Race to the Top, Teacher Evaluations, and Families Opting Out

In 2010, the Colorado General Assembly passed Senate Bill 10-191, now known as the Educator Effectiveness Act. The purpose of the Educator Effectiveness Act was two-fold: first, the act served to enhance Colorado’s third application to access federal Race to the Top dollars (this application was approved), and second, the act attempted to improve the teacher evaluation process.

There has been a lot written about the merits and demerits of teacher evaluations and I feel no need to revisit this lengthy debate and discussion. Instead, I would like to provide the reader with an overview of the Educator Effectiveness Act. This act made the following changes to the teacher evaluation process in Colorado:

Non-tenure teachers: historically, non-tenured teachers (in Colorado vernacular these teachers are referred to as probationary) needed to receive three years of favorable evaluations in order to receive tenure (or to become non-probationary teachers in Colorado). Under the Educator Effectiveness Act this process was changed. A non-tenured teacher now must receive three favorable evaluations in consecutive years in order to become tenured and there is no time limit for a non-tenured teacher to become tenured. In other words, an effective teacher could spend his or her entire career as a non-tenured teacher if the evaluators of this teacher made sure that every third year the individual was marked down to the point that the overall evaluation was less than favorable.

Tenured teachers: again, prior to the Educator Effectiveness Act tenured teachers could only lose the protections afforded them from tenure as a result of egregious acts. Now, if a tenured teacher in Colorado receives two consecutive unfavorable evaluations then that teacher loses his or her tenure and reverts back to non-tenure status. It should be noted that the state has been slow and purposeful in rolling out the implementation portion of the Educator Effectiveness Act, so, to date, no teacher has actually had his or her tenure status revoked. However, when this happens it stands to reason that there will be a lawsuit to follow.

Teacher evaluation criteria: finally, the Educator Effectiveness Act required that the school district created evaluation tool base 50% of a teacher’s evaluation on student growth. Each school district is able to determine acceptable evidence to document student growth, but the results from the PARCC testing are used by most Colorado school districts as a portion of growth indicators related to teachers’ evaluations.

It is under this backdrop that I wish to share a fact that I recently came across. As per Colorado state law, parents have the right to opt out of standardized testing. In fact, the state legislature has spent a fair amount of time this session debating the amount of testing Colorado public school students are subjected to and was looking at reducing these requirements (the effort, despite enjoying bipartisan support, is stalled out currently). So, the legal question that requires greater exploration is focused on parents opting out of testing. What happens if the percent of students opting out of end-of-year testing balloons to a majority of the student body?

This is what I discovered a few weeks ago while visiting an intern-I was informed that at this particular high school over 40% of students opted out of PARCC testing. I was shocked by the number so I checked with other administrators throughout the state and only found one other high school where the percent of students opting out exceeded 30% of the entire student population (this was a sample of convenience and is not scientifically defensible).

I feel we can make some gross generalizations about the parents and students that are opting out of testing – more educated parents, higher socio-economic status, etc. Again, these are generalizations, but if they are accurate generalizations then what will happen to a school’s testing results? It stands to reason that the results will decline, in general. And, here is what I find interesting about this situation –can school district administrators use PARCC testing results to quantifiably establish that a teacher in negatively impacting student growth if 40% of students are opting out of the testing?

In my opinion, the answer to the question is yes – administrators can use the PARCC data, but to rely exclusively on incomplete data (given the percent of students opting out of testing) will prove problematic. I feel there is a double standard at place in Colorado – testing is essential for accountability standards, but not all students need to be tested. Ultimately, this double standard will possibly prove the demise of the Educator Effectiveness Act and tie up limited public funds in litigation surrounding teacher evaluations.

A pre-litigation remedy would be for policymakers to determine if testing is vital for accountability reasons. If testing is deemed vital then all students should be required to test – if it is good for one student then it is good for all students. If, on the other hand, testing is not essential for accountability then do away with it. Why require school districts administer testing and, at the same time, allow certain (educated) parents opt their children out of testing?

Should an Educational Leader's Testimonial Speech be Protected?

Imagine that you are an educational leader hired to head up an important community college program for at-risk youth.  In your first days on the job, you do what any good leader does and audit the books.  Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work.  You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator.  You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working.  She not only refuses, but also threatens your livelihood.  You are not a coward, so you fire her.  Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud.  Soon after, you are fired. 

You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern.  But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos.  In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline."  Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline.  The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties."  Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job. 

Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand?  In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above.  Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti.  The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide. 

Political Donations on State Owned Devices

As the political season heats up, now is a good time to remind folks that making political donations on school or university owned devices is a bad idea ... for what I hope are obvious reasons (remember who paid for that computer). Even though I think this is obvious, I'm doubting that too many public employees will consider it before they enter their credit card info.  

