Education Employee & Teacher Evaluation Conference

Standard for Success, Indiana Association of School Superintendents, & Indiana Association of School Principals

June 3 & 4, 2014

Teacher Evaluation Litigation

Dave Emmert

General Counsel, Indiana School Boards Association

317-639-0330, ext. 107.

While teachers’ unions in such states as Florida, Michigan, New York, Texas, and Tennessee have sued to challenge the teacher evaluation component of educational reform legislation, the only Indiana school suits known to this speaker (Madison andCulver,) do not challenge the recent 2011 Teacher Evaluation Law as being illegal, but rather the application of the 2011 Teacher Dismissal Law to established teachers who were reduced in force while probationary teachers were retained.

Section 1. Examples of National Litigation Challenging State School-Reform Teacher Evaluation Systems

Sec. 1, Part A. NSBA Legal ClipsArticle, May 8, 2014.Federal court upholds Florida law tying merit pay to student performance:

A federal district court has ruled that while Florida’s teacher evaluation law that ties teacher merit pay increases to student performance onstandardized tests may be unfair, it is not unconstitutional, says an Associated Press (AP) report in theBradenton Herald. The suit, which was brought by a number of teachers, the Florida Education Association (FEA), and the National Education Association (NEA), contended that linking teacher evaluations to standardized testing is unconstitutional.

Although U.S District Court Judge Mark Walker agreed with the teachers and unions that the law was unfair because teachers who did not teach the primary subjects tested on standardized tests had their evaluations based on test results anyway, he dismissed their suit. “This case, however, is not about the fairness of the evaluation system,” Walker wrote. “The standard of review is not whether the evaluation policies are good or bad, wise or unwise; but whether the evaluation policies are rational within the meaning of the law.”

Andy Ford, president of the Florida Education Association, said his organization was “disappointed” in the ruling and said the union was reviewing whether to appeal the decision. “This evaluation system is clearly unfair and isn’t a valid measure of the teachers in our public schools,” Ford said in a statement. “We will continue to point out this unfairness and we will continue to work to find an evaluation system that is fair, open and provides a sensible way to properly evaluate our public school teachers.”

Joe Follick, a spokesman for the Department of Education, said the state was “pleased” with the decision. “We are pleased that we can put the focus where it should be — ensuring all students receive the best education possible with these evaluation and accountability tools in place,” Follick said.

Sec. 1, Part B. The Florida Law from NPR Article at

SB 736 - The Student Success Act Outlines How Florida Teachers Get Paid

The first bill Gov. Rick Scott signed into law, SB 736 rewrote how teachers are paid and retained across the state.

The Florida Education Association has filed a lawsuit challenging the law, arguing the law unconstitutionally strips teachers or their ability to negotiate pay.

The bill makes a number of sweeping, statewide changes including:

  1. Rating teacher performance. The law requires districts to rate teachers and administrators annually, according to a legislative analysis, with half of their score based on student Florida Comprehensive Assessment Test Performance over a three-year period.

Districts can negotiate the remaining half of the rating with teachers, but it should be based on instructional practice or leadership. For non-FCAT classes, such as physical education or art, districts have until 2014–2015 to develop and implement tests.

  1. How teachers are paid. New hires will no longer have to climb the decades-long seniority ladder to earn the highest salaries. Now, the highest-rated teachers can earn the top salaries just a few years out of college. Highly-rated teachers already working can opt out of the merit pay system — but if they switch districts they would be paid on their performance, according to a United Teachers of Dade Q & A. Teachers will also no longer be guaranteed additional pay for advanced degrees.
  2. Job security. New hires will no longer enjoy long-term contracts, but instead must be rehired on an annual basis. Those already teaching are again exempted from the new law, but teachers who switch districts would then move to annual contracts.
  3. Political motivations. Lawmakers approved the law, in part, to reinforce a $700 million federal Race To The Top grant, according to the legislative analysis. Districts will use half that grant to design, implement and fund the first three years of their performance pay systems.
  4. The goal. Reformers believe boosting pay will draw better quality teachers to the field, and that better teachers will produce better student results.

Sec. 1, Part C. From NPR at :

Two new national studies raise questions about the how accurate modern teacher evaluations are.

The first study, from the University of Southern California’s Morgan Polikoff and the University of Pennsylvania’s Andrew Porter, finds test-based evaluation scores have little to no link to other teacher quality measures, such as how well instruction matches standards and the content of assessments. Their study included data from Hillsborough County schools in Florida.

The scores are known as a value-added model, and use a statistical formula to predict how well a student should score on standardized tests based on past performance. If the student scores higher or lower than predicted, that difference is attributed to the classroom teacher.

After analyzing the first year of data, the Florida Department of Education believes the state's teacher evaluation formula is sound.

Florida law requires teachers are evaluated based on a combination of how much student test scores improve and in-class observations. Florida is one of a growing number of states which requires school districts to pay teachers based on their evaluations.

