Kenneth Mitchell, a school superintendent in the Lower Hudson Valley of New York, has been concerned about the costs imposed on school districts by Race to the Top. He previously estimated that six districts in his region would spend $11 million to comply with the mandates of Race to the Top, which paid these districts $400,000.
In this comment, he describes a recent meeting with lawyers about possible lawsuits that will be brought because of New York’s flawed Educator Evaluation System.
On Friday, March 14, The Lower Hudson Council of School Superintendents hosted a panel of education attorneys to address the following topic:
LEGAL IMPLICATIONS OF NEW YORK STATE’S NEW TEACHER AND PRINCIPAL EVALUATION SYSTEMS
Supervision, Evaluation & Tenure Decisions
• What is the effect of Education Law §3012-c on a school district’s ability to terminate probationary teachers and principals?
• How might overly prescriptive, rigid statutory and regulatory policy frameworks, such as §3012-c, regarding teacher evaluation, tenure, and employment decisions withstand teacher and principal appeals?
Statistical Reliability and Validity of Data in Supervision, Evaluation & Tenure Decisions
• How might the statistical reliability and validity of measures of teaching effectiveness – state assessments, VAM, SLO’s, school-wide assessment scores – affect teacher evaluation, tenure, and employment decisions?
• How will the metric of ‘confidence intervals’ be considered in a legal decision about a teacher’s effectiveness?
• How will the number of years of value-added assessment data to determine teacher quality be a factor in a teacher or principal appeal?
• In what ways will the use of locally-developed assessments, such Student Learning Objectives (SLOs), be challenged in an appeal?
• How will the individual evaluation of a teacher based on school-wide data, such as the 4th grade math assessment, withstand an appeal?
Implementation, Professional Development, and Resources
• How will such factors as consistency, training, and quality be considered in observations and evaluations developed by supervisors?
• How will equity issues, such as the access to materials (e.g., Common Core units) or technology, be a factor in an appeal?
• Experts in child and adolescent development have asked for a review of the Common Core to ensure that all of the standards are developmentally appropriate.
Since assessments are being developed on the basis of Common Core and teachers and principals being assessed accordingly, how will the aforementioned concerns be considered?
Other References
“Evaluation Law Could Limit Ability to Terminate Probationary Teachers”; Warren Richmond III (Harris Beach), New York Law Journal, (May 2013)
“Legal Issues in the Use of Student Test Scores and VAM to Determine Educational Quality”; Diana Pullin, Education Policy Analysis (2010 Manuscript)
In addition to these references, we have posted other related legal articles on the main page of our website: http://www.lhcss.org. We have also raised other concerns about the model that we have shared with state legislators, members of the Board of Regents, officials at the State Education Department and with representatives of the governor’s office. There are many other questions that will need to be answered once this enters the legal arena.
We shared that many in our organization have concerns that a) the design of reform model is flawed on multiple levels; b) the expedited and unsupported implementation will further contribute to inevitable legal challenges; c)the weak technical basis and very limited or no research behind elements of the model will not withstand legal challenges. These are just a few of our concerns. As a result, school districts will be wasting even more time and money on legal costs. Unless significant changes are made on the basis of substantive evidence, New York’s reform model is headed for trouble that will move beyond the anxiety and frustration of over-tested students, angry parents, weary teachers, and harried administrators.
Diane Ravitch's blog 
“Ken Mitchell, a superintendent in Rockland County, New York, did the math.
Mitchell determined that school districts in his county are spending far more than they receive as they try to implement the mandates. When you consider that Governor Cuomo enacted rigid tax caps on every public school district in the state, it means that costs (for Race to the Top) are soaring at the same time that the district cannot raise new sources of revenue. The result: layoffs, program cuts, larger class sizes.”
Maybe Cuomo and Arne Duncan have been playing the long game? The above quote is from Diane’s posting of Nov. 3, 2012. (https://dianeravitch.net/2012/11/03/the-very-expensive-mandates-of-race-to-the-top/) There’s a concerted effort to take resources away from schools through tax caps at the same time expensive unfunded mandates are enforced through RttT. Maim the public schools economically and re-cast them as “failing” by test scores. Replace with charters.
Or maybe I’ve been watching too many episodes of “House of Cards”?
Here it is again, from “How the Texas Testing Bubble Popped”:
http://res.dallasnews.com/interactives/2014_March/standardized_tests/part3/
“In addition, the legislators were all aware of a lawsuit challenging the fairness of the state’s public school financing. One hammering point for the plaintiffs was that the legislature had cut funding in 2011 at the same time STAAR ramped up testing. Many legislators hoped that a reduction in tests might affect the outcome of the suit.”
In addition to the inevitable legal problems with the use of VAM for high-stakes decision-making, New York State’s recent legislative plan to place prohibitions on the use of state 3-8 assessment data for students does not exclude the use of such data for teachers and principals. While such legislation is based on short-term political agendas, in the long-term it will be of service to attorneys arguing in defense of teachers and principals impacted by such scores. If the data are not good enough for use with students, how can the data be good enough for making critical career decisions teachers and principals?
Case closed.
What criteria were used for high stakes personnel decisions regarding probationary teachers prior to 3012-c and how did their reliability and validity compare to the components of New York’s APPR system?
Here’s a real possibility: a teacher whose performance is subpar could end up having high VAM scores that are based on the test scores of students they don’t see during the day. If that teacher receives an adverse evaluation can they use the test scores to “prove” they are excellent? If a subpar probationary teacher with the same set of circumstances is non-renewed can they use the test scores to seek reinstatement? VAM has got to go and quickly…
VAM: The Scarlet Letter
The VAM component of APPR has a stranglehold on the teachers of NY.
The validity and reliabilty issues make this a legal slam dunk.
However, let’s not overlook the very same issues regarding Marzano or Danielson rubrics. Inter-ratre reliability is a HUGE problem for NYSED in a court of law.
Teachers should take serious issue with the fact that the New York State Education Department uses the EXACT SAME rubric, Marzano or Danielson it really doesnt matter; the exact same evaluation instrument to rate the high school AP calculus teacher as the kindergarten art teacher. In what pedagogical world does that make any sense? And furthermore, nowhere to be found is any mention of content knowledge and expertise.
No rubric for quantifying the technial command that teacher has (or doesnt have) for their own subject matter. Seriously?
Unfortunately, the legal issues and opportunities are different in each state. This prevents a massive class-action lawsuit that would draw attention to the deeply flawed policies that are damaging public education, many of these instigated by USDE.
Even so, it is good news that NY is on the same path as Tennessee and Florida in seeking legal remedies for teacher evaluations based on unreliable, invalid, and one-size-fits all instruments including VAM, Student Learning (Growth) Objectives, the observation protocols of Danielson and Marzano (and variants), plus the Gates-funded student surveys (designed by an economist) that reward teachers whose students conform to a one-size-fits paradigm of “effective” teaching.
The added problem is that new teachers are being subjected to gate-keeping assessments of “fitness to teach” from the Pearson-Stanford edTPA and forthcoming version from ETS. These tests emphasize conformity to many of the same values, and have little or no research to support their reliability or validity.