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Why Legally Recognized Professionalism is Necessary to Reasonable Teacher Accountability


Last week, I discussed the idea of teaching as a legally recognized profession – like law or medicine. My view - that teachers should have a similar status, but don’t, prompted a cross-blog exchange with Corey Bunje Bower of Thoughts on Education Policy as well as comments from readers of both blogs. (See here, here, here and here.)

Let me press my point.

I come to this question convinced that k-12 education is moving relentlessly towards a focus on the performance of individual students against state standards measured by state tests. It’s no great feat of prognostication. Every day, the state of the art in our understanding of human learning; its incorporation into educational products, services and programs; and the falling costs of these technologies makes it easier to identify specific gaps in individual student knowledge, specific student learning styles, and specific programs of instruction to address that student’s particular needs – at scale. I propose that the technological imperative towards mass-customization in k-12 education unfolding over the next five years is far more important to teachers than the specifics of NCLB reauthorization next year.

The degree of competence required for individual diagnosis, prescription, delivery and review in this teaching and learning environment implies both expert knowledge and training, and the grant of a wide range of discretion to teachers in their practice. This future – looming large on the very near horizon, describes the practice of medicine and law today. Here, society’s approach to quality assurance for mass customization is self-regulation. Practitioners are individually responsible for the decisions made to meet their client’s needs. When it is called into question, their conduct is judged by peers, based on standards set by members of the profession.

I suspect many teachers share Bower's fear of transferring the accountability of practitioners in legally recognized professions to teaching. Who would want to be held solely accountable for student test scores? Even assuming they were given absolute independence in decisions about educational programs for each of their students, teachers are almost certain to lack the resources required to fill whatever prescription is necessary, and they cannot control all of the inputs that influence student outcomes.

The fear is quite valid but, in the most practical sense, utterly irrelevant. It is only a matter of time before individual teachers will be held accountable for individual student performance. Indeed, the nightmare scenario above is already coming to pass. The most positive spin on this trend is merit pay (see The Benwood Plan an Ed Sector report, and the Dallas Independent School District's "Pay for Performance" RFP here.) The dark side is exemplified by the apparent interest of DC Schools Chancellor Michelle Rhee’s in combining something like at-will employment for teachers with student test data and her personal view of what constitutes appropriate employee performance (see here). Maybe she offers an extreme case – making teachers responsible for student failure per se. On the other hand, many education reformers see Rhee’s approach as the leading edge of k-12 labor relations.

Regardless, with the internet, the national dissemination of digital student information systems, and the ever-falling cost of data analysis, it is absolutely inevitable that individual student performance data will be tied to teachers, that calculations will be made of the value-added by each teacher, and that the results will be in the hands of everyone with a stake or interest in public education. Once this information becomes ubiquitous, it’s a very short leap to holding teachers accountable for wins and losses – rewarded for students who test as proficient, and given demerits for those who miss the mark or fail to meet some expectation of adequate progress. The formidable power of teachers unions to influence elections and call strikes can only delay the unstoppable force of this information - and has delayed it. But not for much longer.

I suggest that teachers like Bower resist the idea of applying of the legally-recognized professions’ accountability regime to their practice because they don’t appreciate its protective nature. To make this simple, note that half of the parties that hire an attorney to argue their case in court, lose. Whatever treatment, half of the women diagnosed with ovarian cancer die within five years. We hear a lot about the high costs of malpractice insurance, but only a tiny fraction of the clients who lose in court and the families of women who die of ovarian cancer sue their practitioner; fewer win. Fewer still result in the termination of a practitioner’s right to practice. Lawyers and doctors are not punished for undesired outcomes; they are accountable for doing what professionals should do given their client’s circumstances.

It seems to me that this approach not only provides students and taxpayers with clear expectations of professional conduct, it insulates teachers from unwarranted expectations. As a legally recognized profession, teacher conduct would be judged by teachers, according to standards of educational care devised by teachers, applied to the client circumstances in question. The state of Massachusetts compiles data on the survival rates of patients for certain kinds of surgery by doctors and indicates whether each physician’s rate is higher, lower or equal to the average. A lower than average survival rate does not mark incompetence per se, nor does any given patient’s death. In each case, the question is whether the doctor did everything peers believe a competent doctor should have done in those circumstances. There is liability warranting discipline and damages only if this doctor deviated from that course.

Apply this approach to the nightmare scenario for teachers. Assume a teacher is charged with the educational equivalent of malpractice after a half dozen students failed to achieve proficiency as measured by state tests. The educator’s case would be reviewed by his peers, against a standard of care established by teachers, applied to the circumstances surrounding these six students.

