Education Employee & Teacher Evaluation Conference
Standard for Success, Indiana Association of School Superintendents, & Indiana
Association of School Principals
June 3 & 4, 2014
Teacher Evaluation Litigation
Dave Emmert
General Counsel, Indiana School Boards Association
317-639-0330, ext. 107. demmert@isba-ind.org
While teachers’ unions in such states as Florida, Michigan, New York, Texas, and Tennessee have sued to
challenge the teacher evaluation component of educational reform legislation, the only Indiana school
suits known to this speaker (Madison and Culver,) do not challenge the recent 2011 Teacher Evaluation
Law as being illegal, but rather the application of the 2011 Teacher Dismissal Law to established
teachers who were reduced in force while probationary teachers were retained.
Section 1. Examples of National Litigation Challenging State School-Reform Teacher
Evaluation Systems
Sec. 1, Part A. NSBA Legal Clips Article, May 8, 2014. Federal court upholds Florida law tying merit
pay to student performance:
A federal district court has ruled that while Florida’s teacher evaluation law that ties teacher merit pay increases to
student performance on standardized tests may be unfair, it is not unconstitutional, says an Associated Press (AP)
report in the Bradenton Herald. The suit, which was brought by a number of teachers, the Florida Education
Association (FEA), and the National Education Association (NEA), contended that linking teacher evaluations to
standardized testing is unconstitutional.
Although U.S District Court Judge Mark Walker agreed with the teachers and unions that the law was unfair because
teachers who did not teach the primary subjects tested on standardized tests had their evaluations based on test
results anyway, he dismissed their suit. “This case, however, is not about the fairness of the evaluation system,”
Walker wrote. “The standard of review is not whether the evaluation policies are good or bad, wise or
unwise; but whether the evaluation policies are rational within the meaning of the law.”
Andy Ford, president of the Florida Education Association, said his organization was “disappointed” in the ruling and
said the union was reviewing whether to appeal the decision. “This evaluation system is clearly unfair and isn’t a
valid measure of the teachers in our public schools,” Ford said in a statement. “We will continue to point out this
unfairness and we will continue to work to find an evaluation system that is fair, open and provides a sensible way to
properly evaluate our public school teachers.”
Joe Follick, a spokesman for the Department of Education, said the state was “pleased” with the decision. “We are
pleased that we can put the focus where it should be — ensuring all students receive the best education possible
with these evaluation and accountability tools in place,” Follick said.
Sec. 1, Part B. The Florida Law from NPR Article at http://stateimpact.npr.org/florida/tag/senate-bill736/:
SB 736 - The Student Success Act Outlines How Florida Teachers Get Paid
The first bill Gov. Rick Scott signed into law, SB 736 rewrote how teachers are paid and retained across the state.
The Florida Education Association has filed a lawsuit challenging the law, arguing the law unconstitutionally strips
teachers or their ability to negotiate pay.
The bill makes a number of sweeping, statewide changes including:
1. Rating teacher performance. The law requires districts to rate teachers and administrators annually,
according to a legislative analysis, with half of their score based on student Florida Comprehensive
Assessment Test Performance over a three-year period.
2. How teachers are paid. New hires will no longer have to climb the decades-long seniority ladder to earn the
highest salaries. Now, the highest-rated teachers can earn the top salaries just a few years out of college.
Highly-rated teachers already working can opt out of the merit pay system — but if they switch districts they
would be paid on their performance, according to a United Teachers of Dade Q & A. Teachers will also no
longer be guaranteed additional pay for advanced degrees.
3. Job security. New hires will no longer enjoy long-term contracts, but instead must be rehired on an annual
basis. Those already teaching are again exempted from the new law, but teachers who switch districts
would then move to annual contracts.
4. Political motivations. Lawmakers approved the law, in part, to reinforce a $700 million federal Race To The
Top grant, according to the legislative analysis. Districts will use half that grant to design, implement and
fund the first three years of their performance pay systems.
5. The goal. Reformers believe boosting pay will draw better quality teachers to the field, and that better
teachers will produce better student results.
Sec. 1, Part C. From NPR at http://stateimpact.npr.org/florida/2014/05/13/two-new-studies-findproblems-with-teacher-evaluations/:
Two new national studies raise questions about the how accurate modern teacher evaluations are.
The first study, from the University of Southern California’s Morgan Polikoff and the University of Pennsylvania’s
Andrew Porter, finds test-based evaluation scores have little to no link to other teacher quality measures, such as
how well instruction matches standards and the content of assessments. Their study included data from Hillsborough
County schools in Florida.
The scores are known as a value-added model, and use a statistical formula to predict how well a student should
score on standardized tests based on past performance. If the student scores higher or lower than predicted, that
difference is attributed to the classroom teacher.
After analyzing the first year of data, the Florida Department of Education believes the state's teacher evaluation
formula is sound.
Florida law requires teachers are evaluated based on a combination of how much student test scores improve and inclass observations. Florida is one of a growing number of states which requires school districts to pay teachers
based on their evaluations.
Polikoff told U.S. News the study’s results are a good reason to slow down the use and consequences of test-based
teacher evaluations:
“If I had my druthers, I would say we need to slow way down the implementation of these teacher evaluation systems
because we just don’t know enough about the quality of these measures,” Polikoff says. “And we have reason to
believe a lot of the measures actually aren’t very good quality.”
Some previous research has shown stronger correlations between value-added measures and teacher instruction,
while others have shown almost no relationships, he says.
“It’s not clear to me what the reasons are for those differences, but as these systems are rolling out, states need to
really study these relationships and think about in the cases where the correlations are really low, what can you do
with those data?” Polikoff says.
A second study from the Brookings Institution of classroom observations found the teachers who started the school
year with higher achieving students earned better scores, on average, than teachers who started the year with lower
achieving students. Most districts don’t adjust their evaluations for this bias.
Brookings recommends teachers are observed and evaluated by someone from a different school and that school
districts adjust observation scores for class demographics.
The Brookings study also found that schoolwide value-added scores generally have a positive effect for bad teachers
in good schools and negatively affects the ratings of good teachers in bad schools.
Florida and 43 other states are switching to new K-12 math and language arts standards based on Common Core,
and evaluations are a concern as the deadline approaches this fall. Supporters say the new standards will be more
challenging, and fewer students are expected to meet state goals on new tests tied to the standards.
