Presented by: Jay Worona General Counsel New York State School Boards Association

1. New York State Association of Management Advocates for School Labor Affairs, Inc. (M.A.S.L.A.) 37TH Annual Summer Conference July 21, 2014 Lake Placid, NY CONTEMPORARY ISSUES in the UNITED STATES: An Analysis of Selected Federal Legislative Issues and Court Decisions Impacting Public Schools Presented by: Jay Worona General Counsel New York State School Boards Association

2. FEDERAL EDUCATION INTERVENTIONS: THE RACE TO THE TOP

3. Teacher and Principal Effectiveness Linked to Student Performance Data On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (ARRA), historic legislation designed to stimulate the economy, support job creation, and invest in critical sectors, including education. ARRA provided $4.35 billion for the Race to the Top fund, of which approximately $4 billion was used to fund comprehensive statewide reform grants under the Race to the Top Program.

4. Teacher and Principal Effectiveness Linked to Student Performance Data Districts were encouraged (or required—if they were Race to the Top award winners to develop teacher and principal evaluation systems which took into consideration the performance of the students of such educators as part of each educator’s own performance evaluation. This has resulted in a multitude of serious collective bargaining/ negotiations issues

5. Teacher and Principal Effectiveness Linked to Student Performance Data This new reform movement has not come about without its critics. For example, Linda Darling-Hammond of Stanford University has repeatedly expressed her view that research demonstrates that the system that rates teachers on student performance is fundamentally flawed and results in evaluations which contain “huge margins of error.”

6. Teacher and Principal Effectiveness Linked to Student Performance Data • The development of new teacher effectiveness policies across the United States over the past five years has been dramatic. For example: • Annual evaluations. • In 2009, only 15 states required annual evaluations of all teachers, with some states permitting teachers to go five years or more between evaluations. In 2013, 27 states and DCPS now require annual evaluations for all teachers.

7. Teacher and Principal Effectiveness Linked to Student Performance Data • There is little doubt that the landscape is changing rapidly. In just the last year (between Fall 2012 and Fall 2013) about a third of all states adopted evaluation policies requiring teacher evaluations to include objective measures of student achievement as a significant or preponderant criterion.

8. Teacher and Principal Effectiveness Linked to Student Performance Data • Let’s break this down. . . . . . .

9. From the State of the States 2013 “Connect the Dots” Report The National Council on Teacher Quality reports: “As of September 2013, 35 states and the District of Columbia Public Schools now require that student achievement is a significant or the most significant factor in teacher evaluations. To date, only Alabama, California, Idaho, Iowa, Montana, Nebraska, New Hampshire, North Dakota, Texas and Vermont have no formal policy requiring that teacher evaluations take some objective measures of student achievement into account in evaluating teacher effectiveness.”

10. From the State of the States 2013 “Connect the Dots” Report • Multiple measures. • Twenty-seven states and District of Columbia Public Schools (DCPS) require teacher ratings to be based on multiple measures of student growth and achievement and 44 states and DCPS require classroom observations to be incorporated into teacher evaluations.

11. From the State of the States 2013 “Connect the Dots” Report System structure. • In 11 of those 27 states, the state provides an evaluation model that districts have the option to adopt wholesale rather than design their own. • State oversight. • In the 39 states where districts have design discretion, fewer than half (15) require state review and approval of these locally-developed systems.

12. From the State of the States 2013 “Connect the Dots” Report • System structure. • States have adopted a diverse set of approaches to balancing state and local interests in teacher evaluation design and implementation. Overall, 11 states and the District of Columbia Public Schools mandate a statewide (or in the case of DCPS, a district-wide) teacher evaluation system; 10 states provide a statewide evaluation model from which districts can opt out, typically if they are approved to use a comparable system;

13. From the State of the States 2013 “Connect the Dots” Report • System structure. • and 27 states provide criteria or guidelines that districts can adopt, which typically includes flexibility for districts to design their own evaluation systems consistent with state policy principles. In 11 of those 27 states, the state provides an evaluation model that districts have the option to adopt wholesale rather than design their own.

14. From the State of the States 2013 “Connect the Dots” Report Although many states are still in the early stages of rethinking and implementing new teacher evaluation policies, it is not too early for states to be building the policy framework for how they will use evaluation data in meaningful ways. The critical parts of such a framework address the question of how evaluation results will inform tenure decisions, improving instruction, consequences for repeated ineffective performance, compensation, better targeting professional development, improving teacher preparation and assigning effective teachers to work with the students who need them most. To what extent are states connecting the dots?

