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BACKGROUND: In 2010, New York state adopted a new teacher evaluation law that said 20 percent of a teacher’s evaluation would be based on student growth on a state assessment or other comparable measure; 20 percent would be based on student achievement on other locally selected measures; and 60 percent would be based on locally negotiated evidence of teacher effectiveness. Subsequently, NYSUT went to court to challenge State Education Department regulations that were not consistent with the law. A state Supreme Court decision largely in the union’s favor was then challenged by SED.
The settlement between NYSUT and SED that was announced earlier this month may resolve the court case, prevents any adverse higher court actions and forestalls the governor’s imposition of his own evaluation law through budget bills. The settlement reinforces the 2010 law in all major aspects. Most importantly, it maintains the provision in the 2010 law that says the process for 80 percent of a teacher’s evaluation must be collectively bargained at the local district level.
Q. Why did NYSUT negotiate a settlement with SED?
A. NYSUT hadbeen in discussions with SED on a settlement of the lawsuit since October 2011. NYSUT’s first and foremost objective through the Annual Professional Performance Review (APPR) settlement has been to ensure that it conforms in all respects to the language and spirit of the 2010 law (Education Law §3012-c), consistent with the state Supreme Court decision. Most importantly, the settlement needed to protect collective bargaining rights, and it does. The settlement achieves that by: (a) nullifying a series of regulations that the court found unlawful; and (b) adopting provisions to clarify and improve the law. Further, a negotiated settlement eliminated the possibility that our court decision could be reversed on appeal, or that the governor could seek to impose a new law that eliminated important protections.
NYSUT leadership has successfully worked to forge an agreement that protects the interests of our members and the collective bargaining rights of our locals. This agreement aligns with what the state Supreme Court held under the 2010 law, protects us from an unfavorable ruling on the state’s appeal and/or a unilateral action by the governor against our members and the rights of our locals.
Q. What has not changed?
A. The settlement is broadly based on the original law, which means the original components remain in place. The majorityof the APPR must be bargained locally, including classroom observation procedures, the appeals process, Teacher Improvement Plan (TIP) procedures and local selection of measures of student achievement. Lead evaluators must still be certified. Teachers still will receive a rating (highly effective, effective, developing or ineffective) based on a composite score, comprised of the same original three sub-components:
- 20 percent: student growth based on a state-provided measure. Non-tested subjects will have a comparable measure of growth, which SED has determined will be created using Student Learning Objectives (SLO).
- 20 percent – other locally selected measures of student growth or achievement.
- 60 percent – other multiple measures of effective teaching.
Q. What has changed?
A. The amended law nullifies a series of regulations and clarifies the law:
- Expressly states that the selection of both the 20 percent locally selected measures, and the 60 percent based on effective teaching practice shall be determined through collective bargaining.
- Confirms the use of Student Learning Objectives (SLO) for non-tested subjects.
- Creates specific options for how the state assessments could be used as a different measure of student achievement for the 20 percent locally selected measures.
- Reduces to 31 points a mandate that a full 40 points of the 60 based on “other measures” of teacher effectiveness would come from classroom observations.
- Creates a requirement there be at least two observations (One will be unannounced.)
- Establishes the bands for Highly Effective, Effective, Developing and Ineffective ratings.
- Confirms that the points for the local measures (both the 20 percent locally selected measures, and the 60 percent based on effective teaching practice) will be determined through collective bargaining.
- Requires adherence to the APPR law and court decision, which state that the results of the APPR shall be “a significant factor” in tenure determination, retention and dismissal.
- Creates an approval process for APPR plans.
20 Percent Student Growth
Q. How will the state assess the first 20 percent of student achievement in subjects where there is no state test?
A. Teachers of subjects where there is no state-provided measure of student growth on state assessments (i.e., subjects without a state assessment and subjects where a state-provided growth measure has not yet been created based on the state assessment, such as the Regents exams or the NYSESLAT), must use other comparable measures of growth. SED has determined that these teachers will have a growth measure based on Student Learning Objectives (SLO), which isalso referred to in the regulations as a structured student growth goal-setting process.