Teachers, superintendents and some parent groups had asked the State Board of Education and lawmakers to
suspend using test scores to determine school grades, teacher pay and other decisions to allow teachers to adjust to
the new standards. However, lawmakers decided to suspend the consequences for school grades for the 2014-2015
school year only.
Polikoff and Porter’s study looked at 327 fourth and eighth grade math and English teachers in six school districts,
including Hillsborough County. The Brookings study looked at four moderate-sized, anonymous urban districts across
the country.
Emmert point: How much effect these studies will have in the court room, remains to be seen. If there eventually is
substantial corroborated evidence that demonstrates that the results of the evaluation mechanism are not rationally
related to what is attempting to be measured, a court is likely to strike it down.
Sec. 1, Part D. The 2013 Michigan Case Upholding School District. GARDEN CITY EDUCATION
ASSOCIATION v. SCHOOL DISTRICT OF the CITY OF GARDEN CITY, 2013 WL 5450095, (E.D. Mi. Sept.
30, 2013.Order Denying Motion for Relief from Judgment Dec. 23, 2013)
Synopsis
Background: Teacher's union and two former tenured teachers brought action against school district in Michigan
court, alleging violations of the Michigan School Code and due process violations under state and federal
constitutions. Following removal to federal court, school district moved for judgment on the pleadings.
Holdings: The District Court, Gerald E. Rosen, Chief Judge, held that:
1 legislature did not intend to create private right of action for violations of School Code provision governing teacher
performance evaluation system;
2 teachers failed to state a claim for violation of School Code provision governing personnel policies on staff
reductions; and
3 teachers were not entitled to procedural due process protection.
GERALD E. ROSEN, Chief Judge.
I. INTRODUCTION
{ "pageset": "Sc236
Plaintiffs Garden City Education Association (the “GCEA”), a union representing education
professionals employed by Defendant School District of the City of Garden City (the “School District”), and Juana
Cozza and Robert Nutt, tenured teachers and former employees of the School District, filed this action in the Wayne
County Circuit Court alleging violations of the amended Michigan Revised School Code, M.C.L. §§ 380.1248 and
380.1249 (Count I), and due process violations under the United States and Michigan Constitutions (Count II).
Defendant timely removed the action to this Court on November 1, 2012 on the basis of federal question jurisdiction.
Plaintiffs' claims arise from personnel decisions made by Defendant based on results from annual teacher
effectiveness evaluations mandated by § 1248 of the Revised School Code (the “RSC”), which resulted in indefinite
layoffs for individual Plaintiffs Cozza and Nutt, and twenty-three other education professionals. Twenty-four of the 25
laid-off teachers were tenured professionals. Plaintiffs allege that, by the structure of the teacher evaluation
process and the degree of reliance on evaluation results in making personnel decisions, Defendant violated
the statutory requirements of the RSC and unconstitutionally deprived Plaintiffs Cozza, Nutt, and other nonparty unnamed laid-off teachers represented by the GCEA of their property rights as tenured teachers.
…
II. FACTUAL BACKGROUND
The 2011 Amendments to the Revised School Code
In July 2011, the Michigan Legislature made substantial changes in the law with regard to teacher tenure and public
school employment. Two of these changes involved amendments to the Revised School Code, M.C.L. § 380.1 et
seq.
First, the Legislature amended M.C.L. § 380.1249 which governs teacher evaluations. The amendments did not
change the basic substance of § 1249 as it existed since it was first enacted in January 2010—the statute requires
that school boards, with the involvement of teachers and school administrators, adopt and implement a
“rigorous, transparent and fair performance evaluation system” that provides for the annual evaluation of
teachers and school administrators within the school district using multiple rating categories that take into
account as a significant factor student growth (as measured by national, state, or local assessments and
other objective criteria).
M.C.L. § 380.1249(1). The July 2011 amendments added a
requirement that each district's performance evaluation system also rate teachers as “highly effective,”
“effective,” “minimally effective,” and “ineffective,” M.C.L. § 380.1249(1)(c), and delineated, in graduating
percentages, beginning in the 2013–14 school year, the extent to which annual teacher evaluations are to be based
on student growth and assessment data. M.C.L. § 380.1249(2).1 A district's performance evaluation system must
also provide that if a teacher is rated as “ineffective” for three consecutive years, the teacher must be dismissed.
M.C.L. § 380.1249(h).
{ "pageset": "Sc236
…
At the same time that it amended § 1249, the Legislature also added a new section— § 1248—to the RSC. This
policy section demands that school districts focus on retaining effective teachers when making personnel
decisions, including decisions on personnel reductions and staffing after a staff reduction (including recalling
personnel or hiring new personnel). M.C.L. § 380.1248(1)(b). To effectuate this goal, § 1248 sets forth specific
factors that must be the basis of such personnel decisions. These factors are: (1) a teacher's individual
performance (which is to be the majority factor in making the decision); (2) a teacher's “[s]ignificant, relevant
accomplishments and contributions”; and (3) a teacher's relevant special training. Id. The statute expressly
prohibits using length of service or tenure status as “the primary or determining factor” in personnel
reduction decisions, M.C.L. § 380.1248(1)(a). Rather, a teacher's length of service or tenure status may only
be considered as a tie-breaker if the other three factors set forth in § 1248(1)(b) are all equal. M.C.L. §
380.1248(1)(c).2
Section 1248 allows individual teachers to bring a private right of action against a district for violation of that section,
but the “sole and exclusive” remedy is limited to an order of reinstatement. M.C.L. § 380.1248(3). “The remedy ...
shall not include lost wages, lost benefits, or any other economic damages.” Id.
…
Plaintiffs' Complaint Allegations
{ "pageset": "Sc236
In this action, Plaintiffs complain that the evaluation instrument used by the Garden City School
District in 2011–12 was developed and implemented unilaterally by the District. They allege that, sometime in
September 2011, school administrators informed the GCEA and its members of the particulars of a new evaluation
instrument that would be used to evaluate teacher performance. [Amended Complaint, ¶ 8.] Additionally, during the
course of the 2011–12 school year, two additional evaluation instruments were also implemented for Teacher
Consultants and Teacher/Speech Pathologists. Id. ¶ 12. According to Plaintiffs, neither the teachers nor the GCEA
had any input or participation in the development of the evaluation instruments. Id. ¶¶ 9, 13.
