Today is the final day of the 2010 Colorado legislature, and cautious optimists are looking forward to final passage of Senate Bill 191, a dramatic reform of Colorado’s tenure system for public school teachers. To be precise, after three years, Colorado teachers get a set of “due process” rights, not tenure, but the effect is to make it nearly impossible for ineffective teachers to be fired. Senate Bill 191, sponsored by Denver Democrat and former public school principal Michael Johnston, would change all that.
In brief, the bill would replace the current system of gaining tenure (work three years without getting fired) with a requirement for three consecutive years of teaching success. Tenure could be lost, however, based on two consecutive years of teaching failure. After that, a school district could choose not to rehire a teacher for the next school year, but if so, the teacher would be entitled to an appeals process. The appeal amendment was added yesterday, and was the price of getting the bill though the Colorado House.
Fifty percent of what constitutes “success” would be based on the academic progress made by students during the school year, according to objective tests. The other 50% is to be based on objective criteria to be established by the State Board of Education. The metrics must take into account factors such as “student mobility” (e.g., students whose live with one parent who has no fixed address, and who only attend school sporadically), which of course make academic progress much more difficult.
Senate Bill 191 is supported by the Colorado Association of School Boards, the Colorado Children’s Campaign (which Colorado’s current Lt. Governor, Barbara O’Brien, used to head), the American Federation of Teachers (AFT), Democratic Governor Bill Ritter, all Republicans in the state legislature, and a critical mass of pro-reform legislative Democrats. It is opposed by the Colorado Education Association, which has a much larger membership in Colorado than the AFT.
A crucial reason why the bill appears headed for passage this year is the federal “Race to the Top” grants program, administered by the US Department of Education. Race to the Top does not hand out grants promiscuously, but instead awards grants to a few states based on detailed programs for dramatic reform. Only Delaware and Tennessee won grants in the first round. Once it became clear that Colorado needed tenure reform in order to have a realistic chance in round two, Senate Bill 191 began to gain momentum in the legislature. In short, Race to the Top is helping to foster bipartisan reform.
In a January 2009 op-ed, Picking Duncan as Schools Chief, Obama Sides with Kids, the Independence Institute expressed hopes that Obama administration education policies would deliver real change, and rather than being controlled by the National Education Association. Although we were disappointed that Obama killed the DC voucher program, Obama has continued the Bush policy of strongly supporting charter schools, and Obama, unlike Bush, is helping to reform tenure so that teachers with an established record of ineffectiveness can be moved aside and new teachers given an opportunity.
If enacted, Senate Bill 191 will take several years to be put into full effect. Further, it is undoubtedly true that the most important single cause of low academic achievement is not poor teaching, but home environments that provide no support for literacy or any other intellectual skill. But better teachers can make an imporant difference for many students, and the Obama/Duncan Race to the Top program has been a sine qua non for tenure reform in Colorado.
Generally speaking, I favor much less federal involvement in local education, which is why I disagreed with Bush’s No Child Left Behind, even though NCLB had many good features. In fact, I would prefer that the federal Department of Education be abolished. But President Obama wasn’t elected to abolish the DOE. He was elected to deliver Change We Can Believe In, and in the Race to the Top program, President Obama and Secretary Duncan are providing the leadership for constructive change.
LarryA says:
[sigh]
That’s ridiculous. If there is a real reason for licensing a profession, two years of failure should result in revocation of said license.
May 12, 2010, 1:40 pmSebastian the Ibis says:
While this is a step in the right direction, this will fail becuase:
Parents know which teachers are effective and which ones are not. Central Planners do not. Systems which replace the wisdom of parents for some model of efficiency will never work. I already see the teachers unions changing the “objective criteria to be established by the State Board of Education” so that no teacher is a failure. Subjective assessments are just fine when parents elect politicians, they should be allowed to chose their children’s teachers with whom they are much more familiar.
May 12, 2010, 1:40 pmJimmy says:
A bit ironic on a law blog.
