United States District Court, M.D. Tennessee, Nashville Division
THERESA WAGNER, JENNIFER BRAEUNER, THE METROPOLITAN NASHVILLE EDUCATION ASSOCIATION, THE ANDERSON COUNTY EDUCATION ASSOCIATION, and THE TENNESSEE EDUCATION ASSOCIATION, Plaintiffs,
WILLIAM HASLAM, et al., Defendants.
ALETA A. TRAUGER, District Judge.
Pending before the court are two motions to dismiss under Rule 12(b)(6). Defendants Tennessee Governor William Haslam, Tennessee Commissioner of Education Candace McQueen, and Members of the Tennessee Board of Education Allison Chancey, Mike Edwards, Lillian Hartgrove, Cato Johnston, Carolyn Pearre, Lonnie Roberts, B. Fielding Rolston, Teresa Sloyan, and Wendy Tucker (collectively, the "State Defendants") have filed a Motion to Dismiss (Docket No. 31), to which the plaintiffs have filed a Response in opposition (Docket No. 35), and the State Defendants have filed a Reply (Docket No. 42). Defendant Metropolitan Nashville Board of Public Education (the "MNBPE") has filed a Motion to Dismiss (Docket No. 40), to which the plaintiffs have filed a Response in opposition (Docket No. 48), and the MNBPE has filed a Reply (Docket No. 51). For the reasons stated herein, the motions will be granted and the case will dismissed with prejudice as to all defendants other than the Anderson County Schools Board of Education (the "ACSBE").
I. The First to the Top Act and the TVAAS
A. The Act
In January 2010, Tennessee enacted the "First to the Top Act" (the "Act") which, among other things, changed the way that Tennessee public school teachers are evaluated. This case involves a challenge under the United States Constitution to the implementation of that Act at the state and local levels.
The Act has been amended several times, but one of its basic features has remained constant: the Act requires that teachers be evaluated in part based on measures of "student achievement data, " including (1) "student achievement data" generated by the Tennessee Value-Added Assessment System ("TVAAS") or some "other comparable measure of student growth" and (2) "other measures of student achievement." Tenn. Code Ann. § 49-1-302(B)(ii)-(iii) (as of April 15, 2015).
The Act contemplates that these performance measures must include some form of value added assessment ("VAA"), which the Act defines as "[a] statistical system for educational outcome assessment that uses measures of student learning to enable the estimation of teacher, school, or district statistical distributions[.]" Id. § 603(a)(1). The Act requires that the VAA "will use available and appropriate data as input" to estimate the "impact" or "effect" that a teacher, school, or school district has "on the educational progress of students." Id. § 603(a)(2). The Act also states that any VAA utilized to measure the performance of Tennessee teachers, schools, and school districts must "cover the total range of topics covered in the approved curriculum" and "should have [a] strong relationship to the core curriculum for the applicable standard grade level and subject." Id. § 603(c).
The Act created a fifteen-person "teacher evaluation advisory committee" (the "TEAC"). Id. § 302(d)(1). By statute, the TEAC is composed of a diverse group of people, including the Tennessee Commissioner of Education, the executive director of the State Board of Education (the "State Board"), the chairpersons of the Tennessee Senate and House of Representatives education committees, one K-12 public school teacher appointed by the speaker of the Senate, one K-12 teacher appointed by the speaker of the House, and nine members appointed by the Governor, including three public school teachers, two public school principals, one director of a school district, and three members representing "other stakeholders'" interests. Id. The membership of this committee must "appropriately reflect the racial and geographic diversity" of Tennessee, and at least one member of the committee must be a parent of a currently enrolled public school student. Id.
The TEAC was (and remains) responsible for developing and recommending to the State Board "guidelines and criteria for the annual evaluation" of Tennessee's teachers. Id. § 302(d)(2)(A). As set forth in § 302(d)(2)(B)(ii), the Tennessee legislature contemplated that the TVAAS would constitute an appropriate form of "student achievement data" for evaluating teachers, provided that it met the criteria set forth in § 603. The Act also provides that the "other measures of student achievement" must include "measures developed by the [TEAC] and adopted by the [State Board], " which "shall be verified by the department of education to ensure that the evaluations correspond with the teaching assignment of each individual teacher...." Id. § 302(d)(2)(B)(iii).
