill had sailed through the state senate. After the protests, the bill died in the state house by a vote of 103-44. Similar grassroots movements eventually stopped or stalled voucher and charter bills in other states like Massachusetts, Arizona, and Nevada.

The current teacher uprisings in West Virginia, Oklahoma, Kentucky, and elsewhere are no different. With state revenues consistently increasing, teachers cannot understand why their wages remain stagnant while health care costs go up.

These seemingly disparate states and issues converged in the fight over Betsy DeVos’s nomination for Secretary of Education. She came to symbolize all that has gone wrong in education in recent years. Teachers and parents overwhelmed Senators’ offices with visits and phone calls. With that opposition, the same republican party that had summarily confirmed Obama’s last Secretary of Education could only muster lukewarm support for DeVos. It took the Vice President’s tie breaking vote to put her in office.

DeVos’ slim confirmation should have served as a warning to West Virginia legislators who thought teachers would back down. And both of these events should serve as a warning to other states. The public school resistance is growing, not shrinking.

The vast majority of parents are now making it clear that they do not want to shop for a public school, much less drive their kids across town every day. And neither teachers nor parents want to hear about education cuts or strikes. They just want to trust government to carry out its responsibilities to public education. The problem is that, right now, they can’t.

--on Twitter: Ed Law Prof Blog @DerekWBlack

Teachers in West Virginia Have Every Right to Strike: If Anyone Is Breaking the Law, It's the State

Joshua E. Weishart, Associate Professor of Law & Policy at West Virginia University College of Law and John D. Rockefeller IV School of Policy and Politics, offers this provocative analysis of the West Virginia teachers' strike:

Much was made over the past few days that the teacher strike has been unlawful. The attorney general was keen to remind state agencies repeatedly that his office stood ready to pursue legal action against the teachers. To be sure, during the last statewide teacher strike in 1990s, the West Virginia Supreme Court ruled that, because teachers enjoy no collective bargaining rights, they have no right to strike. Yes—they have no rights, because they have no rights. Traditionally, a strike by public employees was viewed as affront to the state’s sovereignty that could threaten public health, safety, and welfare by interrupting vital government services. That argument carries more force with, say, firefighters and law enforcement than teachers, who are not public safety officers, at least not yet. Of course, teachers do perform vital services, indeed, they perform constitutional services to nearly 300,000 children in our state. But that is the very reason why it was shortsighted to view this latest teacher strike as “illegal” in any true sense of the word.

From the moment the attorney general tweeted that the strike “is unlawful and should come to an end” (before it even began), the debate about the teacher strike has been focused on the wrong West Virginia Supreme Court decision. The consequential decision is not the one upholding the common law rule that teacher strikes are, strictly speaking, unlawful but the groundbreaking decision which held that children have a fundamental right to an equitable and adequate education under the West Virginia Constitution. Pauley v. Kelly was the first high court decision in the nation to define the right to education in substantive terms. Among other things, the court determined that the “thorough and efficient” education prescribed by the constitution requires good and competent teachers. Decades of empirical social science research, in fact, confirms that teacher quality is the most influential educational resource affecting student achievement that is entirely within a school’s control.

So, when noncompetitive salaries and benefits, teacher shortages, or the lack of professional development and support cause us to lose quality teachers, those unfavorable conditions, in turn, jeopardize our children’s fundamental right to education. Viewed from that perspective, the teacher strike was no more unlawful than the state’s dereliction of its own constitutional duty. To put things into further perspective, approximately 80% of public school expenditures are for personnel salaries and benefits. It’s not the school building or the textbooks that educate, it’s our teachers. And funding that education, Pauley held, is our state’s first constitutional priority, “ahead of every other State function.” In a footnote the court added, “The patriots of this State were never afflicted with an Appalachian mentality that finds nobility in ignorance.” In that spirit, the teachers who walked the line to provoke greater investment in our children’s education were not deviants engaged in “illegal conduct” but patriots who deserve our utmost respect and gratitude.  

When the Education Reform Chickens Come Home to Roost, It's the Students Who Suffer

The past decade and a half has shown there is no limit to the number of education reforms that states and the federal government can churn out.  I won't try to list them all.  I will just note two of the most vicious: those aimed at public school funding and those aimed at teachers.  States moved large sums of money out of the public school budget and into voucher and charter programs.  On top of that, they just took a hatchet to bottom line for school funding.  At the same time, they attacked teacher tenure, froze salaries, instituted high stakes evaluation systems, and sought to reduce the influence of teacher unions.  The net result was to scare so many current and prospective teachers away that a nationwide teacher shortage developed in 2015.

In Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, I outlined the short and long-term threats of these trends.  But because I was basically tracking the problem in real-time, I indicated things might get worse before they got better.  On the other hand, maybe I was being alarmist.  It will take after-the-fact analysis by statisticians to reach any systemic conclusions.  A new story out of Detroit reveals, however, that many students and teachers can feel exactly what is happening while the education reform world experiments and then looks backwards.

The Detroit Free Press offers this account:

The kindergartners at Palmer Park Preparatory Academy were shouting out words written neatly on small cards — correctly recognizing words such as "after," "red" and "look" — when their teacher Vanessa Parnell noticed a telltale sign that it was time for a classroom potty break.

"I see some of you wiggling," said Parnell, whose University District neighborhood school is struggling with large class sizes because of teacher vacancies in the Detroit Public Schools Community District. 

And when you have 38 wigglers, taking a bathroom break isn't simple. Parnell must first spend time getting her class into two lines, then the students must traipse down a long hall, up a few stairs and down another long hallway to reach the middle school bathrooms. They take this long trek because the middle school bathrooms have more stalls than the elementary bathrooms — and saving time is important when you have nearly 40 students to get through.

It's just one of the frustrations Parnell faces every day managing a crowded class at this crowded school. Here, enrollment is up more than 100 students from last year — good news after years of declines. But a combination of teacher vacancies and building problems — illustrated by the four large buckets that were collecting leaking water in the kindergarten classroom on a recent day — have made classes swell.

Parnell said she and other teachers work hard to help students thrive despite "the hurdles and outside things that impede learning," and she worries that dealing with large classes impacts that work.

 "It's extremely stressful, because I don't get to spend the one-on-one time that's needed with young children," said Parnell, who doesn't have a paraprofessional to assist her.

Palmer Park isn't the only school with large classes. The teacher contract establishes class size limits. In grades K-3, the class size is supposed to range from 17-25 students. In grades 4-5, the maximum is 30. And in grades 6-12, the max is 35 students.

Across the district, 14 out of the district's 115 schools have oversize classes — many of them with multiple classes that are too large. According to fall class data provided by the district:

-Nearly every K-8 class at Palmer Park is teeming with students. A third-grade class has 40 students, a sixth-grade class has 44 and a second-grade class has 39. The school's overall numbers have increased even more since fall.

-An eighth-grade class at Noble Elementary-Middle School has 52 students.A third-grade class at Bow Elementary-Middle School has 48 students.

-An eighth-grade class has 47 students.

-A fourth-grade class at Dixon Elementary-Middle School has 49 students, while a fifth-grade class has 43 students.

-A fourth-grade class at Mason Elementary has 45 students.Meanwhile, a sweeping report on school funding in Michigan that was released last month suggested 20 as the optimal class size for children in grades K-3.

There are now 178 vacancies in the Detroit school district, down from 260 at this time last year. But it's still enough to cause problems.

Superintendent Nikolai Vitti said a large part of the problem is the district's difficulty attracting teachers, a problem exacerbated by the fact that experienced teachers often must take a pay cut in order to get hired by the district. That's because under the district's teachers' contract, teachers hired receive credit for only two years of teaching experience. That can mean a pay cut for many.

This is why I prefer equity and adequacy to experimentation.

Teacher Gives Economist the Smackdown on the Value of Education

For those who missed it, Bryan Caplan recently made headlines with his provocatively titled book The Case against Education: Why the Education System Is a Waste of Time and Money.  The promotional materials explain:

Despite being immensely popular--and immensely lucrative―education is grossly overrated. In this explosive book, Bryan Caplan argues that the primary function of education is not to enhance students' skill but to certify their intelligence, work ethic, and conformity―in other words, to signal the qualities of a good employee. Learn why students hunt for easy As and casually forget most of what they learn after the final exam, why decades of growing access to education have not resulted in better jobs for the average worker but instead in runaway credential inflation, how employers reward workers for costly schooling they rarely if ever use, and why cutting education spending is the best remedy.

Caplan draws on the latest social science to show how the labor market values grades over knowledge, and why the more education your rivals have, the more you need to impress employers. He explains why graduation is our society's top conformity signal, and why even the most useless degrees can certify employability. He advocates two major policy responses. The first is educational austerity. Government needs to sharply cut education funding to curb this wasteful rat race. The second is more vocational education, because practical skills are more socially valuable than teaching students how to outshine their peers.

