To: Interested Missourians
From: Rep. Jay Barnes
Re: Response to False Attacks on HCS for SB 125
It has come to my attention that the Missouri Association of School Administrators is distributing a sheet of talking points full of falsities and non-sequiturs. This memo discusses each of the twelve talking points distributed by this group:
- MASA CLAIM #1 – The bill significantly impairs the ability of local boards of education and school administrators to make staffing decisions that best meet the unique needs of school districts and requires that employment related decisions, including job assignments, transfers, promotions, staff reductions, reductions in force, and other decisions be based on the results of performance evaluations without regard to the needs of the school district and the unique qualifications of employees. The loss of decision making power is a significant infringement on local control. Locally elected boards of education and the administrators they employ are most knowledgeable of the needs of the school district and the expectations of the community. These individuals are best qualified to make decisions that will impact their students and their communities.
The bill requires districts to implement evaluation systems for teachers and administrators. Local school boards and school administrators maintain freedom “to make staffing decisions that best meet the unique needs of school districts.” Proposed §168.128.2(6) provides that staffing decisions “shall consider evaluation results … as a significant factor” in making staffing decisions. By arguing that this simple measure which requires districts to merely consider evaluations in making staffing decisions, MASA is effectively arguing that actual results produced by school employees do not matter. The use of the word “consider” allows local authorities the flexibility to make decisions which “best meet the unique needs of school districts,” but requires that they at least consider the impact that their employees have on the educational outcomes of students.
In addition, the bill actually gives local boards of education and school administrators more flexibility in reduction-in-force situations. Under current law, local boards and school administrators do not have any choice in which teachers they terminate in a RIF situation.  Under current law, no matter how well a young teacher is performing, school boards and administrators are forced to terminate them before older teachers, no matter how poorly the older teacher is performing. Proposed §168.124 replaces this antiquated system which hamstrings local decision makers and instead states that evaluations shall be the “primary determination” in RIF employment decisions.  Again, this language allows local education authorities the flexibility to make decisions which “best meet the unique needs of school districts,” but the foremost factor must be each teacher’s ability to help Missouri students learn.
- MASA CLAIM #2 – The requirement that annual performance evaluations inform all staffing decisions as referenced (in claim #1) will thwart the ability of school districts, as employers, to take adverse employment action unless the deficiency is clearly delineated in the evaluation. The language will be used to argue that the districts do not have the authority to take action against underperforming teachers or teachers who engage in misconduct unless the deficiency has been captured in the evaluation as outlined in the proposed statute.
Proposed §168.128.4 clearly provides that local education officials can take any action against a teacher that they can take under existing law. It states, “Nothing in this section shall be construed to prohibit the board of education from taking disciplinary action concerning a teacher for issues not referenced in this section.” The Missouri Tenure Act clearly sets forth those criteria, which include:
- Physical or mental condition that renders him unfit to instruct or associate with children;
- Immoral conduct;
- Incompetency, inefficiency, or insubordination in line of duty;
- Willful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him;
- Excessive or unreasonable absence from performance of duties; or
- Conviction of a felony or a crime involving moral turpitude.
Moreover, the language in proposed §168.128.4 is not necessary to ensure that districts can still terminate teachers for reasons not outlined in the evaluation. A cardinal rule of statutory construction is that courts are required to read statutes together so that the legislature is presumed to intend that two seemingly contradictory statutes must be read together. We can be confident that the attorneys for MASA and other opponents of this bill are well aware of this cardinal rule of statutory construction. Nevertheless, we anticipated that they would make a false argument like this and so added proposed §168.128.4 to leave no doubt.
- MASA CLAIM #3 – The bill eliminates the option of a ninety day remediation period and termination of teachers during the probationary period. Instead, termination decisions will be based upon two consecutive evaluation ratings of “ineffective,” requiring that poor teachers be retained for two years. In addition, districts will be forced to find teachers “ineffective” or determine that there are “other performance issues” and issue a written statement to the teachers before rendering non-renewal decisions. This increases protections for probationary teachers before rendering non-renewal decisions. This increases protections for probationary teachers beyond what is currently afforded and will likely result in litigation over the accuracy and timing of notification statements.
The HCS for SB 125 eliminates §168.126 which sets forth a process for firing teachers during the probationary period, including the option of a ninety-day remediation period. As the attorneys for MASA very well know, Missouri, just like nearly every other state, is an at-will employment state where, “There is no general right to continued public employment…such a right must be shown to exist by statute, ordinance, regulation, or employment contract.” The 90 day remediation section of current §168.126 exists to allow districts to make quicker dismissals within the context of the rest of the section of the HCS for SB 125 – found in §168.126.1 which sets the parameters of all contracts with probationary teachers.
