Testimony before the State Board of Education
Educator Effectiveness
Wendell Steinhauer, NJEA President
July 9, 2014

Good afternoon. I’m Wendell Steinhauer, President of the New Jersey Education Association.

NJEA supported the passage of TEACHNJ, the law that changed tenure and evaluation. We worked with the sponsors and the Department of Education to ensure that the law was fair and reasonable to those affected by it. But, from the day regulations were first introduced to implement the TEACHNJ law, NJEA has been expressing its concerns.

We have shared with you our concerns about the implementation of the Common Core State standards, the related PARCC testing, and the new teacher evaluation system that incorporates students’ test scores into their teachers’ evaluations. We’ve shared our members’ stories about the PARCC field test and their concerns about evaluation. Time and time again, we have asked the Legislature, the State Board, and the Department to “slow down and get it right.” And we have not been alone.

I stand before you today asking you to change these regulations and delay the use of test scores in this evaluation system going forward. It is unfair to teachers and students to make high-stakes decisions based on a new test, one that has not had a state-wide field test. I would suggest that, in light of the fact that NJ is transitioning to a new test, the Department use 2014-2015 for a true PARCC field test and seek a waiver from the federal government to delay the use of test scores in teacher evaluation. I believe that New Jersey would be able to secure a waiver and NJEA is prepared to help using our contacts at the National Education Association and the USDOE.

This alone will not solve the issues that have resulted from the rush to implement the evaluation system. The implementation of a new evaluation system, at the same time that teachers and students are adapting to new curriculum standards and are facing a new test, has created a “perfect storm” in our schools. Without a change, we are on a course toward failure.

This is why NJEA would like to see the creation of a legislative study commission to review the many changes facing our students, teachers, and schools. This commission, we believe, should include the Commissioner, a member chosen by the Senate President, a member chosen by the Assembly Speaker, and representatives nominated by stakeholder groups including NJEA, the Principals and Supervisors Association, the School Boards Association, the Association of School Administrators, and the Parent Teacher Association.

The legislative study commission would be responsible for making recommendations for the use of data from the 2014-15 PARCC field test, study the use of testing, and make recommendations as to the appropriate weight for student assessment growth data in teacher evaluations for 2015-16 and beyond.

These recommendations would come too late for the year which has just ended. So as to 2013-14, NJEA would like to see the Department of Education allow for some flexibility for summative ratings when needed. While New Jersey was using a long-standing test to determine Student Growth Percentiles (SGPs), there was inconsistency across the state in other areas - - the creation and use of Student Growth Objectives (SGOs), the application of teacher evaluation models, and the creation and functioning of District Evaluation Advisory Committees (DEACs) and School Improvement Panels (ScIPs). The creation of a process to allow teachers to ask for waivers of summative ratings based on deficiencies in implementation of the teacher evaluation regulations would help restore trust in the outcomes of the system.

NJEA is deeply concerned about the appeal process proposed in these regulations. This procedure undoes the streamlined approach to tenure of TEACHNJ. Part of the law’s intent was to keep tenure issues out of the Office of Administrative Law (OAL). This proposal will bring the tenure process back to OAL, instead of using the structure which already exists under the collective bargaining process, the grievance procedure.

All collective bargaining agreements contain a grievance procedure, with either advisory or binding arbitration. The grievance procedure has many advantages over the proposed appeal process:

  • A grievance is designed to resolve, at the lowest possible level, disputes between employers and employees. The typical grievance procedure begins at a more informal level than the appeal process.
  • Grievances can be brought by either an individual or an association. If a procedure is being incorrectly followed for many members of the teaching staff, the grievance procedure can remedy all affected individuals.
  • Issues addressed through the grievance procedure do not clog the court system, part of the legislative intent of tenure reform.
  • Grievances about the evaluation process could demonstrate that there is a problem with the merits of an evaluation that a Board of Education needs to address using its authority as the governing body and employer, such as a supervisor who consistently gives lower scores than other supervisors in the district. Despite the lack of any statutory authorization, the proposed regulation establishes, for the first time, a nullification of a local Board’s ability to question and/or alter the merits of an evaluation conducted by one of its own administrative employees.

In addition, this new procedure could ultimately influence the decision of an arbitrator in a tenure hearing. The Department did add language to protect an employee’s right to bring forth procedural issues as part of a tenure hearing if the employee does not use the appeal process. However, a decision under the appeal process could potentially have a legal impact on the arbitrator’s decision. If the Commissioner rules on an alleged procedural violation under the regulation, an arbitrator could treat that ruling as a limitation on his or her ability to decide that issue in a subsequent tenure charge case. Yet the TEACHNJ statute expressly provided authority to the arbitrator alone to decide issues of procedural violation.

The tenure charge process could itself be disrupted. The procedural appeal could be meandering through the Board, or the Commissioner, or the OAL level of the proposed regulatory procedure when tenure charges are filed. Then the issue will be if jurisdiction lies under the tenure charge process or the new regulation’s process. If the issue is up to the arbitrator (as the statute mandates), the entire appeal under the regulatory process would be a waste of time and resources, including extensive legal fees. If the tenure process must be halted until the regulatory appeal is concluded, the intent of the expedited tenure process will be thwarted.

I ask why the rush to put this process into place, when we don’t even know how many procedural issues there are. These issues may have already been addressed at the informal level by the grievance process. The Department should, instead, let the grievance process address issues with evaluation procedures and collect data on the use and effectiveness of the grievance procedure before instituting another system.

Anything worth doing is worth doing right. I look forward to working with the Board and the Department to make sure we “do it right.”