On June 4, 2012, Defendant's Board of Education announced the indefinite layoffs of Plaintiffs Cozza and Nutt, and
23 other Teacher Consultants and Teacher/Speech Pathologists, 24 of whom are tenured. According to Plaintiffs,
Defendant selected 23 of the 25 individuals for layoff based exclusively on the evaluation scores they received under
the District's new evaluation system. Id. However, in selecting two additional teachers for layoff (whom Plaintiffs do
not identify), Defendant allegedly ignored their evaluation scores and instead used their seniority as the determining
criteria for layoff. Id. Plaintiffs do not dispute that all of the laid off teachers have been recalled except for Plaintiff
Cozza who elected to retire.
The GCEA, and Plaintiffs Nutt and Cozza contend in this lawsuit that in unilaterally developing and implementing the
evaluation system used in 2011–12 without input or participation by the union or the teachers, and in using, in the
case of two (unidentified) individuals, seniority, and not teacher performance, as the determining factor in the layoff
decision, the School District violated M.C.L. § 380.1249. As a result of this alleged statutory violation, Plaintiffs claim
they are entitled to recover as damages their lost salaries and benefits, plus interest, costs and attorney fees, and are
further entitled to an injunctive order directing the School District to immediately discontinue using the evaluation
instruments at issue and to remove from all files the evaluations, evaluation scores and related materials of all
teachers employed by it during the 2011–12 school year. Plaintiff Cozza and Nutt further claim that they are entitled
to recover their tenured teaching positions.
The School District now moves for judgment on the pleadings on all of Plaintiffs' claims against it.
III. ANALYSIS
…
B. PLAINTIFFS LACK STANDING TO BRING A CLAIM UNDER § 300.1249… [teacher performance evaluation
system]
C. PLAINTIFFS HAVE FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED UNDER
SECTION … [state reduction in force code]
D. PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR VIOLATION OF THEIR CONSTITUTIONAL DUE
PROCESS RIGHTS
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In Count II of their Complaint, Plaintiffs Cozza and Nutt assert a claim of violation of their due
process rights under the Michigan and United States Constitutions. When the government seeks to deprive a person
of a property right, due process requires a “hearing appropriate to the nature of the case.” Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Rockwell v. Board of Education,
393 Mich. 616, 633, 227 N.W.2d 736 (1975). In the case of teacher tenure in Michigan, that right is defined by the
Teacher Tenure Act, M.C.L. § 38.71 et seq.
Neither party denies that Plaintiffs Cozza and Nutt have vested property rights in their tenured teaching positions:
There is no question that a public employee that has received tenure through state law has a property interest as
defined by state law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494
(1985); Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). However, a state law that
grants a property interest may define the boundaries of that property interest. Roth, supra. In other words, the state
law that creates the interest can define what the interest is, how it may be gained, and how it may be taken away.
With respect to layoffs, it has been specifically established under Michigan law that a tenured teacher is not given
any protection of his or her employment from a bona fide reduction in personnel. Chester v. Harper Woods Sch. Dist.,
87 Mich.App. 235, 243–44, 273 N.W.2d 916 (1978). Therefore, no process is due a tenured teacher who is laid off
unless the reduction in personnel is not bona fide. Baumgartner v. Perry Pub. Schools, State Tenure Commission
No. 12–13 (2012).
As the Michigan Court of Appeals explained in Chester:
[W]here the question is whether a tenured teacher may be dismissed for incompetence or improper conduct, he
is entitled to a hearing [under Article IV of the TTA]. See Rehberg v. Board of Education of Melvindale, Ecorse
Twp. School Dist. No. 11, [345 Mich. 731, 77 N.W.2d 131 (1956) ]. This serves the purpose of the teachers'
tenure act which is “to eliminate capricious employment practices by school boards and protect teachers from
arbitrary and unreasonable dismissals”. Pounder v. Harper Woods Board of Education, 72 Mich.App. 717, 723,
250 N.W.2d 504 (1976), modified 402 Mich. 91, 260 N.W.2d 287 (1977), reh den., 402 Mich. 960 (1978).
Where, however, the question is whether, because of economic necessity, a particular teacher should be laid off
in the first instance, he is not entitled to either notice of the charges against him or a hearing [as defined by the
act]. Such would constitute a useless gesture since neither his conduct nor performance is being called into
question. Steeby v. School Dist. of the City of Highland Park, 56 Mich.App. 395, 224 N.W.2d 97 (1974). …
CONCLUSION
For all of the reasons set forth in this Opinion and Order,
IT IS HEREBY ORDERED that Defendant's Motion for Judgment on the Pleadings [Dkt. # 13] is GRANTED.
Accordingly,
IT IS FURTHER ORDERED that this case be DISMISSED, in its entirety, with prejudice.
Sec. 1, Part E. Tennessee Suit Article at
http://www.edweek.org/ew/articles/2014/03/28/27tennessee.h33.html:
Published Online: March 28, 2014
Published in Print: April 2, 2014, as Tenn. Teachers' Union Takes Evaluation Fight Into the Courtroom
Tenn. Teachers' Union Takes Evaluation Fight Into the Courtroom. Lawsuit calls system arbitrary, flawed.
By Stephen Sawchuk
At a time when teachers' unions are pushing back on newly redesigned evaluation systems, the debates are starting
to find their way into the courts.
The latest action comes in Tennessee, where the state union filed a federal lawsuit March 21 calling the portion of
the state's teacher-evaluation system based on test scores arbitrary, flawed, and in violation of teachers'
constitutional rights. Last year, a Florida union also sued over that state's system.
The lawsuit this month is the second in the Volunteer State to challenge performance bonuses based on such
calculations, and it may signal a rash of challenges nationwide.
"The legal terrain is not settled, and it has to be settled in almost every state separately because so much of this is
driven by state law," said Douglas N. Harris, an associate professor of economics at Tulane University in New
Orleans, who has studied "value added" calculations like those used in Tennessee. "That's one reason I think this is
only the beginning."
Both the state's Republican governor, Bill Haslam, and its education commissioner, Kevin Huffman, are named in the
suit, as is the Knox County board of education. The case was filed in the U.S. District Court for the Eastern District of
Tennessee, in Knoxville.
Spurred by a bonus that a Knox County teacher didn't receive as a result of the test-score calculations, the suit has
ambitious aims. Among other objectives, it asks the court to prevent the state from using test scores in any
employment decision--whether evaluations, pay, or dismissal--until the "arbitrary classifications" in the system are
corrected.
