|
Overview
Thirty years ago, United States District Court Judge Hoffman
opined in a Virginia case “school board members are charged with
the crucial task of providing the best quality education for all
children and this duty may be discharged only if teachers are
employed on ability alone and no other criteria.” (United States
v Nansemond County, 1974) In Judge Hoffman’s view the equation
is a simple one. Quality teachers deliver quality classroom
instruction, and quality classroom instruction produces quality
students.
It is imperative in 2004, that public school students be exposed
to classroom teachers who are both highly qualified
(academically prepared, fully certified by the state, and
endorsed in their subject field) and competent (demonstrate a
sustained professional record of effective classroom
performance). It is important to note, however, that “highly
qualified” and “competent” are two different concepts. While the
qualifications of a teacher can be established simply by
reviewing pieces of paper (e.g., official college academic
transcripts, a teaching certificate, written recommendations of
professors and former employers), establishing an individual
teacher’s competence (effectiveness in teaching one’s subject
and working with students and parents) is a more complicated and
time consuming process within which instructional evaluation
(performance assessment) is the sine qua non.
Teacher Competence: What Have the Courts Said? Ironically, one
accurate and reliable way to construct a general definition of
the term teacher competence is to seek out and examine teacher
dismissal cases where teacher incompetence is the subject of the
court’s analysis. Why? As Cambron-McCabe and her co-authors
state, “Incompetency cases often involve issues relating to
teaching methods, grading procedures, classroom management, and
professional relationships.” (Cambron-McCabe, et al., 2004)
Based upon their review of the case law, Alexander and Alexander
concluded that the notion of teacher incompetence contains a
“broad range of factors” among which “lack of knowledge of
subject matter” is but one. (Alexander and Alexander, 1998)
Other experts in education law have added such specific factors
as: inability or failure to impart the designated curriculum,
failure to work effectively with colleagues, failure to maintain
adequate classroom discipline, and failure to plan lessons (Imber
and Van Geel, 2000). Still other experts have added excessive
and improper use of corporal punishment, below average test
scores earned by students, persistent neglect of professional
duties, and insubordination to the list of factors accepted by
judges as convincing evidence of teacher incompetence. (Vacca
and Bosher, 2003). Thus, because of the broad nature of the
term, “the burden of proof… is on boards when officials claim
that teachers have failed to meet their duties.” (Russo, 2004)
To prevail the school board will need to convince the court with
evidence (i.e., documentation) produced through the
implementation of a fair and legally defensible instructional
evaluation process.
Teacher Evaluation and Performance Assessment. While the basic
intent and purpose of teacher evaluation (performance
assessment) must be to improve classroom instruction for all
students, the process also is used to establish the on-the-job
competence of individual teachers. Thus, to accomplish both
tasks the central activity of a typical instructional evaluation
(performance assessment) process involves on-the job evaluations
conducted by trained evaluators who observe and (using
job-related criteria) rate the work of individual teachers. (Vacca
and Bosher, 2003) In Virginia, for example, the Code of Virginia
(22.1-295) specifies, “School boards shall develop a procedure
for use by superintendents and principals in evaluating
instructional personnel that is appropriate to the tasks
performed and address, among other things, student academic
progress and the skills and knowledge of instructional
personnel, including, but not limited to, instructional
methodology, classroom management, and subject matter
knowledge.” (Code of Virginia, 2003 Cum. Supp.)
Procedural Fairness. To make it fair, it is imperative that
procedural safeguards be built into the instructional evaluation
(performance assessment) process. The following basic elements
are necessary to provide procedural due process and fair
treatment. Each teacher must: (1) know ahead of time what
minimal standards of performance are expected, (2) know ahead of
time the criteria and procedures to be used in the evaluation
process, (3) receive prior notice of the evaluation, including
the name of the individual who will serve as the evaluator, (4)
receive immediate feed-back of evaluation results, including an
opportunity for employee comment and rebuttal, and (5) receive a
clear explanation of areas where improvement is needed in job
performance. It is wise, but not required, to offer help and
sources of remediation, and to establish a suggested timeline
for the removal of deficiencies and the improvement of
performance. Finally, it is prudent to schedule a follow-up
conference with the evaluatee within a reasonable timeframe. (Vacca
and Bosher, 2003)
Emerging Issues
Employment issues (legal and constitutional) are, as a general
rule, heard in courts located in the state where the employer
school system operates. This includes both federal and state
courts. Because employment decisions (especially those involving
classroom teachers) are discretionary in nature, judges are
reluctant to grant jurisdiction. (Vacca and Bosher, 2003)
However, some employment matters do ripen into lawsuits. In the
recent past, for example, court cases have developed from
situations where teachers have complained that school officials:
• Either ignored, or violated, or abused their local school
board policies and procedures.
