unpaid leave debate

Colorado Supreme Court weighs challenge to law governing job protections for teachers

PHOTO: Denver Post file
The Colorado Supreme Court.

Are good veteran teachers still guaranteed jobs in Colorado, provided they don’t mess up?

The Colorado Supreme Court heard arguments Wednesday on that issue and others related to a landmark 2010 state law that changed the rules for teacher evaluations and assignments.

Lawyers for Denver Public Schools squared off against lawyers representing individual teachers in two separate lawsuits. One case was brought on behalf of seven current and former DPS teachers. It challenges a provision of the 2010 law that allows school districts to, under certain circumstances, put effective teachers who’ve earned job protections on unpaid leave.

The other case was filed by a single teacher, Lisa Johnson, who was put on unpaid leave.

In both cases, lawyers for DPS argued that putting experienced, effective teachers on unpaid leave is not the same as firing them — and thus doing so doesn’t violate their due process rights.

But lawyers for the teachers said unpaid leave is essentially “an end run” around those rights.

To understand both lawsuits, it helps to have some background on the 2010 law, known as Senate Bill 191. It did several things, including change the way teachers earn “non-probationary status,” which affords them job protections. To earn that status, teachers must now have three years of effective ratings instead of just three years of employment.

Earning that status is desirable because non-probationary teachers can only be fired for a limited number of reasons, including insubordination and unsatisfactory performance. In addition, non-probationary teachers are entitled to a hearing before being fired.

The 2010 law also effectively eliminated a practice known as “forced placement.” Before the law, teachers who lost their jobs not for cause but due to circumstances such as a decrease in student enrollment were assigned to open positions at other schools.

DPS officials didn’t like forced placement because most teachers were placed at low-income schools, which they said led to the neediest kids being taught by teachers who didn’t choose to be there. So after Senate Bill 191 passed, DPS changed its policy. The district now gives teachers who lose their positions temporary assignments with the expectation that they will look for “mutual consent” positions, meaning a school’s principal agrees to hire them.

If a teacher doesn’t find a mutual consent position within 18 months, he or she is placed on unpaid leave as per Senate Bill 191. The teacher is welcome to continue looking for jobs in DPS and is entitled to his or her previous salary and benefits if hired.

Since Senate Bill 191 went into effect, at least 1,113 non-probationary DPS teachers have lost their positions due to a decrease in student enrollment, the closure of a school or other similar circumstances listed in the law, according to data the district provided at Chalkbeat’s request.

The majority of them have found mutual consent positions. Sixty-two teachers are currently on unpaid leave because they were unable to do so, according to DPS.

However, that number doesn’t include teachers who resigned or retired rather than be put on unpaid leave. That information is difficult to gather, a district spokesman said, but DPS did tally some numbers in response to an open records request the Denver teachers union submitted in February. As best the district could tell as of earlier this year, 39 non-probationary teachers who lost their positions between 2010 and 2014 resigned and seven retired.

On Wednesday, a lawyer for the teachers who brought the lawsuit argued that state law has historically afforded teachers a “basic bargain:” if they work for three years and are asked to come back for a fourth, they’re entitled to job protections. Lawmakers were wrong to alter that under Senate Bill 191, attorney Philip Hostak told the seven justices.

But DPS’s lawyer pointed out that the historical idea of tenure no longer exists — and hasn’t since lawmakers stripped the word from state law in 1990. “There is no indication in the legislation itself … that these folks are permanent teachers,” said attorney Eric Hall.

Pushing back on Hostak’s argument, Hall said lawmakers can amend laws however they see fit — and in the case of Senate Bill 191, they added the mutual consent provision and unpaid leave.

A lawyer for Johnson also challenged that provision and argued that Johnson shouldn’t be subject to it because she lost her position for a reason not listed in Senate Bill 191.

“The legislature tells us exactly which teachers can be displaced,” said attorney Eric Harrington.

However, the lawyer representing DPS in the Johnson case, Jonathan Fero, argued that the reasons listed in the law aren’t exhaustive and mutual consent applies to all teachers.

The lawyers did not debate the reason Johnson lost her position except to say they disagreed on the facts but that those facts aren’t an issue for the Supreme Court to decide.

The justices typically take months to issue an opinion.

guide to the battle

With days left in this year’s session, what will happen with teacher evaluations?

PHOTO: Photo by Jonathan Fickies for UFT
UFT President Michael Mulgrew interviews New York State Assembly Speaker Carl Heastie.

As the clock ticks on this year’s legislative session, the fate of New York’s teacher evaluations hangs in the balance.

The teachers union has been waging a spirited battle to decouple state standardized test scores from teacher evaluations this year, which would mark the culmination of years of fighting against a system they say unfairly stigmatizes teachers. The legislation has already cleared the Democratic Assembly, but it remains at an impasse in the Republican-led Senate, which wants to tie the changes to benefits for charter schools.