The Act contains specific provisions relating to the use of testing data that form the basis for the VAA of each teacher's performance. Section 606 requires that "data from the Tennessee comprehensive assessment program (TCAP) tests, or their future replacements, " be used to evaluate "teacher effects on the educational progress of students within school districts for grades three through eight (3-8)." Id. § 606(a). Section 608 requires that "[t]he development of subject matter tests will be initiated to measure performance of high school students in subjects designated by the state board of education and reviewed by the education committee of the senate and the education committee of the house of representatives." These tests "must cover the complete range of topics covered within the list of state approved textbooks and instructional materials for that subject." Id. "As soon as valid tests have been developed, the testing of students will be initiated to provide for value added assessment[, ]" which must be conducted annually. Id.
The Act also states that tests in additional subjects should be initiated in the future: "Value added assessment may be initiated in other subjects designed by the state board of education and reviewed by the education committee of the senate and the education committee of the house of representatives at such times as valid tests can be developed that effectively measure performance in such subjects." Id.
In other words, the Act required that teachers be evaluated in substantial part based on a value-added assessment (the TVAAS, if implemented in time), created a special committee to develop teacher evaluation standards for review and approval by the State Board, and envisioned that additional value-added assessments would continue to be developed and implemented over time, with input from the TEAC (which includes legislative and executive appointees and the Commissioner of Education herself), the State Board, and the relevant legislative committees of both branches of the Tennessee legislature.
B. The TVAAS, Individual Scores, and School-Wide Scores
According to the plaintiffs' Complaint, the TVAAS is a statistical model owned by a private, for-profit company that has not disclosed its precise methodology. To the plaintiffs' knowledge, the TVAAS utilizes students' performance on past standardized tests to project how those students will perform on a subsequent standardized test. The TVAAS methodology compares the students' actual performance on a recent standardized test to the students' predicted performance. The differential relative to expectations for that group of students (better, worse, or the same) is attributed in some fashion to the teacher's impact on that student. The TVAAS generates a teacher evaluation score from 1 to 5, where a "5" purports to indicate that the teacher performed "significantly above expectations" and a "1" purports to indicate that the teacher performed "significantly below expectations." Under the terms of the Act, the TVAAS score is supposed to reflect "[t]he impact that a teacher... has on the progress, or lack of progress, in educational attainment or learning of a student...." § 603(a)(2). The TVAAS relies on testing data relating to just a subset of the subjects offered in Tennessee public schools. For students in grades 3-8, the TVAAS incorporates data from the Tennessee Comprehensive Assessment Program (the "TCAP"), which tests only mathematics, reading/language arts, social studies, and science. For students in grades 9-12, the TVAAS relies upon certain state-approved high school end-of-course ("EOC") examinations, which test only Algebra I and II, English I, II, and III; Biology I; Chemistry; and U.S. History. The court will refer to the particular subjects incorporated into the TVAAS (via the TCAP or the EOC examinations) as "tested subjects." The court will refer to teachers of these subjects as "teachers of tested subjects."
As alleged in the Complaint, many (perhaps more than half) of Tennessee's public school educators teach courses that are not among the specific subjects incorporated into the TVAAS at any grade level. These subjects include, among others, physical education, Spanish, art, world history, physics, computer technology, agriculture, finance, information technology, and hospitality and tourism, to name a few. The court will refer to these subjects collectively as "non-tested subjects" and will refer to teachers of these subjects as "teachers of non-tested subjects."
The plaintiffs allege that the TVAAS can generate two types of scores. The first is an individual score, which measures how the students of a teacher of a tested subject have performed on standardized exams that test - at least in part - that teacher's coursework. As the court understands it, the individual score varies by teacher, depending on the mix of students taught by that teacher.
The second type of TVAAS score is a school-wide composite score. That school-wide score measures how, relative to expectations, all of the students at a school performed on the standardized tests that are incorporated into the TVAAS estimate (either the TCAP or the EOC examinations, depending on the grade level). The school-wide TVAAS score is therefore an aggregated, unitary score that does not vary by teacher.
C. The Plaintiffs' Criticisms of VAAs and the TVAAS
The plaintiffs allege that, as a general matter, VAAs are severely flawed assessment tools for evaluating an individual teacher's performance. They allege that VAAs fail to control adequately for various factors outside the control of an individual teacher that can impact test scores, including out-of-school factors (such as parental support for learning, poverty, and English learner status) and school-wide factors (such as class size, instructional time, and school resources). The plaintiffs also point out that VAAs are the subject of scholarly criticism. For example: (1) in October 2009 (shortly before the Act was passed), the National Academy of Sciences urged that VAAs should not play a "significant" role in "high-stakes teacher evaluation systems;" (2) in August 2010, shortly after the Act was passed, one study concluded that only 4% to 16% of variation in a teacher's value-added ranking could be predicted from that teacher's rating the previous year; and (3) in April 2014 (over four years after the Act was passed), the American Statistical Association issued a statement that using VAAs to measure teacher performance "can have unintended consequences that reduce quality."
