(This is the second of two posts on the new teacher evaluations. The first post focused on the overall scoring of the evaluations and the role of standardized exams.)
The recent agreement to clarify and refine the New York teacher evaluation law took up an issue that has a special importance for New York City public school educators– the appeals process for ineffective ratings on end-of-the-year summative evaluations. Readers of Edwize know that last December the ship of teacher evaluation negotiations for the 34 Transformation and Restart schools sunk on the rocky shoals of this very issue, when Mayor Bloomberg and the NYC Department of Education refused to negotiate a meaningful and substantive appeals process. For there to be renewed progress on those negotiations, as well as on the negotiations for the evaluations of all New York City public school educators, the issue of the appeal process had to be resolved.
The agreement settled the issue of the appeals process for New York City by guaranteeing vital and indispensable due process rights in the teacher evaluation process. With these rights, the educational integrity and fairness of the teacher evaluation process are secure.
To understand the importance of the appeals process, and why the agreement secured what New York public school teachers need from due process in such a process, we must first examine the background and context of this issue.
Due Process for NYC Public School Teachers
For nearly a century, there have been two different types of due process New York City public school teachers could use to challenge unfair negative ratings on end of the year evaluations and to appeal a termination from their teaching position that was based on those negative ratings.
All teachers have had access to a rating appeals process that takes the form of an internal administrative hearing. A hearing officer who is an employee of the NYC DoE presides at the appeal, and he listens to the argument and evidence presented both by the principal and by the teacher. After the hearing, this officer makes a recommendation to the Chancellor on the disposition of the appeal. The Chancellor’s decision to sustain or overturn the negative rating is final.
The NYC DoE has always had wide authority and discretion to terminate the employment of probationary teachers, and a single negative rating on an end of the year evaluation has been, as a rule, considered sufficient cause for termination in their cases. For probationary teachers, the internal administrative hearing was thus the one way to challenge a negative end of the year rating, and the Chancellor’s decision is the final word.
But once teachers satisfactorily complete their probationary service and are awarded tenure, they are no longer limited to the internal administrative appeals process. Before their employment can be terminated, tenured teachers have access to a second, more robust due process procedure, known as a 3020a hearing after the section of New York State education law that authorizes it. Historically, the 3020a hearing includes a number of the features of an adversarial legal procedure: both sides – the NYC DoE and the teacher – are represented by legal counsel; the NYC DoE has the burden of proof to demonstrate that there is just cause – such as poor performance or misconduct – to terminate the teacher, much like the prosecution has a burden of proof in a trial; the NYC DoE presents testimony and evidence to make the case for termination and the teacher has the right to present testimony and evidence to refute that case; witnesses on both sides can be cross-examined; and most importantly, an independent arbitrator presides over the hearing and makes the final, binding ruling, much like a judge in a trial.
As a general rule, 3020a charges of poor performance are filed against a tenured teacher only when s/he has had multiple negative ratings on end of the year evaluations. Since a tenured teacher has had positive ratings on a number of evaluations before being awarded tenure, a single negative rating for performance does not have the same weight for him/her that it carries for a probationary teacher.
Contrary to the feverish accounts of tenure one hears from the Joel Kleins and Michelle Rhees of the world, therefore, it has never been a right to a “lifetime job.” Rather, tenure is the right to due process before dismissal, and nothing more. Tenured teachers are fired, but only for a just cause. The New York State Legislature first adopted the teacher tenure law in 1917, long before the era of collective bargaining. The objective of the legislature was to ensure that educators could do their jobs without fear of being fired for holding unpopular opinions, for questioning received dogmas and cherished doctrines, for teaching controversial ideas or simply to make way for a patronage appointment. Tenure would guarantee the academic integrity of the teaching profession, the legislature reasoned, by protecting public education from abuses of authority and the imposition of narrow educational, political and sectarian agendas.
The Changing Landscape of Due Process
Most Americans have no due process rights in their work lives. They work under what is called an “at will” contract, which allows their employer to fire them at any time for any reason or even for no reason at all. Under “at will” contracts, the only constraints on the power of the employer are anti-discrimination laws which forbid firings for reasons of race and ethnicity, religion, sex, sexual orientation and disability. Beyond these laws, only those Americans who work in unionized workplaces and who have civil service job protections have a right to due process before they can be fired from their job.
Today, “at will” employment is a pivotal line of demarcation in American education. Anti-union charter school management, from Victory Schools Inc. to KIPP to Eva Moskowitz’s Success Academies, insists that their unfettered power to fire teachers is a non-negotiable feature of their schools. By contrast, unionized district schools have meaningful due process, as do unionized charter schools that respect teachers and work with their unions.