I, honestly, did not pay the book much attention.  To me, it seemed like a book trying to do just that--get attention by making an outlandish claim.  Refuting the claim was more effort than it was worth for me.  This morning, however, I read a teacher's response.  It did more for my morning than two cups of coffee could have.

Steve Singer penned a short essay titled Economists Don’t Know Crap About Education, arguing that "economists need to shut the heck up."  Here is a sampling of his essay:

Never has there been a group more concerned about the value of everything that was more incapable of determining anything’s true worth.  [Economists] boil everything down to numbers and data and never realize that the essence has evaporated away. I’m sorry but every human interaction isn’t reducible to a monetary transaction. Every relationship isn’t an equation. Some things are just intrinsically valuable. And that’s not some mystical statement of faith – it’s just what it means to be human.

 . . . .

[Rather than fund education,] it would be far better in Caplan’s view to use that money to buy things like… oh… his new book “The Case Against Education: Why the Education System Is a Waste of Time and Money.”

His argument goes something like this: the only value of an education is getting a job after graduation. Businesses only care about school because they think it signifies whether prospective employees will be good or bad at their jobs. And students don’t care about learning – they only care about appearing to have learned something to lure prospective employers. Once you’re hired, if you don’t have the skills, employers have an incentive to give you on the job training. Getting an education is just about getting a foot in the door. It’s all just a charade. Therefore, we should cut education funding and put kids to work in high school where they can learn how to do the jobs they’ll need to survive.

No wonder economics is sometimes called “The Dismal Science.” Can you imagine having such a dim view of the world where THAT load of crap makes sense? We’re all just worker drones and education is the human equivalent of a mating dance or brilliant plumage – but instead of attracting the opposite sex, we’re attracting a new boss. Bleh! I think I just threw up in my mouth a little bit. This is what comes of listening to economists on a subject they know nothing about.

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Can Tennessee Schools Replace Teachers with Computers? Not If the Constitution and Facts Have Anything to Say About It

The Tennessee Court of Appeals has taken up a fascinating issue regarding students' access to teachers.  The problem could only arise in the brave new world of computers.  In short,  a student at a Tennessee high school had fallen behind in algebra and end-of-grade assessments were looming.  The school pulled the student  out of the class and placed the student in a computer based credit recovery program.  Apparently, this occurred with several other students.  The student claims that the school did this to help increase its standardized test scores.

The disputed issue in the case seems to be a narrower one: do students have the right to access a teacher?  The plaintiff says yes.  The school's attorney says no.

Melissa Roberge, a Metro lawyer, argued Tuesday that a student's right to education does not extend to the education's components, such as how classes are delivered or the specific classes themselves.

"Miss Jones does not have a property interest in the most appropriate education as determined by her," she argued. "Stated differently, there's no property interest in remaining in a specific class or being entitled to any particular test."

Roberge noted that Jones was not excluded from Metro Schools nor removed from all of her classes.

@RachelAnne Levy asked for my thoughts on Twitter.  First, the case is fascinating on any number of practical and policy levels.  Manipulating who shows up for tests is nothing new, but doing it this way and arguing that it is completely above the board, normal, and legitimate is different. Second, using recovery programs as a supplement to regular instruction or as an option for students who have no others is reasonable.  Using it as a first option is really bad policy (unless the program is demonstrated to be of exceptional quality and help to the student) and creates obvious perverse incentives.

As to the law, the case is not nearly as interesting because I think the answer is easy.  Unless they have some very specific evidence of which I am unaware, schools cannot just do this simply because no statute exist to specifically prohibit it.

While the district is correct that students typically do not have a property right in any particular class, this line of defense misses much larger and more important legal precedent and rights. 

The Supreme Court in  Tennessee Small School Systems v. McWherter, 851 SW2d 139 (1993), held that students have a constitutional right to "substantially equal educational opportunities."  The underlying facts in the case involved disparities in teacher salaries across the state.  Consistent with the overwhelming social science consensus, the court indicated that "teachers, obviously, are the most important component of any education plan or system."  Because salary disparities resulted in students having unequal access to teachers, the Court ordered the state on more than one occasion to remedy is system of funding teacher salaries across the state.