May 12, 2010, 1:45 pmNorthern Dave says:
Sadly having been involved in education for decades now I am certain the only people that will actually lose their jobs will lose them only for political reasons. Say goodbye to the right to think for yourself in Colorado (or at least to voice anything but the Central Committee’s Party Line)…
May 12, 2010, 1:46 pmSteve says:
Further, it is undoubtedly true that the most important single cause of low academic achievement is not poor teaching, but home environments that provide no support for literacy or any other intellectual skill.
This is what concerns me. I want to reward competence, but I don’t want to see teachers punished for having limited resources or failing to overcome outside factors beyond their control.
May 12, 2010, 1:50 pmMike says:
It amazes me how little control over actually managing a workforce school administrations seem to have.
My boss can drop me any time he wants if I don’t perform. I don’t see why a teacher’s job should be any different. In the end, if you can’t trust management to make good personnel decisions, they’re just going to fail anyway. Trying to set up any state-wide metric beyond bare-minimum guidelines seems to be a real failing in education in general.
There’s no rule that will make bad management and bad teachers into good ones. You can only limit the scope of damage they can cause.
May 12, 2010, 2:03 pmKen Arromdee says:
There’s also the opposite end of the poor spectrum: a teacher who is stuck with a class of geniuses will also be unable to improve them. If a student gets 95% on a standardized test one year, there’s only a few percentage points of improvement that are even possible.
Moreover, what happens if a teacher is so good that he pushes a class to improve about as much as it can? There won’t be any way for the class to improve over the *next* year. If the class gets assigned to a different teacher the next year that teacher may find himself with an unimprovable class through no fault of his own.
Not to mention that the teachers probably don’t get to decide which classes they’re assigned to. You’ll get disfavored teachers being deliberately assigned to classes that are too smart, too stupid, or have already been improved, just so they can then be fired for “poor performance”.
May 12, 2010, 2:03 pmJoe Kowalski says:
There are probably some means of adjusting for this. For instance, if a student doesn’t meet an attendance threshold, that student’s performance probably could be discounted. Having parents sign off on homework each night would also be a way of documenting and measuring parental involvement in a way that could be used to assess the effect of outside factors in student performance. The question is, will these factors actually be used, because if there is one party that works to absolve themselves of poor student performance at school more than the teachers, its parents.
May 12, 2010, 2:07 pmSteve says:
The question is, will these factors actually be used, because if there is one party that works to absolve themselves of poor student performance at school more than the teachers, its parents.
This is why I rolled my eyes at the suggestion, above, that it should simply be left to parents to decide which teachers are performing adequately. Between the under-involved parents who don’t want to take responsibility for their own lack of diligence, and the over-involved parents who vindictively criticize any teacher who dares to give their brilliant little Susie less than an A, it’s hard to imagine what could go wrong with such a program.
May 12, 2010, 2:11 pmdesiderius says:
This is single-payer. Let’s see how well it works.
May 12, 2010, 2:17 pmBruce H says:
It’s a good idea, which could be widely applied. A laywer could be disbarred if they lose more than half their cases in a two-year period, or a doctor could be uncertified if half of their patients die. A minister could be defrocked if half of his flock continues to sin, and so on.
May 12, 2010, 2:26 pmdesiderius says:
Steve,
“Between the under-involved parents who don’t want to take responsibility for their own lack of diligence, and the over-involved parents who vindictively criticize any teacher who dares to give their brilliant little Susie less than an A”
Nice blaming the victim there.
This is like the behavior of workers/consumers in the old Eastern Bloc system. Powerlessness produces passive-aggressiveness. Oddly enough, Wal-Mart workers and shoppers tend to be both more involved and less vindictive. Wonder why that might be?
Walmart worker abuse link non-sequitur incoming… still doesn’t explain the culture gap, in fact accentuates it.
May 12, 2010, 2:32 pmUrso says:
I can certainly see the reasoning behind tenure, even if I think it’s generally applied too strictly. But that rationale doesn’t apply to 3rd grade teachers. I assume it just kind of rolled downhill: well, if college professors have tenure, why not community college professors? If CC professors have it, why not 12th grade teachers? Then, why do you distinguish 12th grade teachers from 11th grade teachers? etc etc.
May 12, 2010, 2:50 pmSteve says:
Nice blaming the victim there.
