/pdf/law-as-interpretation-158r91zmtg.pdf

Law as Interpretation

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https://digitalcommons.usf.edu/cgi/viewcontent.cgi?article=8283&context=etd

Measuring Up: Standardized Testing and the Making of Postwar American Identities, 1940-2001

Diffusion in a vacuum: edTPA, legitimacy, and the rhetoric of teacher professionalization

Moreover, recent state legislation (AB 124) requires the state to revise its English Language Development (ELD) standards to better reflect the language demands found in new English Language Arts standards. This in turn requires moving to a next-generation ELD assessment based on those revised standards. How will California conceptualize the academic uses of language for its English Learners? How will its ELD standards correspond to the common core standards? What will this mean for EL instruction and assessment?

/pdf/how-next-generation-standards-and-assessments-can-foster-10kbyzoz3n.pdf

How Next-Generation Standards and Assessments Can Foster Success for California's English Learners. Policy Brief 12-1.

The local politics of education governance: Power and influence among school boards, superintendents, and teachers' unions

In recent years, a growing body of evidence has confirmed what personal experience and intuition have long suggested: the quality of a child’s teacher has a profound and lasting impact on the child’s academic achievement. According to one expert, replacing just the least effective five percent of America’s teaching force with average teachers could catapult our nation’s K-12 education system from its current place among the worst performing in the developed world to among the top. Yet for complex reasons related to school culture, administrative inertia, and the time and cost associated with dismissing a teacher for poor performance, schools across the country continue to subject students to chronically ineffective teachers in considerable numbers. In this Article we revive the argument, first raised in courts in the 1970s and 80s, that children assigned to ineffective teachers should be able to sue school districts under elementary principles of tort law, seeking relief in the form of reassignment to an adequate teacher and remedial education services. Courts initially rejected this “educational malpractice” theory of litigation due to the plaintiffs’ inability to establish basic elements of the negligence tort, pointing in particular to the lack of a workable standard of reasonable care (since little consensus existed regarding appropriate pedagogical methods) and problems showing proximate cause (since the effects of teacher quality on student learning were so difficult to prove). The common law of torts, however, is designed to be judicially responsive to changing times and public policy considerations. And times have certainly changed: School officials today operate with access to unprecedented amounts of data concerning teacher effectiveness and teacher impacts on student learning that was wholly absent decades ago. These modern advances demand re-examination of the old reasons that courts provided for rejecting educational malpractice claims. To date, however, the academy has failed to undertake any such analysis.This Article seeks to fill that gap. We argue that the recent advances in educational data substantially undermine the basic rationales offered by courts for dismissing the original educational malpractice lawsuits. In particular, unlike the initial era of educational negligence claims that proceeded principally under the theory that a school district should be liable for the negligent teaching practices of its teachers, we argue that a plaintiff student may state a claim against a school district for its negligence one step earlier: in its decision to assign the student to a classroom taught by a teacher whom school officials know to be chronically ineffective based on extensive statistical data concerning the teacher’s performance. For instance, schools now know with some degree of certainty, over a period of years, whether a particular teacher typically improves her students’ academic ability by more or less than a full grade level’s worth of gains. The worst teachers, it turns out, tend to produce paltry gains year-after-year. This data offers both an eminently workable standard of care for determining whether a school has been negligent in subjecting students to an incompetent teacher (indeed, some states such as New York require schools to classify teachers as “ineffective” on the basis of the student learning data), and also an evidentiary link establishing that the teacher is a proximate cause of the child’s lack of attainment. In addition to setting the groundwork for this new educational malpractice claim, the Article also explores potential policy responses on the part of school districts who may seek to head off costly litigation brought by plaintiff students who have been assigned to inadequate teachers. We suggest that some schools may respond proactively in precisely the fashion that the plaintiffs and school reformers have long desired, by voluntarily dismissing and replacing their least effective teachers. Others may attempt to evade liability without acting to remove ineffective teachers, for example by foreclosing public access to teacher effectiveness data or reducing their own reliance on such data in the first moment. In all events, however, we think this much is for certain: a new era of educational malpractice litigation may well be on the horizon.

The New Education Malpractice Litigation

Teacher Employment and Collective Bargaining Laws in California: Structuring School District Discretion over Teacher Employment. Policy Brief 11-2.

The axe has finally fallen. In Janus v. AFSCME, Council 31, the Supreme Court struck down the major source of financial security enjoyed by public sector unions representing nearly half of the nation’s fifteen million union members. Countless press stories, law review articles, and amicus briefs have criticized and defended this outcome. 

This Article has a different aim. Rather than re-litigating Janus, the question I ask is instead forward-looking: What’s next? Is there life for public sector unions after Janus? And if so, what might it look like? 

In engaging these questions, this Article has three goals. First, I want to push back on the narrative that public unions have no choice now but to struggle on within a national right-to-work environment. That is certainly one possibility, but pro-labor states have available a range of legislative responses that may soften Janus’s blow or even negate it altogether. 

