Teaching Profession

Union Sues Over Basis of Appraisal

By Stephen Sawchuk — April 23, 2013 5 min read

In a step some experts think could fuel similar moves elsewhere, a teachers’ union has for the first time sued over the specific measures used to calculate teachers’ contributions to student learning.

The National Education Association, on behalf of three affiliates of its Florida chapter and seven teachers, last week filed suit against the Florida education department. They contend that some teachers are being judged against students or subjects they don’t teach, in violation of their constitutional rights.

The groups seek a federal court injunction against a Florida law that outlines teacher-evaluation procedures, and against three districts’ specific implementation policies. If granted, it would essentially throw out evaluation results from the 2011-12 school year, and for future years until a new system could be devised.

“The state-approved formula for measuring student growth on [the state standardized tests] is being stretched far beyond the limited purposes for which it was designed,” the suit argues.

Florida’s education commissioner, Tony Bennett, is named as a defendant in the suit, along with the state school board and the school boards of Hernando, Escambia, and Alachua counties.

NEA President Dennis Van Roekel, speaking during a conference call, intimated that the action wouldn’t be the union’s last word on the subject.

“There will be others,” he asserted. “This is the first.”

New Law

The 2011 Florida law requires all teachers to be judged in part on the progress of their students. The growth formula was developed for teachers of those subjects for which the state administers standardized tests: grades 4-8 in math and 4-10 in reading.

But because only a fraction of teachers are teaching those subjects, the suit contends, districts, with state approval, essentially fudged the formula for other teachers. For example, they are being judged by a schoolwide growth score or by rating them based on test scores in another subject only tangentially related to their field, if at all, the plaintiffs claim.

As a result, the unions allege that the seven teachers were evaluated based on students they don’t teach, or in subjects they don’t teach.

For example, Kim Cook, who teaches in grade 1 at W.W. Irby Elementary School in Alachua County, had 40 percent of her review based on the test performance of 4th and 5th graders in a separate school to which Irby Elementary feeds, the complaint says. Another plaintiff, Bethann Brooks, teaches health in grades 10-12 at a Hernando County high school, but had half her evaluation based on the test results in reading for students in grades 9 and 10 in her school, most of whom she didn’t teach.

The law doesn’t require districts to develop and implement state assessments in currently untested subjects until 2014-15, the lawsuit notes. Yet under it, evaluation results are counted toward decisions on termination, tenure, and, as of July 2014, pay.

The lawsuit alleges that teachers’ constitutional rights to due process and equal protection under the Fourteenth Amendment of the U.S. Constitution have been violated.

In a statement, Commissioner Bennett said he supported the state evaluation law. But he also endorsed “improvements,” such as a bill pending in the Florida legislature that would require teachers to be evaluated only on the progress of their own students in the subjects they teach.

But Florida Education Association officials said the corrective measure is not sufficiently detailed.

The suit is the second that the FEA has filed against the 2011 evaluation law. It filed an earlier one in September 2011 alleging that the law infringes on teachers’ collective bargaining rights. That complaint is still in process.

Nearly 97 percent of teachers got good reviews in the first year the system was in place, 2011-12, some because administrators changed the levels to increase ratings for teachers. But NEA officials said that doesn’t change the substance of the complaint.

“This case is about the fundamental right of individuals to be judged on their own conduct, not on the conduct of others,” said NEA General Counsel Alice O’Brien.

Many states are now facing the challenges of new laws that base evaluations partly on student achievement, given that a majority of educators teach “nontested” subjects. Controversy has arisen in other states: Tennessee’s use of a growth measure based on the performance of the school as a whole for teachers in nontested subjects caused consternation among educators. Legislators recently passed a law reducing the weight given that element.

Elsewhere, states are using different methods to assess teachers of such subjects as arts, physical education, health, science, and electives. They include developing measures with teachers, issuing RFPs for new standardized tests, and allowing teachers to set individual goals for student achievement with their principals.

National Implications

Some experts suggest, though, that the lawsuit opens the door to broader legal attacks on the increasingly complex landscape of growth measures for teachers.

Debates abound about “value added” formulas, which estimate teachers’ impact on their students’ test scores.

Research indicates that even when value-added measures are based on their actual students, they tend to bounce around in a given year despite being predictive of student learning over time. The volatility has led many testing experts to argue that the measure shouldn’t be used for high-stakes purposes.

“The problem with these assessments generally is that because of all the technical issues, you may not be able to validate student-performance measures for the purpose of making decisions about individualized teachers,” potentially leading to other lawsuits, said Preston C. Green III, a professor of education and law at Pennsylvania State University, in University Park. “You’re going to see a whole lot more of that.”

Dan Goldhaber, a research professor at the University of Washington-Bothell and an expert on statistical research in education, agreed that future lawsuits are likely.

“I do think they have some merit in the sense that different teachers are responsible for different aspects of students’ learning,” he said.

But, he added, “the irony of much of the policy discussion of value added is that it holds it up to a much higher standard than the other measures that are now used for high-stakes purposes, such as licensure, degree, and experience level.”

A version of this article appeared in the April 24, 2013 edition of Education Week as Union Sues Over Basis of Appraisal

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