Parents who don’t take an active role in their kids’ education and refuse to take responsibility for it are not “victims,” they are part of the problem.
Schools are not like an auto repair shop, where you just drop your car off and get to complain if it doesn’t come back to you in good working order. Educating kids is a lot more complicated than that, and parental/societal factors play a major role – unless you’re of the opinion that all those underperforming inner-city schools all just magically happen to have incompetent teachers.
There are good teachers and bad ones, but I believe the biggest contributor to the quality of a school is the quality of the kids who attend it and the quality of their community. I am skeptical of any system that says if kids don’t do well in school, the default solution is to fire their teacher and start over.
May 12, 2010, 2:50 pmThorley Winston says:
This sounds like the kind of “reform” that someone would try put in place if they wanted to convince the unwary that they had made a serious effort to fix a problem without actually having done so.
I don’t think that letting someone fail for two years in a row before they face the possibility of not having their contract renewed is much of a practical improvement, particularly in light of the cost.
May 12, 2010, 3:18 pmMike P Wagner says:
All issues of fairness aside, the primary effect I see from such a policy in an increase in teacher churn at poor schools.
That’s already a big issue at under performing schools in my area, North Carolina. Even today, teachers very much want to move from under performing schools to generally more affluent school that are performing better. That’s mostly for job satisfaction reasons – it’s not much fun to teach at a school where most of the students are making little/no academic progress.
The policy adds an additional economic incentive to move from those under performing schools to more affluent schools.
That seems likely to exacerbate the problems merit based programs are trying to solve.
Recruiting and keeping teachers at those schools will become even more difficult if there’s an implicit “You’ll never get tenure here!” sign hanging on the front door.
I understand that this is a hard problem – reliable metrics of teacher quality are hard to come by. But I don’t think “academic progress of students” is a very good metric.
I have mostly seen the other side of this one – poor quality teachers at affluent schools where the most students make adequate academic progress during the year. Why? Because affluent parents will try to ensure that their kids make academic progress, no matter what. If we need to, we will grab the textbooks and teach the kids ourselves.
May 12, 2010, 3:26 pmOhio Lawyer says:
Teachers weren’t unionized when I went to public school in the 1950′s-60′s. The effective teachers stayed, many for 30+ years, and the ineffective ones were not re-hired. The parents knew after the first semester which ones were effective.
A good friend was the principal of an inner-city, racially mixed middle school (grades 7-9). He told me he could effectively educate the students if: (1) he could eliminate the disruptive 5% who kept the other 95% in an uproar 75% of the time, but he could not, due to restrictions on removing students from the classroom for behavioral issues, and (2) he could eliminate the 20% of the teachers who did not teach, did not care, and were only interested in putting in their time until retirement, but he could do nothing because they were protected by tenure and the union.
Running a lottery for more money will not solve public schools’ problems. Giving more power to bureaucrats won’t do it, either. We have grown the government’s role in all aspects of our lives beyond imagination in the last 40 years, and I am still waiting to see Americans’ quality of life get better than it was when I was a kid.
May 12, 2010, 3:45 pmADF Alliance Alert » “How President Obama is bringing real education reform to Colorado” says:
[...] Kopel writes at the Volokh Conspiracy: “Today is the final day of the 2010 Colorado legislature, and cautious optimists are looking [...]
May 12, 2010, 3:59 pmerp says:
Obama and the teachers unions are bringing real education reform to Colorado (or anywhere else)!
What a hilarious notion?
I can see this post on one of the moonbat blogs, but not here.
May 12, 2010, 5:07 pmThe River Temoc, In Winter says:
One point that’s been missed in this discussion of abolishing K-12 tenure is that presumably some people go into teaching because they perceive it as a secure job, in exchange for which they’re willing to accept a lower salary.
Are Colorado school districts willing to dramatically increase teacher pay if this bill passes?
May 12, 2010, 5:35 pmElliot says:
I presume a law firm can dump an associate for any reason it chooses. Isn’t that how it has worked for a long time?
May 12, 2010, 5:38 pmLTEC says:
Uniform tests are one way of measuring “academic progress of students”. But the method used in the school where my wife teaches is much simpler. Just measure the grades of students, and reward teachers that give good grades. What can go wrong?