As Sherman Dorn notes on Twitter, it is probably a good idea to make such donations on your phones (less likely to be state owned). My wife even adds that apparently you can now even make donations by texting to some political campaigns.

(oddly, making a donation to a super-pac might be more palatable ... but then public employees don't have that kind of money). 

Anyway, please exercise your right to make your financial voices heard ... just not on a device you didn't pay for yourself.   

Just Don't Ban It (Again)

So, schools adopting social media policies is becoming very fashionable these days (ridiculously so, and lots of smart folks can tell you why, but whatever). New York City Schools is the latest to apparently be considering it. 

Here's the thing. I do not care all that much legally what you put in that policy, with one exception ... just don't ban anything. You cannot ban Facebook. You cannot ban Twitter. You cannot ban teachers from talking to kids outside of school. If the First Amendment says anything, it is that you can share your ideas without governmental interference when they have no legitimate reason to regulate. That a person is a teacher is not a legitimate reason to regulate all their speech, all the time. It isn't. Trust me. 

To show you, let's get conservative just because that is how our current Court leans. Let's say a school board wanted to ban a teacher from religious speech (participating in this prayer social website, for instance). Would that fly with the current court? No freaking way. None. Facebook is not different. Why? Well, look at this site - the Hawaii Catholic Youth and Adult Ministry Facebook Group. Can we ban teachers from talking to students on that site? No, we can't. They have both an expression and free exercise right to do so. Thus, we cannot ban Facebook. We also cannot ban teachers from talking to students on Facebook. Bans do not work in this space. There is just far, far too much constitutional history on the other side of that argument and way, way too many different scenarios that would be banned all in one fell swoop. 

Now, you can choose to block these things on your school Internet, that's fine. You can encourage responsibility. You can institute discipline measures for disruptions. You can, well ... be creative. But, banning teachers from using social media in anyway is a step to far, constitutionally speaking. 

Coaches Thanking God for Victories

It is one of my favorite times of year. My vita has SIU, IU and UK featured prominently ... all good basketball schools (at least SIU was). Anyway, it has been awesome enjoying March at these places. 

After their win v. VCU, Coach Tom Crean of IU was interviewed by CBS. The first thing he mentioned in the interview was,

“We pray before every game, and one of the biggest things is God gives us the tools and the courage but it is our responsibility  to do the work.”

Struck me as a bit odd, but certainly not out of the ordinary. In fact, I eagerly googled his comments for this post thinking there would be some debate, but found no controversy at all. It is so normal we do not even notice anymore, I think. 

But, here is IU's representative, who gets paid a lot, on the biggest stage starting with "We pray before every game." Are we okay with this? Indiana University (an awesome school, might I add) is public and has 40,000 students, a fair number of which I'm guessing are not that into prayer toward this particular "God." Heck, I'm an alumnus and I'm not sure I'm totally okay with it. 

From a legal perspective, I certainly do not like this. I know it would be a difficult situation to challenge, but if challenged, I would worry about the Establishment Clause implications. And, it is very hard to make a Free Exercise claim on the other side of this. 

So, thoughts? Is this worth trying to tamp down? 

*P.S. - And, don't even go there. No, I am not doing this because UK plays IU this week and they beat us once already this year. Crean was just the one I happened to catch (because I was watching the game as an IU fan). 

Hugging and Other Crimes Against Humanity

This story got a lot of play today where a middle school student was suspended for a mutual hug of his best friend, a female classmate. Here was the rationale: 

“We cannot make an opinion or judgment call on whether a hug is appropriate or not. It’s very difficult to police that on campus,” Christine Davis, the  public information officer for Brevard County Public Schools, told ABC News.

Davis said the school puts policies and procedures in place to help keep the students  focused on learning.

Really? If you can't make a call between an appropriate hug and an inappropriate hug you should be fired. It tells me that you don't know kids and that you don't know their lives. Is it harder to make all those judgment calls? Sure. But, that's what you get paid to do, so stop shirking your responsiblity through made-up policies (no law requires anything like this). 

Want to know why our school systems can't produce the passionate, dedicated, emotionally committed leaders of the next century ... it's because we feel we have to sanitize our schools and students away from such crimes against humanity as hugs between friends.  

When (it's probably not an if) these questionable school leaders lose their jobs ... "no hug for you." 

State Court Funding Symposium

I want to announce to our readers an upcoming event at the Universiy of Kentucky College of Law that has implications for education law.  The event, jointly sponsored by the Kentucky Law Journal, the American Bar Association, and the Center for State Courts, is a symposium on the funding of state courts, many of which are currently in what can best be described as a resource crisis.  Here is a link to the schedule of events on September 23-24, which include Keynote addresses by both Dean Erwin Chemerinsky of the UC-Irvine School of Law and current ABA President (and UK Law grad) Bill Robinson. 

