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Saturday, March 26, 2011

Florida SB 736: Overreach and overpromise

From the Sherman Dorn Blog

By Sherman Dorn on March 26, 2011

This week Florida Governor Rick Scott signed Senate Bill 736, which attempts to change a number of working conditions for teachers in Florida's public schools. The headline issues:

For new teachers hired after June 30 this year, it prohibits any employment contract longer than one year.

The bill also mandates that a derivative of student test results be used for at least 50% of teacher evaluations.

The bill requires that the bulk of raises for new teachers hired after June 30 depend on evaluations.

While the process for passing this law was much better than last year's scuffle over Senate Bill 6 (which former Governor Charlie Crist vetoed), the new bill (now law) is slightly better but is still a dramatic overreach for what a state government can do to micromanage personnel policies, and its advocates are overpromising what this is going to do to improve schooling.

First, we'll have to wait to see which parts of the new law can withstand court challenges. The most likely organization to file a lawsuit is the Florida Education Association, which is the state affiliate for almost all the K-12 teachers union locals in the state. There are a number of points at which FEA can assert that the law interferes with the collective-bargaining rights of public employees. (In Florida, the state constitution guarantees collective bargaining rights for public employees. The same section also makes Florida a right-to-work state, and it prohibits public-employee strikes.) This is one of the bills in the legislature this year that directly attacks the scope of bargaining that unions and public agencies have worked with for several decades. Does the right to collective bargaining mean that unions have a guaranteed ability to bargaining for wages and terms and conditions of employment? If so, what would be unconstitutional infringement on the right to bargain? Courts have previously ruled that some items such as legislatively-mandated bonuses fall outside the scope of bargaining. But to restrict the ability to bargain wages in the way the new law requires may be too much for courts to swallow. The other major provisions that FEA may attack are the prohibitions on permanent-status employment with due process and mandates about teacher evaluations. (Disclosure: I am a member of the United Faculty of Florida, the larger of the two higher-ed locals in Florida, both of which belong to FEA, and I was a member of the FEA governance board a few years ago.)

But the unions may not be the only potential plaintiffs. The bill also encroaches on the ability of individual school districts to manage their own affairs. In Florida, school boards are constitutional bodies; the state Board of Education has the authority to oversee school districts, but the state courts have been willing to strike down provisions that have been much milder than in SB 736–when the legislature attempted to create a statewide chartering authority, the courts struck that down as an unconstitutional encroachment on the constitutional powers of school boards. I don't know whether the Florida School Board Association or any school board would file a lawsuit given the dependency on the legislature for funding, but this is an issue that FEA could bring up in a lawsuit, and if they can find a single school board member in the state to serve as a plaintiff along with teachers, that's probably enough for legal standing.

I'm not going to make any predictions about how the state Supreme Court might rule on SB 736, but I would not be surprised if the court rules at least some of the provisions unconstitutional.

For a moment, let's assume there is either no lawsuit or the state courts rule on behalf of the state (and the new law). There are still a number of serious problems with implementing provisions such as the one that mandates 50% of evaluation systems must be based on student test results.

I should repeat here my view that the 50% requirement is an artifice that seems more political than based on any rational argument. But I'm a typical tolerant liberal, so even though I'm not into whips, leather, or basing 50% of an evaluation on student test scores, I know people have their fetishes and I should be understanding of what turns them on. I just think it's worse than bad: it's impractical. Consider music classes: Right now, Hillsborough County has a requirement that all high school classes have final exams. What happens with music classes? My son tells me it's a paper-and-pencil test on basic music theory. I have no clue how any district in the state would be able to construct exams for music classes that aren't fundamentally at odds with the description of the course, because my son is in band and while band students should know some music theory, what they're supposed to be learning is how to play instruments in an ensemble. How is my son's music teacher going to be judged if at least half of her evaluation is going to be based on a paper-and-pencil test when her goals is focused on performance? And if you want to try something other than the cheap paper-and-pencil test, how are you going to create new and valid assessments for these classes when the education budget is shrinking?

I don't know what's going to happen in response to the limit to one-year contracts for new teachers. It may be that unions and school boards can figure out language to reduce teachers' vulnerability to statistical flukes, something like the following: "If a teacher hired on or after July 1, 2011, may be awarded an annual contract under F.S. 1012.335(2)(c), the employee shall be offered an annual contract." Will the elimination of permanent status and due process for teachers make it harder to recruit and retain good teachers? It's a legitimate fear, and it's notable that conditions for teachers today are different from the era before widespread tenure (i.e., when teaching was one of the best professional options for all women and most members of educated ethnic and racial minorities). But it's an open question.

What is not an open question for me as an historian of education is the dramatic overplaying of SB 736 by its advocates.

Pay teachers based on student achievement, and miracles will happen! As someone supportive of merit pay at the university level, I am unconvinced of the argument that dangling money in front of people makes them work harder. People who do more and work harder want to be paid more, but that is from an argument based on justice, not psychology … and it is not the only reasonable argument you can make about the just distribution of salaries.

Take away tenure and you will dramatically improve teaching! When the main problem in many districts is the warm-body dilemma, you don't make the problem better by a centralized system that will push local districts to fire a far greater number of teachers than even many hard-nosed principals would want to. There's a lot of ground between a system that requires years to remove a bad teacher and a system that leaves teachers with no job security whatsoever, and SB 736 moved about 95% of the way towards at-will employment. If this law is upheld, teachers hired in Florida on or after July 1 will have less job security than many hourly employees have in Florida's public agencies. I am unpersuaded either that the extent of that shift is a good idea in the abstract or that it will improve teaching.

Anyone who really thinks SB 736 will do everything as promised is living in a different world than the one I observe. I have never seen a panacea and don't expect to in my lifetime.

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