The problem in many schools is that the management is much more incompetent than the teachers, and they are in turn appointed and rewarded by people even more incompetent than they are.
The “system” doesn’t really care whether or not anyone learns anything. All that matters is the latest educational fads.
May 12, 2010, 5:54 pmLaura(southernxyl) says:
The magnet schools in Memphis ran into the problem Ken mentioned, where the kids were already topped out on their standardized test scores. The system then went to Adequate Yearly Progress, so that if a kid tested at grade level X at the end of one year and at grade level X + 1 at the end of the next one, that was satisfactory, even if the kid was supposed to be in grade 6 and X happened to be grade 3. That avoids punishing the teacher who has poorly-prepared students. The curriculum in the honors programs and the AP programs was rigorous enough to make that meaningful.
The problems that the Memphis teachers face – and I get this from having talked to some of them when I was there – are that there’s no effective way of dealing with disciplinary problems (outside the honors program – you get kicked out of that if your conduct isn’t good) and that in some of the schools, a teacher will have a 30% or greater turnover in students during the school year. So her performance will be measured in part using the performance of kids who haven’t been in her classroom more than part of the year. That’s hard on the kids, too, which is why the system went to a standardized curriculum. Where they do a good job is in training and mentoring new teachers. There are lots of resources for teachers who want to learn how to be more effective in the classroom.
May 12, 2010, 7:06 pmMark Field says:
Yes. My daughter complained about both of these problems (and others) when she was teaching.
I’ll note, too, that it seems rather unfair even to demand that teachers move students from X to X+1 unless the school has adequate resources to make that a realistic goal. Just to give an example, my daughters’ school, due to administrative confusion and incompetence (8 — yes, 8 — principals in 2 years), failed to pay its copy machine repair bills. As a result, the teachers couldn’t make copies. We solved this problem for my daughter by having my office make the copies she needed, but not every teacher can do that. And it seems unfair to expect they will.
Discipline is another example of a problem which is often outside the control of a teacher and yet can have a major impact on classroom learning.
May 12, 2010, 8:55 pm~aardvark says:
This proposal is even more idiotic than most that I’ve seen on the subject. The problem is not with the idea of rewarding success and penalizing failure–it is with the very definition of success and failure. There is no agreed upon definition at any level.
To make matters worse, there are two possible outcomes. Outcome one: virtually no change. Only the most egregious violations would be punished; the rest of the time, the teachers and administrators would have a tacit understanding that no one is going to suffer–kind of like the Arkansas student testing where everyone passes. Outcome two: within a few years (three or four, at most), a pattern develops with teachers being set up for failure by vindictive administrators; teachers exit the profession en masse or just leave the state and teach somewhere else; Colorado suffers from a severe teacher shortage, resulting in hiring far less qualified candidates than they would have had under the current system. Both outcomes are possible, depending on who and how sets up the definition of success and failure. Ultimately, all these decisions are subjective. NCLB already amply demonstrated the illegitimacy of basing “failure” on student test score “improvement”. The main effect of NCLB is to limit student access to learning. The proposed Colorado measure is not about to reinvent the wheel either. If you want real success, you invest in changing the education system, in developing real curricula instead of hodge-podge of random topics, and not in novel punitive measures. There is no surprise that this reductionist idiocy gets two thumbs up from Kopel. Real reform?? Please!!
May 12, 2010, 9:50 pmBleepless says:
I do not know if Moscow still practices this, but under the Soviets, higher education faculty members were okayed by a majority vote of their peers. They were set for seven years, after which there would be another seven-year vote, and so on. Those who got bounced were, in addition to the standard reasons, suffering from independent thought or chronic Jewishness.
May 12, 2010, 9:59 pmDesiderius says:
Steve,
“Schools are not like an auto repair shop, where you just drop your car off and get to complain if it doesn’t come back to you in good working order.”
Maybe you’re content to complain; I find a better shop. If parents were free to do so with their kids, they wouldn’t feel so powerless. It doesn’t take a sociologist to relate lack of involvement to feelings of powerlessness, feelings well-justified in this case.
