Courts and Teacher Evaluation Systems
Writing in Education Week, September 18, 2013, James Popham and Marguerita DeSander suggest that “thousands of American teachers will lose their jobs in the next few years because of the recently designed, more demand evaluation systems now found in most of our states.” They point out these systems have been triggered by recent federal policies, and then note that most teachers think the dismissals can be reversed in court. The main point of their essay is that the courts, both state and federal, have “historically refused to substitute their judgement for that of a school board in cases where a teacher (whether tenured or probationary) has been terminated for substandard job performance. This has been true if the termination is based on even a scintilla of evidence.”
Popham is a well-know figure among education professors who are experts on evaluation and assessment, with several books, most recently (2013) Evaluating America’s Teachers: Mission Possible? from Corwin Press. DeSander is an ed admin professor and formerly was an attorney specializing in employment law. These are two folks who should be seen as authoritative figures on this topic.
New York Teachers More Protected?
When I first saw the outlines of New York’s response to Race To The Top teacher evaluation changes, I thought that it might be a good time for college grads to go into the practice of education law, particularly if they had any statistical talent and were willing to delve into the psychometrics of testing and its use in teacher evaluation. As New York’s teacher evaluation system, including the use of test scores in teacher evaluation rolled out, I continued to believe the system would collapse under the weight of court challenges to it’s fairness and it’s validity. I still believe that, but I’m not quite so confident with my opinion after reading this piece. If I look at New York’s system, which has a unique additional element–teachers identified as low performing have to be given opportunities for professional development by their school districts–perhaps that district responsibility is going to prevent willy-nilly teacher dismissals. With the greater than anticipated increased costs of testing, and the Governor’s imposition of a 2% tax cap on raises in school budgets, it’s already estimated that 40% of districts across the state will be in bankruptcy in the next few years. So districts won’t have the money to provide professional development to their low performing staff, meaning they might not be able to dismiss them regardless of evaluations. That’s not the case in other states, where these warnings may be far more telling.
Evaluation Systems Show No Evidence of Efficacy
Popham and DeSander recognize that across the nation, the new evaluation systems have serious flaws–relying “too heavily of traditional achievement tests…” They note that the tests “are unaccompanied by any evidence that they are able to distinguish between well-taught and badly taught students.” They also point out that courts, based on past patterns of refusing to rule on the merits or validity of evaluation systems, “will not rule on the appropriateness of a teacher-evaluation system, or the evidence-collection procedures incorporated in that system, if the procedures are applied in a fair and consistent manner to all teachers affected. Thus, even an inadequate evaluation system will avoid the rigor of court scrutiny when it is applied equally to all teachers.” (Emphasis mine.)
The authors also take issue with the validity of classroom observations when they suggest that rating teacher classroom performance on the bases of “a handful of 30-minute classroom visits..” and even when looking at 40 or 50 dimensions of classroom performance, “the resultant observation data are often of little value.”
Courts May Not Overturn Bad Evaluation Systems
So where does that leave teachers all over the nation? I agree with the authors that the evaluation systems lack validity as they are being designed–the reliance on testing is not warranted psychometrically at all, nor are the tests designed for the purposes being implemented. And if courts are likely to disregard expert opinion because they won’t decide on system appropriateness, there is no venue for expert testimony about why these systems should be disregarded. If the legitimacy of procedures is not about to be adjudicated, there’s no place for teachers to turn. One need only review the multiple interpretations of the evaluation designs across 696 districts currently approved by the New York State Education department to know that there is no consistency in their format across the state. If courts give deference to school boards, teachers might be in far more trouble than they currently expect. Finally, a good civics education will remind all of us that courts are not always about right and wrong–they interpret the law. Where courts defer to school boards and states who have implemented bad evaluation systems, teachers beware.