As end-of-session haggling gets into full swing, it’s unclear whether the union will be able to secure a bill with “no strings attached.” Alternatively, lawmakers may agree to help charter schools in exchange for the bill’s passage, or they could be unable to settle their differences and shelve the measure until next year.

Here’s what you need to know about the upcoming battle:

Why are we talking about teacher evaluations again?

New Yorkers have spent years (and years) fighting about teacher evaluations.

In 2010, New York adopted a new teacher evaluation system that included state standardized test scores. Supporters of the policy argue it is the best way to objectively measure whether teachers are helping students learn. Opponents, including teachers unions, argue test scores lead to unreliable evaluations and often mean teachers are being rated based on subjects they don’t teach.

The debate took another turn in 2015 when Gov. Andrew Cuomo pushed for a new teacher evaluation system in which as much as half of an educator’s evaluation could be based on test scores. That law technically remains on the books today, but in response to fervent pushback from parents and the union, the state’s education policymaking body paused the use of grades 3-8 math and English test scores in teacher evaluations.

Lawmakers, policymakers, and the union jumped back into the charged conversation this year in part because the temporary pause on the use of certain test scores in the evaluations is set to expire in 2019.

What exactly does the union want this year?

The union-backed bill would forbid any requirement that districts use state standardized test scores in teacher evaluations. Instead, local districts would collectively bargain the assessments used to rate teachers.

Paradoxically, this major political shift will likely make little difference in the lives of New York City teachers. That’s because for the last several years the city has already been using a system of local tests to rate educators.

New York City created a slate of assessments called “Measures of Student Learning,” which test students on everything from English to art. Michael Mulgrew, the city teachers union president, said he is happy with the current system and has already vowed, “Nothing will change for New York City teachers.”

Critics, however, point out that very few teachers are given poor ratings under this system. In New York City last year, 97 percent of teachers were given one of the top two ratings of “highly effective” or “effective,” according to Mulgrew.

What are the chances that this bill passes?

There’s a good chance some teacher evaluation legislation will pass before the end of the session but if history is any indication, it will cost something.

Senate Majority Leader John Flanagan has already staked out his position: He is willing to go even farther than the Assembly, scrapping the 2015 law all-together and leaving virtually every major decision about teacher ratings up to local collective bargaining. But in order to do that, he wants to dramatically expand the number of charter schools that can open in New York City and across the state. (The Senate introduced a second bill that the union also criticized for being friendly to charter schools.)

Assembly Speaker Carl Heastie has already called the bill “cyanide,” cuing the l back-and-forth that typically proceeds a larger deal each year in Albany. Last year, for instance, shortly after the mayor won a two-year extension of mayoral control, he made it easier for charter schools to expand and pay for space. The year before, mayoral control was attached to a provision that made it easier for charter schools to switch between authorizers.

Though Senate Republicans are typically able to secure at least a small victory, it’s unclear how much they can demand in an election year when their control of the chamber is in jeopardy. That is particularly a problem in Long Island, home to some of the most fierce resistance to standardized testing that will also be an electoral battleground this fall.

What might a compromise look like?

Anything is possible in Albany, but something charter school-related is a good bet.

Advocates have expressed concern that they will soon hit the cap on how many charter schools can open in New York City. Historically, they have also pushed to make it easier for charter schools to pay for school space and to allow charter schools to certify their own teachers.

Charter school advocates might also find it a particularly prime year to push for changes. With a major lobbying group out of the picture and the potential for Flanagan  who has been a charter school ally  to lose his majority next year, this could be the sector’s best shot to press for changes.

Also, Flanagan and others have expressed concerns that the legislation will create more testing, since it allows all local districts to create their own tests in addition to the state tests. The final deal could address this concern.

mind the gap

In female-dominated education field, women still lag behind in pay, according to two new studies

PHOTO: Melanie Asmar
Colorado teachers rallied for more education funding on April 27, 2018.

Two University of North Carolina graduate students were curious: Were female school superintendents earning less than their male counterparts?

Considering longstanding gender pay gaps across the economy, they expected to find a disparity. And using data from Pennsylvania, they did. But they also turned up something else when they plugged in data about classroom teachers.

“We were like, ‘Oh, we’ll throw these numbers in,” said James Sadler, one of the researchers. “And that’s when our eyes opened wide.”

To their surprise, they found a small but notable gender pay gap for classroom teachers, who are usually paid based on set salary schedules that are designed in part to root out exactly those sorts of disparities.

Virtually no matter how the data is analyzed, female educators earn less than their male counterparts in Pennsylvania, and, according to a separate analysis released this year, Illinois.

In Pennsylvania, disparities are even larger for principals and district leaders. And the gaps actually grow when controlling for factors that might explain the differences, suggesting outright discrimination may be at play.