Now, what does this have to do with education law?  Well, two major things.  First, as with almost all categories of law, the majority of education related disputes are resolved in state judicial systems.  A funding crisis in those systems will inevitably lead to a crisis in educational dispute resolution.  Second, as many of you know, to the extent that "education rights" exist in our system, these rights are primarily state constitutional rights.  Where state judicial systems are hampered, the development of these rights is also hampered.  The issue of state court funding is therefore a vital one for those interested in education policy and law. 

I encourage anyone with an interest in these issues of access to justice (and the ability to be in beautiful Lexington, KY this Friday and Saturday) to attend the symposium. 

Missouri: Enter the ACLU

Well, this was just a matter of time. The ACLU is suing the state of Missouri against their Facebook law. 

Actually, you have to give the ACLU some credit lately. They are also watching schools for limiting some speech by blocking certain websites in a discriminatory fashion. Just in Missouri this last week the ACLU got a consortium of districts to unblock some pro-LGBT sites that they had been blocking. 

You can think what you want of the ACLU and there has been occassions where I have disagreed with their positions, but for now the ACLU seems to be on the side of proper and healthy technology integration in schools. 

Self-Defense in the Classroom

It is a real shame we have to talk about these kinds of things. I hate it. And, I hate when my students ask me about this topic very early in our courses together. There is clearly a lot of concern in the teaching force about protecting themselves against students. 

Here is the latest incident. 

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This is an issue we don't really talk about in the textbooks ... but perhaps it is time that we need to address it more formally. I hate giving into this as the modus operandi, but it seems we have little choice. 

Value Added Evaluation Data and FOIA (State Versions, That Is)

Bruce Baker and Andy Rotherham brought my attention today to the issue of the public release of school data used in value-added teacher assessments (which are becoming popular, spurred by Race to the Top- Scott and my previous posts on the subject). This stems from a report out of New York today that the New York City Schools are set to release this value added data on 12,000 teachers ... tomorrow.

First, the basics. Public schools are public ... meaning taxpayer owned. Generally, then, the taxpayer owners (meaning the general public) have access to all the information produced and stored by these entities. In a democracy such a concept would make sense, right? Well, except when we are planning to bomb another country or when we are surveilling a criminal or when ... well, you get the idea, there are lots of exceptions. One other important point before we begin is that there is a federal Freedom of Information Act, but for this analysis we are concerned with state laws, as schools are state entities and school personnel are state employees. Here is a nice starting point for your state to get the basics.  

The exception at issue today is that of personnel information. They cover the gamut from very restrictive to very broad to non-existent. Let's start with Wyoming's quite broad protection against release of personnel records (Wyoming Statutes 16-4-201):

(iii) Personnel files except those files shall be available to the duly elected and appointed officials who supervise the work of the person in interest. Applications, performance ratings and scholastic achievement data shall be available only to the person in interest and to the duly elected and appointed officials who supervise his work.

Then there are some provisions in the middle. For instance, here's Delaware's relevant provision (Del. Code Ann. 29 - 10002): 

(1) Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy; ...

Arkansas is another similar to Delaware. But, other states are more restrictive in their provisions. Take Georgia, for instance (50-18-72):

(5) Records that consist of confidential evaluations submitted to, or examinations prepared by, a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee; and records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated, provided that this paragraph shall not be interpreted to make such investigatory records privileged.

Other states, such as Illinois recently, considered adding such an exemption for public employees to their Open Records Acts. This story out of Illinois puts the number of states with some type of personnel evaluation exemption at around 35 - and without better data or time to investigate it myself, we'll go with that - meaning that perhaps 10-15 states may have no exemption at all for such records. 

Thus, even without considering the issue of value added data sets, in some states there is not even an opportunity to argue that such evaluation data is exempt. Therefore, before any teacher (or more likely union) argues that such data cannot be released they need to be familiar with their state's law governing open record exemptions.

Now, turning to the issue of whether raw value-added assessment data is exempt from public record laws let's consider a few different options.

Option 1: raw data contains information capable of linking to particular students = FERPA protects against release. But, putting FERPA aside ...

Option 2: raw data does not contain link to identifiable teachers (or students) = Grant open records request as no exemptions are likely to apply.