Q. What is a Student Learning Objective (SLO)? How is it established?
A. AStudent Learning Objective (SLO) is an academic goal for a teacher’s students representing the most important learning for the semester or course. SLOs must include baseline performance data for each student, benchmarks to assess progress, and growth goal targets. SLOs are developed collaboratively between principals and an individual teacher, or groups of teachers, and should be based on district, school or grade level objectives that are aligned to New York State’s Common Core, national or state standards. Teachers’ effectiveness scores for this component of their evaluation will be based upon the degree to which their goals are attained.
Locally Selected Measures of Student Growth
Q. Can a state student assessment count for up to 40 percent of a teacher’s evaluation?
A. The settlement says that the first 20 percent will be comprised of student growth on a state assessment, where one exists. And the settlement clearly stipulates that the second 20 percent will be based on a locally selected measure of student achievement that must be collectively bargained. It is possible that a local union and district could agree to select a state assessment for the 20 percent locally selected measure since it is one of several options available. This means, however, that a local would need to choose to use the state assessments for the 20 percent locally selected measure.
If a local agrees to use a state assessment for the second 20 percent, it cannot be a double-counting of the state-provided growth measure. SED has provided options for how a state assessment could be used differently than for the first 20 percent; however, the rating methodology must be determined locally. This was a major issue in NYSUT’s lawsuit, because SED’s former regulations had allowed for the use of the identical state measure for both the state and the local student growth/achievement components. Further, SED had also taken the position that the actual selection of the local 20 percent measure was reserved to the school district or BOCES administration. The settlement preserves the court ruling that the first and second 20 percent must be different, and specifically requires the local 20 percent measure to be selected through collective bargaining.
Q. What are the options for the locally selected measures of student achievement that use a state assessment?
A. There are four options:
- The change in percentage of a teacher’s students who achieve a specific level of performance as determined locally, compared to those students’ level of performance in the previous school year.
- A teacher-specific growth score computed by the state based on the percent of the teacher’s students earning a state-determined level of growth, based on a methodology that shall be locally determined.
- A teacher-specific achievement or growth score computed in a manner determined locally based on a measure of student performance on the state assessments, Regents examinations and/or SED-approved alternative examination (such as AP exams). This option can be used to create a structured student growth goal-setting process, similar to a SLO, using the state assessments as evidence.
- A state-provided student growth score covering all students in the school that took the state assessment in ELA or math in grades 4-8. (Group measure – not teacher specific)
Q. What are the local options for student achievement that do not use a state assessment?
A. The amended law allows the following options:
- Student Growth or Achievement computed in a manner determined locally based on a state-approved assessment. This option remains unchanged from the original regulations. As of February, SED has approved approximately 20 commercial assessments. The list is available on the SED website at: http://usny.nysed.gov/rttt/teachers-leaders/assessments/home.html
- Student Growth or Achievement computed in a manner determined locally based on a district, regional or BOCES-developed assessment that is rigorous and comparable across classrooms.
- Teachers of non-tested subjects have the option of using a SLO for both the first 20 percent and as a locally selected measure. However, the SLOs must be different, or use the same evidence in a different manor than as it is used for the first 20 percent.
Q. Are teacher-created assessments allowed as a local option?
A. Yes.Teacher-created assessments are not listed as a choice, as they were in the original regulations. This option has been folded into the district-created assessments, because the superintendent must certify they are rigorous and comparable across classrooms. Locals should assert that teachers must develop any locally developed assessments.
60 Percent Other Measures of Teacher Effectiveness
Q. What changed in how observation is counted in the 60 percent of the evaluation comprised of “other measures” of teacher effectiveness?