The plaintiffs allege that the TVAAS, like all VAAs, suffers from these infirmities with respect to teachers of tested subjects who receive an individual score. With respect to the TVAAS itself, the plaintiffs also allege that each raw TVAAS score has a high margin of error that spans multiple number ratings. For example, within a reasonable confidence interval, a raw "3" score might actually reflect a "2" or a "4" level of performance. In light of this variability, the plaintiffs allege that it is problematic to report the score as a single number.
Although the plaintiffs severely criticize using the TVAAS to measure the performance of teachers of tested subjects, they do not assert a constitutional challenge to the use of individual TVAAS scores for that purpose. Instead, they challenge the constitutionality of the State Board's policy (described herein) that school-wide TVAAS scores must be used to evaluate the performance of teachers of non-tested subjects . As to those teachers, the plaintiffs allege that the TVAAS school-wide composite score provides no measure of individual teacher performance whatsoever. With respect to those teachers, the TVAAS school-wide score incorporates both (1) the performance of students that the teacher did not actually teach (because each teacher presumably does not teach every student at the school) and (2) the performance of all the school's students on subjects that the teacher does not teach. For example, if an excellent high school art teacher teaches 200 of a school's 1000 students in school year X, the TVAAS school-wide composite for school year X would be based in large part on students not instructed by that teacher ( i.e, 200 students taught by that teacher and 800 students not taught by that teacher) and entirely on all students' performance on subjects other than high school art. Moreover, in a jurisdiction utilizing the school-wide TVAAS score as a component of non-tested subject teacher evaluations, the excellent art teacher would receive the same TVAAS performance rating as an ineffective computer technology teacher at the same school.
The plaintiffs allege that the TVAAS is not designed to measure the performance of teachers on non-tested subjects. They allege that the school-wide TVAAS score assigns a number rating to teachers of non-tested subjects that is unrelated to the work that the teacher is licensed and required to teach. Finally, they allege that the TVAAS school-wide composite score therefore bears no relationship whatsoever to the quality of instruction provided by a teacher of a non-tested subject.
D. The Act's Percentage Requirements
Since its inception, the Act has required that a VAA comprise some measure of a teacher's performance evaluation.
At the time it was passed - and ultimately effective for the 2011-12 and 2012-13 school years - the Act required that the TEAC develop, and the State Board approve, criteria for the evaluation of teachers based 50% on "student achievement data." See § 302(d)(2)(A) and 302(d)(3) (as enacted Jan. 16, 2010) (stating that implementation would be effective no later than the 2011-12 academic year). Of this 50%, the Act initially required that (1) 35% of the evaluation criteria "be student achievement data based on student growth data as represented by the [TVAAS]... or some other comparable measure of student growth, if no such TVAAS data is available, " and (2) 15% of the evaluation criteria be "based on other measures of student achievement data selected from a list of such measures developed by the [TEAC] and adopted by the board." Id. § 302(d)(2)(A)(i)-(ii) (as enacted Jan. 16, 2010). As to the latter student achievement component, the Act indicated that the evaluator and evaluated teacher should try to agree on a selection from that "list" of "other" options, but that the evaluator's choice would prevail, should they disagree. Id. § 302(d)(2)(A)(ii) (as enacted Jan. 16, 2010). The Act did not specify what information should comprise the remaining 50% of the evaluation, other than to indicate that it should be based on teacher-specific observational data. Id. § 302(d)(2)(B) (as enacted Jan. 16, 2010).
Among other amendments to the Act, effective April 11, 2013, the legislature amended the section relating to the evaluation criteria percentages for student achievement data - see 2013 Tenn. Laws Pub. Ch. 105, TN LEGIS 105 (H.B.150) (2013) - and those changes remained in effect through April 15, 2015. In most relevant part, the legislature changed the evaluation percentages for "teachers without access to individual data representative of student growth[.]" Id. § 302(d)(2)(B)(vi) (as amended through April 15, 2015). For those teachers, only 40% of the evaluation (rather than 50%) is comprised of "student achievement data, " including just 25% (rather than 35%) "based on student growth data as represented by the TVAAS or some other comparable measure if no such TVAAS data is available." Id. Furthermore, as to the remaining 15% (based on "other measures of student achievement selected from a list" of measures developed by the TEAC and approved by the Board), the Act was amended to allow the evaluated teacher's selection to prevail over the evaluator's choice, in the event of a disagreement.