Polikoff told U.S. News the study’s results are a good reason to slow down the use and consequences of test-based teacher evaluations:

“If I had my druthers, I would say we need to slow way down the implementation of these teacher evaluation systems because we just don’t know enough about the quality of these measures,” Polikoff says. “And we have reason to believe a lot of the measures actuallyaren’tvery good quality.”

Some previous research has shown stronger correlations between value-added measures and teacher instruction, while others have shown almost no relationships, he says.

“It’s not clear to me what the reasons are for those differences, but as these systems are rolling out, states need to really study these relationships and think about in the cases where the correlations are really low, what can you do with those data?” Polikoff says.

A second study from the Brookings Institution of classroom observations found the teachers who started the school year with higher achieving students earned better scores, on average, than teachers who started the year with lower achieving students. Most districts don’t adjust their evaluations for this bias.

Brookings recommends teachers are observed and evaluated by someone from a different school and that school districts adjust observation scores for class demographics.

The Brookings study also found that schoolwide value-added scores generally have a positive effect for bad teachers in good schools and negatively affects the ratings of good teachers in bad schools.

Florida and 43 other states are switching to new K-12 math and language arts standards based on Common Core, and evaluations are a concern as the deadline approaches this fall. Supporters say the new standards will be more challenging, and fewer students are expected to meet state goals on new tests tied to the standards.

Teachers, superintendents and some parent groups had asked the State Board of Education and lawmakers to suspend using test scores to determine school grades, teacher pay and other decisions to allow teachers to adjust to the new standards. However, lawmakers decided to suspend the consequences for school grades for the 2014-2015 school year only.

Polikoff and Porter’s study looked at 327 fourth and eighth grade math and English teachers in six school districts, including Hillsborough County. The Brookings study looked at four moderate-sized, anonymous urban districts across the country.

Emmert point: How much effect these studies will have in the court room, remains to be seen. If there eventually is substantial corroborated evidence that demonstrates that the results of the evaluation mechanism are not rationally related to what is attempting to be measured, a court is likely to strike it down.

Sec. 1, Part D. The 2013 Michigan Case Upholding School District. GARDEN CITY EDUCATION ASSOCIATION v. SCHOOL DISTRICT OF the CITY OF GARDEN CITY,2013 WL 5450095, (E.D. Mi. Sept. 30, 2013.Order Denying Motion for Relief from Judgment Dec. 23, 2013)

Synopsis

Background:Teacher's union and two former tenured teachers brought action against school district in Michigan court, alleging violations of the Michigan School Code and due process violations under state and federal constitutions. Following removal to federal court, school district moved for judgment on the pleadings.

Holdings: The District Court, Gerald E. Rosen, Chief Judge, held that:

1legislature did not intend to create private right of action for violations of School Code provision governing teacherperformanceevaluation system;

2teachers failed to state a claim for violation of School Code provision governing personnel policies on staff reductions; and

3teachers were not entitled to procedural due process protection.

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Plaintiffs Garden City Education Association (the “GCEA”), a union representing education professionals employed by Defendant School District of the City of Garden City (the “School District”), and Juana Cozza and Robert Nutt, tenured teachers and former employees of the School District, filed this action in the Wayne County Circuit Court alleging violations of the amended Michigan Revised School Code, M.C.L. §§ 380.1248 and 380.1249 (Count I), and due process violations under the United States and Michigan Constitutions (Count II). Defendant timely removed the action to this Court on November 1, 2012 on the basis of federal question jurisdiction.

Plaintiffs' claims arise from personnel decisions made by Defendant based on results from annual teacher effectiveness evaluations mandated by § 1248 of the Revised School Code (the “RSC”), which resulted in indefinite layoffs for individual Plaintiffs Cozza and Nutt, and twenty-three other education professionals. Twenty-four of the 25 laid-off teachers were tenured professionals. Plaintiffs allege that, by the structure of the teacher evaluation process and the degree of reliance on evaluation results in making personnel decisions, Defendant violated the statutory requirements of the RSC and unconstitutionally deprived Plaintiffs Cozza, Nutt, and other non-party unnamed laid-off teachers represented by the GCEA of their property rights as tenured teachers.

…

II. FACTUAL BACKGROUND

The 2011 Amendments to the Revised School Code

In July 2011, the Michigan Legislature made substantial changes in the law with regard to teacher tenure and public school employment. Two of these changes involved amendments to the Revised School Code, M.C.L. § 380.1 et seq.

First, the Legislature amended M.C.L. § 380.1249 which governs teacher evaluations. The amendments did not change the basic substance of § 1249 as it existed since it was first enacted in January 2010—the statute requires that school boards, with the involvement of teachers and school administrators, adopt and implement a “rigorous, transparent and fair performance evaluation system” that provides for the annual evaluation of teachers and school administrators within the school district using multiple rating categories that take into account as a significant factor student growth (as measured by national, state, or local assessments and other objective criteria).M.C.L. § 380.1249(1). The July 2011 amendments added a requirement that each district's performance evaluation system also rate teachers as “highly effective,” “effective,” “minimally effective,” and “ineffective,” M.C.L. § 380.1249(1)(c), and delineated, in graduating percentages, beginning in the 2013–14 school year, the extent to which annual teacher evaluations are to be based on student growth and assessment data. M.C.L. § 380.1249(2).1 A district's performance evaluation system must also provide that if a teacher is rated as “ineffective” for three consecutive years, the teacher must be dismissed. M.C.L. § 380.1249(h).