"Potentially, teachers could lose not only the bonus, but also other forms of compensation, perhaps lose their jobs,
certainly lose their eligibility for tenure," said Gera Summerford, the president of the Tennessee Education
Association, an affiliate of the 3 million-member National Education Association.
Officials at the state education department would not comment on pending litigation. In past appearances, though,
Commissioner Huffman has attributed the state's recent gains on the National Assessment of Educational Progress
in part to improved instruction spurred by the evaluation system.
Different Classifications?
In general, value-added models use statistical formulas to generate estimates of how much a particular school or
classroom teacher contributed to student learning, as measured by standardized-test scores. Tennessee's version is
known as TVAAS. It is included as one factor in a teacher-evaluation system that was rolled out, somewhat bumpily,
in the 2011-12 school year.
Under state rules, a teacher with five or fewer tested students is graded on a "schoolwide" measure, based on the
progress of all students in the school. Those teachers with six or more tested pupils receive an individual valueadded estimate based on those students' progress.
In the case of plaintiff Mark Taylor, an 8th grade science teacher, the value-added score was based on just the 22
students in his regular science class. They represented fewer than 16 percent of the total number of students he
instructs, because he also has four sections of students who take an advanced course that does not conclude with a
standardized exam.
The value-added system gave Mr. Taylor the lowest possible score for that part of the evaluation. As a result, "the
plaintiff was denied a bonus under [the district pay program] even though the observation component of his
evaluation ... showed that he was exceeding expectations," the complaint reads.
The union says that the state has "no rational basis" for basing the measurement on only a fraction of a teacher's
students, and that the "arbitrary and irrational" categorization of teachers into groups with different evaluation rules
violates teachers' due-process and equal-protection rights under the U.S. Constitution.
In an interesting wrinkle, the lawsuit cites as evidence comments made by the developer of TVAAS, the North
Carolina-based researcher William Sanders. Mr. Taylor's parents were apparently acquainted with Mr. Sanders
through Sunday school classes, and queried him by email whether TVAAS results based on one course were
appropriate to use for evaluation purposes.
"For an overall evaluation of the effectiveness of the teacher to facilitate student academic progress, of course not,"
Mr. Sanders replied, according to copies appended to the complaint.
The union's aggressive stance against the system marks a turnaround of sorts. In 2010, the TEA endorsed the
state's bid in the federal Race to the Top competition, which explicitly linked students' test scores to teacher
evaluations. The support helped the state win some $500 million in the grant competition, but the union now says it
didn't predict that the changes would lead to so many difficulties.
"When I talk to teachers around the state, the number of things [that] can go wrong with TVAAS is the number of
teachers in the state," Ms. Summerford said. "It just seems like all these things keep bubbling up that show us the
problems it has that we didn't anticipate."
She expects the TEA will file more lawsuits against the use of TVAAS as other teachers' experiences come to light.
The issue of overtesting has, in the meantime, become a general theme for the union. It has launched a statewide
campaign, "Teach the Students, Not the Tests," and in recent months also has put its weight behind legislation to
prevent teacher licenses from being granted or revoked based on TVAAS data. (See story, this page.)
National Echoes
The Tennessee lawsuit has echoes elsewhere, as teachers' unions step up their criticism of the use of test scores in
evaluations.
In January, Randi Weingarten, the president of the American Federation of Teachers, repudiated her earlier position
that such scores could be one factor in evaluations.
And last year, the NEA's Florida affiliate filed a lawsuit focused on the value-added segment of that state's evaluation
system. By using a schoolwide value-added formula, the state was grading many teachers on the performance of
students they didn't teach, or in subjects they didn't teach, the union argued. State lawmakers made some legislative
alterations to the system shortly after.
As for Tennessee, even if the court agrees with the union's arguments, new forms of teacher evaluation are probably
here to stay, said Mr. Harris, the Tulane professor.
"Value-added was the spark that started these changes to the evaluation systems, but you don't need the spark to
keep the fire going," he said.
Supporters of value-added methods, meanwhile, argue that the estimates, while imperfect, are better than many
other gauges of teacher quality. Most traditional proxies, such as completing credentialing requirements or holding a
master's degree, bear an inconsistent relationship to students' academic progress, they note.
Sec. 1, Part F. Texas Suit Article at http://abc13.com/archive/9523565/:
Houston teachers file lawsuit, challenging 'value added' evaluation system. May 2, 2014 1:27:32 AM PDT
By Demond Fernandez
A group of Houston teachers and the teachers union have filed a federal lawsuit, challenging what's known as the
"value added" evaluation system.
"Unfortunately, due to this broken model system, I've been pigeon-holed," said Jackson Middle School teacher Daniel
Santos. "And I've been made a caricature, ineffective teacher, simply because scores do not rise."
Santos is one of seven HISD educators now suing the school district in federal court. The group and its union are
calling the district's new and controversial teacher evaluation system -- called the Education Value-Added
Assessment System, or EVAAS -- flawed and unconstitutional.
The teachers at the center of the lawsuit claim the EVAAS system uses a rigged formula to gauge a student's
performance on prior standardized tests and their suggested academic growth in the current year based on
the instructor's effectiveness.
The teachers involved in the case claim they were all accomplished instructors, but recent scores in the so-called
'mysterious statistical formula' determined them ineffective, without considering other factors like students'
environment and life outside of school.
Myla van Duyn is another teacher in the lawsuit.
"I am doing this because the EVAAS system targets students and teachers who have unfortunately, by the whims of
HISD and the state of Texas, wound up in a class that is evaluated by EVAAS and in a high-poverty school and it is
therefore causing teachers that are dedicated to the school community to leave as they don't need to work for HISD
either or in that position," said van Duyn.
Representatives from teachers unions from across the state and country say they'll be keeping a close eye on his
this controversial performance evaluation matter as it plays out in court.
When reached for comment, HISD told us they don't comment on pending litigation.
Section 2. Indiana Considerations Regarding Teacher Dismissal and Performance
Evaluation Reform Laws
The following two pending Indiana lawsuits, brought with the assistance of the ISTA, raise various legal issues
pertaining to the 2011 reform statutes that the judicial system will have to settle.