A. NYSUT went to court to challenge the commissioner’s regulations that sought to mandate that a full 40 points of 60 would come from classroom observations. Under the settlement, a minimum of 31 points now must come from classroom observations. There is a minimum requirement of two observations and at least one must be unannounced. The settlement preserves the right to negotiate the number of observations beyond the minimum requirement. The procedures related to observations must also be negotiated. Evidence of student development and performance through lesson plans, student portfolios and other artifacts of teacher practice are also an option for the remaining points, which are to be determined through collective bargaining.
Q. Doesn’t the requirement for at least one unannounced observation interfere with collective bargaining?
A. Although the amended law will require at least one unannounced observation, parameters for this type of observation must be established through collective bargaining. A number of our locals already allow unannounced observations and have bargained both procedures and how the observation will be used in the overall evaluation. For example, some locals have negotiated contract language that requires prior notification that a observation will occur during a specific time period, such as within two weeks beginning on a specific date. Some contracts specify that an initial observation will be a full, formal observation followed by one or more unannounced, more focused observations of shorter duration, such as 15 minutes. Each observation is followed by a conversation and documented with a report that includes the pertinent parts of the rubric. Unannounced observations also do not need to be weighted the same as a formal observation. Again, how the points are determined for the 60 percent must be locally negotiated.
Q. Aren’t the scoring bands overly weighting the student growth and achievement measures?
A. Yes. Under state law, the commissioner has the authority (and has always had the authority) to establish scoring bands. Because the state and local measures of student achievement must now be different, consistent with the court’s ruling, the impact of the overweighting is lessened. Moreover, the local union will be able to use collective bargaining to shape how teachers are rated in all of the local measures. There will need to be agreement on what the expectations are for the 60 percent other measures, and student growth or achievement for the locally selected measures. There will be points associated with the different “highly effective, effective, developing and ineffective “ levels for each of these components, if a teacher meets the expectations for “effective,” she or he must receive the points in the “effective” range.
Q. Some of the media reported that teachers are going to be rated on a curve. Is this true?
A. No. Some people have incorrectly interpreted the four ratings to mean that a teacher’s composite score is based on a curve. What is true is that locals and their districts will bargain over the requirements teachers must meet to be rated “highly effective,” “effective,” “developing” or “ineffective” in the 20 percent locally selected measures and the 60 percent “other measures” of teacher effectiveness. Each teacher will be rated without regard to the other teachers in the school or district, and have the opportunity to reach “highly effective.”
Q: What will be the recourse if a principal overloads a teacher’s class with underachieving students?
A. The evaluation system is focused on student growth, not proficiency, and allows teachers to demonstrate student growth through multiple measures of student growth and achievement.
- For teachers with a state-provided growth measure, the model the state has selected will provide a growth measure based on how a teacher’s students perform compared to similar students (meaning students who scored the same on the previous year’s assessment). This means that the model will adjust for the population in an individual teacher’s classroom.
- For teachers of non-tested subjects, SLOs will be established locally, and will include a baseline for each student to be measured by the SLO. The targeted growth, which translates to a rating for the teacher, would be based on what percent of students make a specific level of growth or better from that baseline.
- How teachers achieve a rating for the locally selected measures will be collectively bargained. The rating system should take into consideration the different levels of student ability and provide an opportunity for the teacher to demonstrate student growth.
APPR as a Significant Factor in Tenure Determination, Retention and Dismissal
Q. If a teacher is rated “ineffective” based on the student growth state component (first 20 percent), will he/she receive an overall rating of “ineffective”?
A. A teacher’s evaluation will be based on multiple measures of performance. There are two components that address student growth or achievement. The first 20 percent is the state-provided growth measure for teachers; currently that applies to teachers in grades 4-8 ELA and math. The second, locally selected measure of student achievement, which comprises the second 20 percent of an evaluation, would typically be far broader than a narrow test score and reflect the full scope of student achievement. This provides necessary balance to an over-reliance on a single state standardized test.
A teacher who receives an “ineffective” rating in any one of these measures would not automatically receive an “ineffective” rating for the composite score. However, if a teacher receives an “ineffective” rating for both these measures, she/he will receive an “ineffective” rating on the composite score.
