Forecast 2014: Education Law Issues Include Money, Reform Measures
Districts are now "graded" on student achievement, and the state Department of Education just issued its new scorecard on student achievement for every school and school district in the state. This new accountability comes at a time when school districts are struggling to implement the Common Core State Standards for the curriculum and to move to new assessment tools for student achievement that are aligned to these new standards. The likely result of these changes, at least in the short term, will be lower measured student performance as instruction catches up with the new standards and new assessments.
The likely decline in measured student performance threatens to undercut a key piece of education reform—holding teachers accountable for their students' performance. In Public Act 12-116, the General Assembly imposed detailed requirements for teacher evaluation plans. Now such plans must provide that student achievement on both state and local assessments will be considered in the evaluation of teacher performance. This change is important because this reform legislation established a separate abbreviated termination hearing process for teachers who are evaluated as incompetent or ineffective.
In sharp contrast to the current process for terminating the contracts of "incompetent" teachers (which can take 10, 20 or more days of hearing), this new procedure, effective July 1, 2014, expressly limits to 12 hours contract termination hearings for teachers who are evaluated as incompetent or ineffective.
Such hearings will be limited to whether the evaluations relied upon were "determined in good faith in accordance with the [district's teacher evaluation] program [and] were reasonable in light of the evidence presented." Given the high stakes here, we may expect more challenges earlier in the process of teacher evaluation.
Since 2004, teachers have had the right to file grievances over alleged failures to comply with evaluation procedures. However, now that continued employment as a teacher will largely depend on whether a teacher is evaluated as "effective," weaker teachers may well challenge administrative decisions throughout the process, starting with the setting of student learning objectives all the way to the decision to initiate termination proceedings.
The new teacher evaluation procedures, overseen by the state Department of Education as required by statute, are already time-consuming and complicated. Given the incentive teachers will now have to claim that evaluators have made procedural mistakes, school districts must strive to keep their evaluation procedures as simple as possible as the new evaluation procedures and related tenure proceedings play out in coming years.
These broad challenges of reform and austerity are not, of course, the only problems school districts will confront in 2014. Every new year brings new complexity and related legal challenges to school district operation. This year, in the aftermath of the Newtown shootings, school safety will be of primary concern. School officials will have to deal with comprehensive new legislation concerning school safety, including new school safety committees and new standards for construction. Safety concerns may also invite Freedom of Information Act disputes because school officials may well refuse requests to disclose certain public records for fear that disclosure of those records could compromise school safety.
Perhaps most interesting will be the likely challenges over what is and is not protected student and employee speech through social media. When is a student's posting on Facebook an exercise of free speech, and when is it illegal bullying of a fellow student? When is a teacher's tweet castigating the principal for a decision he made protected speech? When is such speech pursuant to duty and unprotected as such? When is it unprotected because it is disruptive to district operation? At this point, there are no clear answers to many of these questions.
School districts will confront these and other new issues in the coming year. We live in interesting times that promise to keep school lawyers busy in 2014.•