So while state statutes may not create any specific property interest in access to a teacher, the state constitution creates a right to equal educational opportunities, which teachers are the most important part of.  To be clear, however, underlying the discussion of teachers in McWherter and, now this new case, is educational opportunity itself.  The basic right is to educational opportunity.  Violations of that right occur when students are deprived of the resources and learning necessary to achieve that opportunity.  This leads to the factual question of whether the offerings in one class or one school are substantially equal to others across the state.  

Just because one district has higher credentialed teachers than another does not automatically mean the students' rights have been violated.  The same is true of minor variations in class size.  The same line of reasoning could theoretically extend to computer based learning versus human based teaching.  If both were "substantial equal," a student would not necessarily have a claim. 

But that is a preposterous theory when one considers the real world.  I am not aware of any research (although I allow I may have missed it) that suggests that computers are equal to or can replace human instruction.  If any research is on point, it would seem to be the research and practical push back against several technologies that undermine learning--particularly the most valuable types of learning that occur through personal interaction, motivation, and feedback.  I don't doubt that artificial intelligence may drastically close this gap at some point, but for now it is hard to argue that computer based learning standing alone is equivalent to teacher based instruction.  This is even more so for the struggling student who needs to be engaged.

Where does this leave us?  The question of computer based learning is new territory and should not be dismissed out of hand.  At some point, it may play an incredibly large and legitimate role.  Thus, the law should not cut it off.  But that is all speculation and remaining open to future possibilities. But in the here and now, we know how important teachers are and we know that students have a right to substantially equal educational opportunities in Tennessee.  Thus, schools should carry a very heavy evidentiary burden with any sort of experimentation that would deprive students of substantially equal access to the key competent of education.  

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.  

Download Forslund decision.

Who Is to Blame As the National Teacher Shortage Enters Its Third Year?

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.

 

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.  

 

Can Title VI Offer Students More Equitable Access to Teachers?

A new student note by Noah B. Lindell, Old Dog, New Tricks: Title VI and Teacher Equity, 35 Yale L. & Pol'y Rev. 189 (2016), attempts to use Title VI as a lever for forcing more equitable access to teachers.  The introduction offers this summary:

What can the law do to improve teacher quality? In answering this question, one can be forgiven for thinking about regulation rather than litigation. At the federal level, most litigation-heavy education laws are antidiscrimination statutes, focused on protecting certain categories of students rather than on enforcing high teaching standards. Meanwhile, teacher quality has become a central aspect of education “policy” statutes. Lax teacher preparation standards and poor hiring policies, in particular, create challenges for the education system. Good teachers not only increase students' scores on standardized tests; they also can lower students' teen pregnancy rates, increase their likelihood of going to college, and raise their lifetime incomes. Replacing poor teachers with average ones can have similar effects. Yet white and wealthy students are far more likely to be taught by high-quality educators than are minority and economically disadvantaged students. The teacher quality crisis in the United States is real, and it contributes greatly to the broader woes of the American education system.

 

Title VI of the Civil Rights Act of 1964--which is over half a century old, and which is primarily understood as an antidiscrimination provision--may offer a solution to this crisis. Title VI forbids racial discrimination in the provision of resources in federally funded programs. The U.S. Department of Education has recently made clear that teacher quality is, in fact, a resource covered by Title VI. This Note argues that Title VI complaints, investigations, and lawsuits can encourage (or force) districts to pursue policies that are designed to provide minority students with better teachers. While other scholars have discussed Title VI in relation to school discipline, assignment of students to special education, school finance, school reconstitution, and general educational discrimination, this is the first piece of legal scholarship to discuss Title VI in any depth in relation to teacher quality and teacher assignment.

 

Part I of the Note provides background on the racial and socioeconomic gaps that plague American education generally and access to good teachers in particular. Teacher quality is one of the most important factors contributing to student academic growth, yet recent attempts to alleviate these disparities through legislation have failed. Part II charts out a different course: the U.S. Departments of Education and Justice should make more aggressive use of Title VI to end unequal access to quality teachers. Part II explains the mechanics of Title VI and illustrates how Title VI investigations might play out in the teaching context. Parts III and IV then discuss a number of concerns that this new use of Title VI could generate. Part III lays out and resolves two issues related to the Title VI doctrinal test: how to measure teacher quality and how to handle state and school district defenses to allegations of discrimination. Part IV then tackles two larger concerns: (1) how to ensure that private parties will submit complaints to the Department of Education, as Title VI requires, while also guaranteeing that the potential flood of new claims will be promptly resolved; and (2) how the agencies can protect their Title VI guidance, and their disparate impact regulations, from legal challenge.

 

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.

 

 

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.

 

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."