Option 3: raw data does contain link to identifiable teacher = probably release. Obviously this looks like the New York situation and the one Bruce and Andy were highlighting. However, the data is not an evaluation, it is simply raw data. That it affects an employee's future evaluation criteria is probably not relevant if the open records request is only for raw data. Obviously this is going to be the case most dependent on the statutory language. For instance Wyoming's inclusion of "scholastic achievement data" seems a good bet to open the door for exemption even of the raw data. Delaware's "relates to personal privacy" is a crack, but a small one and one I don't think most courts would extend such a amorphous concept to this extent. Georgia, Illinois and other states, though, would have no legal avenue available to block release. At best, the teacher or union might be capable of delaying the release. Given the fast-paced news cycles, though, and the lack of persistence among researchers, delaying the release even a few weeks might be good enough. 

Option 4: post-analysis, teacher-specific data leading to evaluation ratings = probably protect. This is where the easiest case is made to exempt the records, but still not in all states. If you are in a state with a personnel records protection provision, the evaluation analysis of the data is probably protected as I think most rational people consider job performance ratings to be personal in nature. This protection is not trivial, however, as working with the raw data is not a simple task and puts a much larger burden on journalists, researchers or other individuals requesting access. Obviously it is just much easier for them to publish the school's analysis and evaluation of the teacher. So, still not totally protected in this instance, but the easiest legal case to make as the statutes seem to imply, if not explicitly state, that such evaluations are protected. 

Option 5: I think it is possible to visualize a hybrid between Option 3 & 4 - or perhaps several (help me out Bruce as you know the data better than I do). The analysis of the value-added raw data would likely involve several steps, each of which would get us closer to protection as the data goes from unaggregated to aggregated to compared against previous years to compared against similar classes to graphed to assigned a rating code to translated to an evaluation statement. Where along that line of analysis protection begins ... well, that's the kind of question that takes decades of litigation. Each specific instance will be different, meaning there could be minimally 50 and potentially thousands of different scenarios possible as individual districts begin rolling out value-added systems.  

Okay, getting back on track then, this explains the New York story, for now anyway. New York has a mid-to-narrow exemption (see Section 87(2)) putting it somewhere between Delaware and Georgia (if I'm missing something, New York readers, let me know). Thus, as New York City's attorneys have concluded, the likely position is that the raw data should probably be released.

That's not the end of the story, though, for the union. Their next play, in the absence of a protective statute or regulation, is to attack the raw data as unreliable and thus (1) lacking a rational basis, (2) a violation of due process, (3) unconstitutionally vague, (4) discriminatory or some such effort. Remember, though, this is not an open records issue, it is attacking the facial validity of the entire value-added evaluation system (read the posts that Scott, Bruce, & myself wrote before). As Scott explained these efforts rarely win, but I kept the door slightly open if there is overwhelming evidence of statistical error. This is going to be an uphill battle, however, because the overriding public policy at play here dictates open government over privacy. That the rationale behind open government statutes is so clearly stated and privacy law is such a legal morass is not going to help this situation either.

Anyway, summarizing, I think the raw data is generally going to be made publicly open following FOIA requests. I think New York City is currently correct in their assessment that no exemption exists under New York's Freedom of Information Law. However, this is just my analysis after considering this issue for a single day and I want to caution against over reliance on my initial assumptions. A thorough analysis needs to be conducted of all 50 state policies, interpreting regulations, attorney general opinions, and previous case law. Further, data experts such as Bruce must assist the analysis with a complete understanding of each state's dataset and the possible links to both teachers and their evaluations within the datasets. Thus, there is still a lot of work left to be done. 

This is a legal frontier (another one of those enabled by technology) that most legislatures would not have contemplated as possible in enacting their open records laws. Thus, it is a great topic for us to debate further to inform future policy actions on open records personnel evaluation exemptions.

Sixth Circuit Applies Garcetti to Classroom Speech

Today, the Sixth Circuit issued an opinion in Evans-Marshall v. Board of Education applying Garcetti v. Ceballos to exempt the curricular and classroom speech of a non-renewed teacher from First Amendment protection.  I'll have more to say about the decision later, but on a first read, my initial impressions are that:

1.  The case ultimately presents a pretty straighforward application of the Garcetti holding, finding that classroom teaching and expressive curricular choices, as expression "pursuant to the official duties" of a teacher, is unprotected. 

AND

2.  The case should allow for a more definite (as opposed to hypothetical) inquiry as to whether the Garcetti rule makes sense, and whether it deserves to be rethought in the context of academic speech. 

The Sixth Circuit's slip opinion is here. 

Law v. Lore in Teacher Tenure

Perry Zirkel filled in for Valerie Strauss at the Washington Post blog, The Answer Sheet, a couple days ago and wrote a provocative post about the law v. lore in teacher tenure. Perry (who I love is jumping on blogging - what a perfect medium for him) makes some great points that the law of teacher tenure is not as ironclad against dismissing teachers as most educators assume. I teach this to my future administrators all the time. Perry also makes a good point that litigation resulting from dismissal cases frequently goes the district's way. Certainly, as is almost always the case, the law is geared to support the school in these cases. So, as is always the case with Perry, he makes some great points and actually points to data to back it up. 

