The Union Wins a Big One in New York: Judge Tosses Out Most of Teacher Eval System



By 08/29/2011

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It’s back to school – and perhaps to court — for the New York State Board of Regents (NYBOR) and the New York State Education Department (NYSED). On Wednesday a state judge in Albany ruled that student test scores on state exams could not be used for 40 percent of a teacher’s evaluation and that NYBOR’s and NYSED’s cut scores for grading teachers was unfairly slanted to favor those student scores. (See Jacob Gershman in the Wall Street Journal, Sharon Otterman in the New York Times, Rachel Monahan in the Daily News, Geoff Decker at Gotham Schools, Yoav Gonen in the NY Post, Robert Lowry at the New York Council of School Superintendents, and the National School Boards Association.)

The ruling was the result of a suit filed in June by New York State United Teachers (NYSUT), the Empire State’s famously powerful (it claims 600,000 members) teacher union. Though the decision received wide coverage (per above) and throws New York school districts a curve (they are supposed to have an evaluation policy in place by September 1), it’s not clear that the decision will have any major implications for other states that are considering linking teacher evaluations to test scores (except as inducement to make sure their regulations correspond to their laws). It is, however, a great window on to education politics in a large state, once-ruled by teacher unions, who hate student performance evaluations, in the reform era. This is power politics at its best.

To recap, thanks largely to Race to the Top incentives (a cool $700 million), a group of New York State reformers, including the state’s Commissioner of Education and its Chancellor (the head of the Board of Regents) had pushed for teacher evaluation reforms that included linking those evaluations to student performance. Thanks also to some shrewd lobbying on the part of Joe Williams of Democrats for Education Reform and Sunday bagel breakfasts hosted by NYSED Commissioner David Steiner, NYSUT agreed to go along (see my story in Education Next) with the changes. The result was state law 3012-c, passed in late May of 2010, just days before the RTTT deadline. It was pretty radical, by New York standards, ordering school districts to evaluate teachers using student performance data as one of the key measures of teacher competence.

After fighting every attempt at linking student test scores to teacher evaluations, NYSUT had given in at the eleventh hour and its president, Richard Iannuzzi, made a famously symbolic walk with NYSED Commissioner David Steiner and Regents Chancellor Merryl Tisch, from the state ed office building to the State Capitol building across the street, to signal their joint support of several RTTT-induced state laws, including one that breached the “fire wall” between evaluations and student performance. Indeed, the reformers had won a historic victory.

But in the ensuing months, as NYSED worked to write the regulations that spelled out how the law would be implemented, it pushed the student performance piece of the law in directions that NYSUT didn’t like.

The law says that

(i) twenty percent of the evaluation shall be based upon student growth data on state assessments…. and (ii) twenty percent shall be based on other locally selected measures of student achievement.

Did the Regents get greedy? In their May meeting to pass the implementing regulations, with encouragement from Governor Andrew Cuomo, they voted to merge the “locally selected” with the state assessment, effectively making 40 percent of the teacher evaluation dependent on state assessments of students. NYSUT didn’t like it, and sued.

The Wednesday decision, by Judge Michael Lynch*, was limited to the issue of whether the NYSBOR and NYSED had exceeded their authority in issuing regulations implementing the new teacher evaluation law.

Lynch concludes that

There is no dispute that the first 20% component is based on `student growth data’ as measured by state assessments or comparable measures.

But he doesn’t think that “locally selected measures” can include those same state assessments. The reasoning is excruciatingly detailed (e.g. “the key here is the use of the qualifier `other,’” he writes), but Lynch would seem to be right in concluding that the legislature meant “other locally selected measures” to mean something different than the state tests. And it makes sense, as Lynch concludes, that the Regents regulations are “invalid only to the extent that the same `student growth measures’ utilized to measure the first 20% category…may not be utilized to measure the second category…. In short, to allow a single state assessment measuring student growth to determine 40% of the student achievement category… would contravene this multiple measures mandate.”

The larger point here, however, and the bigger problem for those trying to weaken the union grip on the process, is that both the “locally selected” 20% and the remaining 60% (classroom observation and professional growth), as Lynch concludes, “must necessarily be determined through negotiations” with the union. Districts still have to deal with the local teacher unions to get a decent teacher evaluation system. Good luck on that one.

Indeed, the Regents, who voted 13 to 3 in May to impose the more rigorous evaluation procedures (see here), have had their wings clipped by the Lynch ruling. And though the judge upheld other parts of the Regents regulations opposed by NYSUT, he also struck down a piece of the regulations that determined how teachers would be rated – ineffective, developing, effective, highly effective – based on the multiple measurement scale. Since a teacher had to score at least 64 points to avoid the “ineffective” rating, according to the Regents’ plan, it was conceivable, as the judge noted, that “the regulation allows for an `ineffective’ rating based solely on poor student achievement results (the first 40% category) without regard to the 60% evaluation category.”

Nice try, Regents. But NYSUT caught it and argued, according to Lynch, that such a scoring rubric was “contrary to the statute’s mandate that the composite score incorporate multiple measures of effectiveness….”

Where everyone goes from here is anyone’s guess. So far the popular new Governor, who had promoted the stricter evaluation measure, has been silent. Let’s hope he speaks up. And let’s hope that he pushes to amend the law to make it clear that student performance measures remain central to the evaluation criteria for teachers.

–Peter Meyer

*Lynch is a state Supreme Court judge, which, in New York, is a low-level judicial position. The highest court in New York State is the Court of Appeals, which would be the bench that would next rule on this issue, should NYBOR and NYSED appeal, as they promised they would.




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