Dear Editor:

It has been greatly disappointing to read your recent editorials on education legislation in our state capitol. Rather than discuss the actual contents of any legislation, you seem content to use ad hominem attacks and merely assume that opponents of reform legislation have the moral high ground. It is obvious from your commentary, however, that you have not reviewed what was actually in my amendment to SB 125.

The HCS for SB 125 would have created a statewide teacher evaluation system, at least 33 percent of which would have been based upon student academic growth. The bill specified that student academic growth must be measured by the value each teacher adds to a student’s learning. This is possible through new technology and data analysis, which allows educators to chart individual student academic growth year-to-year. It’s also eminently fair. This value-added model ensures that teachers are not penalized if they draw a class of students who have below-average achievement at the beginning of a school year. The reciprocal is also true. Teachers who are assigned a class of students with above-average do not unfairly benefit from their draw. In addition to student academic growth, the annual evaluations may include student surveys, multiple classroom observations by master teachers, administrators, or other professionals, and other measures aligned with student growth.

In your first editorial, published May 16, you assert that Sen. Nasheed’s support of teacher evaluation legislation is connected to enemies of President Obama. In fact, the opposite is true: there’s a growing national bi-partisan and cross-ideological consensus that teacher evaluations should be used as an effective tool to reward the best teachers and encourage other teachers to improve. Don’t believe me? Ask President Obama, who has said that “fair, rigorous evaluations for teachers and leaders” should “serve as a foundation for connecting educator performance with differentiated professional development, compensation, and career advancement.”

Indeed, the statewide teacher and administrator evaluation system which would have been implemented through my amendments to SB 125 are similar to systems championed by President Obama himself, Chicago Mayor Rahm Emanuel, New Jersey Governor Chris Christie, Louisiana Governor Bobby Jindal and former Florida Governor Jeb Bush.  

Why is there growing widespread bi-partisan and cross-ideological support?

Because new research shows that, when done properly, teacher evaluations can better identify those teachers most likely to make a real difference year-after-year in the lives of students than any other measure. The non-partisan, non-ideological Gates Foundation conducted the largest study on teacher effectiveness in American history andfound the following:

Teaching is too complex for any single measure of performance to capture it accurately. Identifying great teachers requires multiple measures…The challenge is to combine measures in ways that support effective teaching while avoiding such intended consequences as too-narrow a focus on one aspect of effective teaching…The MET project’s report Gathering Feedback for Teaching showed that equally weighting three measures, including achievement gains, did a better job predicting teachers’ success (across several student outcomes) than teachers’ years of experience or master’s degrees.^[1]

In addition, the Foundation found that assigning 33 to 50 percent of teacher effectiveness scores to results on student achievement was the optimal amount:  

Our data suggest that assigning 50 percent or 33 percent of the weight to state test results maintains considerable predictive power, increases reliability, and potentially avoids the negative consequences from assigning too-heavy weights to a single measure.^[2]

The great irony of the Gates Foundation report is that, despite the reactionary opposition of teacher unions, it supports the idea that “teaching to the test” is harmful to children. The Gates report finds that evaluations should not rely too heavily on student test scores, but that it must rely on them for a significant proportion of the overall measure if the evaluations are meant to be reliable measures of teacher performance.   

Another irony is that my amendment would have done more to protect good teachers than the current tenure system. The reason is simple: as teacher unions often argue in the capitol, tenure is simply the right to a fair hearing at which the teacher has the opportunity to present evidence of why they shouldn’t be fired. If that’s the case, my amendment would have provided good teachers with all of the evidence they needed to prevent arbitrary termination. In other words, had my amendments passed, a good teacher would have years of good evaluations. If an administrator tried to fire that teacher without a good reason, the teacher would have years of evidence to present to save their job.

Finally, it’s worth noting that by the time SB 125 reached the floor for a vote, my amendment was stripped down to only evaluations for administrators. That stripped-down amendment would have required that at least 33 percent of the evaluations for building administrators be based on student achievement. It also capped the percentage based on evaluations to the level used by the Department of Elementary and Secondary Education to judge school performance. It also would have required parental input and confidential teacher surveys so that teachers could give honest assessments of the strengths and weaknesses of building principals.    

Presenting SB 125 in the House with Sen. Nasheed Watching

Though I do not always agree with her, Sen. Nasheed is a champion for her constituents. On this issue, she stands tall with conservatives like myself and liberals like President Obama and Mayor Emanuel in working to make education better for students and parents who want nothing more but a chance at a better life.

There is no doubt that improving education is one of, if not the most important issue your readership faces. As such, I challenge you to engage on the actual substance of my amendment to SB 125 which was defeated on the House floor by actually publishing this letter. Your attacks on teacher evaluations and Sen. Nasheed are attacks on both the Obama administration and conservative education reform governors – whether you know it or not. Rather than engage in personal attacks, I challenge you to explain to your readers why you disagree with President Obama, Mayor Emanuel, Gov. Christie, Gov. Jindal, and Gov. Jeb Bush on teacher evaluations.

Yours in service,

Rep. Jay Barnes 

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.

RESPONSE: False.

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. [1] 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. [2] 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.

RESPONSE: False. 