But, I have 2 small issues with how Perry frames this issue and a different recommendation as to how to achieve the desired result. 

First, I think Perry himself also inflates what tenure actually is legally.  As a legal matter, it is simply a contractual automatic renewal provision - and nothing more. For me, tenure is even less than what Perry described, as the due process that is associated with the tenure system is, really, in addition to and distinct from this simple contractual provision. Thus, even Perry in his post I think unnecessarily inflated what tenure really is as a legal matter. 

But, second, whether it is law or lore or something else ... the existing, practical, everyday policy of teacher tenure is construed as some type of block against dismissing teachers. Educators that have practiced, and certainly those in union districts, know the power and reverence the word tenure conjures in most educators. If the law is that substantially different from the everyday policy, then can't we say there is some type of problem with the law? I would argue that the law is not what is written but what is implemented and it is the lore of tenure that is currently the law in schools.

I, too, personally sort of like the black-letter law behind teacher tenure and I think if it were properly implemented as written and understood by lawyers we would have a very different dismissal system in schools. But this law has been around for a long time and if we don't have a proper understanding of it now, how can we assume that there will be a better application in the future?

Thus, for me, perhaps the best solution is just to simply delete the word "tenure" from the process and change nothing else - including the written law - thus supplanting the lore back with the actual law. If the law is simply a contractual automatic renewal provision, why can't we say a teacher has achieved automatic renewal instead of using the word tenure? All the mental baggage is then gone and dismissal is viewed, properly, as the distinct process that it truly, legally, is. That would allow us to move on to debating the real issue, perhaps, that is the due process provided to teachers by states and union contracts. Slightly adding or subtracting to those due process procedures is a much easier, and more politically palatable, option for reform than attacking the legal lore of teacher tenure. 

Value-Added Evaluation and Dismissal of Teachers: Two Cents from an Employment Lawyer

Both our Justin and the very justifiably well-respected school finance economist Bruce Baker have weighed in from different, and equally enlightening, perspectives as to the legal problems (read: certain lawsuits) that would result from instituting systemic value-added assessment-based teacher dismissals and demotions (including de-tenuring tenured teachers).  Here, I add my two cents as a former (defense) litigator of these very sorts of issues in Florida. 

First, I wholeheartedly agree with both Justin and Bruce that a flood of lawsuits is certain to occur (one roughly the same size as the flood of dismissals and demotions that occur).  Simply put, if you fire people, and they think their firings were unfair, then you are going to be sued.  Period.  In fact, I think that these lawsuits will assert not only claims under the Due Process Clause and Title VII, as Justin and Bruce explain, but also under ordinary state contract law, and possibly in some states (including Kentucky), claims under state constitutional provisions forbidding "arbitrary" governmental action.  This certainty of a litigation explosion alone ought to give policy makers pause when they consider their "blame the victim" strategies for improving teaching.  In fact, if I were general counsel of a school district, I would advise the administrators to run.  Run fast, away from this.  However, assuming that district political officials ignore their general counsels (which they sometimes do), would such suits ultimately succeed?  It may be surprising, but except for the rare "unconstitutional arbitrariness" claim that might succeed in a state such as Kentucky, I'm not so optimistic for the plaintiffs.  Here's why:

As to any contract-based claims, these would likely just be throw-aways to add to the complaint.  Any decently represented district will cover value-added demotion and dismissal as an explicit term of the teacher contact (dealing with the union on this brings up a whole separate issue, of course).

As to the Due Process claims, Bruce makes some very forceful and valid points regarding the validity of the value-added model of assessing teacher performance, and he is, of course, the expert on that topic.  However, a claim for wrongful termination in violation of the Due Process Clause is a claim of denial of legal procedures--nothing more.  The "property interest" in one's teaching job is simply a threshold showing that has to be made before one can even begin to argue that the proper procedures were denied.  Under well-settled precedent, a school district complies with the Due Process Clause as long as it offers teachers (1) sufficient notice of impending termination or demotion; and (2) an opportunity to be heard (usually in a hearing before the Board or its designate).  Typically, districts also provide a right to counsel and a rudimentary appellate system.  Now, the flaws that Bruce identifies would of course be relevant to such a proceeding, but if the decision were to stand after several layers of hearings in spite of such statistical evidence, then the teacher would be left with a very weak due process claim, regardless of the decision's substantive correctness as a matter of measurement. 