By eliminating all of the portions of §168.126, HCS for SB 125 allows districts to set the terms of its contracts with probationary teachers. If a district chooses, it can include a 90 day remediation period in its contract. Further, proposed §168.128.4 clearly states, “Nothing in this section shall be construed to prohibit the board of education from taking disciplinary action concerning a teacher for issues not referenced in this section.” In addition, proposed §168.128.3(6) clarifies, “[N]othing in this section shall preclude a district from terminating a probationary teacher where such teacher’s evaluation was completed prior to the teacher having at least six months of teaching experience in the district.”
- MASA CLAIM #4 – Given the potential impact of “minimally effective” or “ineffective” performance ratings on the future employment of teachers, school districts will face legal challenges during the evaluation process. These challenges will prolong the evaluation process, contribute to antagonistic posturing, and negatively impact the educational opportunities afforded students.
RESPONSE: This claim by MASA is a disrespectful attack on teachers.
There will no doubt be some teachers who will not like being held accountable for results – especially those poorly performing teachers likely to be rated “minimally effective” or “ineffective.” This claim, however, makes an incredibly negative assumption about Missouri teachers – that they will act out against accountability in ways that harm students. To the extent that that is true, those teachers who would act out and harm students are precisely the teachers who should not be in Missouri classrooms. A similar claim could also be made about assigning grades to students – that since grades have significant impact on the future college and employment opportunities of students, students and their parents will engage in antagonistic posturing and disputes with teachers that might negatively impact the educational opportunities of other students.
- MASA CLAIM #5 – The legislature should not alter disciplinary and evaluation processes in ways that create unnecessary ambiguity and complexity. The proposed changes will likely result in 40 years of court decisions defining teacher incompetency and other personnel issues being disregarded. A flood of new litigation would not be in the best interest of school districts, or more importantly, their students.
HCS for SB 125 is not ambiguous and would not create a flood of litigation regarding the definition of teacher incompetency. Instead, the bill merely sets end dates by which a district must not continue to employ any teacher perennially rated ineffective – three years for a tenured teacher and two years for a probationary teacher. 
To the extent that MASA is concerned about the bill affording protections to teachers found to be “effective” or, better yet, “highly effective,” they are correct. By stating that districts must “consider evaluation results ….as a significant factor” in personnel decisions, the bill creates an additional level of protection for good teachers that does not exist in current statutes. The goal is to have the best teachers possible in our classrooms.
- MASA CLAIM #6 – Missouri courts have developed a body of case law that defines the processes and procedures that govern the discipline and termination of teachers. The courts have also provided clarity by defining terms such as incompetency, inefficiency, and insubordination. By eliminating the current processes and procedures and redefining teacher tenure, the bill is fraught with vagueness and will subject school districts to litigation for many years into the future.
The HCS for SB 125 removed the previous changes to tenure which were present in HB 631. Those tenure “processes and procedures” are still in place, and those case law definitions of incompetency, inefficiency, and insubordination will continue to be valid.
Teachers unions and most likely MASA also claim that we have impacted the tenure statute indirectly by placing a prohibition on the continued employment of teachers who receive perennial ‘F,’ or “ineffective” ratings. This back-stop, however, is just that – a back-stop. It does not impact the processes and procedures except to that limited extent.
- MASA CLAIM #7 – The bill requires that the evaluation of those teachers who teach courses subject to annual assessments aligned with state standards will have thirty-three percent of their evaluations based upon the performance results of the students assigned to their classrooms. If teachers perceive that their success will be measured by that of their students, teachers will challenge student placements and will try to position themselves to garner placements of students which they believe will allow them to best demonstrate effectiveness in the evaluation process. Student demographics and placement will become a focal point in litigation involving poor evaluation results. The same is true for teachers of non-core and other classes which are not the subject of state annual assessments since an undefined percentage of their evaluations must be based upon student test results.
Teachers may, no doubt, try to position themselves as best they can to “game” the evaluation system. The HCS for SB 125, however, eliminates that concern because the portion of the evaluation dedicated to annual assessments must be based upon “student growth” and a “value-added model” which takes into account the characteristics a student had before they were placed in the teacher’s classroom. In order to “game” this system, teachers would need to know not only how the students were performing the year prior, but also which students had untapped potential and which had already hit their peak. In other words, they’d have to know that which is practically unknowable for many students.