Proposed §168.128.4 clearly provides that local education officials can take any action against a teacher that they can take under existing law. [3]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.” [4]The Missouri Tenure Act clearly sets forth those criteria, which include:  

1. Physical or mental condition that renders him unfit to instruct or associate with children;
2. Immoral conduct;
3. Incompetency, inefficiency, or insubordination in line of duty;
4. 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;
5. Excessive or unreasonable absence from performance of duties; or
6. 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. [5]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.

RESPONSE: False.

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.[6] 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.”[7] 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.

RESPONSE: False.

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. [8] 

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.

RESPONSE: False. 

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.

RESPONSE: False. 

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. [9]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.[10] 

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.”[11] 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.

I’ve had my share of disagreements with the Post-Dispatch, but they got one right this week on education. In “Supreme Court Needs to Put Children First in School Transfer Case,” the editorial board writes:

Do children have the right to transfer to an adjoining school district if the one they live in has failed to provide them an adequate education?

The answer, of course, is yes, they should….

Whose responsibility is it to educate children from failing school districts? Who will step up?

Rather than dividing school districts, the Breitenfeld vs. Clayton case should unite the entire St. Louis region into helping the slowly improving St. Louis Public Schools, and the unaccredited Riverview Gardens and Normandy districts, find a sustained path toward success.

Their failure is all of our failure, both from a purely moral standpoint, and also because as long as the school district in the core of our city can’t make the sort of gains that attract young families and businesses, then our entire region suffers economically….

There simply are too many school districts in the St. Louis metropolitan area (49 of them on the Missouri side of the Mississippi River), too many arbitrary lines drawn on a map that protect property values instead of children. There is no built-in incentive for the entire region to take seriously the conditions of public education in our poorer communities. There’s not enough of a commitment to the one idea — early childhood education — that the evidence shows will help our community the most.

The Breitenfeld vs. Clayton case might be decided narrowly, but it’s a big, broad issue.

We hope the court once again reaffirms its commitment to every child in Missouri. The court should rule once and for all that failure is not an option.

I don’t agree with everything the editors write, but the overall point is on target. We have an obligation to do our best to give every child in our state a chance at a world-class education – regardless of what zip-code they live in. 

Why do failing schools in St. Louis and Kansas City matter for the rest of the state? Because we need St. Louis and Kansas City to thrive for our state as a whole to thrive. 

A Democratic legislature long-ago passed the statute which allows children in failing school districts an open door to a brighter future through a better education. It’s the education establishment that’s done its best to slam that door shut through legal roadblocks.

Here’s hoping the Missouri Supreme Court rules in favor of the kids and not the establishment working hard to keep them out of good schools. 

What would you think if Missouri quit grading students with letter grades and then failed to inform parents of those grades?

Most people wouldn’t like it. Accountability is important. It lets students and parents know where they’re succeeding and where they’re failing.

HB 388 would take that same approach to the performance of individual schools – assigning each a letter grade based on the objective scores they already earn from DESE.

Some members of the committee expressed concern that there’s subjectivity to all this – that just as one individual can’t objectively describe how a flower smell to someone else, neither can we provide objective scores of schools. This criticism is not based on fact. DESE’s scores are based entirely on objective criteria. I understand if some people disagree with the criteria – but they are objective.

Others expressed concern that some schools start off with students who are less well-off. This too is a red herring. First, the letter grade is based on student growth – which automatically takes into account the level of learning at which students started the year. Second, it adopts the “soft bigotry of low expectations” which I categorically reject.   

I’ve received a number of calls and emails regarding my opposition to HB 70. Since the prior post was only three sentences long and the reporter who wrote the article to which they are responding never called to get more details on my position, I thought I’d elaborate on my ideas on how to make schools safer.

I oppose HB 70 because it takes all authority away from local school  boards and school principles to determine elements of school security. On a team, there can only be one quarterback who calls the plays. We need a system of organization that ensures we have the best game-plan possible to protect our children – not legislation which, by its open-ended nature, would do nothing to absolutely require that any particular school is adequately protected with a detailed security plan.

Instead, we need a plan which will improve safety in every school. That’s why I support legislation which would (1) require school districts to name  personnel responsible for security at schools in the district, (2) gives those  school security officers the authority to determine which personnel at schools can carry firearms,[1] (3) provides additional training to school personnel chosen by the security officer to carry a firearm, and (4) protects school security information from public dissemination.[2]

In addition, I believe schools should take down all “gun-free zone” signs and replace them with a sign that warns, “This school is protected by armed personnel.” I believe legislation similar to this will soon be offered and I plan on being one of the first co-sponsors.

Cole County Sheriff Greg White told Jefferson City Rotarians last week he’s not in support of legislation which would allow any teacher with a conceal-and-carry permit to carry their firearms on school property without permission from their local school board or building principal. “That’s not necessarily my recommendation,” Sheriff White said. Instead, he urged better mental health treatment and firearms training for school personnel chosen by school administrators and overseen by law enforcement. I agree with Sheriff White. 

A victory for Missouri students, parents, and taxpayers. Last spring, I sponsored legislation to require the Department of Elementary and Secondary Education to purchase testing accountability software, writing: 

If standardized tests are intended to give an accurate measure of student achievement, Missouri taxpayers deserve accountability measures to ensure the system isn’t being gamed.

I’m pleased to report that DESE has likely made this legislation unnecessary as it has requested supplemental budget funds this year to purchase testing accountability software. I’ve also been informed the Department will include a request for the same software in next year’s budget.