15. From the State of the States 2013 “Connect the Dots” Report • Tenure and licensure advancement. • Teacher evaluations that truly measure effectiveness — and identify classroom ineffectiveness — ought to be used to determine teacher tenure, making it a significant milestone in a teacher’s career. As of fall 2013, only about half of the states with ambitious evaluation designs (18 and DCPS) require that tenure decisions must be informed by teacher evaluation ratings. And in only 8 of those 35 states are teacher evaluations used to determine licensure advancement.

16. From the State of the States 2013 “Connect the Dots” Report • Professional development. • About half of the states with ambitious evaluation systems (19 and DCPS) specifically require in state policy that teacher evaluation results be used to inform and shape professional development for all teachers.

17. From the State of the States 2013 “Connect the Dots” Report • Ineffectiveness. • Most of the states with ambitious teacher evaluations (25 and DCPS) require that teachers with poor evaluations be placed on an improvement plan. And almost as many (22 and DCPS) ensure in state policy that persistent classroom ineffectiveness is grounds for a teacher to be dismissed.

18. From the State of the States 2013 “Connect the Dots” Report • Teacher compensation. • In most other professions, performance matters and good performance is rightfully rewarded with promotions and salary increases. But not in teaching. Unfortunately, across the United States, there is little movement to base teacher salary on performance. While there are 10 states that are making some moves in the right direction by supporting some performance pay initiatives, just Florida, Hawaii, Indiana, Louisiana, Utah and DCPS directly tie teacher compensation to teacher evaluation results.

19. From the State of the States 2013 “Connect the Dots” Report • Layoffs. • Today, the overwhelming majority of school districts use seniority as the only determinant of teacher layoff decisions. Not even half (14 and DCPS) of the states with ambitious evaluation policies require districts to use improved evaluations to make better staffing decisions when and if layoffs become necessary.

20. From the State of the States 2013 “Connect the Dots” Report • Teacher preparation. • To date only a small handful of states (8) — Colorado, Delaware, Florida, Georgia, Louisiana, North Carolina, Ohio and Tennessee — have adopted policies connecting the performance of students to their teachers and the institutions where their teachers were trained.

21. From the State of the States 2013 “Connect the Dots” Report • Lessons and Recommendations • While a handful of states such as Delaware, Florida, Rhode Island and Tennessee are now at least a year or two into full-scale implementation of new teacher evaluations and already engaged in efforts to connect the dots between evaluation and related teacher policies, most states are just beginning or have yet to begin, with some timelines reaching as far out as 2018-19. For the benefit of the vast majority of states still in the process of designing teacher evaluation systems, the paper offers states advice based on the experience of early trailblazers.

22. From the State of the States 2013 “Connect the Dots” Report • 1. States need to connect the dots. • Overhauling evaluation systems is expensive and time-consuming work — not using the results in meaningful ways is counterproductive and wasteful. • 2. Differentiating teacher performance isn’t going to happen just because states and districts have a new evaluation rubric. • Some policymakers and reformers have naively assumed that because states and districts have adopted new evaluations that put a much stronger emphasis on student outcomes, evaluation results will inevitably look much different. But that assumption has proven incorrect.

23. From the State of the States 2013 “Connect the Dots” Report • 4. There must be annual evaluations for everyone. • Teacher evaluation policy should reflect the purpose of helping all teachers improve, not just low-performers. And if teacher effectiveness evaluations aim to help all teachers get better — including going from good to great — then all teachers need feedback. • 5. Training is a huge undertaking. • The majority of states recognize that evaluator training is needed. But fewer are implementing practices that could help ensure the quality of the training evaluators receive. For example, there are just 13 states and DCPS that require a certification process for their evaluators and only three — Indiana, New Mexico and New York, along with DCPS — that require that evaluators are effective teachers.

24. From the State of the States 2013 “Connect the Dots” Report • 6. States and districts should use multiple evaluators or observers where possible. • The Gates Foundation MET study found having multiple evaluators to be important for high-quality evaluations of teacher effectiveness but just 5 states require multiple evaluators or classroom observers. • 7. Surveys have emerged as an important source of data and feedback on teacher performance. • It is important for states and districts not to underestimate what it takes to design a high-quality instrument, and adopt validated instruments or get expert help writing, testing and implementing surveys

25. From the State of the States 2013 “Connect the Dots” Report • 8. Good measures make good evaluations. • Strong evaluation measures and tools will make or break new teacher evaluation systems. • State of the States: Connect the Dots – October 2013 • www.nctq.org • 9. States must use caution with including schoolwide measures of growth in individual teacher evaluations. • While states may see a place for collective responsibility for school performance in teacher evaluations, it cannot be a substitute for individual measures of performance applied only to those teachers without direct classroom measures.