One response is for pro-labor states to authorize public employers to reimburse unions for their bargaining-related costs directly. The standard objection is that direct government funding will undercut unions’ ability to advocate independently for workers. My second goal is to confront this objection head-on, with an argument that draws on an unlikely source: an analogy between public unions and public defenders. As it turns out, America’s woeful experience with indigent criminal defense teaches some powerful lessons about how not to fund entities whose entire purpose is to contest the government’s narrow self-interest. But it also suggests funding approaches that would raise no independence concerns at all. 

That leads to my final and most significant objective: to propose model legislation for state lawmakers to implement direct reimbursement of unions. The proposal is revenue neutral for public employers and unions, and it is revenue enhancing for workers in light of nuances in the federal income tax. Readers interested in the nuts and bolts of the proposed legislation may wish to skip the first three parts of this Article (which make the case for why reimbursement is desirable) and start at Part IV on page 43. For convenience, a model bill is included in the appendix.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3223010_code1690510.pdf?abstractid=3189186&mirid=1&type=2

Life After Janus

Supreme Court decisions have costs, and seldom are they higher than in constitutional cases. Consider how Dred Scott relegated free people to slavery, and how a civil war soon followed. Or how Black Americans suffered under Jim Crow for decades after Plessy. Or how in the wake of Korematsu, thousands of innocent Japanese-Americans were detained in incarceration camps until the end of World War II. 

Sometimes, however, groups that lose at the Court have something more to say about their fates. The Article V amendment process is usually only a trifling part of this story; these groups are far more likely to engage in sub-constitutional efforts to avoid their harms. For example, after the Supreme Court overruled Lochner, industries protected their bottom lines by raising prices and reducing employment. After Brown, some white families sent their children to private schools or moved to the suburbs. And after the Court invalidated fair share fees in Janus v. AFSCME, Council 31, public sector unions successfully persuaded workers to pay dues voluntarily. Not all Supreme Court defeats, it seems, inflict equally inescapable harms. Or in the language of law and economics, some groups are better able to avoid the costs of an adverse Supreme Court ruling than others.

Constitutional law should take account of this fact. If virtually everyone agrees that neither the Court nor elected lawmakers will get every close constitutional question right, we may as well ask whether there is a way to minimize the costs created when either one is at risk of getting the Constitution wrong. This is a best cost-avoider theory of constitutional law: in hard constitutional cases, the Supreme Court should rule against the group that can best avoid the costs of an adverse decision.

The Costs of Supreme Court Decisions

In May 2010, a coalition of California students, parents, and school districts filed a ground-breaking lawsuit alleging that the state’s public school finance system violates the California constitution. The lawsuit, Robles-Wong v. California, is not ground-breaking because of its basic aim; at last count, school finance lawsuits with similar goals have occurred in forty-four states. Instead, the lawsuit is path-breaking because of the novel approach plaintiffs used to frame their constitutional challenge. Historically, plaintiffs have sued state governments using two legal theories: the equity theory and the adequacy theory. Under the equity theory, plaintiffs argue that the states distribute school resources in a disparate manner that violates equal protection of the laws. Under the adequacy theory, plaintiffs assert that the states deny children their right to an adequate level of education as guaranteed under the education clauses in state constitutions. While litigants suing under the equity theory have lost more cases than they have won, adequacy challenges have met some success: plaintiffs in adequacy claims have prevailed in two-thirds of the thirty-three cases in state courts. In recent years, however, plaintiffs have grown less likely to prevail in their school finance challenges, losing six of eleven cases decided since 2009. Moreover, as I show in an empirical analysis of school spending levels in twenty-two states, even those states that have experienced successful adequacy and equity lawsuits continue to spend less than the amount necessary to provide their children with a quality education. Responding to these trends, the Robles-Wong plaintiffs allege a new and different form of constitutional violation: that the state’s school finance program violates the state’s constitutional duty to provide a “system” of common schools because it is not “intentionally, rationally, and demonstrably aligned” with the educational goals described in statewide academic content standards. As this Article explains, this constitutional violation alleged in Robles-Wong, which I call the “broken system” cause of action, represents a significant evolution in the historic journey of school finance litigation. In addition to describing the textual and legal basis for this new theory, I argue that it builds on the experiences of its two predecessor theories, responds to important trends in education policy reform, and offers courts a manageable framework for ensuring that state school systems are in compliance with the substantive educational guarantees of state constitutions.

Aaron Tang

Papers

The New Education Malpractice Litigation

Teacher Employment and Collective Bargaining Laws in California: Structuring School District Discretion over Teacher Employment. Policy Brief 11-2.

Life After Janus

The Costs of Supreme Court Decisions

Broken Systems, Broken Duties: A New Theory for School Finance Litigation