Q. If a member receives an “ineffective” rating will he/she automatically be terminated?
A. No. After one “ineffective,” rating, the district must develop a Teacher Improvement Plan (TIP) with necessary supports, training and specific goals for improvement. Proof that the district has fulfilled its responsibility would be required for further action. A teacher with two consecutive ineffective annual ratings could be charged with incompetence based on a “pattern of ineffective teaching” and be subject to an expedited 3020-a hearing. Again, the district must also provide evidence of how it implemented a TIP. The expedited process has not changed. None of the legislative changes precludes an employee from raising any defense in challenging the allegation of a “pattern of ineffective teaching”.
Q. Will NYSUT provide legal representation to members charged under 3020-a as a result of two consecutive “ineffective” ratings?
A. Yes. The amended law does not change members’ due process protections, and NYSUT will continue to provide attorneys to represent members in all 3020-a proceedings.
Q. Will the APPR be a factor in tenure determinations?
A. Yes.The amended APPR Law confirms that the APPR shall be a significant factor in employment decisions including tenure determinations. It also affirms the statutory right of a school district or BOCES to terminate a probationary teacher for permissible reasons not related to the performance of the teacher, such as misconduct.
Approval Process and Timeline
Q. Does the state have veto power over any school district’s APPR plan?
A. The state must implement a review and approval process to ensure that a district’s APPR conforms to the amended law and commissioner’s regulations. The approval process is necessary, because the governor has linked the increase in aid to an approved APPR. If SED abuses its authority, NYSUT is prepared to respond, through litigation if necessary.
Q. What is the approval process?
A. The process will consist of the following pieces:
- SED will create a standard form that districts will submit to the commissioner. The school superintendent and the local president must sign off, indicating that the locally negotiated APPR conforms to the law. SED must either approve the plan, or reject it.
- Locally developed assessments do not need to be submitted for approval. The superintendent must confirm that the assessments are rigorous and comparable across classrooms.
- Should a plan be rejected, the commissioner must inform the school district of the specific deficiencies in the plan. If the deficiency involves a provision requiring negotiations, it must be resolved through collective bargaining and the plan re-submitted.
Q. If we have already negotiated an APPR this year, do we need a new one?
A. The negotiated plan will remain in effect for the rest of this school year. The major elements of the law have not changed and your district’s plan may still comply with the amended law and commissioner’s regulations. However, the governor has included a provision in his budget tying state aid increases to a district’s approved new APPR plan by Jan. 17, 2013. Each district will need to submit its plan to SED for approval. If the plan is not approved, the district and local will have to negotiate changes to qualify for any scheduled increase in aid.
Q. Did NYSUT agree to the governor’s budget language linking state aid to new APPR plans as part of this settlement?
A. No. The executive budget proposal linking APPR and state aid increases was done unilaterally by the governor. The governor’s budget language was not part of the settlement discussion. The state budget is negotiated between the governor and the Legislature. NYSUT is on record with the governor and legislators opposing any linkage of state aid to APPR or competitive grants. We will continue our opposition to this language through the state budget process.
Q. With funding at stake, what will happen if my district tries to unilaterally impose an evaluation system?
A. There is language in the Taylor Law, APPR Law and amended Regulations that will provide some protections. If some districts try to press this issue, NYSUT Legal is prepared to take appropriate action at PERB or in court.
Q. What happens if the APPR is not approved by Sept. 1?
A. The Executive Budget calls for APPR plans to be approved and in place by Jan. 17, 2013, otherwise the school district’s 2012-13 budget increase would be at risk. Plans submitted by July 1, 2012 must be approved or rejected by the commissioner by Sept. 1, 2012, or as soon thereafter as possible. For those plans that have been rejected by the commissioner each deficiency must be identified and the commissioner is to direct further negotiations concerning items that are the subject to collective bargaining. Material changes made to the APPR plan must be reported back to the commissioner.