26. From the State of the States 2013 “Connect the Dots” Report • 10. Nontested grades and subjects cannot be an afterthought. • In most states, a majority of teachers fall into this category — but in the states with the most ambitious evaluation designs only 18 and DCPS explicitly address how to measure student growth and achievement in nontested grades and subjects. • 11. States must develop data systems with the capacity to provide evidence of teacher effectiveness. • To ensure that data provided through the state data system is actionable and reliable, states must have a clear definition of “teacher of record” and require its consistent use statewide.

27. From the State of the States 2013 “Connect the Dots” Report • 12. Avoid the ‘too-many-multiple-measures’ trap. • In the court of public opinion, there prevails a sense that high stakes decisions about teachers are being made in haste based on single standardized test scores. This report shows that perception is wrong. At the same time, states need to require and implement measures that demonstrate a relationship with student achievement — not allow teacher evaluation to become a watered-down process.

28. From the State of the States 2013 “Connect the Dots” Report • 13. What’s in a name? • When designing evaluations of effectiveness, precision of language around defining performance categories is a must. • 14. States must address the ongoing challenge of evaluating special education teachers. • Special education cannot be an afterthought in teacher evaluation and states must ensure that all measures — growth measures, observation rubrics and surveys — are fair to special education teachers.

29. From the State of the States 2013 “Connect the Dots” Report • 15. Leadership is key. • Regardless of laws and regulations on the books, the strongest states are those providing solid state models for statewide or district adoption. • We are at the beginning of a new policy era. For the good of the profession and students alike, states must stay the course on teacher effectiveness policies. At the same time, states and districts must ensure that evaluation systems are flexible enough to take advantage of what we continue to learn about how best to assess teacher performance. We also must not forget, in all the complicated intricacies of designing evaluations of teacher effectiveness — appraising performance is an activity that involves professional judgment. Teacher effectiveness policies are not about enslaving the profession in arbitrary ways to testing systems and quantifiable data sets that prohibit reasoned judgment; rather, these policies are meant to improve the practice of every teacher in every classroom so that all students have the opportunity to reach their highest potential and achieve their greatest dreams.

30. New York State Experience (Less Than Smooth Sailing) In exchange for over 700 million dollars in Race to the top monies, New York developed an ambitious Race to the Top reform agenda that integrates into other statewide goals, such as the Regents Reform Agenda. As part of New York State’s Race to the Top application, the evaluations of teachers and principals had to be based, at least in part, upon the performance of the students of such educators. However, the devil appeared to be in the detail.

31. New York State Experience (Less Than Smooth Sailing) • In 2010, the New York State Legislature amended the New York Education Law which established a new evaluation system for teachers and principals which required, in part, that all teachers and principals receive evaluations measuring their performance, at least in part, on their students’ performance.

32. New York State Experience (Less Than Smooth Sailing) • The System was put into place BEFORE the State adopted the Common Core Learning Standards and BEFORE educators and students were able to get up to speed in the new standards upon which their assessments would be based. • Accordingly, parents and educators loudly proclaimed that the entire system was built upon a unsteady foundation---that assessing students and educators on such higher standards at this time was inherently unfair.

33. New York State Experience (Less Than Smooth Sailing) • The new APPR statute went well beyond simply changing the law to require student performance as a criterion for teacher evaluation. The statute fundamentally changed negotiation requirements for teacher and principal evaluations. The statute incorporates a broad overall statutory duty to bargain evaluative procedure. All collective bargaining agreements (CBAs) for teachers and principals entered into after July 1, 2010 must be consistent with the requirements of the new law.

34. What Is Required? • Evaluations consistent with the new law and applicable regulations. Evaluations that are a significant factor for: • All Employment decisions. • Teacher and principal development.

35. Impact on Collective Bargaining • Collective bargaining agreements entered into after July 1, 2010 must be consistent with the requirements of the new law. • Conflicting provisions in contracts settled before July 1, 2010 remain in effect until successor is reached. • However, nothing prevents negotiations over evaluation procedures.

36. Regulations • Pursuant to the express statutory requirements, SED convened a Task Force to advise the Board of Regents how regulations should be developed and promulgated.

