The Challenge of Collective Bargaining and District Timidity, and of Crafting a Constructive Federal Response

Mr. Chairman, Ranking Member Kline, and members of the Committee:

The Committee has asked the witness today to address a single question: What it will take to provide every child with access to effective teachers?

Today, all children do not have access to effective teachers. Our critical task is to expand the supply of such teachers, but the scope of the challenge is breathtaking. There are approximately 3.4 million teachers in the U.S., representing about 10% of the college-educated workforce. There are compelling reasons to think that our current arrangements unnecessarily limit the population of potentially effective teachers. But given the focus here on "comparability" and teacher assignment, I will not here address licensure and teacher education.

Instead, I will briefly address three topics deserving attention: collective bargaining, the potentially adverse consequences of ill-conceived federal efforts to redistribute those teachers who seem to be effective, and our limited ability to systematically identify "effective" teachers for purposes of federal policy.

Established rules and contract language governing staffing practices may have made sense when we lacked the ability to track actual expenditures or student learning, or when we worried less about the quality of schooling of schooling, but they no longer make sense today. Existing arrangements lead to thoughtless allocation of resources and violate Congressional intent.

Today’s contracts are geared to operating schools on the industrialmodel that prevailed in mid-20th century America, where assembly lineworkers and cadres of low-level managers were valued less for theirknowledge or skills than for longevity and a willingness to followorders.

Collective bargaining agreements may be the greatest obstacle hampering efforts to increase the supply of quality teachers or devise workable strategies to get teachers where they will be most effective or are most needed. Some four decades after the advent of collective bargaining in public education, these contracts now regulate virtually all aspects of schooling, from how teachers are paid and assigned to schools, to the conditions under which they can be disciplined or fired.

Let me be clear. I do not believe that union officials are malicious. However, while they claim to be advocates "for children and public education," the truth is that they are elected--and obligated--to protect the interests of union members. As Robert Barkley, the former executive director of the Ohio Education Association has succinctly explained, "The fundamental and legitimate purposes of unions [are] to protect the employment interests of their members." He elaborated, "It is the primary function of management to represent the basic interests of the enterprise: teaching and learning."

Today’s contracts are geared to operating schools on the industrial model that prevailed in mid-20th century America, where assembly line workers and cadres of low-level managers were valued less for their knowledge or skills than for longevity and a willingness to follow orders. These arrangements prevent educators from making the changes necessary to transform schools into lean, nimble organizations focused on educating students.

Managers seeking to assign or remove teachers on the basis of suitability or performance are hobbled by extensive contract language. Frequently, however, contract language does not flatly prohibit managers from making sensible decisions. Rather, the ambiguity of provisions, the time required to comply with required procedures, the desire of administrators to avoid the grievance process, and managerial timidity add up to management by paralysis.

In 2005, an Illinois reporter filed 1,500 Freedom of Information Act requests to obtain data on the removal of tenured teachers, after Illinois Education Association President Ken Swanson dismissed as an "urban legend" the notion that tenured teachers are rarely fired. The reporter obtained data showing that Illinois school districts, which collectively employ more than 95,000 tenured teachers, had dismissed an average of two teachers a year for poor performance between 1986 and 2004. Just 38 of Illinois’s 876 school districts dismissed even one teacher for poor performance between 1986 and 2004.

The polling firm Public Agenda has reported that 78 percent of teachers say that their school has at least a few teachers who "fail to do a good job and are simply going through the motions." Public Agenda has quoted a New Jersey union representative confessing in a focus group, "I’ve gone in and defended teachers who shouldn’t even be pumping gas."

In a 2008 study, The Leadership Limbo, Jacob Loup and I examined twenty-six elements of collective bargaining agreements and associated board policies in the nation’s fifty largest districts. We examined how restrictive these agreements are when it comes to teacher compensation, personnel policies, and work rules. Overall, more than a third of districts struggled with quite restrictive agreements and just one in ten had policies that could be deemed even moderately flexible.

In 25 of the 50 districts, the contract specified that internal applicants were to be given priority over new hires for vacant positions--greatly restricting the ability of principals to select promising new faculty. In 17 of the 50 districts, if it is necessary to lay off teachers, district officials were required to select the most junior teacher in a certification area. Only 14 out of 50 district agreements provided that teachers could earn additional pay on the basis of performance. Similarly, just 14 agreements provided for teachers to earn additional pay working in schools classified as "high-needs."

Just eight of the 50 agreements stipulated that the district could use students’ achievement test results as one component of evaluation for tenured teachers. Just 13 of 50 stipulated that student performance, however measured, could be one factor employed in the evaluation of untenured teachers. At the same time, no agreements expressly prohibited the practice--meaning that reform-minded superintendents and school boards could do far better on that score than many do currently.

