Leo Casey finally released his long awaited explanation of the appeals process under the new New York State teacher evaluation agreement. The process is certainly as convoluted as the rating system itself. There are some serious concerns we all have about the process that will, hopefully, begin to be fleshed out in this post.
First, Leo Casey is confident that the appeals procedure secures “the educational integrity and fairness of the teacher evaluation process.”
He summarizes the protections we had before the Bloomberg regime. There were essentially two processes available to teachers. The first was the ability of all teachers, tenured or not, to appeal an end-of-year “U” rating to a hearing officer within the DOE. Before Bloomberg, 10-15 percent of these ratings were overturned through this process. After Bloomberg, around .5% of appealed “U” ratings were overturned. Essentially, Bloom-Klein-Walcott indiscriminately upheld the “U” ratings of principals, giving them unprecedented power.
The other process, available only to tenured teachers, is the 3020a hearing. This is the “going after the license” hearing consisting of an “independent” arbitrator who hears arguments from both a DOE and union (NYSUT) lawyer. Just like a trial, the “defendant” (teacher) must be charged with specific misconduct (incompetence, felony, child abuse, etc.). The lawyers present their cases and the arbitrator decides on a binding outcome.
As we know, there are serious problems with the 3020a process, problems that Leo Casey does not touch in his article. First, 3020a arbitrators are appointed to one-year terms and must be agreed upon by both the DOE and UFT. This motivates arbitrators to split the baby in most cases, giving a little to the union and little to the DOE. It must be made clear that arbitrators have a range of decisions they can reach: termination, heavy fines, letters to the file and others. Therefore, in around 96% of 3020a cases, the teacher was found guilty of something. Their punishments can run the gamut, but the fact is that very few of them are ever exonerated.
And these are just the cases that make it to 3020a. Around half of all teachers charged choose to settle instead, where they then incur any of the penalties available to the arbitrator. It is more accurate to say the teacher’s lawyer chooses to settle. When a teacher first learns they are facing a 3020a, they are given a choice between a private and public hearing. Private hearings allow the arbitrator and lawyers to work out settlements in peace. Since lawyers and arbitrators are linked, the fear is that they go over their list of cases and decide who gets fired and does not. We do not really know because these proceedings are, after all, private. There used to be a time when teachers would be able to choose their own arbitrator. Now, they are randomly assigned.
After the 3020a hearing, a teacher can appeal the decision of the arbitrator to a court of law (3020a hearings are not actual courts). According to former NYSUT attorney Brian Glass, more decisions than ever are being “bounced” (overturned) by the courts. This shows that there is something wrong with the city’s 3020a process. The arbitrators are motivated to find teachers guilty, but stop short of termination in order to split the baby. The private hearing procedure allows lawyers to decide who gets terminated and who does not. This means that an individual teacher’s case might not be decided strictly on its merits, but on the relative severity of the infraction compared to other cases on the docket. Ever since the Bloomberg regime began, and especially after the 2005 contract, the 3020a process has been skewed more and more against teachers.
Here is the first big point: the new teacher evaluations do nothing to change this 3020a system. This is a shame because, as you will see, the 3020a process will play a crucial role in the new evaluation regime.
Speaking of the new regime, Leo Casey describes “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.”
If I understand this correctly, this means that the UFT can appeal up to 13% of all ineffective ratings in a single year. These will be the retaliatory ineffective ratings that principals give to teachers for things like “advocating for students or engaging in union activism”. The 13% percent ratio is based upon that 10-15 percent of overturned “U” ratings of the pre-Bloomberg years to which Leo Casey earlier referred. The appeals will be heard by a three-member board: one chosen by the UFT, one chosen by the DOE and one neutral chairperson.
There are two major questions (if not more) that arise from this: first, how will the UFT determine which ratings are retaliatory? It seems that the variegated evaluations procedure gives administrators ample opportunity to fudge and justify ratings based purely numbers. A particularly shifty administrator can make a vindictive ineffective rating look totally objective. They can throw up their hands and say “hey, I am just going by what the numbers say.” I am sure the UFT will need some sort of evidence outside of numbers to determine which ineffective ratings are retaliatory.