All of this means that for school district that completed and submitted their APPR plan by July 1, 2012 might not know by the opening of the 2012-2013 school year whether the plan has been approved.
Additionally, if negotiations are not completed by July 1, 2012 (or by July 1st of any subsequent year) on all of the terms of the APPR plan, as a result of unresolved negotiations, the entire APPR plan is to be submitted to the commissioner upon resolution of all of the terms of the APPR. The commissioner would then have to approve or reject the plan submitted.
Q. If the state-provided growth scores are not available by the end of the school year, can teacher evaluations be completed?
A. No. The amended law requires that districts notify teachers, before the end of the school year, what their ratings and scores are for the 60 percent “other measures” of teacher effectiveness and the 20 percent locally selected measures, if available. This new early warning system is important, because SED has indicated that the state growth data is not likely to be available prior to the end of the school year, and evaluations cannot be completed until the state growth measure is provided. This will give teachers more time to assess their practice and plan accordingly, including seeking professional development and other supports during the summer.
Teachers Covered by the APPR
Q. Which teachers are included in the settlement?
A. All classroom teachers, including non-tested subjects. This includes library media specialists, and CTE teachers. Supplemental school personnel (teacher aides and teaching assistants) and pupil personnel services (such as social workers, school psychologists, and guidance counselors), are not included. Teachers in this latter grouping will continue to be evaluated according to existing APPR procedures.
Q: How will student achievement be measured for students in special education? For English language learners (ELLs)?
A. At this point, only one teacher can be identified as the “teacher of record” for purposes of computing a state-provided growth score. Special education and ELL teachers in self-contained classes would be the “teacher of record” and receive a state-provided growth score for the first 20 percent. All other teachers will need to have SLOs for the 20 percent growth. SED is in the process of developing a data system that can accommodate more than one “teacher of record.” When implemented, teachers who provide push-in or pull-out services will receive a state-provided growth score. The state-provided growth score will be adjusted for students with disabilities and ELLs.
The 20 percent locally selected measure could be any of the options for the locally selected measures of student achievement. Locals should consider adjusting achievement/growth goals for students with disabilities and ELLs based on academic history.
Q: How will student achievement be measured in art, music, physical education?
A. These teachers would need SLOs to measure student growth for the 20 percent growth measure. The 20 percent locally selected measure could be any of the options for the locally selected measures of student achievement. Locally developed assessments would provide the best opportunity to demonstrate student growth or achievement in these subjects. An assessment does not need to be a test; it could be project- or performance- based.
Q: How will Library Media Specialist evaluations be done?
A. Library Media Specialists are considered teachers of non-tested subjects. These teachers would need an SLO to measure student growth for the 20 percent growth measure. The 20 percent locally selected measure could be a locally developed assessment. An assessment does not need to be a test; it could be project-based, using a rubric to validate rigor and comparability.
Q. What will happen to NYSUT’s lawsuit challenging SED’s regulations?
A. The attorneys will work out the terms of a settlement, likely based on the mutual withdrawal of the state’s appeal and our cross appeal.
Q: How will the evaluations account for student attendance and the reality that in some districts, student absenteeism is a chronic problem?
A. Currently, SED is capturing student attendance data and considering whether to adjust the growth model to account for absenteeism. NYSUT supports weighting student absence in the model and will continue to advocate this position. The procedures for the 20 percent locally selected measures are collectively bargained, and can include attendance criteria.
Q: Will these evaluations be made public, as is happening in New York City?
A. NYSUT will challenge any effort to make evaluations public. In New York City, what the press has requested to make public are the teacher’s value-added scores, which are based on student data, and are used as a part of a teacher’s evaluation. We will take legal action in an effort to prevent the public release of APPRs, as such release would be contrary to the purposes of the APPR law.
We will work together closely to implement the amended law properly. NYSUT will be vigilant in identifying any aspects that are not implemented properly, and in identifying any components of the law that may need to be adjusted through future legislation.