Reform Set Up to Fail?September 15th, 2011
The Holy Grail of Collective Bargaining
By B. Jason Brooks
Last month, Justice Michael Lynch of the Albany County Supreme Court (New York’s lowest trial court level) struck down several of the state Education Department’s regulations to implement new teacher and principal evaluation systems adopted as part of the state’s innovative $700 million Race to the Top federal grant program.
The state was taken to court by the New York State United Teachers (NYSUT) union, which argued against the adopted regulations saying a number of provisions designed to hold teachers more accountable for student performance were too tough. Officials from the New York State Education Department (SED) have rightly criticized the ruling and filed an appeal.
In May 2010, SED successfully completed negotiations with NYSUT to end an existing ban on the use of student achievement data as any part of a teacher evaluation, a prohibition that had been established thanks to earlier union efforts. According to Peter Meyer’s Education Next story:
[New York State Education Commissioner David] Steiner called Richard Iannuzzi, head of the powerful New York State United Teachers (NYSUT), and invited NYSUT to begin discussions about “how we could get to an agreement on the teacher evaluations.” The union accepted… “We had anywhere from 8 to 10 people at each of these sessions,” explains Steiner. “The meetings lasted four to five hours, sometimes longer.” Most of the sessions, which went on for several months, focused on teacher evaluations, with the big concern being the “firewall” between the evaluations and student performance on state tests, a barrier that the union had always insisted was necessary.
The agreement resulted in allowing 20 percent of teacher evaluations to be based on the performance of students on annual state exams, and an additional 20 percent to be based on locally-chosen assessments. Working collaboratively with the Board of Regents, New York Gov. Andrew Cuomo pushed to ensure that the locally-chosen half of the outcome-based measurement would be rigorous, encouraging that student performance on the annual state exams could be used for up to the entire 40 percent share of teacher evaluations, noting that such a process would allow consistency statewide and would avoid the need for each of New York’s approximately 700 local school districts to adopt a separate measurement tool.
The New York State Board of Regents, which governs SED, acknowledged the wisdom of the governor’s recommendation and in May 2011 adopted the plan allowing up to 40 percent of the teacher evaluation matrix to be based on student performance on state tests. NYSUT threw a fit. The union claimed it would hereinafter end all collaboration with SED (as if that would be a bad thing) because of this “bad faith” move, and that it would take the Regents to court. While publicly claiming it was challenging the specific regulations allowing an additional 20 percent of teacher evaluations to be based on student outcomes on state assessments, the teacher union’s lawsuit actually sought to dismantle nearly all of the agreed-to evaluation plan components adopted into law the year before. NYSUT claimed that nearly every portion of any teacher evaluation plan should be required to be agreed to whenever any local school board negotiates a teachers union contract.
On one hand, the statute provided for the Commissioner of Education to issue regulations with “standards” to implement the evaluation system. This appears to be what SED is hanging its hat on to establish the standard share of state test results used in teacher evaluations at 40 percent. On the other hand, the enacted agreement did establish that most of the evaluation rubric was to be subject to collective bargaining between the local teachers union and the respective school district. On this latter provision the court based its ruling, deciding essentially that collective bargaining trumps everything else in the law.
The low court’s ruling, issued on August 24, 2011, agreed that the evaluation regulations exceeded the adopted law and sided with nearly all of the union’s positions. This outcome probably should not have come as much of a surprise, since a close examination of the law reveals ambiguous language in a number of key areas, leading one to question the roles played by SED staff and NYSUT officials in the final marathon Sunday negotiations. Was the ambiguous language inserted as a result of clever NYSUT attorneys getting it by the SED staff? Or did both staffs agree to the ambiguous language knowing full well that it left the door open for a potential challenge, but one that would occur after the federal grant money had already been awarded to New York?
The evaluation system originally adopted as part of the state’s Race to the Top plan enabled New York to effectively compete in the high-profile Race to the Top funding competition among states. Throughout the negotiations NYSUT was rightly being painted as an obstructionist to accountability and endorsing actions (or inaction) that would prevent the state from winning $700 million in new education dollars from Washington. After intense pressure from education leaders in New York and the media, NYSUT finally relented and agreed to the 2010 plan.
This latest legal action by the state’s teachers union to minimize the role student test results play in teacher evaluations thus isn’t particularly shocking: it is just the latest move in a long pattern of union actions opposing the use of meaningful, objective data to help determine how well teachers are performing. In fact, one only has to go to the union’s website to read the self-congratulations of its “leading role in securing language that bars the use of student test scores as a yardstick for tenure” and New York State United Teachers union president Richard Iannuzzi claiming that “student assessments are designed to assess students, not teachers.”
Whether this lower-court ruling will stand on appeal is not at all clear; a higher court could read the ambiguity in the law to favor (or at least allow at the Commissioner of Education’s discretion) the tougher evaluation regulations. If the higher court upholds the decision and rules in favor of the teachers union and its watered-down teacher evaluation system, however, it undermines every good intention of strengthened accountability contained in New York’s “Race to the Top” grant. President Obama and the U.S. Department of Education would be justified in revoking the funds awarded to New York for a plan that is no longer being implemented as intended.
B. Jason Brooks is director of research at the Foundation for Education Reform & Accountability and may be followed on Twitter at @bjbrooksNY.