By Douglas E. Gerhardt
On the February 16, 2012, Governor Cuomo held a news conference with NYSUT and the NYS State Education Department (SED) to announce settlement of the ongoing legal case brought by NYSUT against SED regarding APPR (teacher/principal performance review). The announcement came on the day the governor promised imposing a solution if settlement was not reached. It was also the final day his 30-day budget amendments were due. From the press conference, it appeared NYSUT, SED, the governor and the UFT worked diligently to reach the settlement.
The settlement, which was made part of the governor’s budget bills and which still needs approval by both houses of the legislature, includes significant changes to the current APPR process even though the basic principal remains the same — multiple measures (40 percent objective and 60 percent subjective measures). Contrary to an indication that a revised APPR would be less complex and easier to understand and implement, the bill appears to contain some confusing language and sophisticated determinations which would still be subject to local negotiation. The most significant change is districts will not be eligible for aid increases unless they fully implement a new teacher evaluation system by January 17, 2013.
The governor’s bill combines elements of Education Law section 3012-c and provisions of the implementing regulations. It also adds new language, requirements, and costs. Some of the additions are clearly compromises
An initial read of the bill suggests it may create additional debate and challenges rather than simplify or streamline the process. And, as is the case with most legislation, including Article VII budget bills, the matter is likely to be subject to ongoing negotiations. If those take place, further changes could occur.
Highlighted below is a snapshot of the major areas of the proposed agreement.
- Limits on terminating probationary teachers and principals - The bill states that nothing in this process shall affect the rights of a district or board of education to terminate a probationary teacher or principal, unless the reason for termination is based on performance. This appears to be a significant change. As recently as last week, Harris Beach was successful in a case in which the Commissioner affirmed a school district’s right to terminate a probationary teacher/principal. This new proposed language would change that, reducing management rights and appearing to increase due process even for probationary teachers. In addition, during the pendency of an APPR appeal, a probationary teacher or principal cannot be terminated if the subject of the appeal is based upon performance. Again, this would provide considerably more due process for probationary teachers. These are also areas entirely not mentioned in the press conference held yesterday.
- The second 20 percent locally selected measure – The provisions of the new bill enhances the choices for selecting the local measure. Rather then negotiating just the process for the selection of the local assessment and allowing the district to choose the appropriate local measure, the measure itself appears to now be subject to negotiations. There are many new choices that can be negotiated including use of the state assessments by applying a different methodology to the state tests. Additional language and rules have been set forth on when the local measure can be a student achievement measure and/or a student growth measure. Many of these decisions will be based upon the adoption by the Board of Regents of value added assessments for the first 20 percent measure in the 2012 – 2013 school year.
- Scoring ranges for the Total Composite Effectiveness Score – The scoring ranges for the Total Effectiveness Score have been adopted from the regulations. Ranges do not allow a teacher or principal who has been rated below the effective level on the objective measure to be rated effective or above for a total score. In other words, to achieve an effective rating, a teacher could not simply rely on sufficient scores on the 60 percent subjective measures. However, the bill also widens the point ranges in the subcomponents at the effective level to provide more flexibility for a teacher or principal to obtain the effective rating for the objective measures and an improved overall score.
- Providing scores to teachers and principals – The bill requires subcomponent scores to be provided to teachers and principals by the last day of the school year and Total Composite Effectiveness Scores by September 1 of the next school year. Despite the fact that the bill will not be in effect and will not become law until/if passed by the legislature with the 2012 – 2013 state budget, the included language requires districts provide APPR data for grades 4 to 8 ELA, mathematics, and common branch teachers and principals for the 2011 – 2012 school year.
- Provides for the demonstration of growth for high achieving students – The bill adds language and alternatives for the locally selected measure to demonstrate student growth for students who are already high achievers on state assessments.
- Additional options for principals to demonstrate growth – The bill adds options subject to local negotiations for principals to demonstrate growth on the second 20 percent objective measure. These options include other state assessments, performance of English language learners and students with special needs, and particular graduation rates.
- The framework for the 60 percent subjective measure for teachers – This area is still subject to local negotiations, however, certain added parameters are included within the 60 points. At least a majority of the points (31) must be based on classroom observations. The remaining points will be determined by Commissioner’s Regulations for the 2011 – 2012 school year. For the 2012 -2013 school year and thereafter, the remaining points shall be determined by an independent trained evaluator selected by the school district, classroom observations by a trained in-school peer teacher, the use of a state approved instrument for parent and/or student feedback, and/or evidence of student development and performance through lesson plans, student portfolios and other artifacts. There is no mention of the use of teacher scoring rubrics, but the use and cost of independent evaluators is an added concept.
- The framework for the 60 percent subjective measure for principals – A majority of the 60 points for building principals shall be based on a broad assessment of the principal’s leadership and management actions based on the principal practice rubric. The assessment must include multiple school visits by a supervisor or trained administrator or other trained evaluator. At least one visit must be by the supervisor and one visit must be unannounced. For the 2012 – 2013 school year and thereafter, the remaining points must come from feedback from teachers, students, and families using a state approved instrument.
- Transparent and available – The district’s plan must be transparent and available and must demonstrate it is possible for a teacher or principal to obtain each point in the scoring ranges prescribed by the district. The plan must also include a narrative description of the standards of the scoring ranges to effectively differentiate a teacher or principal’s performance in each of the subcomponent levels and the overall ratings.
- Submission to the Commissioner for review and approval – By July 1, 2012, a district and BOCES must adopt a plan on a form prescribed by the Commissioner for review of all of its classroom teachers and building principals. The plan shall then be submitted to the Commissioner of Education for review and approval. The Commissioner shall approve or reject the submitted plan by September 1, 2012 or “as soon as practicable thereafter.” This will be a huge undertaking for the Department given its capacity and limited resources. If the Commissioner rejects the plan, he is to provide a description of each deficiency and direct that each deficiency be resolved through collective bargaining.
- The appeal procedure – The appeal procedure remains locally established, however, the bill now states that the appeal procedure shall provide for the timely and expeditious resolution of any appeal.
- Monitoring by the State Education Department – The bill adds language from Section 30-2.12(b) of the Commissioner’s Regulations allowing SED to monitor and analyze trends to ensure rigorous evaluations exist in each district to improve educator effectiveness and student learning outcomes. The Commissioner will have the authority to direct a corrective action plan and to provide additional training and independent trained evaluators to help the district adopt an effective plan.
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