In other words, effective for the 2013-14 school year, the legislature made two changes that impacted the evaluations of teachers without access to individualized student performance data. First, it acknowledged that data from a VAA developed in compliance with § 302(d) might not reflect individualized data for certain teachers, with respect to whom it accordingly reduced by 10% (from 35% to 25% for one component, and from 50% to 40% overall) the portion of the evaluation that would be based on the VAA (effectively, the TVAAS). Furthermore, as to the remaining 15% of the student achievement component of each teacher's evaluation, it gave teachers, rather than evaluators, the power to choose alternative metrics from a list of approved student achievement measures.
Both before and after this amendment, the State Board has required that teachers be assigned an overall performance rating of 1 to 5, where a "1" indicates that the teacher performed "significantly below expectations" and a "5" indicates that the teacher performed "significantly above expectations." The overall performance rating incorporates (1) a teacher's performance rating based on observational data, (2) a teacher's performance rating based on the TVAAS score, and, in some cases, (3) a performance rating based on some "other measure" of student growth other than TVAAS, with separate weight ascribed to each factor ( i.e., 50% observational, 25% TVAAS individual or school-wide score, and 15% based on one of the "other measures" other than the TVAAS).
E. Use of Numerical Performance Evaluations
Since its inception, the Act has stated that the teacher evaluations "shall be a factor in employment decisions, including, but not necessarily limited to, promotion, retention, termination, compensation, and the attainment of tenure status." Id. § 302(d)(2)(A). However, the Act does not state how much weight should be assigned to this "factor."
F. Upcoming and Proposed Changes to the Act
Although not mentioned by the parties here, publicly available records indicate that the Tennessee legislature recently amended the Act and may be considering additional changes to it. On April 16, 2015, Governor Haslam signed into law the Tennessee Teaching Evaluation Enhancement Act (the "TEEA"), which makes significant changes to the Act. See TN LEGIS 158 (H.B. 108). Among other changes, it (1) modifies § 302(d)(2)(A) to indicate that school districts are not required to use student achievement data based on state assessments as the sole factor in employment decisions; (2) for teachers with access to individualized student growth data, it re-phases the weight assigned to certain components of the VAA for school years 2015-16, 2016-17, and 2017-18; and (3) for teachers without access to individualized student growth data, a TVAAS score or "some other comparable measure" may only comprise 10% of a teacher's evaluation for the 2015-16 school year and only 15% of that teacher's evaluation thereafter. See also TN LEGIS 182 (approved Apr. 16, 2015) (amending, inter alia, § 608).
Other amendments have been proposed in recent months, some of which would make even more sweeping changes, if enacted.
II. The State Board Policy Implementing the Act
Tennessee law authorizes the existence of a State Board of Education and entrusts it within certain responsibilities, including the responsibilities set forth in the Act. See § 301 et seq. By statute, the State Board is composed of a diverse group of nine members appointed by the Governor and confirmed by the Tennessee Senate and House of Representatives. See § 301(a)(1)-(3). The appointees must include one public high school student, one ex officio member, at least one appointed member from each of Tennessee's congressional districts, one member of a minority race, at least three members from each of the majority and minority political parties, and one K-12 public school teacher. Id. § 301(a)(1). No appointed board member can be an elected official or employee of the federal, state, or a local government. Id. § 301(a)(4). Subject to some qualifications not relevant here, board members generally serve staggered five-year terms. Id. § 301(a)(2). The State Board's meetings, which must occur at least quarterly at the state capital, must be made available (both live and in archived form) for public viewing on the internet. §§ 301(d)(1) and (d)(4).
Among many responsibilities, the State Board must set policies for evaluating individual teachers and for evaluating individual student progress and achievement. § 302(a)(2)(C). The State Board also must adopt policies for evaluating teachers ( id. § 302(a)(5)(A)(iii)) and policies relating to teacher compensation ( id. § 302(a)(5)(B)). As mentioned in the previous section, the Act requires the Board to consider recommendations from the TEAC and to adopt new teacher evaluation standards premised in part on the TVAAS or another VAA tool, id. § 302(d)(2)(A), and the Act requires the State Board to ...