Topics The natural growing groundswell against teacher tenure. Does - PowerPoint PPT Presentation

MSMA F ALL C ONFERENCE T HE B ATTLE O VER T EACHER T ENURE L AWS A ND W HAT ’ S N EXT F OR M AINE October 24, 2014 George Isaacson, Esq. Connor Beatty, Esq.

Topics The natural growing groundswell against teacher tenure. Does Maine’s teacher evaluation law solve the problem? Concerns going forward.

Background on Teacher Tenure: • The origins of tenure laws. • Application to primary and secondary schools. • Maine’s de facto tenure system.

Vergara v. California

Permanent Employment Statute : Requires administrators to make tenure determinations midway through a teacher’s second year of teaching. Dismissal statutes : Requires notice; a hearing, including discovery; appeals; additional requirements as determined by the collective bargaining agreement with the teachers’ union. LIFO : A seniority-based layoff statute.

Vergara v. California Permanent Ineffective teachers Employment obtain tenure Harm to Ineffective teachers are Dismissal costly to remove students Ineffective teachers LIFO Layoffs avoid layoffs

New York Cases • Davids v. New York , brought by the New York City Parents’ Union • Wright v. New York , brought by the Partnership for Educational Justice

Maine’s Teacher Evaluation Law: • Teachers shall be given an annual “effectiveness rating.” • Local school districts must draft an effectiveness rating system and seek approval from the Department of Education.

The Teacher Evaluation Law:  If a teacher receives consecutive “ineffective” ratings, this shall constitute “just cause” for nonrenewal.  Teachers can only challenge an evaluation on the basis that:  The evaluation system was improperly implemented; or  The evaluation was a product of bad faith.

Collective Bargaining Landmines

Congressman Michaud “[s]upports giving educators a voice in their profession by allowing educators to retain control of the curricula they teach and bargain education policy issues.” – MEA newsletter.

Obligation to Bargain: “…except that public employers of teachers shall meet and consult but not negotiate with respect to educational policies; for the purpose of this paragraph, educational policies may not include wages, hours, working conditions or contract grievance arbitration.” 26 M.R.S.A. § 965.

“…the Board has determined that the frequency, form and criteria of teacher evaluations and the identity of evaluators of teachers are matters of educational policy, not subject to negotiation…” Litchfield Educational Support Personnel Association v. Litchfield School Committee , M.L.R.B. Case No. 97-09 (July 13, 1998) citing Caribou School Department v. Caribou Teachers Association , M.L.R.B. Case No. 76-15 (Jan. 19, 1977).

“While the functions of an evaluator involve such important employment decisions as those concerning promotion, transfer, assignment, discipline, dismissal and non-renewal, on balance, the responsibility of the Committee for the effective implementation of the educational program and its quality shifts the matter of designating the evaluators into the educational policy arena. Both the naming of evaluators and determining what qualifications they must have must be reserved to the Committee as a matter of educational policy.” Lewiston Teachers Association v. Lewiston School Committee , M.L.R.B. Case No. 86-04 (June 30, 1986).

§13201. Nomination and election of teachers; teacher contracts “Just cause for dismissal or nonrenewal is a negotiable item in accordance with the procedure set forth in Title 26, chapter 9-A for teachers who have served beyond the probationary period.”

§13201. Nomination and election of teachers; teacher contracts “The order of layoff and recall is a negotiable item in accordance with the procedures set forth in Title 26, chapter 9-A. In any negotiated agreement, the criteria negotiated by the school board and the bargaining agent to establish the order of layoff and recall must include the teacher's effectiveness rating…”

§13703. Use of effectiveness rating; grievance “A superintendent shall use effectiveness ratings of educators to inform strategic human capital decision making, including, but not limited to, decision making regarding recruitment, selection, induction, mentoring, professional development, compensation, assignment and dismissal.

§13703. Use of effectiveness rating; grievance “Receipt of summative effectiveness ratings indicating that a teacher is ineffective for 2 consecutive years constitutes just cause for nonrenewal of a teacher's contract unless the ratings are the result of bad faith. Any appeal of, or grievance relating to, an evaluation conducted pursuant to this chapter or an effectiveness rating resulting from implementation of a system is limited to matters relating to the implementation of the system or the existence of bad faith in an evaluation or the assignment of a rating. The professional judgment involved in an evaluation or implementation of the system is not subject to appeal or grievance.

§13704. Elements of system “A. The rating must be based on standards of professional practice and measures of educator effectiveness. The proportionate weight of the standards and the measures is a local decision, but measurements of student learning and growth must be a significant factor in the determination of the rating of an educator.”

§13704. Elements of system “A. Evaluation of educators on a regular basis, performed by one or more trained evaluators. The frequency of evaluations may vary depending on the effectiveness level at which the educator is performing, but observations of professional practice, formative feedback and continuous improvement conversations must occur throughout the year for all educators… C. A peer review component to the evaluation and professional growth system and opportunities for educators to share, learn and continually improve their practice.”

Recommendations:  Review current CBA for consistency with new evaluation law.  Beware of Association proposals that seek to:  Expand scope of negotiations into matters of educational policy;  Dilute the positive elements of the new evaluation law (including loss of management rights).  Carefully consider potential contractual alternatives for incorporating evaluation results in teacher compensation.

Questions?