As to the disparate impact claim, although I agree with much of Justin's analysis, I must disagree with the claim that school districts would have a hard time showing their policies to be neutral.  The neutrality that matters in these cases is facial neutrality, and there is nothing race-based on the face of any such policies.  Any race-based effects must be proven statistically.  That being said, both Justin and Bruce are surely correct that substantial statistical disparities would result from the use of such measures, and these disparities would be largely based on race. 

However, to survive a disparate impact claim (i.e., to win at summary judgment), the district would only have to show that the value-added measures were (1) job-related; and (2) consistent with business necessity.  The first element would be a no-brainer.  However flawed, a measurement of student learning gains is clearly related to the job of being a teacher.  The second element would be somewhat problematic for districts if an expert witness were prepared to offer Bruce's methodological critiques.  However, even these critiques concede that some useful, effectiveness-related information can be gleaned from such measures, and in such a case, the court will only be concerned with whether the district was ever presented with a race-neutral alternative that was just as effective at accomplishing the employment-based objective, but was rejected or not considered by the district.  Do such equally effective, race-neutral measures of teacher effectiveness exist (I honestly do not know)?  If not, then the district would at least have a decent chance of successfully defending its use of value-added, despite its flaws. 

Again, none of this means that there would be no lawsuits.  Every fired or demoted employee who perceives the sanction to be unfair sues.  However, a few high-profile federal circuit court decisions could douse a litigation explosion pretty quickly. 

Legal Issues with Test Score Based Teacher Evaluation: A Response to Bruce Baker

Bruce Baker, a professor at Rutgers and one of the best educational statisticians in the country, wrote a fascinating post today about potential legal issues arising from the movement to base teacher evaluations on gains on student assessments. This post is based on that one, so please go read it first if you plan to continue ... 

Being a fellow blogger in the CASTLE blogging network, he asked for my feedback, so I wrote this in reply: 

Bruce, 

You are exactly on point. Both are legitimate legal problems, with the disparate impact being more of the slam dunk in my opinion. The disparate impact numbers would be off the charts and states would have a very difficult time establishing that it is a neutral policy. You start tying that in with school finance stats and other characteristics like age of school buildings and the picture is going to get very dark, very fast (no pun intended). This would have to be a disparate impact case, though, not a disparate treatment case (http://bit.ly/GpQJp) and since it is disparate impact, a class would likely be formed -- i.e. someone would need to invest money on the front end of this case to organize it - thus, the NAACP or some kind of organization like that would probably get involved. 

The Due Process argument would be a harder (and much less profile) case, but it could be brought individually ... so we might start seeing a whole lot more of these. Your identified problems in the statistics I think are great, but you are one of the best statistical minds in the education field. Your average joe-blow lawyer would have a really tough time making that case. And, as long as these cases stayed at the district court level, that case would have to be made over and over and over again by lawyers in each distinct community within each distinct state. If those cases rose to the level of the Circuit courts or the Supreme Court, that would save lawyers some work, but it would still be a costly case to put together and perhaps not worth it to the teachers. Anyway, I think you are right on with the legal analysis, but I think a lot of things in the US don't make statistical sense, but the legal system is just not competent enough to always tease that out.

Another legal problem this would create is that if teacher evals were 50 or 51 percent based on test score improvements ... it would make it even more difficult legally to get rid of bad teachers whose student test scores happened to go up. You can put a bad teacher in front of an AP class, and those kids are still going to excel on the test. If that bad teacher has a bad personality, treats parents badly, or any other negative qualitative component for which she would otherwise be dismissed or non-renewed, the test score based evaluation just gave that teacher a silver bullet in court. Probably like your law person there at Rutgers, I teach my principals to not give a reason to pre-tenure teachers when RIFing, because if you give a reason, then you have to defend it in court. These polices not only give a reason, but they give a reason that is largely outside of the principal's control. Even if it winds up that courts still think that 40% negative qualitative evaluation is enough to still RIF or dismiss a teacher, the number of lawsuits is likely to go up dramatically.       

Generally, all this is what happens when you start forcing statistics in the legal system - which is not built for that at all. The legal system is a very qualitatively oriented system, making decisions mostly based on evidence obtained through interviews and the like. The jury, even, is a qualitative system that collectively makes a decision based on all the evidence presented. Statistics throw a wrench in all that because people react differently to numbers. They think numbers don't lie (although, of course, we know that they can and do). That's why generally, I don't love policies that seek to make decisions based solely on numbers - these kinds of things are the result.

Just how stupid ...

Reading a ton of cases this weekend (finishing up a Yearbook chapter that is overdue) and I am once again struck by a simple question ... as a teacher, just how stupid do you have to be to lose a lawsuit? And, I think, the answer is pretty damn stupid. It is amazing to me how many mildly stupid things the courts allow teachers to get away with. Between immunity statutes, the high Section 1983 bar, actual knowledge provisions for harassment, the lower search and seizure standard, etc., the simple fact is that the law is heavily construed in favor of the school and school employees. And, even then, in cases where it is the word of the teacher v. the word of the student ... typically the teacher wins. So, not only do you have to do something really dumb to even qualify as doing something illegal, but then there usually has to be a good deal of evidence to find for the student (as in, you can't even cover it up well). 

