Firing Teachers: How New York State Tenure Laws Protect Students and Teachers.

A NY Post editorial, commenting on the just-passed “safety net” that matches the impact of state tests on students to the impact on teachers by granting a two-year moratorium for both, sarcastically writes,

Great news for bad teachers. For kids, not so much. If you worry more about anxiety than achievement, you’ll never fire bad teachers.

Last year, only 1 percent of teachers outside Gotham were rated “ineffective” — even though 69 percent of third- through eighth-graders flunked their math and reading tests.

Doesn’t that suggest that maybe we don’t have enough teacher anxiety?

More than a year ago AFT President Randi Weingarten, at an Association for a Better New York (ABNY) breakfast called for a two year moratorium on the impact of the Common Core State Standards (Watch speech here). The audience was filled with the education and political glitterati, her speech was well-received; however, the Commissioner plowed ahead. The result was a disaster! A nascent parent unrest became a movement and the movement raced across the nation.

I’m curious how the Post will react when the State releases the current round of test scores – I am wagering that the scores will be significantly better. Will the Post praise teachers for suddenly becoming better teachers or will they trash the test and the Commissioner for jacking up the scores.

Test scores are zip code based while the new teacher evaluation system compares teachers to colleagues around the state teaching “similar” students. It is my understanding that the 1% “ineffective” were not concentrated in high poverty districts.

The state sets cut scores, on the first round of the new Common Core-based tests: the state set the cut score at a level that resulted in 69% of kids scoring “below proficient.” During the lengthy discussions that proceeded the cut score decision a few members of the Regents (namely, Cashin, Rosa, Phillips) asked that cut scores be set at the same level as the previous year and slowly be increased to acknowledge the “newness” of the test and the phase-in period for teachers to get up to speed on the new standards, unfortunately, to no avail.

60% of teacher assessment scores are based on principal observations using a state-approved rubric, 20% on a “locally negotiated” instrument and 20%, the controversial 20%, on growth in student test scores (about 70% of students do not take state tested subjects and use a Measure of Student Learning – usually a district-approved test at the end of the school year). At the end of the 2013 school year 51% of teachers scored “highly effective,” 40% “effective,” 8% “developing” and 1% “ineffective.”

This should not be surprising: teachers are trained at state-approved teacher training institutions, they are selected by schools frequently after teaching a demonstration lesson, they serve a three-year probationary period during which about 30% of teachers leave voluntarily within three years. Candidates and new teachers are screened numerous times before they achieve tenure, and, in New York City about a third has tenure extended for a year.

After achieving tenure teachers can still be dismissed pursuant to provisions of state law. There is enormous confusion regarding how the law provides for disciplining and firing teachers.

Section 3020a of Education Law, amended in 2012, sets forth the procedures for hearings against tenured teachers

Where charges of incompetence are brought based solely upon a pattern of ineffective teaching or performance of a classroom teacher or principal, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, and shall be completed within sixty days after the pre-hearing conference.

Such charges shall allege that the employing board has developed and substantially implemented a teacher or principal improvement plan in accordance with subdivision four of section three thousand twelve-c of this article for the employee following the first evaluation in which the employee was rated ineffective, and the immediately preceding evaluation if the employee was rated developing. Notwithstanding any other provision of law to the contrary, a pattern of ineffective teaching or performance as defined in section three thousand twelve-c of this article shall constitute very significant evidence of incompetence for purposes of this section. Nothing in this subparagraph shall be construed to limit the defenses which the employee may place before the hearing officer in challenging the allegation of a pattern of ineffective teaching or performance.

The hearing officer shall render a written decision within thirty days of the last day of the final hearing, or in the case of an expedited hearing within ten days of such expedited hearing

The written decision shall include the hearing officer’s findings of fact on each charge, his or her conclusions with regard to each charge based on said findings and shall state what penalty or other action, if any, shall be taken by the employing board. At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

Summary of the timelines can be found here.

The SED Guidance document is here – see pages 25-27 for procedures to dismiss a probationary teacher

The lengthy and dense statute, Section 3012-c is here.

Most teacher discipline involves “constitutionally and statutory permissible reasons other than classroom performance without regard to APPR,” meaning a “bad act,” which the law goes on to define as “permissible reasons include, but are not limited to, misconduct, insubordination, time and attendance issues, or, conduct inappropriate for a teaching professional.” The cases include convictions or guilty pleas for crimes involving drugs, violence or sexual misconduct, for certain felonies the teacher is discharged without a hearing. In recent years posting on social media deemed inappropriate or inappropriate texts can constitute chargeable offenses.

If there are teachers with successive “ineffective” overall scores (60 + 20 + 20) on the APPR a school district may proffer charges pursuant to the provisions of Section 3012-c as described above.

We will find out in the fall after the second year scores are released, the scores are impacted by the modification just approved by the legislature.

In my view the tenure laws in New York State will survive any constitutional challenge – the Vergara Decision (Read full decision here) in California will not have legs in New York State.

And, I anxiously await the Post praising teachers for the leap in scores on the state tests – I won’t hold my breath!!


2 responses to “Firing Teachers: How New York State Tenure Laws Protect Students and Teachers.

  1. Marc Korashan

    Would the Post support a medical evaluation system that rated doctors on how many patients recovered (If so who would go into oncology as a specialty?). I suspect it wouldn’t because whether a patient recovers depends on many factors outside the doctor’s control: when did the patient first seek treatment, is the disease treatable, is it caused by drug resistant organisms, is the patient fully compliant with the medical treatment plan, etc. I suspect they would see this as nonsense.

    Judging teacher’s by student test performance suffers from that same problem. The teacher can prepare the student for the test but can’t control the student’s response to it. Did the student sleep well the night before? Does the student suffer from test anxiety that impairs performance? Does the student care enough about the test results to be motivated to stick with it when it gets hard for him/her?

    In addition, unlike with medicine, these academic achievement are badly flawed as measures of individual growth. This is not what they were really designed for. As a result we have seen school performance go from A to F to B over the course of three years based on student scores. I don’t think anyone really believes the school had changed its teaching that radically every year.

    The call for a moratorium on using test scores is just a call for time to develop tests that will truly measure student performance against the new Common Core Learning Standards. .As such, everyone should applaud it since it’s real intent is to improve our understanding of students.

    The Post and the other Educational Deformers who are using this as a way to attack teachers miss that point because they have a different agenda. They want to break Teacher Unions and create the conditions for making schools corporate entities that can return a profit to investors (not an education to students). That is, at their core, what Success Academy and the other charter school networks really are; schools as corporate franchises.

    As someone who has been deeply involved in issues around assessment of student learning and a true proponent of the standards movement in education, I would like to see school systems move to performance based assessments and student portfolios and away from standardized tests. In that kind of system assessment and instruction would be more closely linked, teachers could legitimately teach students the skills they needed to complete the performances which would truly reflect the standards in the Common Core. We wouldn’t be concerned with cut scores and determining ahead of time how many students will not be proficient. In that kind of system a 40% weight for student performance might make sense.

    We can only hope that the moratorium will lead to meaningful discussion of the issues involved in creating that kind of assessment system.


  2. Pingback: Vergara Comes East: Tenure, Graduation Rates and Searching for Answers: How Do We Improve the Odds for All Kids? | Ed In The Apple

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