My concern with this is that this gives the UFT tremendous power over our careers. Now, if we had to choose between the UFT and DOE having that type of control, I am sure most of us would opt for the former. This does not mean, however, that the UFT will be immune to favoritism in its own right when choosing which cases to appeal. What about members who are outspoken against the Unity caucus? Will the UFT go to bat for them? Will the UFT automatically choose to appeal all ineffective ratings for chapter leaders on the grounds that they must be retaliatory prima facie? Would this not eat up a healthy percentage of that 13, leaving the rest of us to fight over the remaining scraps?
The second major question is: who will choose the third “neutral member” of this panel? Will they be chosen in the same manner as 3020a arbitrators? It seems like a pretty important question, since we can assume how the other two members will decide. If that is the case, I can imagine these all-important “neutral” members splitting the baby once again, voting to overturn ineffective ratings roughly 6.5% of the time. While this is certainly fairer than the automatic denial of all “U” rating appeals currently in place, it does not seem like a fair system by any stretch, let alone one that upholds “the educational integrity and fairness of the teacher evaluation process.”
Leo Casey then describes the second appeals procedure:
“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….”
To pick up where we left off from in the previous paragraph, let us say that you are one of the 87% of teachers who could not get the UFT to appeal your first ineffective rating. Or you might be one of those 6.5% of teachers who got an appeal and lost. You now must develop a Teacher Improvement Plan (TIP) with your principal. Does this mean that you have input into this plan? Is there anything stopping a principal from unilaterally shoving an unreasonable TIP upon you in order to set you up for failure next year?
So you start the next school year under the tutelage of an independent validator, a licensed educator agreed upon by both the UFT and DOE. (Leo, is there a way you can email me with information on how I can become one of these validators?) This validator will observe the teacher at least three times over the course of the year. If the principal rates you ineffective for that year (your second such rating in a row), you will go through the 3020a process. Now, if the validator agrees with the principal’s ineffective rating, then the burden of proof is on you during 3020a. If the validator does not agree with the principal’s ineffective rating, then the burden of proof is on the DOE during the 3020a.
First, we know these validators will be educators, but will they be teachers? We know that there are loads of administrators out there without assignments doing make work in some decrepit DOE office. Will the validator job merely be a sinecure for these administrators? Can teachers like me apply to be validators? It seems like a major concern. We are working in a system where so many administrators are non-teachers, people who entered the DOE to get the required three years out of the way and move on. Do we really want those people working in the instructional side of education? I suppose Leo Casey’s response to this will be “that is why the UFT will have a say in who becomes validators.” But I guess it all depends on the pool of people who are allowed to apply for the job. If they are all non-teachers, then it really does not matter how much say the UFT has in the choosing of these validators. That is why I am offering my services for this important job.
Once at the 3020a level, all of the problems previously discussed with the 3020a process will kick in. If both the principal and the validator agree that you are ineffective, then it seems that you are pretty much gone. All of the thinking has already been done for the arbitrator up until that point. They will have mounds of paperwork and data “proving” the ineffectiveness of the teacher, paperwork that has been rubber stamped by the UFT along the way. The arbitrator can terminate the teacher without fearing the UFT will refuse to reappoint them for the next year.
The other scenario, one where the validator does not agree with the principal’s ineffective rating, seems a little thornier. It seems as if it will be the same splitting the baby game that currently exists in 3020a. A few will probably be terminated, a few will be exonerated and the vast majority will get some other type of outcome. It is tough to see, however, what this other outcome will be. It would be silly to fine or put a letter in the file of someone rated “ineffective”. Instead, the only other outcome I can imagine is a third year with a TIP and a validator. This will merely stagger the termination until next year, or the year after that. In sum, this entire TIP process seems like the pipeline to termination soon or eventually.
I am willing to allow that certain of these concerns are conjectural. We never really know how something so complex will play out in the realm of human interaction and institutions. However, I do see a lot over which to be concerned. It seems as if the TIP and validator process is an end run around tenure as we know it in New York City.
I appreciate Leo Casey taking the time to explain such a rococo system to the membership. In the end, it seems there is more than enough grey area to cast doubt on the idea that the appeals process secures the educational integrity and fairness of the teacher evaluation process.