Sec. 2, Part 1. Current Teacher Union Litigation Has Focused on the Situation Where Established
Teachers Have Been Riffed and Probationary Teachers Retained.
a. The Case of Elliott v. Bd. Of Sch. Trustees of Madison Consolidated Schools, U.S. District
Court, Southern District of Indiana, Indianapolis Division. Cause No. 1:13-cv-0319-WTL-DML
This ISTA-backed case is pending at the summary judgment stage. Elliott, who had been a permanent elementary
school teacher under the pre-2011 Teacher Contract Law and became an “established” teacher under the post-2011
Law, was terminated at the conclusion of the 2011-2012 school year due to a “justifiable decrease in the number of
teaching positions” (RIF). According to the school board’s Findings of Fact No. 11, in relevant part:
The principals were instructed and did follow Policy 6.20 [RIF]. They had multiple meetings at which they
reviewed evaluations, reviewed rankings, and discussed the weaknesses and strengths of the various
elementary teachers.
The school board’s Findings of Fact, numbers 25 through 36, detail the negative results of his job performance
evaluation, and Conclusion of Law number 7 determines that the evidence submitted at the school board conference
met the criteria contained in the RIF Policy at 6.20(B).
The ISTA attorney’s first argument on behalf of Elliott is that the 2011 Teacher Dismissal Law’s reduction in force
provision violates the impairment of contract clause of the state and federal constitution because it allows
probationary teachers to be kept while former permanent or “tenured” teachers under the prior law can be
dismissed.
The second argument is that the 2011 Law must be interpreted to deny the school board the authority in RIF
situations to dismiss teachers who had gained tenure under the prior law and to keep non-tenured teachers.
The third argument is that the 2011 Law’s performance-based dismissal provisions in RIF situations was not
yet in effect at the time of Elliott’s dismissal, i.e., IC 20-28-7.5-1(d), which states in relevant part:
After June 30, 2012, the cancellation of teacher’s contracts due to a justifiable decrease in the number of
teaching positions shall be determined on the basis of performance rather than seniority.
The fourth argument is that the school board’s RIF Policy did not comply with the 2011 Law’s performancebased provisions that created the categorical order for teachers to be riffed, i.e. ineffective, improvement
needed, effective, and highly effective, or in the case of teachers in the same performance category, the
statutory tie-breakers of experience, performance evaluation results, instructional leadership roles, and
academic needs of students.
b. The case of Master v. Culver Community Sch. Corp., Marshall County Superior Court, Cause
No. 50 C01-1310-PL-44.
This ISTA-supported suit is pending after being filed on October 8, 2013. Master was an “established” teacher whose
contract was declined continuation at the end of the 2012-2013 school year via the 2011 Teacher Dismissal Law due
to reduction in force. Her complaint alleges the following four legal issues:
1. The school board violated Indiana law by riffing her, a permanent teacher under the prior tenure law and an
established teacher under the 2011 Law, while retaining probationary teachers who had not obtained
permanent or established status.
2. The board committed error by going through the decline to continue process rather than the cancellation
process.
3. The board violated Indiana law by not basing her reduction in force on seniority. The ISTA thinking is that
because “cancellation” of contracts due to RIF under IC 20-28-7.5-1(d) must be based on performance
rather than seniority, her “noncontinuation” of contract (as opposed to “cancellation” of contract) must mean
that Master’s RIF was required to be based on seniority.
4. The board committed error when it placed her in a performance category before fully completing her
evaluation.
Sec. 2, Part 2. ISBA Material Regarding RIF and Teacher Performance Evaluations under the 2011
School Reform Laws As Applied to Selecting the Teachers Who Will Be RIFFED.
Reduction in Force Procedure Models and Opinion
[Informational Only and Not Legal Advice. Consult School Attorney]
The following model is derived from language developed by the Delaware Community School Corporation
and the Madison Consolidated Schools, with modifications by the ISBA:
REDUCTION IN FORCE (RIF) -- POLICY
The purpose of this policy is to establish a procedure for reduction of probationary, professional, and established
teachers due to a justifiable decrease in the number of teaching positions in the school system. When a reduction in
force is determined to be needed under this policy, the applicable provisions of I.C. 20-28-7.5 will be followed
regardless of past practice.
(A)
Preliminary Determination
1.
2.
3.
4.
(B)
The Superintendent will determine whether or not a reduction in force is necessary, appropriate, or
in the best interest of the school system. The Superintendent is authorized to limit or narrow the
scope of any reduction in force to those employees who work in the school, facility, program, or
department subject to the reduction in positions.
When the Superintendent determines that grounds exist for a reduction in force, the
Superintendent will present a written recommendation to the Board of School Trustees. The
recommendation will include the number or estimated number of licensed employees to be
reduced.
The Board of School Trustees will review the Superintendent’s recommendation and will determine
whether to authorize a reduction of teaching positions.
If the Board of School Trustees authorizes a reduction in force, the principals will make an initial
determination of which individuals are to be dismissed or reduced to part-time employment. This
initial determination will be based on the criteria set forth below in section (B).
Criteria
Beginning July 1, 2012 the following guidelines will replace and supersede all previous guidelines and past practices.
The cancellation of a teacher’s contract due to a decrease in the number of teaching positions shall be determined on
the basis of performance. In the teaching content area to be reduced a teacher certificated in the area who is rated
less effective will be subject to non-continuance or cancellation before a teacher rated more effective will be subject
to the same. The order of effectiveness from least to greatest is as follows:
1.
2.
3.
4.
Ineffective,
Improvement Necessary,
Effective, and
Highly Effective.
Teacher effectiveness will be considered over a time frame of the past three consecutive years. If three years of
evaluative data is not available, two years or one year of data will be used.
All evaluation data will to be data collected while a teacher at Delaware Community School Corporation.
In cases where the teachers’ effectiveness categories are the same, the administrator will weigh the following factors
before making a determination as to which teacher and/or teachers shall be subject to the non-continuance or
cancellation, in order of importance:
1. The numerical rating on the teacher’s evaluation
2. the academic needs of the students in the school corporation
3. current instructional leadership roles
4. degrees earned
5. credit hours earned
6. teaching experience
Recall [Recall is not required by statute. A number of schools, after discussion with the Association, have dropped
this provision, but others have retained the concept from the prior bargaining agreement with substantial
modification.]
Teachers whose contracts were non-continued and/or cancelled and who received a rating of High Effective or
Effective, will be considered for re-hire before new applicants are given consideration. Teachers will remain on the
recall list for a period of ___ years or until offered a teaching position.
ISBA General Counsel’s RIF Tie-Breaker Considerations
[Provided for informational purposes only and not as legal advice.]
