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John Thompson: Legal Woes Growing for VAM-Based Teacher Evaluations

Guest post by John Thompson.

I used to be a legal historian. That did not mean I could practice law without a license, but I could be a pretty fair consumer of legal analyses. It also made me aware of how attorneys and judges think.

When the idea of incorporating value-added into teacher evaluations was first introduced, I checked with lawyers who I knew to have solid legal minds. Like me, they were offended by the idea of using such an algorithm for evaluating individual teachers. Almost all of my sources were confident that such evaluations would not withstand judicial review. Typically, their appraisals were based less on the details of the experimental statistical models than on case law.

Then, Oklahoma joined other states and passed a law mandating value-added evaluations, and the consensus changed. To defend decisions based on these new laws, systems only had to show that the terminations were not irrational. Unless a value-added model was used in a way that was arbitrary and/or virtually absurd, the court was likely to defer to a district's firing of teachers.

I read national experts' recommendations to advocates of value-added evaluations and, sadly, I had to agree with their judgments. Attorneys warned that the process of using statistical models to help fire or deny performance pay to teachers should be done carefully. As long as systems played their cards properly, however, the courts were likely to defer to their judgments.

Unlike many corporate reform backers of value-added evaluations, I understood that following such advice would be easier said than done. So, I still predicted a "legal Battle of Verdun" where value-added would be worn down by expensive legal battles. Teachers and unions were unlikely to litigate terminations where all of the t's were crossed and i's dotted; we would pick our battles. Especially in the early years of using an untried model that does a questionable job of accounting for poverty, peer effects and other factors, there would be plenty of absurd cases to challenge.

Teachers' attorneys would focus on the best cases, meaning the ones where the incompetence of the systems and their value-added models were at their worst. Common sense said that many of the nuttiest cases would first appear in Race to the Top states, where districts rushed to comply with the impossible promises their states had been coerced into making to Arne Duncan's Department of Education.  Moreover, the RttT part of the equation would ensure that these cases would have a higher public profile than other termination battles.

So, I'm not surprised by the number of lawsuits that have recently made the news. But, I'm very pleasantly surprised about the way that I have been informed about them through the blogosphere. Combine these cases and their publicity, and it seems much more likely that litigation will help kill high-stakes value-added. And, once Common Core test results are entered into evidence, the death of algorithm-driven evaluations is likely to be more immediate than I expected.

Lawyers are officers of the court. They do not look kindly on cases where they have to hold their collective noses when participating in a decision that they know is unfair and in violation of the basic principles of our constitutional democracy. So, I am hopeful about the Rochester Teachers Union's challenge of the New York value-added regime. Their suit explains that the New York value-added model cannot properly account for the effects of poverty, placing teachers in their 90% low-income district at a disadvantage. Due to the model's bias, "one-third of Rochester's teachers receiving overall ratings of 'developing' or 'ineffective' in 2012-13, even though 98 percent were rated 'highly effective' or 'effective' by their principals on the 60 points tied to their instructional classroom practices. Statewide, just 5 percent of teachers received 'developing' or 'ineffective' ratings." By the way, New York is a RttT-winner.

On the other end of the spectrum is the District of Columbia's IMPACT system. On one hand, D.C. was freed from the legal requirement of negotiating teacher evaluations with unions and they had unlimited money for creating the best gold-plated sort and punish system that the billionaires' money could buy. On the other hand, was anyone shocked, shocked that despite those advantages that D.C. made technical mistakes that changed the outcomes of 44 evaluations? Consequently, the W.T.U. filed a class action grievance asking for a review of all evaluations' accuracy since IMPACT. D.C. also is a RttT winner.

A similar case, regarding the failure to get technical matters straight, was filed in Tennessee (another Race to the Top state). The district apparently could not get it together to tell a teacher which students she would be accountable for and to properly follow through. A second case was recently filed in behalf of a Tennessee teacher whose value-added was determined by the outcomes of only 22 of his 142 students.

Since teachers must basically prove that value-added terminations are based on an irrational use of the model, it is no surprise that the first suits include cases where teachers are held accountable for the test score growth of students who they did not have in class. An excellent example of that ridiculous type of evaluation recently made news in the RttT state of Florida. Dollars to donuts, plenty of similar suits will be generated by the need to invent quantitative measures for PE, music, and other nontested subjects.     

I was slow to recognize how value-added would discriminate against teachers of gifted students. These honors teachers are likely to have long, proven records of excellence. Since their students were already posting top scores, however, they had little room for test score growth. A notable example of such a situation is also found in Florida. 

I also anticipated lawsuits growing out of the mass dismissals of teachers through the School Improvement Grants and other turnaround campaigns. I doubt many educators would privately deny that these transformations created an opportunity to engage in rampant age discrimination, but those cases are hard to prove. On the other hand, the older, dismissed teachers are more likely to have disabilities or to be persons of color, and thus protected better by federal law. So, I was surprised that Newark's Cami Anderson did not decide that discretion is the better part of valor.  Instead, she moved full speed ahead with her "One Newark" plan to turn 1/3rd of the district's schools into charters, inviting legal challenge under civil rights laws.

Similarly, one would have thought that even Chicago's Rahm Emanuel would take a dive and assume a low profile when teachers boycotted unnecessary tests. But, no, the district could not help itself and dragged children into its crackdown of adult dissent. In an overreaction that is bound to backfire, the district's legal department interrogated children without their parents' permission. Even if their intimidation of elementary students is not illegal, it illustrates the scorched earth politics of reform and was politically stupid. It lays further groundwork for political and legal pushback.

So, I did not expect the unforced fumbles that the highest-profile reformers would make. Neither did I predict the role of social media. (Most of my sources, here, come from just one blog, Diane Ravitch's, but they link to a wide array of other sites.) Back when the federal government pressured states into adopting value-added evaluations, they could have never anticipated the way that blogs, twitter, and other forms of social networking would shine light on the abuses that would inevitably result. But, now, each value-added outrage will be repeatedly shared with teachers, parents, and the press. And, since we have yet to see teachers fired by models that violate scientific protocols by mixing old-fashioned bubble-in and Common Core tests, we ain't seen nothing yet.

What do you think? Legally, is it collective punishment to evaluate teachers based on statistical estimates, not the individuals' own actions? Do you believe they will withstand judicial review?

 John Thompson was an award winning historian, with a doctorate from Rutgers, and a legislative lobbyist when crack and gangs hit his neighborhood, and he became an inner city teacher. He blogs for This Week in Education, the Huffington Post and other sites. After 18 years in the classroom, he is writing his book, Getting Schooled: Battles Inside and Outside the Urban Classroom. 

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