- MASA CLAIM #8 – The bill requires the evaluation of every teacher every year. Currently, tenured teachers are most often evaluated on a three- or five-year cycle, with regular walk-throughs and informal reviews. Annual evaluations of teachers will require additional administrative staff to be retained and trained, with no additional financial support provided by the state. Likewise, the bill requires annual evaluation of all personnel, without regard to position in the school district. Current law allows districts to determine the appropriate frequency and content of performance evaluations for all employees, thus maintaining local decision-making authority.
RESPONSE: This claim is incredibly disappointing coming from a group that should be constantly working to improve education results. Complacency is the road to mediocrity – or worse. Yes, turning off the cruise control will require work, but Missouri students and parents deserve a system of educational accountability which creates an environment in which educators are constantly striving to improve.
- MASA CLAIM #9 – Teachers will challenge performance ratings as violative of a property interest in continued employment. Likewise, additional due process procedures may need to be afforded teachers prior to assigning a performance rating of “minimally effective” or “ineffective.”
RESPONSE: False. If any teacher makes such a legal claim, it will fail miserably. Any such claim would be based upon an asserted contract right through the Contract Clause of the Constitution. However, the Supreme Court has made it clear that states are constitutionally-empowered to alter contract rights in situations like this. In Energy Reserves Group v. Kansas Power & Light, the Supreme Court explained the test for legislation challenged for impacting past contract rights.
First, a court must determine whether a new law operates, in fact, as a substantial impairment of the previous relationship. In determining the extent of the impairment, courts “are to consider whether the industry the complaining party has entered has been regulated in the past.” In this case, the profession of teaching has been regulated in the past. In fact, there are current state laws on evaluations. A party whose rights are already subject to state restriction “cannot remove them from the power of the State by making a contract about them.” Thus, because evaluations are already regulated to some extent, a teacher would lose a challenge to a new evaluation requirement as violative of their property rights. However, even if a teacher gets past this first test, they will assuredly lose the second test.
If a court finds that a new state regulation “constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, such as the remedying of a broad and general social or economic problem.” In Energy Reserves Group, the Court ruled that “the elimination of windfall profits” was a legitimate state interest. In the case of the HCS for SB 125, the legitimate state interest is the education of Missouri students.
Next, a court asks whether the regulation is based on reasonable conditions and “of a character appropriate” to the state public purpose. And, “as is customary in reviewing economic and social regulation, courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.” In other words, the legislature makes policy judgments, not courts.
- MASA CLAIM #10 – The bill defines “student growth” as a change in achievement for individual students based upon measures that are “rigorous, valid, and comparable.” Courts will be asked to determine whether measures are, in fact, “rigorous, valid, and comparable.” Likewise, the bill requires that school district evaluation systems be “centered” on student achievement, without defining the term “centered.” Without clarity, the bill will encourage litigation, diverting school district resources to defend legal challenges from teacher organizations.
RESPONSE: With this claim, MASA has identified a problem with the language of the bill which we will fix through amendment.
- MASA CLAIM #11 – The bill allows for the final evaluation at the teacher’s previous district to count as one year toward earning ‘permanent teacher’ status without regard to the evaluation rating received in the prior district. As a result, a teacher will receive one year of credit with a rating of “minimally effective” or “ineffective.” It seems counter-intuitive to grant credit toward tenure based upon evaluation results which contributed to non-renewal or a termination decision in the prior school district.
RESPONSE: This was a legitimate concern and it has already been removed from the bill.
- MASA CLAIM #12 – The bill requires that in addition to student performance results, administrators will be evaluated based upon the ability to attract, develop, and retain highly effective teachers; the management of schools, including finances, space and legal compliance, and; parental engagement. Many factors beyond the control of building administrators contribute to success in these areas. The bill fails to take these limitations into consideration.
RESPONSE: This claim is highly disappointing – especially considering we’re the home of Harry Truman and the Show-Me State. MASA is correct that administrators do not have control over the entire world. However, as the persons in charge of their buildings, they should ultimately be responsible for the success or failure of their school. I believe in the motto placed on the desk of Missouri’s very own Harry Truman – THE BUCK STOPS HERE. Administrators should take pride in their school – and be willing to take responsibility for both success and, yes, failure. Frankly, it’s a little disappointing that their organization would point the finger elsewhere.
 HCS for SB 125 at 42.
 HCS for SB 125 at 51.
Kritzer v. Curators of the University of Missouri, 289 S.W. 3d 727 (Mo. App. 2009)
 HCS for SB 125 at 44, proposed §168.128.7 and §168.128.9.
 HCS for SB 125 at 44-45. Proposed §168.128.11(1)-(2).