• Failed to follow state law requirements regarding teacher
evaluation.
• Failed to establish and communicate a clear standard upon
which to measure “acceptable performance and productivity,”
prior to the implementation of the evaluation process.
• Placed too much emphasis on using student standardized test
scores to measure classroom effectiveness and productivity.
• Failed to establish and implement a program of professional
staff development intended to improve and enhance professional
growth and classroom performance.
• Failed to produce valid and reliable documentation to
establish cause for the dismissal.
• Failed to establish and implement a program to remediate
performance deficiencies.
• Failed to use trained evaluators to evaluate teachers.
• Used the evaluation process as a “retaliation weapon.”
• Used the evaluation process to create a hostile environment
intended to force teachers to resign (i.e. constructive
dismissal) from their positions.
Some examples of court decisions involving various aspects of
teacher evaluation follow in the section below.
Case Law
Thirty yeas ago, the United States Court of Appeals for the
Eighth Circuit upheld the dismissal of a public school teacher
whose students failed to achieve acceptable scores on
standardized achievement tests. In Scheelhause v Woodbury (8th
Cir. 1773), cert. denied (1974), the Court stated that the
improvement of test scores was a primary objective of the school
system and the teacher had failed to produce the results
expected of her.
In Mt. Healthy v Doyle (1997), affirmed on remand (6th Cir.
1981), the United States Supreme Court emphasized the importance
of teacher evaluation (especially the need to produce
documentation to defend personnel decisions) when it created a
three-pronged causation standard. The standard is especially
helpful where the challenging party (in this case a teacher) is
claiming that the school system’s stated reason(s) for taking an
adverse employment action (non-renewal, dismissal, reduction in
force, reassignment) is (are) merely a pretext to cover an
unlawful or unconstitutional motive. The standard requires an
answer to the following questions: (1) In this situation is
there some element (race, religion, gender, disability, age) or
exercise (speaking out in public, group affiliation) that is
constitutionally or statutorily protected? (2) Did that element
or exercise play a “substantial or motivating part” in the
board’s decision? (3) Absent that element or exercise would the
board have reached the same conclusion and taken the same action
regarding this employee? In other words, can the school board
overcome the employee’s discrimination allegation by producing
substantive, job performance-based evidence?
A 1990 decision of the Court of Appeals of Texas involved a
continuing contract teacher who was dismissed from employment
for lack of competence in the performance of classroom duties.
In Roberts v Houston I.S.D. (1990) the use of videotapes and
written assessments of a teacher’s classroom performance by an
evaluation team was the focal point of the teacher’s complaint.
The fact was that she had been told of her teaching
deficiencies, but she failed to correct the problems was
significant in the high court’s rationale. Moreover, the
appellate court held that due process had not been denied since
she was represented by an attorney at the termination hearing,
she had received adequate notice and had an opportunity to
respond, and she was granted an opportunity to review the
videotapes of her classroom performance prior to termination
form her teaching position. Most important, the school board was
able to show that it reached its decision to terminate, after
carefully reviewing her teaching evaluations and the videotapes
of classroom performance, and listening to the testimony of her
instructional supervisors. In the Court’s view the school board
neither acted arbitrarily nor deviated from accepted academic
norms.
Shofield v Richland County School District (S.C. 1994), involved
a probationary teacher who had been formally observed in her
classroom on three different occasions. Her performance during
each observation was rated as “adequate.” However, over the same
year, and independent of the formal evaluations, supervisors
developed concerns about her classroom discipline and control,
her failure to provide planned and appropriate instruction, and
her uncooperative behavior. Subsequently, and citing concerns
with classroom management and the lack of quality instruction in
her classroom, it was recommended that her teaching contract not
be renewed for the next year. She went to court claiming that
she had been denied remedial help to correct the deficiencies
prior to her non-renewal. The Supreme Court of South Carolina
upheld the dismissal. In the Court’s opinion, South Carolina
statutory law does not require remedial help in all situations,
especially where teacher deficiencies occurred outside the
evaluation process. The deficiencies cited as reasons for her
non-renewal did not occur during the three formal observations.
Baker v Board of Education (W. Va. 2000) is a decision of the
Supreme Court of Appeals of West Virginia. The issue in this
case is whether the statutes of West Virginia require that a
probationary employee (here an assistant principal) be entitled
to a formal written improvement plan and period within which to
improve her performance prior to non-renewal of her contract.
