During the impending NFL strike in 2011—the act of a union—I drew a comparison between how the public in the U.S. responds to unionization in different contexts:

“I am speaking about the possible NFL strike that hangs over this coming Super Bowl weekend: a struggle between billionaires and millionaires, which, indirectly, shines an important light on the rise of teacher and teacher union-bashing in the US. Adam Bessie, in Truthout, identifies how the myth of the bad teacher has evolved.”

Once again, the NFL is facing a situation that I believe and even hope is another harbinger of how education reform can be halted: A suit filed by the family of Junior Seau:

“The family said the league not only ‘propagated the false myth that collisions of all kinds, including brutal and ferocious collisions, many of which lead to short-term and long-term neurological damage to players, are an acceptable, desired and natural consequence of the game,’ but also that ‘the N.F.L. failed to disseminate to then-current and former N.F.L. players health information it possessed’ about the risks associated with brain trauma.”

This law suit has prompted a considerable amount of debate concerning whether or not the NFL as we currently know it could be dramatically reconfigured under the pressure of more law suits. In other words, the inherent but often ignored or concealed dangers of football are now being exposed by legal action, in much the same way as the tobacco industry was unmasked and thus the entire culture of smoking has radically changed in the last couple decades.

With the release of the Education Policy Analysis Archives (EPAA) Special Issue on “Value-Added Model (VAM) Research for Educational Policy,” a similar question should now be raised about the future of implementing high-stakes accountability policies that focus on teacher evaluation and retention through VAM-style metrics.

“High-Stakes Implementation of VAM,…Premature”

Two articles in the special issue from EPAA examines the validity and reliability of VAM-based teacher evaluation in high-stakes settings and then places these policies in the context of legal ramifications faced by districts and states for those policies.

“The Legal Consequences of Mandating High Stakes Decisions Based on Low Quality Information: Teacher Evaluation in the Race-to-the-Top Era” (Baker, Oluwole, & Green, 2013) identifies the current trend: “Spurred by the Race-to-the-Top program championed by the Obama administration and a changing political climate in favor of holding teachers accountable for the performance of their students, many states revamped their tenure laws and passed additional legislation designed to tie student performance to teacher evaluations” (p. 3). Because of the political and public momentum behind reforming teacher evaluation, Baker, Oluwole, and Green seek “to bring some urgency to the need to re-examine the current legislative models that put teachers at great risk of unfair evaluation, removal of tenure, and ultimately wrongful dismissal” (p. 5).

While Baker, Oluwole, and Green offer a detailed and evidence-based examination of the VAM-based and student growth model approaches to high-stakes teacher accountability, they ultimately place the weaknesses of reform policies in the context of potential challenges from teachers who believe they have been wrongfully evaluated or dismissed:

“In this section, we address the various legal challenges that might be brought by teachers dismissed under the rigid statutory structures outlined previously in this article. We also address how arguments on behalf of teachers might be framed differently in a context where value-added measures are used versus one where student growth percentiles are used. Where value-added measures are used, we suspect that teachers will have to show that while those measures were intended to attribute student achievement to their effectiveness, the measures failed to do so in a number of ways. That is, where value-added measures are used to assign effectiveness ratings, we suspect that the validity and reliability, as well as understandability of those measures would need to be deliberated at trial. However, where student growth percentiles are used, we would argue that the measures on their face are simply not designed for attributing responsibility to the teacher, and thus making such a leap would necessarily constitute a wrongful judgment. That is, one would not necessarily even have to vet the SGP measures for reliability or validity via any statistical analysis, because on their face they are invalid for this purpose.”

The analysis ultimately discredits both the use of narrow metrics to determine teacher quality and the high-stakes policies being implemented using those metrics, concluding with the ironic consequences of these policies: “Overly prescriptive, rigid teacher evaluation mandates, in our view, are likely to open the floodgates to new litigation over teacher due process rights. This is likely despite the fact that much of the policy impetus behind these new evaluation systems is the reduction of legal hassles involved in terminating ineffective teachers” (pp. 18-19).

In “Legal Issues in the Use of Student Test Scores and Value-added Models (VAM) to Determine Educational Quality” (Pullin, 2013), the rapid increase of VAM-based accountability is further examined in the context of “a wide array of potential legal issues [that] could arise from the implementation of these programs” (p. 2).

Pullin notes the motivation for reforming teacher evaluation:

“VAM initiatives are consistent with a highly publicized press from the business community and many politicians to make government services more like private business, data-driven to measure productivity and accountability (Kupermintz, 2003). VAM approaches are in part a response to concerns that the current system of selecting and compensating teachers based their education and credentials is insufficient for insuring teacher quality (Corcoran, 2011; Gordon, Kane & Staiger, 2006; Hanushek & Rivkin, 2012; Harris, 2011). There have been increasing expressions of concern that teacher evaluation practices are not robust and do not improve practice (Kennedy, 2010). In the contemporary public policy context, much of the support for the use of student test scores for educator evaluation comes from a concern that the current system for evaluation is ineffective and that the current legal protections for teachers are too cumbersome for schools seeking to terminate teachers (Harris, 2009, 2011).”

While a business model for addressing quality control of a work force may seem efficient, Pullin highlights that legal ramifications are likely with these new models.

Pullin’s analysis offers a detailed and useful examination of previous court cases involving the use of test scores to evaluate educators, including recent cases involving VAM, concluding that the picture is not clear on how the courts may rule in the future, but that a pattern exists of “heavy judicial deference to state and local education policymakers and the allure of using test scores to make decisions about education quality” (p. 5).

Further, Pullin notes “there are differences of perspective among social scientists about VAM and the defensibility of using it to make high-stakes decisions about educators,” further complicating the concerns of legal action (p. 9).

While raising many other complications, Pullin also notes that students and parents may enter legal battles using VAM metrics “to substantiate their own legal claims that schools are not meeting their obligations to provide education” (p. 14).

Pullin concludes with a sobering look at teacher quality reform built on VAM and implemented in high-stakes environments:

“In the broad contemporary public policy context for education reform, the desire for accountability and transparency in government, coupled with heavily financed criticisms of public school teachers and their unions, may mean that VAM initiatives will prevail. The concerns of education researchers about VAM, coupled with legal obligations for the validity and reliability of education and evaluation programs should require judges and education policymakers to take a closer look for future decision-making. At the same time, the social science research community should be generating substantial new and persuasive evidence about VAM and the validity and reliability of all of its potential uses. For public policymakers, there are strong reasons to suggest that high-stakes implementation of VAM is, at best, premature and, as a result, the potential for successful legal challenge to its use is high. The use of VAM as a policy tool for meaningful education improvement has considerable limitations, whether or not some judges might consider it legally defensible.” (p. 17)

Like the NFL, federal and state governments may soon be compelled to reform the reform movement under the threat of legal action from a variety of stakeholders since the science of teacher evaluation remains far behind the curve of implementation, particularly when teacher evaluation is high-stakes and based on VAM and other metrics linked to student test scores.

The special issue from EPAA is yet another call for political leadership to pause if not end wide-scale teacher evaluation and retention models that pose legal, statistical, and funding challenges that those leaders appear unwilling to acknowledge or address.