Legislative Column for Oct. 16, 2014
Judging Amendment 3

Opposition to Amendment 3 on the November ballot emerges largely from those who have grown comfortable with allowing the state to do the work of defining and measuring learning.

Government schools have been largely insulated from the rigor of self-evaluation because of the increasing imposition of government accountability measures like “No Child Left Behind” and “Race to the Top,” in addition to state-impose accountability measures. Although well intended, these government programs have more-often interfered with learning than improved it. Nevertheless, they do create a state-imposed cocoon of protection from criticism – a standard of certification that can be met without necessarily improving student learning. The imposition of “state” measures and controls, once accommodated, leaves one less moving part for education officials to worry about.
A recent e-mail received by my office is a thoughtful inquiry into the alleged failings of Amendment 3. Published below is an abbreviation of that email and our response. I hope it proves helpful as you research this important issue and decide how you will vote on November 4th.

The full text of Amendment 3 can be viewed here: http://www.sos.mo.gov/elections/2014petitions/2014-024.pdf

The amendment will have a pervasive negative impact on students and learning, and will usurp local school boards authority and erode local control - by dictating how we must evaluate teachers:  The Department of Elementary and Secondary Education (DESE) already has a newly revised rule on how districts must evaluate teachers.  It is very reasonable.  It has certain broad categories that must be included, but is very flexible, and is also a very balanced approach.  

  • The Amendment 3 approach is not balanced, as it says at least half of the evaluation must be based on test scores. The amendment says the local board MUST use that evaluation in all employment decisions. 

The only mandated difference between the amendment’s evaluation system and DESE’s new system is the percent of the evaluation based on student academic growth. The purpose of schools is to educate Missouri’s children, and an important measure of effectiveness is student academic growth. Amendment 3 stipulates that “quantifiable performance data” be used for a “majority” of the evaluation, but does not alter the statutory definition of “quantifiable performance data.” Quantifiable student performance data is defined in statute to mean any locally approved or locally created assessment, including but not limited to teacher created assessments. This evaluation still allows for multiple measures of educator effectiveness, and it seems balanced that half be based on student growth with the other half based on other measures chosen by the local board.

It imposes a dramatic increase in standardized testing, which forces another mandate on local school boards: It would require local school boards to adopt standardized tests for EVERY class and EVERY subject, K-12, immediately. DESE would then have to approve those tests in order for the districts to continue to be accredited/have funding, thus we would immediately go from state mandated and overseen testing of math, reading and a handful of end-of-course exams to  state mandated and overseen testing of 100 percent of all courses. This would improperly incentivize teachers to "teach to the test," ie.  Spend time teaching test-taking skills instead of spending time helping kids learn.

DESE doesn’t approve the tests; DESE approves the evaluations. I am not a fan of statewide assessments. They are a one-size-fits-all test designed more for the convenience of the institution than the good of the students. The amendment language says that a majority of the evaluation must be based on quantifiable student performance data: any locally approved or locally created assessment including but not limited to teacher created assessments. Creating/approving a standards based assessment for the evaluation should not be a burden to school boards but presents an opportunity for differentiation and exceptionalism. All grades and subjects have standards. As such, there should be a reasonable expectation from parents and taxpayers that we should know how well children are progressing toward those standards.

The language states specific reasons a teacher can be terminated. The language also seems to imply that student performance is a reason for termination but violating the school board’s policies is not. Violation of the State's laws is grounds for termination. So it would seem that the local board could adopt a policy, have an employee violate that policy, and so long as the employee had acceptable student test scores, the board would have no power to terminate the employee for violating the board's policy unless it also happened to be a violation of a state law, thus further eroding the local school board's authority.

Section 3g provides for several options for removal of a teacher if they violate school district regulations:  “insubordination” and “willful or persistent violation of, or failure to obey, state laws or regulations.”    The measure does not say “state laws or state regulations,” so the term regulations is intended to be and likely will be interpreted to mean state and local regulations.   Board “policies” probably would not reach that level, but such policies could always be passed as regulations. The following is section 3g in its entirety. Reasons for discipline or termination span both competencies and character: “Nothing in section 3(f) shall prevent a school district from demoting, removing, discharging, or terminating a contract with certificated staff for one or more of the following causes: (1) physical or mental condition unfitting him to instruct or associate with children; (2) immoral conduct; (3) incompetency, inefficiency or insubordination in line of duty; (4) willful or persistent violation of, or failure to obey, state laws or regulations; (5) excessive or unreasonable absence from performance of duties; or (6) conviction of a felony or a crime involving moral turpitude.”

Researching and finding statistically valid test questions that could be tied to an employee evaluation without the possibility of legal action would come at a greater burden to school districts. This could actually grow DESE.  The state department could step in and "help" the districts create all of these tests so that the districts aren't all incurring these costs themselves.  This could be an opportunity for DESE to ride in and save the day by being the test writing and test delivering “knight in shining armor.”

The state auditor disagrees with this assessment. He found that the measure could cost nothing or it could cost a lot. How much it cost would be in the hands of the local board. If the department used local educators and assessments they were already giving for the assessment, it would cost nothing or very little. If they hired a test-making company it could cost a lot. The measure does not give DESE the power that is implied above. It does require DESE to approve the evaluation, but with the definition of quantifiable student performance data in statute, it would be difficult for them to restrict those assessments to only the ones they have approved.

There will be an extensive amount of legal challenges in the state courts as entities try to make meaning of the vagaries of the law, consuming extensive time and money in determining the proper "meaning" of the various terms.  Legislative adjustments would be difficult since it would be written into the constitution, so fine-tuning would be left to judicial interpretation, rulings and precedents set by those rulings.  The wording could be interpreted that teachers can ONLY be terminated based on their evaluations, and ONLY if a majority of their evaluation is lacking due to poor test scores.  It could lead to a situation where it is actually more difficult to terminate poorly performing teachers, where a local board's hands are more tightly tied, than what we have now with tenure.  At least with tenure, if we have properly documented the performance issues, we have the right to terminate an employee.  The way this is written, if the test scores are ok, we might not have the right to terminate an employee.

It is wise to recognize courts as unpredictable. However, the clear intent is to provide that in a suit to challenge a firing, it would have to be shown that a school district didn’t use an evaluation system.   This means that using an evaluation system insulates a district against a wrongful termination suit.  If a teacher is performing poorly, and the evaluation system shows that, then a termination should easily survive any challenge (as long as there isn’t a racial, gender, age bias claim.) Further, it is nearly inconceivable that a good teacher would fail in student achievement or that a bad teacher would excel sufficiently to nullify offenses identified in section 3(g).

This seems to be a hit to local control and would have pervasive negative impacts on student learning. Inserting state-approved standardized testing of every grade and every subject into our state constitution is inconceivable, regardless of the merit of other aspects of the amendment.  Nothing could possibly be worth that price.

The full text of Amendment 3 is linked at the beginning of this article. I don’t know that putting this in the constitution would have been my first choice, but education is already there for a reason: it is possibly the most important function of state government apart from defending your liberty. There is also the practical side that the current governor will veto any legislative attempts at reform, and the education lobby will block any override. If we are serious about educating Missouri children, then I believe this is a step in the right direction and will move control of education content and delivery back toward local school boards.

Thank you for reading this legislative report. You can contact my office at (573) 751-2108 if you have any questions. Thank you and we welcome your prayers for the proper application of state government.