From the moment he became Chancellor of the NYC DoE, Joel Klein expressed deep antipathy to due process for teachers. In his corporate vision for schools, the principal was a CEO, and he should possess the same absolute power over his staff that CEOs in the non-unionized private sector have over their employees. At Klein’s direction, DoE hearing officers routinely denied grievances when the teacher was clearly in the right, forcing the UFT to take these cases to arbitration to obtain redress. With the power of ‘final word’ on appeals of unsatisfactory (‘U’) ratings, Klein universally turned down appeals, regardless of the substance of the appeal. The NYC DoE won’t reveal the numbers of appeals it has turned down since the start of the Bloomberg administration and Klein’s tenure as chancellor, but for the last 2000 appeals that have been brought to the UFT by our members, the DoE has sustained the teacher’s appeal in exactly 10 cases – in 99.5% of the cases, it turned down the appeal.
In negotiations with the UFT, Deputy Chancellors said that is DoE policy to always sustain the principal on substantive grounds. It would only overturn an appeal on very limited procedural grounds, where the failure to do so would be a violation of law, such as when a principal failed to submit any supporting documentation for the ‘U’ rating. Prior to the Bloomberg-Klein-Black-Walcott administration, the NYC DoE sustained the teacher’s appeal of a ‘U’ rating in 10% to 15% of the cases, depending upon the year. It wasn’t a perfect system, but an appeal received a real hearing. When the Bloomberg administration eviscerated the process for appealing a negative rating, due process was reduced to the 3020a hearing process for tenured teachers.
Bloomberg’s and Klein’s evisceration of ‘U’ ratings appeals gave those principals who abused their power great latitude. In a particularly outrageous example, one Bronx high school principal who had a documented history of sexual harassment toward staff, including a finding by his superintendent that he had engaged in the sexual harassment, was given political protection by Klein and allowed to ‘U’ rate a guidance counselor who had provided testimony of his behavior to the superintendent.
Perhaps the best barometer of the extreme nature of the Bloomberg-Klein ‘U’ rating policy has been the response of state courts. In New York, decisions of government agencies may be challenged in state court through an Article 78 proceeding, so named after the section of state law which authorizes these petitions. The law sets the bar for an Article 78 proceeding at a very high level: to have an agency’s decision overturned, it is not sufficient for the petitioner to show that the decision was wrong; s/he must show that it was arbitrary and capricious. Moreover, judges are generally loath to intervene in personnel matters. But recently, state Supreme Court Justices have overturned ‘U’ ratings after the Chancellor had turned down the teacher’s appeal. In one case, the DoE had turned down an appeal despite the principal’s repeated testimony that she was not contesting the appeal. In another case, the Justice ruled that the principal had improperly ‘U’ rated a teacher, denying her tenure and firing her, because she was the UFT Chapter Leader at her school.
The passage of the 2010 teacher evaluation law created a critical situation for due process procedures in the NYC DoE, because it changed an important element of the 3020a hearing. When a tenured teacher receives two consecutive negative ratings (now called ineffective rather than unsatisfactory), and has been provided the support of a TIP (Teacher Improvement Plan) during the second year, the 2010 law created a “rebuttable presumption” that the teacher is ineffective. In layperson’s terms, this means that in a 3020a hearing, the burden of proof that a teacher is ineffective was shifted from the NYC DoE to the teacher. If the NYC DoE were allowed to continue, unchecked, their policy of turning down all appeals of negative ratings, the 3020a proceedings themselves would be altered to the detriment of teachers. And since the new law required the establishment of a ‘substantive’ appeal process, the insistence of the DoE that it would continue the current policy and process was actually in violation of the law. That is why the UFT made the negotiation of a new rating appeals process a priority matter.
How did the recent agreement address these issues?
It established two different procedures which, in combination, guarantee a fair teacher evaluation process with educational integrity.
First, there are those cases where a teacher has been targeted by a principal who abuses his authority, and is given an ineffective rating for reasons entirely unrelated to his/her teaching performance, such as retaliation for advocating for students or engaging in union activism. In these cases, the UFT will be able to challenge the ineffective ratings before a three person board comprised of one UFT member, one DoE member and a third neutral member who serves as chair. Up to 13% of all ineffective ratings in a year may be brought to this board by the UFT. By a majority vote, the board will either overturn or uphold the ineffective rating, and its decision is final and binding.
The right to appeal a negative rating to a tripartite board with the power to overturn the rating is an unprecedented, new right. But it is a right necessitated by the equally unprecedented and indefensible policy of turning down all appeals adopted by the NYC DoE under Michael Bloomberg. With the implementation of this new right, the DoE’s universal dismissal of rating appeals will become a dead letter. And the simple existence of this right, with the very real possibility that a targeted teacher will obtain public vindication, will itself make a principal who abuses his authority think twice before he acts.