Together, the two new studies illustrate how even the education field — a female-dominated one where many salaries aren’t open to negotiation — isn’t immune to the gender pay gap, at a time when strikes and walkouts mean extra attention is being paid to teachers’ wages.

“I’m not surprised at all that there’s a pay differential between men and women within the field of education, because men do get promoted more quickly,” said Judith Kafka, an education historian at CUNY’s Baruch College.

What is surprising, Kafka agreed, is the gap researchers found among teachers, considering that salary schedules typically rely on education and experience levels.

Still, in most cases, the pay gap is small relative to educators’ overall salaries — no more than 7 percent and usually less — and the studies can’t definitively explain what’s behind the gap.

The most detailed look at the issue comes from the UNC researchers, who compared the salaries of all public school teachers, school leaders, and district superintendents in Pennsylvania in the 2016-17 year.

In each job category, the raw dollar gap between men and women’s salaries was over a thousand dollars.

Controls account for education, experience, district, and job type. For district leaders, controls only include education and experience. Source: “Documenting Educator Salary Differences by Gender in Pennsylvania.” Graphic: Sam Park

There are a few potential explanations for this. Women teachers had about one fewer year of experience, on average, perhaps because they are more likely to take time off in the middle of their careers. Men may be more likely to take on extra duties like sports coaching, which could show up in the numbers even though the data is only supposed to include base salaries. And male teachers more often worked in slightly higher-paying districts.

Accounting for a teacher’s education, years of experience, and district and school type makes the teacher pay gap shrink to about $600. That’s just 1 percent of the average teacher’s salary, though over the course of a career, that difference could mean thousands of dollars lost.

The researchers say they’re not quite sure why it exists.

“That’s really the main question that is still unanswered,” said Sadler. “It’s something that we’re still still trying to figure out.”

One potential explanation, he said, is that teachers who enter a new district mid-career may find room to negotiate where they start on the salary schedule. This may advantage men.

“The salary scale is not necessarily the panacea for dealing with disparities,” said Jay Carter, the other UNC researcher behind the study.

But to Wythe Keever, a spokesperson for the Pennsylvania State Education Association, the state’s largest teachers union, the finding suggests salary schedules are keeping disparities small.

The gender gap “still appears lower than pay gaps based on gender in many other occupations,” he said.

Researchers also found a gender pay gap in Pittsburgh, one of the only districts in the state to have a performance-based pay system for some teachers. But the gap was present for both teachers who were and weren’t part of the system.

While women made up 73 percent of classroom teachers in Pennsylvania, the study showed they accounted for just 44 percent of school principals and 35 percent of superintendents.

That probably explains a part of the pay gap for all educators, a group that includes both classroom teachers and higher-paid administrators. (Nationally, women make up 77 percent of the public school teaching force but 54 percent of principals; just one in five superintendents in the 100 largest school districts have been women over the last decade and a half.)

“As in with other professions, I think that the education field needs to think a lot about how they promote and how they identify people to be promoted,” Kafka said, pointing to a phenomenon known as the “glass escalator,” when men in female-dominated professions move up the ranks more quickly.

Women who lead schools and districts in Pennsylvania face substantially larger pay gaps than teachers do — and controlling for education and years of experience actually makes the disparities bigger, suggesting that women are more qualified than men but still end up making less.

For superintendents, the pay gap amounted to over $4,000 annually. Here, since salaries are usually not based on a set schedule, differences in negotiations and outright discrimination could explain the results, though factors not accounted for by the researchers, such as size of district, may also be at play.

A spokesperson for the Pennsylvania Department of Education laid the blame at the feet of districts. “It is important to note that in Pennsylvania educators’ salaries are determined at the local level,” said Nicole Reigelman, who noted that the state had recently banned state agencies from asking for job applicants’ salary histories.

Some of the Pennsylvania findings are echoed by another study released in March looking at educators’ salaries in Illinois.

Max Marchitello of Bellwether Education Partners, a nonprofit consulting firm, found that women in the education field made about $7,000 less than men. This lumps together different professional jobs, including administrator, classroom teacher, as well as guidance counselor and librarian, among others. But even in similar jobs and at similar experience levels, woman earned less in most cases.

(The exception was elementary school, where men and women were paid comparably despite the fact that women were typically more experienced.) Unlike the UNC study, this analysis does not try to control for multiple factors at once that might explain the disparities.

Even though some of the gap disappears when you control for differences in role, experience, and other factors, the UNC researchers argue that that doesn’t necessarily make the raw disparities less meaningful. If the roles that women fill or their years in the workplace are influenced by society’s expectations of women, it’s worth noting how that translates into smaller salaries.

“We could probably find enough stuff to control for to get rid of a pay gap,” said Carter. “It’s kind of a philosophical question: How hard should you have to work to explain away why real dollars [differ] between what goes into male households and female households?”