Why does teacher evaluation based on student performance continue to be a hot topic?

U.S. Secretary of Education Arne Duncan recently granted seven California school districts waivers of some requirements of the No Child Left Behind Act (NCLB) in exchange for, among other things, a promise to include student performance data in the evaluations of teachers.  The California Teachers Union immediately criticized that waiver deal and continued to oppose using student data in locally negotiated evaluation procedures. 

The question is: why does this continue to be such a hot button issue?  Since the 1970's, Education Code section 44662(b)(1) has required districts to evaluate certificated employee performance based, in part, on "the progress of pupils" toward the standards of achievement set by the governing board.  Los Angeles Unified School District was recently successfully sued by a citizen group to require compliance with that statute.  The District has now implemented a new evaluation procedure after reaching agreement with the United Teachers of Los Angeles.  Other districts have been threatened with similar litigation and are deciding how to best comply with the statute while maintaining an effective teacher evaluation process.  Given the statute as recently enforced, it does not seem like the seven California districts gave up anything significant in exchange for the federal waivers.

Moreover, it is difficult to understand why so much energy is being expended around this issue by advocates of using student data.  The literature on teacher evaluation by such experts as Linda Darling-Hammond, Chairperson of the Commission on Teacher Credentialing, says that student performance data is only one of many indicators of teacher quality, and not a factor that has a major effect on improving student achievement.  There does appear to be agreement that "value-added models" (VAMs) can be instructive, meaning that it helps to track the change in student performance while under the instruction of a particular teacher.  However, even VAMs are inconsistent due to the influence of multiple factors outside the teacher's control.  While it may not be a powerful tool for actual school improvement, the student data issue is still a tool available to those who are critical of the teachers' union and the entire public school system.

The bottom line for school districts is that state statute, court decisions, and the conditions of federal grants all point toward inclusion of student data in certificated employee evaluations.  The lack of a strong research basis and the continued opposition of the teachers' union notwithstanding, the writing on this issue appears to be "on the wall."

Why do you think teacher evaluations are such a hot topic? Do they deserve this much attention?  Feel free to add your thoughts/opinions in the comments section below.

Michael E. Hersher

California Supreme Court Rules That School Employees Can Administer Insulin Shots

Today the California Supreme Court ruled that school employees can administer insulin shots to diabetic students when a nurse is not available.  This decision arises in the context of a continuing shortage of school nurses available to administer the shots and a federal class action lawsuit alleging that California schools have failed to provide adequate health services to students as required by law.  In 2007 the California Department of Education ("CDE") advised school districts that a trained school employee may administer insulin when a school nurse is not available.  The case at issue in today's decision was filed by the American Nurses Association and challenged CDE's advice as "condoning the unauthorized practice of nursing."

The California Supreme Court concluded that "California law expressly permits trained, unlicensed school personnel to administer prescription medications such as insulin in accordance with the written statements of a student's treating physician and parents...and expressly exempts persons who thus carry out physicians' medical orders from laws prohibiting the unauthorized practice of nursing."  Therefore, it is up to each student's treating physician and parent to determine whether insulin may be administered by an unlicensed school employee.  Today's ruling is in line with the "practical reality that most insulin administered outside of hospitals and other clinical settings is in fact administered by laypersons."

Today's ruling reverses the lower court opinion, which held that only licensed professionals were permitted to administer insulin shots.

Additional information is available in our Legal Alert.

The full opinion of American Nurses Association v. Torlakson is available here.

For more information, please contact Meghan Covert Russell or the KMTG attorney you normally consult.

Court of Appeal Reverses Award of Attorneys' Fees to School District Where Publisher's PRA Request Was Meritless But Not Frivolous

School districts and other public agencies are frequently the recipients of Public Records Act requests.  These requests are time consuming and subject to litigation if not properly complied with.   Cases brought to seek compliance with the PRA are frequently litigated and continue to refine the contours of the PRA statues.  A recent case discusses the award of costs and fees when a case that is brought does not compel the public agency to disclose any additional documents.

Recently, a superior court ordered a newspaper publisher to pay the attorney fees of a school district because it determined the publisher’s Public Records Act petition was frivolous.  However, on appeal, the court of appeal held that although the publisher’s petition lacked merit, it was not frivolous and therefore the publisher was not required to pay attorney fees.  (Crews v. Willows Unified School District (--- Cal.Rptr.3d ----, 217 Cal.App.4th 1368, Cal.App. 3 Dist., July 17, 2013).  Although the District complied with the PRA request, it was still subject to a lawsuit and even when the publisher did not prevail, was unable to recoup its costs of litigating the matter. 

Districts should carefully comply with PRA requests for the dual purposes of (1) providing access to public records as required by statute and in the public interest of furthering open access to government and (2) avoiding potentially costly litigation.

For more information, please see our Legal Alert and contact Meghan Covert Russell or the KMTG attorney you normally consult with.

Update -- State Supreme Court Denies Review of Bond Expenditure Case

We  reported back in April that the Court of Appeals restricted the use of bond expenditures in the case Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (---Cal.Rptr.3d---, Cal.App. 4 Dist., April 25, 2013).  The California Supreme Court has denied the petition for review and the case remains "good" law.  However, a request for depublication of the lower court ruling is still pending. 

Meghan Covert Russell

World Breastfeeding Week -- Make Sure You Comply With Legal Requirements For Providing Employees With Reasonable Accommodations

August 1-7 marks World Breastfeeding Week.  It is well established that breastfeeding is beneficial for both mom and baby.  As an employer, ensure you are providing breastfeeding mothers with appropriate resources.

Both state and federal law provide protection to pregnant and nursing mothers.  Specifically, California Labor Code 1030 requires employers, including the state and political subdivisions of the state, to provide a reasonable amount of break time to accommodate breastfeeding mothers (this can run concurrently with other break time and additional break time can be unpaid).  However, employers are not required to provide breaks if it would "seriously disrupt" the operations of employers.

Additionally, Labor Code 1031 requires employers to make a reasonable effort to provide breastfeeding mothers with the use of a room/location to express milk in private, except a bathroom stall, in close proximity to the employee's work area.

Employers should encourage their employees to notify them in advance in order to address scheduling and make arrangements for the accommodations. 

It is important for employers to understand their legal requirements to provide accommodation for breastfeeding employees.  Employers who fail to provide reasonable accommodations may be subject to investigation and prosecution of complaints by the Department of Fair Employment and Housing for gender discrimination, a citation from the Labor Commissioner for violation of the Labor Code, and/or civil penalty. 

The California Department of Public Health's website also has more information on breastfeeding for both employers and employees. 

Meghan Covert Russell

Court Prohibits Bond Expenditure on Stadium Lighting Because Lighting Was Not Specifically Listed as Contemplated Project

The California Court of Appeal, Fourth Appellate District, recently held that school district bond revenues could not be spent on stadium lighting where the bond proposition did not specifically list field lighting as part of the contemplated projects, in accordance with the requirements of Proposition 39. (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (---Cal.Rptr.3d---, Cal.App. 4 Dist., April 25, 2013).

Read the Legal Alert for the details and what it means for your district.

Meghan Covert Russell

Gov. Brown Proposes Boost To Education Funding

Governor Brown's proposed budget, released today, includes a much needed boost to spending on public education. 

The Governor's plan provides $1,046 more per K-12 student in 2013-14 than was provided in 2011-12.  The plan also proposes to invest $1 billion in one-time revenues to fund professional development, instructional materials and enhancements to technology to support the implementation of the Common Core Standards.

For more details, access the press release from Governor Brown's office here and the revised budget here.

Meghan Covert Russell