The Dangers of August 31


August 31st and the waning days of summer should be a time of renewal, a fresh school year with new expectations, students bright eyed and ready to learn. The last day of the eighth month can also represent the final day of a worn out, old, and beat up Collective Bargaining Agreement. Teachers, Administrators, and School Board Members are ready for a Contract with a face lift.


Unfortunately, the economics of our time have brought teacher negotiations in many corners of the Commonwealth to a standstill. Taxpayers unwilling to part with depleted funding, and teacher unions in denial that we’re going through the greatest economic calamity since the Great Depression.


The result: the old Contracts overstay their welcome, way past their expiration date.


What happens, then, if teachers begin working the days leading up to August 31st in preparation for the 2010-2011 school year? Teachers couldn’t possibly be entitled to a raise, just because they showed up for work, right? After all, the contract expired, so they would just be entitled to a maintenance of current wages?


In the wildly erratic world of Pennsylvania teacher contract negotiations, it should come as no surprise that the end date of a Collective Bargaining Agreement could mean the difference between potentially saving millions of taxpayer dollars while negotiating a successor Contract versus paying out raises across the board while losing complete bargaining leverage in the process. We give you the dangers of an August 31st expiration date for your Collective Bargaining Agreement.


What’s more maddening is the unsettling guidance from Pennsylvania Arbitrators on this very issue.


In Ringgold School District v. Ringgold Education Association (2005), Arbitrator Talarico opined that the Agreement clearly showed the parties bargained for a separate salary schedule for each year and stated:  "More importantly, salary increases beyond five school years specifically covered by the expired Contract were neither bargained for nor contemplated by the parties."  Therefore, the arbitrator held that the employees were not entitled to vertical salary step movement on the Collective Bargaining Agreement.


On the other hand, the more recent Northwest Area Education Association v. Northwest Area School District decision from Arbitrator John Skonier explicitly holds that if a school district starts a teacher's work year prior to the expiration of the prior Contract, step and column movement would be triggered.  This is the opposite of the Ringgold decision. Arbitrator Skonier’s decision was later affirmed by the Pennsylvania Commonwealth Court.


If August 31st is the terminal day of your contract you may be facing a salary increase and not even know it.


In a case out of the Northern District of California, Sheldon v. Dhillon (N.D.Cal. Nov. 25, 2009), a court has held that teachers may enjoy First Amendment Protections for things they say in class. In Sheldon, a community college teacher alleged that she was terminated from her employment as a result of an in class discussion regarding heredity and homosexual behavior. While there was significant dispute over what was actually said during the class discussion, the court found that the teacher had First Amendment protections for her speech and cited to several other court decisions that held likewise, including decisions involving both college level and school age level teachers. However, the court cautioned that an employer could discipline an employee, despite any First Amendment concerns, if they could show that the discipline was “reasonably related to legitimate pedagogical concerns.” The lesson seems to be that a teacher’s speech in the classroom is protected, but if teachers start saying things that might be clearly inaccurate or outside the scope of instructional speech, an employer may be able to discipline and that determination may be very fact specific.  

Response To Comments, Fall 2008

Its time again to write about some comments. I wrote about the District of Columbia School Chancellor’s efforts to implement performance pay in “Teacher pay and tenure: creating a free agent market.”  Professor Fox added a comment regarding improvement to the current common rater method of assessing performance. I also wrote a piece about confederate flag waiving students (“Yet another confederate flag case”)” that garnered a response from Lynn accusing me of revisionist history and political correctness (me!). Craig wrote an interesting question in response to the entry “College-Student Disciplinary Contract Claims.”  Finally, in “Fourth Circuit Placement Decision Revisited: the last word,” I brought readers up to date on the case at issue and responded to a previous comment critical of my suggestion that open and honest communication can be a salve to the bad decision. Well, I got a comment from Nagla in support of my view!  Thanks for all your comments, even if I don't get to address each one.  Now to the four comments.

I am not sure what Professor Fox thinks of the Chancellor's efforts or even my observations about the ability to objectively measure teacher performance. I do note that his same comment appeared on a couple of other blogs, see here and here, and a similar comment appeared here, which may explain why his comment on this Blog does not speak to the issue of objective performance review.


We know from special education that a teacher’s performance can be assessed both directly (compliance with legal compliance such as time lines; educational-legal compliance such as IEPs with measurable goals and proper present levels of educational performance) and indirectly through student outcome (based on individual student performance measured via objective and measurable goals (and I mean rigorously and scientifically measurable, such as increases in reading words correct per minute, and the like), thus accounting for both high- and low-level potential students).  I still believe this sort of assessment can be proper and fair in a merit-pay performance rating system.


I believe we can agree that pay should not be based on bias and favoritism (which are too invasive in rater-ratee subjective assessments) or even the good fortune of living among a bunch of high-fliers (which is what standardized assessments reveal). I would be interested in knowing Professor Fox’s views on transferring lessons learned from special education progress monitoring and compliance demands to objective assessment of teacher performance.


My commentary on the confederate flag  quoted one of the students as saying “the confederate flag ‘had nothing to do with slavery’” and a school spokesman said “the Confederate flag represents hatred, bigotry, intolerance, slavery, . . . .”  I also pointed out that the confederate flag “represents armed insurrection against our Constitution and all the freedoms many generations of men and women fought and died for.”  Lynn takes issue with this. 


