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Every Student Succeeds Act

AFT vs. Everybody? Asking Whether Draft ESSA Rules Ban Forced Teacher Transfers

By Andrew Ujifusa — November 07, 2016 6 min read
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One of the trickiest elements of proposed spending rules for the Every Student Succeeds Act has been the issue of forced teacher transfers.

Here’s the issue: The U.S. Department of Education has made it clear it wants more state and local funds being directed to schools with large shares of poor students under ESSA. But that possibility has concerned teachers’ unions and others because in many cases, at least in theory, that could mean moving teachers (and their salaries) to different schools where they may not wish to teach.

The proposed ESSA supplement-not-supplant rules have this to say about the issue: “Nothing in this section should be construed to require the forced or involuntary transfer of any school personnel.”

And here’s how American Federation of Teachers President Randi Weingarten has interpreted that language: The proposed rules ban forced teacher transfers.

During a meeting with reporters in late September, Weingarten said that, in her view, the way the rules were written mean they can’t be used “to do the awful bad things that people are projecting that you would do,” including forced transfers. That amounts to a ban, she stated.

“I read the draft regulation differently than others,” Weingarten said.

The Department’s View

It’s important to point out that the proposed rules also say that they would not override local collective bargaining agreements. So any agreements that ban forced transfers would stand. However, that language itself obviously leaves out any agreements that don’t have such a ban.

What did the Education Department say about this issue? In its fact sheet about its proposal, the Education Department encouraged districts to consider “Avoiding forced staff transfers and instead investing in providing the resources that students need to learn and that will attract staff to choose to work in Title I schools.”

It’s unclear why the department would feel the need to encourage districts not to do forced teacher-transfers if doing so were already banned under the proposed rules. We asked for some clarification from the department about this issue. Here’s the statement we got in response, in its entirety:

Our proposal would not require forced teacher transfers or take away local hiring authority. Our proposed rule includes a rule of construction that states: “nothing in this section shall be construed to require the forced or involuntary transfer of any school personnel.” Districts that would be required to move additional resources to Title I schools to meet the new statutory requirement could, for example, consider strategies that do not involve transferring teachers at all, including increased salaries for teachers in Title I schools, additional funding for preschool or advanced coursework in Title I schools, or additional funding for extended learning time opportunities in Title I schools.

There’s nothing in that statement that confirms or denies that forced transfers are banned. It’s essentially a reiteration of what’s in the proposed rules.

Other Voices

But what do others who’ve studied this issue think about whether the proposed rules ban teacher transfers? Here are some answers we’ve gotten:

Tom Zembar, Senior Policy Analyst, National Education Association’s Education Policy and Practice Department

Zembar wrote to us that the department’s proposal “clearly delineates that educator rights are protected under law” and in regulations and collective bargaining agreements, among other places.

But Zembar also said, “However, while the construction clause protects current agreements, it does not eliminate problems that are likely to surface due to overly prescriptive rules and unnecessary compliance tests in future rounds on local negotiations.”

Nora Gordon, Associate Professor of Public Policy, Georgetown University

“The proposed rule absolutely does not ban forced transfers. It simply states that such transfers are not required,” said Gordon, who has studied and sharply criticized the proposed ESSA rules, in an email. “The disconnect here comes from whether or not you expect new state and local money. To comply with the rule without forced transfers is not impossible: it just requires an influx of new state and local money.”

Noelle Ellerson, Associate Executive Director, AASA, the School Superintendents Association

“I don’t know how schools achieve the stated goals” if the rules ban forced transfers, Ellerson told me. AASA also has concerns about the proposed rules.

“I don’t think they ban it. I think they make it clear that’s not their intent,” she added, referring to the Education Department.

Recently, 49 state-level affiliates of AASA signed on to comments on the proposed rules. (The state missing there, Hawaii, has a statewide district.) Click here to read those comments.

Liz King, Director of Education Policy, Leadership Conference on Civil and Human Rights

“We know that forced transfers are a huge part of this conversation, and we’re glad that the reg clarifies that there is nothing in it that requires forced transfers,” said King, whose organization supports the department’s overall approach to these spending rules. “Moreover, it is a terrible way of coming into compliance and we know that it wouldn’t work.”

Sheara Krvaric, Attorney, Federal Education Group

Asked if she thinks the rules ban forced transfers, Krvaric responded, “No.”

She later added: “The language says that involuntarily transfers are not required. If this means that involuntary transfers aren’t allowed, that’s something that should be clarified in the final [rules].” (The Federal Education Group consults with states and districts about K-12 spending issues.)

Chris Minnich, Executive Director, Council of Chief State School Officers

Here’s Minnich’s statement on the matter:

The proposed rule from the U.S. Department of Education does not require the forced transfer of school personnel, but nor does it prohibit it. Based on how the rule is currently written, we know many schools would be forced to move resources, which could include teachers and other school personnel, rather than focusing on doing what is in the best interest of students.

CCSSO recently put out its own alternative supplement-not-supplant proposal, which you can read here.

Scott Sargrad, Managing Director for K-12 Policy, Center for American Progress

“I don’t think they explicitly prohibit districts from doing forced teacher transfers,” said Sargrad, who has testified to Congress in favor of the department’s proposal.

However, Sargrad added that the department is clearly pushing districts to think of other ways to comply with its proposed rules, assuming those become the final rules. In his view, districts could respond to such a proposal by creating extended learning time, or improving working conditions to “help attract more experienced, more effective educators” into Title I schools.

“Forced transfers is generally a bad idea,” Sargrad told us. “And there are alternatives to forced transfers to meet the supplement-not-supplant requirement.”

Clearly, forced teacher transfers are unpopular, whether you like the tack the department is taking or not. But that consensus by itself doesn’t address whether they would be banned if the department’s proposal goes through.

So what’s your interpretation of the language? Do you agree with the AFT? Let us know in the comments section.

Photos: AFT President Randi Weingarten, right, in Philadelphia during the Democratic National Convention in July (Andrew Ujifusa for Education Week); Secretary of Education John B. King Jr. at a high school in Washington, D.C. last month. King has said the proposed spending rules for the Every Student Succeeds Act are designed to increase the resources available to low-income students.

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