Like a lawyer or doctor, he would not be accountable for student failure per se. The professional question would be whether this teacher did what any teacher should have done in this situation with these students. If the teacher lacked the resources to assess the students’ real needs, identify their learning styles, or to give them the level of attention required, peers might reasonably consider this an exculpatory or mitigating factor. They might give similar weight to failures of the juvenile justice or social systems to act in a timely manner, and to the psychological conditions of the student.

Perhaps more important, this approach to professional accountability de facto allocates to school boards, central office administrators and principals their fair share of responsibility for student learning. If the school board has not appropriated sufficient funds to purchase required materials and equipment; if administrators have selected educational programs lacking much in the way of evaluation or made it impossible for teachers to receive adequate training; if principals have decided that their school will not use a particular approach suited to some students needs, the contribution of these shortfalls to student outcomes must be considered. The regression analyses and other techniques that can be used to evaluate the value added to student learning by a teacher are no less reliable means of assessing the role of every other factor discussed above (The Tennessee Value-Added Assessment System employed to assess teacher performance in the Benwood Plan was also used to review the effectiveness of New American Schools designs in Memphis. See here and here.) In short, the system of practitioner accountability engaged by the legally recognized professions simply puts the broad assessment in the hands of practitioners.

It seems to me that teachers should not only welcome this approach to a review of their individual performance; they should be clamoring for it.

Individual teacher accountability is coming. Making teaching a legally recognized profession is not something school boards or administrators are likely to support. No employer wants to give away the power of professional discipline to practitioners. The only question facing teachers is whether they are going to accept the system that is bound to evolve at the current course and speed of education policy, or develop a realistic option for something different.

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Who knows what nightmares are coming and what are not? The nightmare you describe wouldn't be as bad as a war with Iran, but it would be worse than NCLB.

But your scenario requires a couple of chicken and egg scenarios to work out just right or just wrong. To work constructively, you need to dramatically increase salaries, but that would just be the tip of the iceburg. You would also need to transform work conditions, and that also would require investments that are far greater than anything we've ever considered for public education. Similarly, a sophisticated and fair accountability system is still far beyond our capacity, and MORE IMPORTANTLY OUR WISDOM.

A continuation of the games we currently play with numbers is a more likely scenario. Few professionals are going to gamble their careers on the results from an "garbage in, garbage out" accountability system. You want a human and a qualitative component to the system, but I wouldn't hold my breath. Have you costed out such a system? It strikes me as being comparable to society deciding to create something on the scale of another Workman's Compensation System. But I would love to see the late-night TV commercials of the "Jesus Saves School Law Services" saying "In trouble with your principal? Don't get disciplinary backing? Test Scores got you down? Call 999-9999, and we'll get your job back, WITH INTEREST!"

Your scenario has merit, but how long would we have to make major investments in building capacity before results come in? I just don't see our socity taking a generation or so to build a foundation for a data-driven accountability system. But without those huge investments, AND DECADES OF TRIAL AND ERROR and recuiting new talent, it won't increase student performance.

The better ideas that you requested can be found on Eduwonk hyperlinks in their critiques of "drive-by evaluations, the AFTs Toldeo Plan, Milken's TAP etc. The big problem with them, however, could be similar. Pay for Performance can create incremental improvements. Its time to give up on "silver bullets" though.

Finally, I'll be more receptive to your inevitability argument once society has solved some other "no brainers" like health care for all, fixing Social Security and Medicare, repairing our infrastructure and establishing mass transit, reinventing the automobile, etc., not to mention decriminalizing marijuana and getting rid of cigarettes and trans-fats.

By the way, I used to bounce off my ideas on professionalism and professional ethics on the union BR until I got a reality check. My point was that professional ethics should prohibit us from cooperating with the most destructive teach to the test routines. But I was reminded that yelling is an explicit violation of our professional code. I'm not defending the nonstop yelling that occurs in many schools. I'm glad that doctors don't have to yell like teachers do. And if you can create a world where teachers aren't driven to distraction I'd love it. But first, I would put your magic wand to work and get us out of Iraq.

Just because something is rational, its not necessarily inevitable.

Indeed, it is hard to imagine a scenario in which teachers do not become more accountable for the test scores of their students. But I still maintain that:

1. Being legally responsible for one's practice does not make them a professional. See: college professors.

2. Education is harder to measure, in part b/c it requires the cooperation of multiple people. A teacher cannot make anybody learn. An engineer can make two pieces of steel hold together. A doctor can make the bleeding stop.

Corey --

RE your 2d pt.

I am not a lawyer, but I work in the legal field. This pt could also apply to lawyers just as easily or, for that matter, accountants.