37. Intervention by Governor • Just two days before the Regulations were unveiled, Governor Cuomo wrote a letter to the State Education Department the Board of Regents (NY’s State Board of Education) to strengthen the requirements in the Regulations to ensure that teachers and administrators who scored poorly on student achievement results would not receive an overall effective rating. Such changes were made and NYSUT sued.

38. NYSUT’S LAWSUIT • On August 24, 2011, Albany County Supreme Court Justice Michael C. Lynch handed down a decision largely in agreement with the legal position which had been taken by the teacher’s union

39. THE LAWSUIT • On September 14, 2011, the State Education Department appealed and indicated that it would explore every avenue including pursuing new legislation.

40. Intervention By Governor • Governor Cuomo, in his Budget address gave SED and NYSUT 30 days to settle the lawsuit and put into place an APPR process that is consistent with the Governor’s outlined goals of ensuring that teachers and principals do not receive effective ratings if their students are not performing well.

41. On March 14th the Legislature adopted final revisions to APPR as originally proposed by Governor Cuomo in his Budget bill

42. Collective Bargaining • The agreed upon changes to section 3012-c impose collective bargaining requirements beyond those already included in the original law. The new requirements include, for example, an obligation to negotiate: • The process by which points are assigned to the local measures of student achievement and the other measures of effectiveness subcomponents of the evaluation, pursuant to the requirements of the Taylor Law.

43. Collective Bargaining (cont’d) • The selection of the local measures to be used under the locally selected measures of student achievement subcomponent of teacher and principal evaluations. Regarding the required locally developed procedures for the making of employment decisions, the changes provide that such procedures must be negotiated pursuant to the requirements of the Taylor Law where applicable. • .

44. New York State Experience (Less Than Smooth Sailing) • Immediate issues which needed to be answered: • What is the relationship of the statute to existing evaluation provisions in collective bargaining agreements? • Does it make a difference whether APPR related provisions are set forth in the collective bargaining agreement or via a separate document? • What happens if the parties cannot reach agreement on an APPR plan? • Are signatures and certifications required prior to the Commissioner of Education approving the plan?

45. New York State Experience (Less Than Smooth Sailing) • Immediate issues which needed to be answered: • If the parties cannot agree on a plan, can the district simply impose one? • What can a teacher/principal appeal an evaluation? • Does the filing of an appeal of a composite score prevent termination of a probationary employee even at the end of the probationary period when such time is at issue? • What should be included in the APPR Plan with respect to Data Management?

46. New York State Experience (Less Than Smooth Sailing) • Immediate issues which needed to be answered: • What would constitute a “teacher of record”? • Which teachers would be considered “classroom teachers” for the purpose of coverage under the new law? • Would special education teachers who co-teach be subject to evaluation? • Would “push-in” and “pull-out” teachers and substitute teachers be covered? • Who would be a “building principal” for purpose of the statute?

47. New York State Experience (Less Than Smooth Sailing) • Immediate issues which needed to be answered: • How is APPR relevant to a Superintendent’s evaluation? • What is the authority of the APPR police? • Does the Plan that is submitted to the Commissioner constitute the District’s entire APPR plan for teachers and principals under §3012-c? • What is the timeline for the 2012-2013 APPR plan approval process? (Note if a district did not have an approved plan by January 17, 2013, that district would not have been eligible of a state-aid increase)

48. New York State Experience (Less Than Smooth Sailing) • Immediate issues which needed to be answered: • How can changes be made to an APPR plan after it has been approved by the Commissioner? • What if a district has not reached agreement with the union as to items which require collective bargaining? • What is the relationship between APPRs and the termination of probationary employees? • What about terminations before the end of a school year and the development of a composite score?

49. New York State Experience (Less Than Smooth Sailing) • Immediate issues which needed to be answered: • Assuming a composite score is issued at the end of year one that forms a sufficient basis for a decision to terminate a probationary employee, can the employee be terminated at that time even if an appeal has been filed? • Does an appeal automatically stay all terminations? • When does the right to appeal commence? • Under what circumstances must a TIP or PIP be created?

50. New York State Experience (Less Than Smooth Sailing) • Immediate issues which needed to be answered: • What is the difference between a Teacher/Principal Growth Score and a Value Added Growth Score? What was available for 2011-2012 evaluations and what will be available for 2012-13? • What is the difference between a Teacher/Principal Growth Score and a Value Added Growth Score? What was available for 2011-2012 evaluations and what will be available for 2012-13?