“Educating kids is a lot more complicated than that, and parental/societal factors play a major role — unless you’re of the opinion that all those underperforming inner-city schools all just magically happen to have incompetent teachers.”
No, they just not-so-magically happen to be trapped in a Prussian/Soviet organizational structure that flies in the face of the experience those of us who have not spent our entire professional lives in such a structure have with what works better. Choice – it shouldn’t end when one’s baby is born.
“There are good teachers and bad ones, but I believe the biggest contributor to the quality of a school is the quality of the kids who attend it and the quality of their community. I am skeptical of any system that says if kids don’t do well in school, the default solution is to fire their teacher and start over.”
This teacher knows plenty of teachers who would be a lot more effective in a freer system like that I experienced in various professional settings (for-profit and non-profit) in my prior professional life. We have the best post-secondary system in the world – we could start there. Break up the monopoly!
May 12, 2010, 11:11 pmDesiderius says:
Standardized testing is a sham, and everyone knows it – it’s just lipstick on the state monopoly/monopsony pig.
Last summer I did some part-time work grading standardized tests for a state which shall remain nameless to protect the guilty. Halfway through the grading, we were instructed to modify our grading rubrics (to a comical extent) because the scores were not meeting the target. Too often its the old Soviet story of the students pretending to learn, and the teachers pretending to reward them.
Look, we muddle through, and I’m careful not to let any of this melancholy into my classroom (I do my best Jaime Escalante and the kids respond despite themselves) but it is truly tragic to see the continuous improvement other sectors of the economy/society enjoy while we’re trapped in this antiquated way of organizing ourselves.
May 12, 2010, 11:23 pmTweets that mention The Volokh Conspiracy » How President Obama is bringing real education reform to Colorado -- Topsy.com says:
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May 13, 2010, 1:27 amTHESMOPHORON says:
Surely you’re joking? A moment’s thought reveals the illogical nature of this approach.
For one thing, winning a case is a zero-sum game. For any odd number of cases, contested by the same two lawyers, one of them will have lost more than half of the cases.
For another, many contexts provide non-mathematical assurance of disparity. In the criminal context, for example, the prosecution has complete discretion not to bring weak cases. Particularly in misdemeanor courts, where political pressure doesn’t exist to the extent necessary to counter CYA prosecution policies, you can virtually guarantee a supermajority of cases that go to trial will be won by the prosecution. If your proposed rule applied, the misdemeanor defense bar would be entirely disbarred in the first two years.
May 13, 2010, 2:19 am~aardvark says:
And this is precisely why the system of tenure was instituted. It is to protect against wanton attacks on academics for things unrelated to their work and integrity. Admittedly, this also causes some difficulty in culling out deadwood, but that’s small price to pay for academic freedom.
May 13, 2010, 12:33 pmEd is Watching » SB 191 Passes: “Landmark Day” Shifting Colorado’s Education Reform Turf says:
[...] Another Independence Institute friend and legal guru Dave Kopel has put up a thoughtful post about SB 191 over at the Volokh Conspiracy. Check it [...]
May 13, 2010, 12:58 pmerp says:
aardvark, academic freedom to toe the party line or not only don’t you get tenure you don’t get hired at all anywhere from kindergarten through grad school.
May 13, 2010, 3:47 pmColorado teacher reform law wins with bipartisan support « Kansas Education: Public Policy in Kansas and Beyond says:
[...] teacher reform law wins with bipartisan support David Kopel offers some perspective on the new teacher tenure law in Colorado. Among his [...]
May 13, 2010, 8:31 pmColorado teacher reform law wins with bipartisan support « Kansas Education: Public Policy in Kansas and Beyond says:
[...] teacher reform law wins with bipartisan support David Kopel offers some perspective on the new teacher tenure law in Colorado. Among his [...]
May 13, 2010, 8:31 pmDouglas says:
One thing that needs to be said is that RTTT may be a powerful lure, but funding decisions and methodology needs to be changed. This money will end up going to the same systems and the same interest groups that have kept the barriers to change in place for a long time.
What we need is a strong prize for local schools. That’s the only way you are going to activate the communities that sustain or kill schools.
May 27, 2010, 7:49 pm