…

At the same time that it amended § 1249, the Legislature also added a new section— § 1248—to the RSC. This policy section demands that school districts focus on retaining effective teachers when making personnel decisions, including decisions on personnel reductions and staffing after a staff reduction (including recalling personnel or hiring new personnel). M.C.L. § 380.1248(1)(b). To effectuate this goal, § 1248 sets forth specific factors that must be the basis of such personnel decisions. These factors are: (1) a teacher's individual performance (which is to be the majority factor in making the decision); (2) a teacher's “[s]ignificant, relevant accomplishments and contributions”; and (3) a teacher's relevant special training. Id. The statute expressly prohibits using length of service or tenure status as “the primary or determining factor” in personnel reduction decisions, M.C.L. § 380.1248(1)(a). Rather, a teacher's length of service or tenure status may only be considered as a tie-breaker if the other three factors set forth in § 1248(1)(b) are all equal. M.C.L. § 380.1248(1)(c).2

Section 1248 allows individual teachers to bring a private right of action against a district for violation of that section, but the “sole and exclusive” remedy is limited to an order of reinstatement. M.C.L. § 380.1248(3). “The remedy ... shall not include lost wages, lost benefits, or any other economic damages.” Id.

…

Plaintiffs' Complaint Allegations

In this action, Plaintiffs complain that the evaluation instrument used by the Garden City School District in 2011–12 was developed and implemented unilaterally by the District. They allege that, sometime in September 2011, school administrators informed the GCEA and its members of the particulars of a new evaluation instrument that would be used to evaluate teacher performance. [Amended Complaint, ¶ 8.] Additionally, during the course of the 2011–12 school year, two additional evaluation instruments were also implemented for Teacher Consultants and Teacher/Speech Pathologists. Id. ¶ 12. According to Plaintiffs, neither the teachers nor the GCEA had any input or participation in the development of the evaluation instruments. Id. ¶¶ 9, 13.

On June 4, 2012, Defendant's Board of Education announced the indefinite layoffs of Plaintiffs Cozza and Nutt, and 23 other Teacher Consultants and Teacher/Speech Pathologists, 24 of whom are tenured. According to Plaintiffs, Defendant selected 23 of the 25 individuals for layoff based exclusively on the evaluation scores they received under the District's new evaluation system. Id. However, in selecting two additional teachers for layoff (whom Plaintiffs do not identify), Defendant allegedly ignored their evaluation scores and instead used their seniority as the determining criteria for layoff. Id. Plaintiffs do not dispute that all of the laid off teachers have been recalled except for Plaintiff Cozza who elected to retire.

The GCEA, and Plaintiffs Nutt and Cozza contend in this lawsuit that in unilaterally developing and implementing the evaluation system used in 2011–12 without input or participation by the union or the teachers, and in using, in the case of two (unidentified) individuals, seniority, and not teacher performance, as the determining factor in the layoff decision, the School District violated M.C.L. § 380.1249. As a result of this alleged statutory violation, Plaintiffs claim they are entitled to recover as damages their lost salaries and benefits, plus interest, costs and attorney fees, and are further entitled to an injunctive order directing the School District to immediately discontinue using the evaluation instruments at issue and to remove from all files the evaluations, evaluation scores and related materials of all teachers employed by it during the 2011–12 school year. Plaintiff Cozza and Nutt further claim that they are entitled to recover their tenured teaching positions.

The School District now moves for judgment on the pleadings on all of Plaintiffs' claims against it.

III. ANALYSIS

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B. PLAINTIFFS LACK STANDING TO BRING A CLAIM UNDER § 300.1249… [teacher performance evaluation system]

C. PLAINTIFFS HAVE FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED UNDER SECTION… [state reduction in force code]

D. PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR VIOLATION OF THEIR CONSTITUTIONAL DUE PROCESS RIGHTS

In Count II of their Complaint, Plaintiffs Cozza and Nutt assert a claim of violation of their due process rights under the Michigan and United States Constitutions. When the government seeks to deprive a person of a property right, due process requires a “hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Rockwell v. Board of Education, 393 Mich. 616, 633, 227 N.W.2d 736 (1975). In the case of teacher tenure in Michigan, that right is defined by the Teacher Tenure Act, M.C.L. § 38.71 et seq.

Neither party denies that Plaintiffs Cozza and Nutt have vested property rights in their tenured teaching positions: There is no question that a public employee that has received tenure through state law has a property interest as defined by state law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985);Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). However, a state law that grants a property interest may define the boundaries of that property interest. Roth, supra. In other words, the state law that creates the interest can define what the interest is, how it may be gained, and how it may be taken away.