So, seriously, it takes a really stupid act followed by a really stupid cover up on the part of a teacher to even make it to court.

Yet, in case after case, I am shocked by the ignorance of some teachers. Now, the worst of the worst make it into caselaw, so I am seeing the worst teachers in the America over the past few days. But, literally in the last year there were about 2 dozen federal cases dealing just with teacher sexual abuse of students, teachers taking searches way too far, teachers letting a student who had passed out from dehydration lay on the football field while they held a team meeting, teachers hitting kids, paddling for missing shots in a basketball game, a teacher playing on his computer while a student is forcibly undressed in front of a crowd in the classroom. And, this is just a smattering because it is only what is reported, the actual number is far, far higher. 

So, seriously, what the hell is going on?   

I have always defended the American teacher, been kind to teachers' unions, and generally given the benefit of the doubt. I was a teacher, so I know how it goes sometimes. But, can we all agree there is some kind of systemic problem in the teaching system that these kinds of horridly idiotic incidents continue to occur year after year after year? Something is broken. Pedophiles must be being attracted to teaching. The teacher dismissal process must be encouraging misbehavior. Professional standards boards must be woefully inadequate. Colleges of Education must be totally missing the boat in screening these folks. Maybe all of these things, but, something, clearly, is wrong. 

We cannot continue to permit these flatly ignorant humans to enter the teaching force.  

State Agencies and the Space for Change

Had the pleasure of filling in this morning at a meeting of the Council on Postsecondary Education in Frankfort. They had invited Curt Bonk down from IU to come talk to the Board and in a follow-up meeting with higher ed. faculty in the state. It was informative and I found myself taking a lot of notes (which is a sure sign that I'm learning something because I usually don't). 

What struck me though as CPE folks were talking, and inviting University folks to chat as well, is that state administrative agencies, such as CPE, are going to quickly be ahead of our universities in the mentality needed to meet the demands of the digital, global age. For instance, Dr. Bonk brought up Open Access Journals, and I suggested this is an area where CPE could become involved by recommending to universities that scholars publish their works in locations where the people of Kentucky can access them (i.e. not your traditional, academic publishing house journals that are only purchased by university libraries). The people of Kentucky paid for that work, they might as well be able to read it, right? Well, CPE seemed on board, the University reps ... not so much. And, therein lies a very difficult problem when the very people the state relies on for change and new ideas, are the ones that are innately resistant to that change. 

This level of innate resistance in universities, especially public universities, has been brought about by years and years of traditions, bureaucracy, and ethics. This innate resistance stops university folks from even considering the arguments in the first place. On the open access issue, for instance, I would challenge anyone to consider the arguments for and against with an open mind and conclude that traditional paper journals were the superior publishing outlet. But, it is not that university folks are stubborn in holding to the wrong side of the argument ... it's that they don't even consider the argument as an argument in the first place. 

Collectively, this is why we need state actors to force us to at least consider the arguments. Consider online teaching. Consider tenure and promotion changes. Consider integrating with K-12. Consider lifelong PD relationships. Consider it all, frankly. Nothing should be off the table in an environment where universities are struggling to survive anyway. And so, while it is necessary for grassroots movements to push universities from the bottom up, we also are going to need a good deal of top down momentum. The fact CPE would even consider bringing in Curt Bonk is encouraging. CPE gathering faculty together is another encouraging sign. So, I'm hopeful. But, I hope they also see the space they are creating within that environment and very carefully consider which voices are included - because the space created by those conversations has a direct correlate with those voices. 

After all, I was at that meeting by accident. I was just filling in for someone else. Had the composition of that room been different, without strong voices creating the space for change, I'm afraid a very different conversation would have ensued. 

Ethics Codes ... It's a concept, it's a law, it's a bird, it's a plane, it's ... Not that Important

Alabama doesn't know what do to with its teacher Code of Ethics. The Legislature doesn't like it, nor does the Unions. The State Board of Education created it and the Governor likes it, and thus today he vetoed a Legislative effort to block the Code of Ethics from entering regulation. 

These Ethics Codes for Educators are peculiar entities. Sometimes they are law, and sometimes they are not. Most states have a code of ethics in some form, but not all states choose to put them into regulation. If they are put in regulation, then they are law, meaning the contents are not really ethics anymore, they are mandates. 

