Arbitrator (in 2014!!) Overturns Teacher Firing: Rules Teacher Evaluation Process is “Arbitrary.”

(I suspect around the fall of  2014 the following decision will be rendered)

Jane Doe, Teacher

v.

The School District of the City ofNew   York

Re: The Appeal of a Termination pursuant to Sections 3020a and 3012c

of the New York State Education Law, as amended.

The Appellant appeals her termination and asks that the arbitrator sustain her appeal and reverse her termination.

Section 3012c , as amended, establishes a number of categories in which teachers are rated. The categories, as specified by the law are as follows: 20% based upon student scores on State English and Mathematics tests in grades 3-8 and locally developed data-based tools in other certification areas, 20% based upon a locally negotiated tool using student test scores and 60% on other evaluations, more than half of which must be principal observations. In each category the teacher receives a numerical score and the scores determine whether the teacher is rated ineffective, developing, effective or highly effective. The composite score results in a numerical grade from 0 to 100. Scores in the 0-64 range will be considered as “ineffective.” The law, as amended, requires that regardless of the total composite score an “ineffective” score in the 20% student state test category must result in an overall ineffective grade regardless of the grades in the other categories.

The Appellant avers that the state tests are fatally flawed and the requirement that an ineffective grade in the state testing category requires an overall ineffective grade is so discriminatory, arbitrary and capricious as to constitute an abuse of discretion.

The Respondent argues that the Appellant claims about the nature of the state tests is beyond the authority of the arbitrator and asks that the claim of the Appellant be denied.

Section 3012c, as amended, places the burden of proof on the Appellant.

The Appellant places into evidence testimony of Linda Darling-Hammond. In a paper entitled “Getting Teacher Evaluation Right: A Background Paper for Policy Makers,”  Darling-Hammond and others argue, with substantial evidentiary support, that the Value-Added (“VA”) of teacher effectiveness are “unstable;” meaning that the ratings differ substantially from year to year and from class assignment to class assignment. The ratings are significantly affected by the students assigned to classes and the statistical model cannot disentangle the many influences on student progress.

The Appellant also places in evidence the testimony of Aaron Pallas  in support of the claim that the underlying basis of the termination was arbitrary.

In science, a rigorous study is one in which the scientific claims are supported by the evidence. Scientific rigor is primarily determined by the study’s design and data-analysis methods. It has nothing to do with the substance of the scientific claims. A study that concludes that an educational program or intervention is ineffective, for example, is not inherently more rigorous than one that concludes that a program works.

Even more importantly, describing a teacher-evaluation system as rigorous hides the fact that the criteria for assigning teachers to performance categories — either for subcomponents or for the overall composite evaluation — are arbitrary. There’s no scientific basis for saying, as New York has, that of the 20 points out of 100 allocated for student “growth” on New York’s state tests, a teacher needs to receive 18 to be rated “highly effective,” or that a teacher receiving 3 to 8 points will be classified as “developing.”

… it’s politics, and politics alone, that accounts for the fact that the rules for the overall composite evaluation say that any teacher who scores 0 to 64 points will be classified as ineffective, and that the two subcomponents for student “growth” and local assessments, each of which counts for 20 points, classify teachers who score 0 to 2 points on each component as ineffective…. if a teacher is classified as ineffective on both of these subcomponents, that teacher is automatically rated ineffective overall, even if that teacher is rated highly effective on the 60 points allocated for measures of a teacher’s professional practices. It certainly seems odd that two components accounting for 40 percent of a teacher’s overall rating can trump the remaining 60 percent — but this isn’t science, it’s politics.

The principal of the Appellant’s school, under subpoena, testified that in the 60% category, the lesson observations of the principal rated Ms. Doe “effective” and “highly effective” in a number of lesson observations as well as numerous brief classroom visits. The principal used a state- approved rubric – the Danielson rubric – during her classroom visits, informal and formal observations. The observation reports were placed into evidence.

The Respondent restates their argument that the content of Section 3012c, as amended, the teacher evaluation law, is beyond the scope of the arbitrator and that the arguments of the Appellant regarding the law must be excluded.

Even if the arbitrator chooses to acknowledge the testimony provided by Appellate witnesses the Respondent, the City District, argues that the union contract provides that teachers have the right to apply to teach specific classes and that no teacher is assigned to a school against their will – under the Open Market System teachers apply to schools and are not assigned by management. While the City District argues that the arbitrator is barred from considering arguments dealing with the nature of the law, even if the arbitrator deals with the law it challenges the “unstable” claim in that teachers choose classes and schools mitigating the claim.

Arguendo, the Appellant has not met her burden of proof, as required by the statute.

The arbitrator agrees with the Respondent that he has does not have the authority to comment on the constitutionality of the law; however the arbitrator does have an obligation to consider the impact of the law on the instant case. The “arbitrary and capricious” standard is commonly defined as an action that is without sound basis in reason and is generally taken without regard to the facts.

The instant matter clearly meets the standard.

In the opinion of the arbitrator the Appellant has met her burden of proof.

The appeal is sustained and the termination is overturned.

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