Second, in those cases where a teacher has received an ineffective rating for reasons related to his/her teaching performance, a number of procedures will be in place both to establish that the teacher is truly ineffective in the classroom and to ensure that the teacher receives the support s/he needs to improve. Following a first ineffective rating on an end of year evaluation, the principal will develop with the teacher a TIP (Teacher Improvement Plan) that identifies both the steps to be taken to correct the shortcomings in his/her teaching performance and the supports to be provided to assist in the improvement. Further, in the year following the first ineffective rating, the teacher will be assigned an independent validator, a licensed educator who will be selected through a joint union-management selection process. This independent validator will observe lessons by the teacher at least three times over the course of the year, and at the end of the year, s/he will issue a finding on the effectiveness of the teacher’s classroom instruction. If the independent validator agrees with the principal’s rating of ineffective, the DoE may then proceed to a 3020a hearing before an independent arbitrator to remove the teacher’s license, with the burden of proof falling on the teacher to demonstrate that s/he is not ineffective. If the independent validator disagrees with a principal’s rating of ineffective, the DoE may still proceed to a 3020a hearing before an independent arbitrator, but the report of the independent validator will become part of the proceedings and the burden of proof is now upon the DoE to demonstrate that the teacher is ineffective. It will thus become extraordinarily difficult to dismiss a teacher for poor performance when the independent validator has found him/her effective. This second component of the appeals process is similar to that now in place in the New Haven public school system. (See the accounts of the New Haven system in the New York Times and on Gotham Schools.)
Taken in tandem and faithfully implemented, these two components – the ability to appeal negative ratings by an abusive principal to an independent board and the independent validator check on negative ratings – will restore educational integrity and fairness to the teacher evaluation process in the NYC DoE.
And this is precisely why Mayor Bloomberg has now made it crystal clear he does not want to come to an agreement with the UFT over teacher evaluation. When the UFT-DOE negotiations over teacher evaluation in the 34 Transformation and Restart schools broke down at the end of the 2010 year, all sides agreed that the outstanding issue was the appeals system. With the appeals system settled, an agreement should have been easy to reach.
But from the moment of the very announcement of the agreement over the appeals system, Bloomberg and the NYC DoE publicly expressed their displeasure with the results by petulantly refusing to participate in the press conference at which it was announced. The mayor then proclaimed that he was continuing his plans to close the 34 Transformation and Restart Schools, despite the fact that his entire case for closing these schools had rested on the collapse of the negotiations for a teacher evaluation system in these schools over the issue of the appeals system, resulting in the suspension of the School Improvement Grant (SIG) funds. Now, the Educational Impact Statements for the 34 schools are pronouncing that the DoE will go ahead with their closures even if it means losing the SIG funding. Since 20 of the 34 schools do not meet the NYC DoE’s own long established criteria for closure, the continued insistence upon their closure in the absence of the original justification is telling: Bloomberg and the DoE simply do not want to reach an agreement on teacher evaluation. An appeals process that has educational integrity and is fair to teachers is an appeals process that is anathema to them. They want a teacher evaluation system that is based on de facto “at will” employment: whomever the principal wants to fire, is fired — end of story. Unable to achieve that goal, their plan now is to attempt to circumvent due process altogether by using the school closure process to remove staff from schools.
Teaching is very tough, complex and demanding work, and not everyone who wants to make a difference in the lives of children can be successful achieving that objective through teaching. A sound teacher evaluation system will provide the professional tools and feedback that allow all teachers to hone their craft and get better at our hard work. A sound teacher evaluation system will provide novice teachers and teachers in trouble with the means to grow and improve, and to achieve professional teaching standards. And a sound teacher evaluation system will make the hard decision that a teacher who has been provided the tools and the feedback to improve and still cannot achieve professional teaching standards needs to find a different line of work better suited to their talents. With the agreement on the appeals system, a framework has been established that will make the development of that teacher evaluation system possible. But it may well require a new mayor and new leadership at the DoE, prepared to negotiate in good faith, for that teacher evaluation system to be established.
 The general requirement is that after appointment under a license, a teacher must have three years of satisfactory service to receive tenure, but a probationary period may be extended beyond three years, and a teacher may receive credit for satisfactory service prior to appointment in place of some of those years.
 While this is the practice for cases where the charges are for poor performance, misconduct cases can be based on as little as a single act, if that act is of sufficient seriousness.
 It should be noted that for all of the talk of principal empowerment, the Bloomberg-Klein-Black-Walcott DoE gives the principal the ‘final word’ only when their judgment vis-à-vis teachers is a negative one. When the DoE decided that tenure was being granted at too high of a rate, it overruled principal judgment left and right without so much as “by your leave.”
 The 13% figure is derived from the numbers of ‘U’ ratings that were overturned on appeal in pre-Bloomberg Department of Education.
 It should be noted that a significant portion of those funds had been diverted from the schools and from the Educational Partnership Organizations that were working with the Restart Schools, and was being used to support central offices at Tweed.
 The DoE’s stated criteria for closure are that a school receives a grade of ‘F’ or ‘D’ or three consecutive ‘C’s on their School Progress Reports.