The comment says “The civil war was not about slavery! Have you read the Emancipation Proclamation?”  Well, yes.  Although my entry did not go into the great Proclamation, you can read it here.   The National Archieves described the impact of the document: “Although the Emancipation Proclamation did not immediately free a single slave, it fundamentally transformed the character of the war.  After January 1, 1863, every advance of federal troops expanded the domain of freedom. . . .   The Emancipation Proclamation confirmed their [slaves’] insistence that the war for the Union must become a war for freedom.  It added moral force to the Union cause and strengthened the Union both militarily and politically.  As a milestone along the road to slavery's final destruction, the Emancipation Proclamation has assumed a place among the great documents of human freedom.” 


Lynn is not quite correct in writing “It only freed the slaves in the states that left the Union.” It actually gave legal freedom only to those held in bondage in states and areas that were still “in rebellion against the United States” (Lincoln’s own words), even after Lincoln gave 100 days advanced warning (it is actually Lincoln’s reiteration of the previous warning proclamation that Lynn quotes in the comment).


Moreover, Lincoln was constrained by Constitutional process. It would be ironic if Lincoln were to have disregarded his sworn duty to uphold and defend the Constitution, and to engage in a war to save the Union, but still just disregard our founding document by freeing slaves everywhere. One might note that cutting the chain of bondage required the 13th Amendment.  Lincoln could only free those living in the identified rebellious territories, where as Commander-in-Chief he had the free reign to act.  I believe Lincoln himself addresses this troublesome little point of constitutional probity:


“Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, . . . order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, . . . And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free. . . .”

I fail to see nothing but fact, rather than revision and PC, in what the confederate flag means, at least to me.  After all, if the civil war was not about a “state’s right” to hold another human in bondage, then what was it about?  Anyone studying the civil war and the period leading up to it understands that this was the fundamental friction between the states.  But then even Lynn’s comment does not dispute the meaning and symbolism of the flag born out of bondage. 

So I still ask, why couldn’t those school kids just waive the American Flag instead?

Now I come to Craig’s question about college student discipline: “If the courts see the due process between the student contract and the student [as] a private matter then why is an expelled student required to disclose the incident on a college application[?]”  Because, generally, the courts do not address both questions. 

The first question confronted is what does the contract (the student handbook) require of both the college and the student; and did both parties adhere to the contract (bear in mind that each state’s laws likely differ about how they view the relationship; the Blog entry addresses a Pennsylvania case)? The second question, about disclosure, is typically not addressed unless the first question is answered in favor of the student.  If the college breached the contract, then part of the relief would be to undo the harm. Typically, that will include removing disciplinary references from the student’s record.  If this is done, disclosure is a non-issue.  If the student loses, however, consequences follow.

Another reason is that the second question is addressed between different parties: the student of course, is the same, but the college is different. That different college is free to inquire into any legally appropriate area. Prior expulsions is not a prohibited are of inquiry.  

And finally, Nagla’s comment: “I totally agree with your observation, honest and open communication is essential to resolving problems.” I think that’s a good way to end.

Teacher pay and tenure: creating a free agent market?

I have been known to describe the current situation of public education as not sustainable. The pay and benefits, and job protections, are very generous. Most working schlubs would really like to have that set up. I also freely admit that I would not be a good teacher in the sense of an objective assessment of cost-in versus product-out by which most of us are measured. Perhaps, however, changes will take hold that can save public education from itself. 

In Washington, D.C., the School Chancellor and the teachers’ union look set to make some real reform. According to The Economist,  in exchange for much higher merit-based pay, teachers would give up tenure protections. Teachers who excel get justified rewards while those who do not could be let go with ease. Backers believe not only will school and student performance improve by weeding out ineffective teachers, financial savings will come through greater system flexibility. Jonathan Alter, writing in Newsweek, also addresses the issue, albeit under a political guise. At least this time, I am not a lone voice on “educational sustainability.”

I deal frequently with the disappointment of under-performing students. Special education teachers are already held to a degree of partial accountability. They are required to develop individualized measurable goals for students; to chart progress toward the goals using objective and individual data, not just say-so; and are scrutinized annually by administrators, parents, and sometimes lawyers about the outcome. Ultimately, student progress in relation to student potential is subject to independent review and litigation. Some teachers do all this very well while others not so well. But each teacher ultimately is treated alike. None are easily held to account for unacceptable performance, neither obtaining reward nor earning punishment (punishment is borne by the school district, and there is no reward other than intangible satisfaction).

I am certainly not advocating that every student should have an individual plan and a right to sue. But we can see in special education that assessment of teacher performance is possible and does not need to be based just on questionable No Child Left Behind testing. In the special education example, one component of teacher performance is student performance. But another component is a measure of teacher effort – are the goals properly stated, objective, and measureable; is the data collected, let alone what it shows; and has the teacher responded appropriately to what the data shows about student performance. Looking at it this way takes away that uncertain but definite measure of inequity inherent in assessing one person based just on another’s performance. 

Teacher pay and tenure is not the only area of public education inviting reform. But creating a “free agent” market in which the best teachers, by objective measures of actual instructional performance, can offer services to the highest bidder is one step in the right direction for the ultimate goal of improving opportunity for students.