The Court’s answer was no, where the employee had received
informal notice of her deficiencies and it was suggested at the
time that she seek some form of remediation.
In Echtenkamp v Loudoun County (E.D. Va. 2003) a school
psychologist claimed, among other things, that school officials
had used the evaluation process to retaliate against her for
challenging some of the school system’s special education
policies. More specifically she alleged that she was placed on
yearly evaluation cycles and that letters of reprimand, in which
she was cited for failure to maintain a working rapport with
students, were created. Also, she claimed that she was handed a
resignation form and told that if she did not improve she would
be terminated from employment. The Court denied the school
board’s motion to dismiss, stating that even though the employee
had not been terminated the environment created by school
officials, including the threat to terminate, violated the
employee’s First Amendment right to freely speak out on a matter
of public concern.
This past year an Illinois appellate court made it clear that a
local public school district was required to rate the
performance of its teachers using the specific classifications
enumerated in state law and no others. In Buchna v Illinois
State Board (Ill. 2003), the Court held that local school
officials must use the classifications “excellent,”
“satisfactory,” and “unsatisfactory” as a part of their
instructional evaluation process or lose their remedial
authority over teachers.
Implications for Policy
The need to retain quality classroom teachers and to remove
those who are not is of utmost importance in every public school
system in this nation. To successfully meet this need local
school systems must have in place and consistently implement a
continuous process of teacher evaluation (performance
assessment). As the professional literature and the case law on
point demonstrate, however, the task is not an easy one, since
the potential legal and policy issues associated with teacher
evaluation are many.
If local school boards are to minimize the emergence of problems
they must take a proactive approach. This effort must include a
reexamination of existing teacher evaluation policies and
procedures. What follow are some suggestions to consider as a
part of the reexamination process. School board policies must
make it clear that:
• The intent and purpose of the teacher evaluation (performance
assessment) process is to improve instruction for all students
and to stimulate and promote the professional growth and
development of all teachers.
• The standard for satisfactory teacher performance and the
criteria for measuring teacher effectiveness and productivity
are clearly defined.
• Teacher effectiveness is linked to student academic progress
and achievement.
• The school board through its administrative staff will, on a
regularly scheduled basis, evaluate and assess the professional
effectiveness and productivity of all classroom teachers.
• The school board will, to the extent practicable, use trained
evaluators to conduct classroom observations.
• The teacher evaluation (performance assessment) process is
both formative and summative in nature and includes both
teacher-generated and employer-generated data.
• The teacher evaluation (performance assessment) process is
both professional growth-oriented and accountability driven.
• All teachers will have opportunities to correct performance
deficiencies.
• The teacher evaluation (professional assessment) process and
the school system’s professional development program are
directly related.
• Teacher peers and mentor teachers play key roles in the
evaluation (performance assessment) process and the professional
development program.
Resources Cited
Alexander and Alexander, AMERICAN PUBLIC SCHOOL LAW, Fourth
Edition (West, 1998)
Baker v Board of Education, 534 S.E.2d 378 (W.Va. 2000)
Buchna v Illinois State Board of Education, 795 N.E.2d 1045
(Ill. App. 2003)
Cambron-McCabe, et al., PUBLIC SCHOOL LAW: TEACHERS’ AND
STUDENTS’ RIGHTS, Fifth Edition (Ally and Bacon, 2004)
Code of Virginia (2003)
Echtenkamp v Loudoun County, 263 F.Supp.3d 1043 (E.D. Va. 2003)
Imber and Van Geel, EDUCATION LAW, Second Edition (Erlbaum,
2000)
Mt. Healthy v Doyle, 429 U.S. 274 (1977), aff’d on remand, 670
F.2d 59 (6th Cir. 1981)
Roberts v Houston I.S.D., 788 S.W.2d 107 (Tex. App. 1990)
Rosso, Charles J., REUTTERS’ THE LAW OF PUBLIC EDUCATION, Fifth
Edition (Foundation Press, 2004)
Scheelhause v Woodbury, 488 F.2d 237 (8th Cir. 1973), cert.
denied, 417 U.S. 969 (1974)
Shofield v Richland County School Dist., 447 S.E.2d 189 (S.C.
1994)
U.S. v Nansemond County School Board, 351 F.Supp. 196 (E.D. Va.
1972), rev’d, 492 F.2d 919 (4th Cir. 1974)
Vacca and Bosher, LAW AND EDUCATION: CONTEMPORARY ISSUES AND
COURT DECISIONS, Sixth Edition (LexisNexis 2003)
Richard S. Vacca
Senior Fellow CEPI
Note: The views and opinions expressed in this commentary are
those of the author.
|