Since it appears to us that the legislative intent at IC 20-28-7.5-1(d) is that a school must RIF a teacher starting from
the lowest rating category (ineffective) and ending with the highest category (highly effective), any new policy should
contain this concept. It is advisable that a school consider language in a proposed new policy being discussed with
the Association that addresses how you will decide if there is more than one teacher in the same rating category of
the one(s) to be RIFed.
Model language suggested by ISBA is:
If there is a need to reduce in force (RIF) a teacher from a particular performance rating category and there is
one or more other teachers in the same performance category, regardless of their status as an established,
professional, or probationary teacher, IC 20-28-7.5-1(d) means that “any of the items in IC 20-28-9-1(b) may
be considered” in order to determine the one to be RIFed. The school is permitted to consider any (or all) of
the following factors contained in IC 20-28-9-1(b), in no particular order of importance, when the RIFed
teacher(s) will be selected from the same rating category as other teachers:
1. The number of years of a teacher's experience;
2. The attainment of either:
(a) additional content area degrees beyond the requirements for employment; or
(b) additional content area degrees and credit hours beyond the requirements for employment, if
required under an agreement bargained under IC 20-29;
3. The results of an evaluation conducted under IC 20-28-11.5;
4. The assignment of instructional leadership roles, including the responsibility for conducting evaluations
under IC 20-28-11; and
5. The academic needs of students in the school corporation.
6. Here list any other criteria that was developed through the discussion process.
Comment regarding the listing of other criteria: It is noted that the school, via the discussion process in the
Collective Bargaining Law, is able to utilize other factors relevant to performance and, therefore, can expand on the
criteria listed immediately above
In the ISBA Legal Staff’s view, when considering the Legislature’s intent with regard to RIF, the wording of IC 20-287.5-1(d) is critical. It reads:
(d) After June 30, 2012, the cancellation of teacher's contracts due to a justifiable decrease in the number of
teaching positions shall be determined on the basis of performance rather than seniority. In cases where
teachers are placed in the same performance category, any of the items in IC 20-28-9-1(b) may be
considered.”
The overall clear meaning of the law is that teacher dismissals due to RIF cannot be based on seniority, and must be
based on “performance.” However, the meaning of “performance” is not limited to merely this year’s performance on
your evaluation model, and as the IDOE stated in its 2012 Memo, you can use evidence collected during the present
and previous year when making “tough employment decisions,’ without having to wait on the final summative
evaluation which in many cases will not come into existence until September of the fall semester. ISBA’s legal staff
believes the IDOE view is correct as applied to making judgments on which teacher to RIF.
There is a judicial maxim in Indiana that in essence means the Legislature does not intend for its language to lead to
an illogical or absurd result. Therefore, it is ISBA’s view that when schools must make a decision on which teacher(s)
to RIF, the paramount factor is “performance,” whether the decision relates to which initial rating category the teacher
will be placed or which teacher within a particular rating category will be dismissed. Since the Legislature required
that RIF notices of the principal’s preliminary decision must be delivered to the teacher(s) between May 1 and July 1
to begin the statutory dismissal process due to RIF, it would not be logical that the Legislature would have meant that
the school had to wait until after the start of school in September when all the summative evaluations were completed
in order to start the process that had to be started between May 1 and July 1, which technically means the principal’s
initial notice needs to be delivered form the dates of May 2 [2nd, not 1st] to no later than midnight June 30.
So, at that point in time in the spring when the school has collected enough evidence of the teachers’ performance to
arrive at a concrete performance category rating for some, and a tentative performance rating for others, the key will
be how the school weights the criteria that was chosen for purposes of getting to its final decision as to which
teacher(s) will be RIFed. Pursuant to the Collective Bargaining Law as interpreted by the IEERB, the decision on the
weightings can only be made after meaningful discussion with the Association. In the Delaware Community School’s
RIF Policy, it weighted the academic needs of students as number 1 and years of experience as the lowest at
number 5. Interestingly, they omitted “the results of an evaluation conducted under IC 20-28-11.5,” which in ISBA’s
legal opinion is valid due to the above quoted statutory language at IC 20-28-7.5-1(d), which states that when
teachers to be potentially RIFed are in the same performance category, “any of the items in IC 20-28-9-1(b) may be
considered.” (Emphasis added.)
This quoted language in our opinion does not tie a schools hands and limit it just to only those items to be
considered when breaking a tie. By saying that “any” those items in the cited statute “may” be considered, we
believe that the Legislature meant to allow schools to choose to use any one, all, or none of the items, and, therefore,
the school could add any other relevant item related to performance to decide between teachers in the same rating
category.
In addition, my interpretation of this “tie breaker” criteria is to permit the school to come to a conclusion on which
teacher will best fulfill its needs. I believe, for example, that the “results of an evaluation” language also includes
specific positives and negatives noted by the evaluator. Also, I believe that if a point system is used to achieve the
final official rating status, a school could, for example, consider the fact that one “effective” teacher was at the lowest
point level while the one selected to be retained was at the highest end of the “effective” category. (For example, the
low point total could be a 80, while the high could be a 89.) Secondly, the “academic needs of students” would
include, in my view, consideration of the fact that one “effective” teacher consistently has students with higher tests
scores than another “effective” teacher.
Also, it is my view that under the “academic needs of students” factor, a teacher with a license in multiple areas could
be weighted higher than a teacher who is licensed only in one area.
In conclusion, it is the ISBA Legal Staff’s opinion that a school corporation has the ability to determine during the
spring of the school year which teacher(s) will be RIFed based on the performance of all teachers to be considered in
a given pre-selected group (e.g., elementary, special education, English, social studies, etc.) Within each given
group, we interpret the law to mean that the teacher(s) in the lowest performance category must be first selected for
RIF, followed by the next three categories in the order of improvement needed, effective, and highly effective. Within
each statutory performance category, if there is more than one teacher, we believe then the school is free to apply its
RIF policy or rule (following meaningful discussion with the teachers’ exclusive representative) with its listed
performance factors (which may or may not include “the results of an evaluation conducted under IC 20-28-11.5”) to
“break the tie” and determine the lowest performing teacher(s) who will face the statutory dismissal process for
reason of a “justifiable decrease in the number of teaching positions.”
ISBA Model “RIF” Preliminary Decision Notice
[Informational Only and Not Legal Advice. Consult School Attorney.]