In reality, the American Bar Assoication doesn't act much differently from the 51 individual teacher licensing boards that exist in each state. For instance, the DOEd here in Maryland, establishes minimum licensing requirements and continuing education requirements. This is much the same function as the ABA.

What is added is the authority of the licensing board to revoke the license of any practicioner that violates its rules of conduct, e.g. Mr. Nifong in the Duke Lacrosse Case. This is done very rarely. It should also be pointed out that those who supervise lawyers, i.e. judges and the Justice Departmnt are themselves lawyers, unlike many licensing boards, school boards, and occasionally even principals.

The law, especially in civil suits, is not usually black or white. Indeed, as Mr. Millot points out, the average attorney loses half of his cases. The effectiveness of his representation of his client hinges on the cooperation of many people.

Take, for instance, a plaintiff suing a car manufacturer for seatbelt malfunction. In order to prove his case, the plaintiff's lawyer must gain cooperation not only from his expert witnesses, his client, his client's insurance company, etc., but also the defendant, who holds vital information about the seatbelt equipment both in that car model and that particular vehicle. Let's not get started on gaining the cooperation of the judge and jury!

I reject the notion that a teacher cannot make anybody learn. A good teacher (and the vast majority of semi-competent ones) can impart the knowledge necessary to pass a test and get students to regurgitate the answers on the test, if that's what accountability is going to be measured against.

If we are going to say that a teacher cannot be held accountable for his teaching because he depends on far too many other influences, then we might as well do away accountability all together.

Doctors rely on multiple people, both in and out of the operating room, to perform difficult surgeries correctly. Yet, when he cuts off the wrong leg or arm, we don't excuse him because the nurse marked the wrong limb. It was his responsibility to know which limb was to be amputated.

This is where malpractice suits come into play. Yes, it is his responsibility to know, but maybe every chart in his file was marked incorrectly or perhaps the hospital switched patients. The purpose of a malpractice suit is to divide up responsibilty amongst all parties involved.

Let's apply this to education. Little Johnny failed the 4th grade reading test. Johnny's mother sues the teacher for malpractice. In the course of discovery, it becomes apparent that the mother informed the school district that Johnny was dyslexic, the district told the principal and the principal did nothing.

Who's at fault? Answer: everyone. Johnny's mom, the school district, and the principal all have some responsibility to ensure that the teacher knows about Johnny. However, it should have been obvious to the teacher that Johnny had some sort of learning impairment.

I'm guessing that a couple of cases like this might actually help us identify a few of the failings within our educational system that testing wouldn't.

Jason, no human being can really make another human being do anything -- and they certainly can't make them learn.

And I don't know why you think that I said a teacher cannot be held accountable for their actions. I said that it's more difficult to judge a teacher's actions than it is to judge the actions of people in other fields. The issue isn't black and white -- no accountability vs. lots of accountability -- there is nuance. Teachers should be held accountable when they do bad things, but we need to realize that there's no simple way to create a foolproof accountability system before we dive in headfirst.

I have long thought the teaching profession would benefit from projecting itself not through a union like NEA or AFT, but through a professional association like a state bar association or medical association.

I am an attorney and I can tell you that the barriers to entry into the profession are significant, but not overwhelming. But to treat teaching like a legally recognized profession, i.e. a state recognized, largely self-regulated profession with state sanction, adds to the cache of the profession (and consequently the public's willingness to pay better).

To enter the legal profession, one must:
1). Have a certain, specified level of eeducation at a minimum.
2). Pass a rigorous, multi-day, multi-subject exam prior to entering the profession.
3). Pass a somewhat deep background check, including criminal, credit and moral checks.
4). Be subject to an accepted, indeed legalized, code of ethical conduct.
5). Be willing to subject themselves to the self-regulatory bodies of the profession and be prepared to stand accountable for their actions that are to be considered inappropriate.

These provisions don't guarantee anything more than minimal competency. There are bad lawyers out there and there are bad doctors. But with the self-regulatory profession, there is an incentive among the practitioners themselves to weed out and or improve the behavior and performance of their colleagues.

But when you are talking about educational malpractice, like legal or medical malpractice, the test is not what a teacher did or didn't do, but whether such actions were reasonable under the circumstances. Keep in mind that the test is not whether another teacher would have done something different in hindsight but whether that teacher acted reasonably at that time.

I think this move should occur and the sooner the better.

Comments are now closed for this post.


Recent Comments

  • Matt Johnston: I have long thought the teaching profession would benefit from read more
  • Corey: Jason, no human being can really make another human being read more
  • Jason: Corey -- RE your 2d pt. I am not a read more
  • Corey: Indeed, it is hard to imagine a scenario in which read more
  • john thompson: Who knows what nightmares are coming and what are not? read more




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