In other fields, such as law and medicine, there is a greater distance between regulation and the ethical standards. The AMA produces the Code of Medical Ethics and the ABA produces the Model Rules of Professional Conduct. Some of this is replicated in state law, but not all of it. Of course, in education there is no AMA/ABA equivalent, so this kind of stuff gets promulgated by state entities instead. I would address business ethics, but then we all know that didn't work out so well. 

So, the question is how much does it matter legally who created the Ethics Code or where it sits? And, I think my answer is not all that much. Let me explain ...

First off, ethics codes tend to be very vague. In fact, that's the Alabama Education Association's chief criticism. But, vague language in law is frequent ... and frequently ignored. It can have negative implications, but they are usually sporadic. 

Second, read the Alabama Educator Code of Ethics - 90 percent of the things they say are wrong are already illegal anyway. So ... what's new?

Third, correspondingly, in my experience these Ethics Codes only really have teeth in extreme circumstances. As in, you lose your job anyway, and you lose your license. In situations where a regulating body is going to seriously consider revoking your license, the person has already probably screwed up their life substantially, including frequently criminal behavior. Knowing the kinds of cases that our local educator regulatory body prosecutes every year, they are usually only in unquestionably inappropriate circumstances that they take any real disciplinary action. Thus, whether the Ethics Code is in regulation or in policy or in guidance documents, it doesn't really matter all that much. 

Fourth, all of this is somewhat irrelevant anyway. These Ethics Codes are enacted as if they are Superman, come to solve all our ills. But, let's face it. A dumb teacher is a dumb teacher, whether or not there is an ethics code that tells them not to be dumb. Dumb teachers (those likely to do something highly unethical) are not going to read or worry about the Ethics Code anyway and smart teachers (those that do live their life ethically) didn't need it in the first place. Their greatest functions are ideological and CYA oriented. That Professional Standards Boards or Education Departments can SAY they have an ethics code is far more important than the likely impact on teacher behavior of handing out a pamphlet to pre-service teachers. 

So, I don't get all the hubbub over these Ethics Codes. Teachers, on the whole, are an extremely ethical group anyway (I've never heard of an educator ponzi scheme, for instance). So, I think it is a bit of a waste of political effort, especially right now in the face of Alabama's persistent mid-year budget cuts. I know we have to fight over something, but it really does seem unethical to fight over and Ethics Code, doesn't it? 

Educators - Expect to be Recorded

A controversy has erupted in Mississippi over the recording of school board meetings. I've posted on this before at the behest of Wes Fryer, so I'll just refer you to that (although I should probably do an extended version for School Boards Journal or something). 

Bottom line: if the recording is not disruptive and the content of the meeting is not private, go for it and don't feel like you need to hide the camera. I don't know Mississippi law, but that is the most likely outcome in this case as well. 

This is 2010. Devices that can record video and audio are everywhere (this is my favorite) and, frankly, if you are a school board member you should expect to be recorded - even in rural Mississippi. In fact, there are a slew of school boards doing their own recording (why not save folks the trouble and help get your message out? Your students would probably love to do it for you!). 

If you are a teacher, you should expect to be recorded.

If you are a principal, you should expect to be recorded. 

If you are a professor, you should expect to be recorded. 

It's just the world we live in. Get used to it. 

Copyright and Lesson Plans - A Rejoinder from Tom H.

Tom Hoffman at TuttleSVC, a longtime friend of the blog, has taken the copyright post on teachers selling lesson plans to the logical next level of whether this information is even capable of being copyrighted at all. It is a good post and I encourage you to continue our ongoing conversation on this issue over there. There is such good conversation on this issue, and so many implications, it looks like I am going to be forced to write an article on this one.

Teachers Selling Lesson Plans - What Legal Issues?

The big story making rounds over the weekend was the N. Y. Times story on teachers across the country selling their lesson plans online to make themselves a profit. Lots of local papers ran it in their Sunday edition, including my local paper. 

So, why not? I've weighed it over the weekend and I can't come up with a really good reason to legally ban it, not to mention I don't think there is any existing legal issues. I am no intellectual property guru, but a teacher's lesson plan is his or her own intellectual property, meaning they would hold the copyright (if they sought one). As the copyright owner, they are free to sell it in the same way they are free to give it.  Update: See the comments below - my readers think this is "work for hire" and the property of the school district. I'm not so sure, but until I complete my own research, I suggest that their opinion is the one to be relied upon. 

And, I think schools should stay out of it. They may try to take a cut (and I think there is a reasonable argument they should get a cut), but they should just forget about it. There is just not enough money there to pay a lawyer to handle all the intellectual property issues and negotiate prices. 

Maybe I am crazy, and feel free to tell me that I am, but I think this is an area where the market, aided by the Internet, could actually be a good thing for schools.