Applicable to Any Category of Teacher Facing the Decline to Continue Contract Process for the Reason of
Justifiable Decrease in the Number of Teaching Positions (RIF)
Date [Must be delivered no sooner than May 2 and no later than June 30 per IC 20-28-7.5-29(a)(3).]
Name
Dear __________________
You are hereby notified that I have made a preliminary decision to decline to continue your teaching contract at the
end of the 2013-2014 school year.
The reasons for this preliminary decision are as follows:
1. Based on [projected enrollment][projected revenue and expenditures] and the school corporation’s interest in
operating an efficient educational system within its financial priorities, it is necessary to reduce the number of
teaching positions in the school corporation. This constitutes a justifiable decrease in the number of teaching
positions which is the statutory ground for declining to continue a teacher’s contract pursuant to IC 20-28-7.5-1(b)(3).
2. Consistent with IC 20-28-7.5-1 and after having reviewed the performances of those teachers in the teaching
area(s) to be reduced, I have determined it is necessary to recommend to the school board that it support my
preliminary decision to decline to continue your teaching contract based on the reason stated in paragraph 1 above.
You have the right to request a private conference with the superintendent to discuss the reasons for my preliminary
decision. Should you wish to meet with the superintendent, you must submit a written request to the superintendent
within five (5) days of the receipt of this notice. You are entitled to be accompanied by a representative of your
choosing at this conference. After the conference, the superintendent will make a written recommendation to the
school board whether your teaching contract will be declined continuation effective at the close of this school year.
Failure to request a conference with the superintendent within the above–specified timeframe will result in my
preliminary decision becoming final, subject to approval of the school board.
The procedure to be followed and the rights accorded to you are stated in IC 20-28-7.5, sections 2, 3, and 4, a copy
of which will be given to you upon request.
Sincerely,
Principal
Acknowledgement of receipt:
The undersigned teacher acknowledges receipt of this notice that was hand-delivered on _______
__________________________ Teacher
__________________________Witness
[NOTE: Consult school attorney and obtain his/her advice before giving notice. Due to the new 2011 statutory
language regarding basing a “RIF” on performance (and no longer on seniority), ISBAs believes that a school can no
longer just choose the probationary teachers for RIF when there are also established (and, eventually, professional
teachers) in the group or area selected for RIF. So, for example, if the board decided to reduce four elementary
school positions, the decision as to which teachers to be RIFed must be based on “performance,” and all teachers,
not just probationary ones must be considered. This change in the law makes it much more complex to determine the
teachers to be selected than it was under the singular seniority standard in most bargaining agreements.]
Sec. 2, Part 3.Selected Indiana Codes Relevant to the 2011 School Reform Laws on Teacher
Dismissal and Performance Evaluations.
IC 20-28-6-7.5
Probationary teacher; effect of evaluations
Sec. 7.5. (a) A teacher who is subject to section 8 of this chapter [i.e., an “established “ teacher] is not subject to
this section.
(b) After June 30, 2011, a teacher who:
(1) serves under contract as a teacher in a public school corporation;
(2) has not received a rating in an evaluation under IC 20-28-11.5 or receives a rating of ineffective in an
evaluation under IC 20-28-11.5;
(3) has not at any time before July 1, 2012, entered into a teaching contract for further service with the school
corporation; and
(4) has not received three (3) ratings in a five (5) year period of effective or highly effective in an evaluation
under IC 20-28-11.5;
shall be considered a probationary teacher.
(c) After June 30, 2011, a teacher who receives a rating of:
(1) effective;
(2) highly effective; or
(3) a combination of both subdivisions (1) and (2);
in an evaluation under IC 20-28-11.5 for at least three (3) years in a five (5) year or shorter period becomes a
professional teacher by entering into a contract described in section 2 of this chapter.
(d) A professional teacher who receives a rating of ineffective in an evaluation under IC 20-28-11.5 shall be
considered a probationary teacher but is not subject to the cancellation of the teacher's contract unless at least one
(1) of the following criteria applies:
(1) The teacher receives a rating of ineffective in an evaluation under IC 20-28-11.5 in the year immediately
following the teacher's initial rating of ineffective.
(2) The teacher's contract cancellation is due to a justifiable decrease in the number of teaching positions
under IC 20-28-7.5-1(b)(3).
(3) The teacher's contract cancellation is due to conduct set forth in IC 20-28-7.5-1(b).
As added by P.L.90-2011, SEC.29.
IC 20-28-6-8
Indefinite contract; established teacher
Sec. 8. (a) An individual who:
(1) serves under contract as a teacher in a public school corporation before July 1, 2012; and
(2) at any time before July 1, 2012, enters into a teacher's contract for further service with the school
corporation;
becomes, by entering into the contract described in subdivision (2), an established teacher of the school
corporation. When a contract between the school corporation and an established teacher expires by the contract's
terms, the contract is considered to continue indefinitely as an indefinite contract, subject to IC 20-28-7.5.
(b) An indefinite contract remains in force until the indefinite contract is:
(1) replaced by a new contract signed by both parties; or
(2) canceled as provided in IC 20-28-7.5.
As added by P.L.1-2005, SEC.12. Amended by P.L.43-2010, SEC.1; P.L.90-2011, SEC.30.
IC 20-28-7.5-1 Application; grounds for cancellation
Sec. 1. (a) This chapter applies to a teacher in a school corporation (as defined in IC 20-18-2-16(a)).
(b) A principal may decline to continue a probationary teacher's contract under sections 2 through 4 of this chapter
if the probationary teacher: [Note: Sections 2-4 of IC 20-28-7.5 are omitted.]
(1) receives an ineffective designation on a performance evaluation under IC 20-28-11.5;
(2) receives two (2) consecutive improvement necessary ratings on a performance evaluation under IC 20-2811.5; or
(3) is subject to a justifiable decrease in the number of teaching positions or any reason relevant to the school
corporation's interest.
(c) Except as provided in subsection (e), a principal may not decline to continue a professional or established
teacher's contract unless the teacher is subject to a justifiable decrease in the number of teaching positions.
(d) After June 30, 2012, the cancellation of teacher's contracts due to a justifiable decrease in the number of
teaching positions shall be determined on the basis of performance rather than seniority. In cases where teachers
are placed in the same performance category, any of the items in IC 20-28-9-1.5(b) may be considered.
(e) A contract with a teacher may be canceled immediately in the manner set forth in sections 2 through 4 of this
chapter for any of the following reasons:
(1) Immorality.
(2) Insubordination, which means a willful refusal to obey the state school laws or reasonable rules adopted for
the governance of the school building or the school corporation.
(3) Justifiable decrease in the number of teaching positions.
(4) Incompetence, including receiving:
(A) an ineffective designation on two (2) consecutive performance evaluations under IC 20-28-11.5; or
(B) an ineffective designation or improvement necessary rating in three (3) years of any five (5) year period.
(5) Neglect of duty.
(6) A conviction for an offense listed in IC 20-28-5-8(c).
(7) Other good or just cause.
As added by P.L.90-2011, SEC.31. Amended by P.L.286-2013, SEC.87.
IC 20-28-7.5-6 Continuation of contract
Sec. 6. A contract entered into by a teacher and a school employer continues in force on the same terms and for
the same wages, unless increased under IC 20-28-9-1.5, for the next school term following the date of the contract's
termination unless one (1) of the following occurs:
(1) The school corporation refuses continuation of the contract under this chapter.
(2) The teacher delivers in person or by registered or certified mail to the school corporation the teacher's
written resignation.
(3) The contract is replaced by another contract agreed to by the parties.
As added by P.L.90-2011, SEC.31. Amended by P.L.286-2013, SEC.88.
IC 20-28-11.5-4 School corporation plan; plan components
Sec. 4. (a) Each school corporation shall develop a plan for annual performance evaluations for each certificated
employee (as defined in IC 20-29-2-4). A school corporation shall implement the plan beginning with the 2012-2013
school year.
(b) Instead of developing its own staff performance evaluation plan under subsection (a), a school corporation may
adopt a staff performance evaluation plan that meets the requirements set forth in this chapter or any of the following
models:
(1) A plan using master teachers or contracting with an outside vendor to provide master teachers.
(2) The System for Teacher and Student Advancement (TAP).
(3) The Peer Assistance and Review Teacher Evaluation System (PAR).
(c) A plan must include the following components:
(1) Performance evaluations for all certificated employees, conducted at least annually.
(2) Objective measures of student achievement and growth to significantly inform the evaluation. The
objective measures must include:
(A) student assessment results from statewide assessments for certificated employees whose
responsibilities include instruction in subjects measured in statewide assessments;
(B) methods for assessing student growth for certificated employees who do not teach in areas
measured by statewide assessments; and
(C) student assessment results from locally developed assessments and other test measures for
certificated employees whose responsibilities may or may not include instruction in subjects and areas
measured by statewide assessments.
(3) Rigorous measures of effectiveness, including observations and other performance indicators.
(4) An annual designation of each certificated employee in one (1) of the following rating categories:
(A) Highly effective.
(B) Effective.
(C) Improvement necessary.
(D) Ineffective.
(5) An explanation of the evaluator's recommendations for improvement, and the time in which
improvement is expected.
(6) A provision that a teacher who negatively affects student achievement and growth cannot receive a
rating of highly effective or effective.
(d) The evaluator shall discuss the evaluation with the certificated employee.
As added by P.L.90-2011, SEC.39.
Section 3. Impact, If Any, on Teacher Performance Evaluation Systems and
Educational Malpractice (Negligence)
The following Maryland case is illustrative of a number of state court decisions that have refused to recognize the
legal theory of negligence when applied to a parent’s attempt to sue for damages on the theory that the child was
harmed due to educational negligence/malpractice of the school and its teachers.
292 Md. 481
Court Appeals of Maryland.
HUNTER v. BOARD OF EDUCATION OF MONTGOMERY COUNTY
Jan. 7, 1982.
Opinion
DIGGES, Judge.
This case primarily presents the troubling but nevertheless important question, which has not been previously
addressed by this Court, of whether an action can be successfully asserted against a school board and various
individual employees for improperly evaluating, placing or teaching a student. The Circuit Court for Montgomery
County (Shearin, J.) and the Court of Special Appeals1 concluded that an educational negligence action could not be
maintained. We agree with this determination and will affirm that portion of the judgment, …
It is clear, however, that the gravamen of petitioners' claim in this case sounds in negligence, asserting damages for
the alleged failure of the school system to properly educate young Hunter, and we first focus our attention on this
aspect of it. In so doing, we note that these so-called “educational malpractice” claims have been unanimously
rejected by those few jurisdictions considering the topic. See D. S. W. v. Fairbanks No. Star Bor. Sch. Dist., 628 P.2d
554 (Alaska 1981); Smith v. Alameda Cty. Soc. Serv. Agency, 90 Cal.App.3d 929, 153 Cal.Rptr. 712 (1979); Peter
{ "pageset": "S6e04
W. v. San Francisco Unified School District, 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976);
Hoffman
v. Board of Ed. of City of N. Y., 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979); Donohue v. Copiague
Union Free School Dist., 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979). These decisions generally
hold that a cause of action seeking damages for acts of negligence in the educational process is precluded
by considerations of public policy, among them being the absence of a workable rule of care against which
the defendant's conduct may be measured, the inherent uncertainty in determining the cause and nature of
any damages, and the extreme burden which would be imposed on the already strained resources of the
public school system to say nothing of those of the judiciary. Thus, in Peter W., supra, where a high school
graduate sought recovery in tort for a claimed inadequate education, the California court, viewing the problem as
whether an actionable duty of care existed, noted that the “wrongful conduct and injuries allegedly involved in
educational malfeasance” were neither
framework and explained as follows:
{ "pageset": "S6e04
comprehensible nor assessable within the judicial
Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable
standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and
conflicting theories of how or what a child should be taught, and any layman might-and commonly doeshave his own emphatic views on the subject. The “injury” claimed here is plaintiff's inability to read and
write. Substantial professional authority attests that the achievement of literacy in the schools, or its
failure, is influenced by a host of factors which affect the pupil subjectively, from outside the formal
teaching process, and beyond the control of its ministers. They may be physical, neurological,
emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.
We find in this situation no conceivable “workability of a rule of care” against which defendants' alleged
conduct may be measured ... no reasonable “degree of certainty that ... plaintiff suffered injury” within
the meaning of the law of negligence..., and no such perceptible “connection between the defendant's
conduct and the injury suffered,” as alleged, which would establish a causal link between them within
the same meaning.
(60 Cal.App.3d at 824-25, 131 Cal.Rptr. at 860-61 (citations omitted).) ….