These data suggest two things. One is that a substantial number of contracts formally limit the ability of district officials to make smart personnel decisions. The second is that district officials often have the ability to do substantially better in managing personnel.

Collective bargaining agreements frequently prohibit leaders from acting. Equally troubling though is that agreements are murky and send mixed signals regarding the bounds of permissible action. The ambiguity has been made especially problematic by risk-averse principals, central office administrators, school boards, and superintendents who are applauded for "collegiality" and strongly encouraged to avoid unseemly conflict. In no small part, this timidity is the handiwork of local teacher associations, which are enormously influential in school district affairs and can make life complicated for unpopular superintendents and principals.

While contracts are a real and serious impediment, there is a complementary challenge of timid and ineffectual leadership. Even in those districts where boards and superintendents have the authority to act, professional norms and risk-aversion make inertia the rule.

As an example of what hard-charging reformers can do, consider John Deasy, former superintendent in Prince George’s County, Maryland, who earned national notice for overseeing substantial achievement gains in his low-performing schools while shifting hundreds of teachers to new schools and initiating a voluntary pay-for-performance system. His response to the naysayers is that superintendents posses "extensive tools [available] that are generally unused." He explains, "Why does it not happen?...[It’s because] most people see the contract as a steel box. It’s not...You’ve just got to push and push and push."

Mitch Price, of the University of Washington, reported in a 2009 study of districts in California, Ohio, and Washington, that, "Because so many administrators, union leaders, and others perceive contracts as inflexible, the perception overtakes the reality...lead[ing] to practices that may be more rigid than the actual language of the contracts require." Simple tales of victimhood told by superintendents, school boards, and principals may reflect more than a hint of blame shifting and exaggeration--or at least present an overly simplistic account of the forces at work.

We should not expect John Deasy to be the norm. Rather, the question is what kinds of policies might help other superintendents be similarly proactive.

Sensible federal action to promote transparency, reward reform-minded state and local leaders, and prod district and union officials to unwind problematic contract provisions can play an important role in spurring progress.

That said, there are a few key cautions worth keeping in mind. In general, it is appropriate to be skeptical of the federal government’s ability to constructively and directly address the issue of teacher distribution: It would require gross definitions of "effectiveness" and implementing broad policy interventions in states and districts with profoundly different contexts. The remedy provisions of No Child Left Behind illustrate how good ideas can disappoint when pursued in this fashion.

There are three particular concerns. One is the risk that ill-conceived policies will encourage districts to move teachers from schools and classrooms where they are effective to situations when they are less effective. The second is the risk that heavy-handed efforts to reallocate teachers will drive good teachers from the profession. Either course promises to "shrink the pie" of good teaching in the effort to redistribute it. And the third concern is that we are far less able to identify "effective" teachers in any cookie-cutter fashion than many who call for federal action might wish.

First, efforts to redistribute effective teachers may shift teachers from schools and classrooms where they are effective to environments where they will be less effective. These are especially valid due to concerns that the skills and expertise that make a teacher effective in one school or with one population may not necessarily transfer to another.

There is good reason to think, as Florida International University’s Lisa Delpit has noted, that the skills which make a teacher effective with proficient, affluent students will not necessarily translate to schools serving disadvantaged populations. More anecdotally, many have observed that the highly structured learning strategies employed successfully with low-income students by charter schoolproviders like KIPP or Achievement First would be far less welcome in more affluent environs. To date, there is no meaningful evidence to help us determine which teachers might prove more or less effective when moved.

However, there is substantial evidence that teacher effectiveness may be contingent. Scholars including Swarthmore College’s Tom Dee and Stanford University’s Eric Hanushek have reported, for instance, that students appear to benefit from having a teacher of the same race, suggesting that the matching of teachers and students contributes to the pattern of overall achievement gains. The University of Washington’s Dan Goldhaber has observed that the ability of National Board certification to predict teacher quality varies dramatically by subject and grade. Three Duke University economists observed in 2004 that the effects of teacher experience in North Carolina varied with student race and family income. If efforts to redistribute teachers proceed without attention to context and constraints, they could readily reduce the overall quality of teaching.

There is simply no meaningful evidence on this score to date. But there is good reason to believe that teacher effectiveness is partly a function of some teachers being better suited for some students, schools, and contexts. To the extent that this proves true, redistribution of teachers threatens to generate a lot of disruption for little gain. This does counsel against finding ways to steer teachers to disadvantaged schools; it does suggest that such efforts should be driven by carefully calibrated incentives and executed with an appreciation for local context, which means they should not be directed from Washington.

A second concern is that ill-conceived efforts to move seemingly effective teachers from more comfortable schools to more disadvantaged ones may prompt them to leave the profession at higher rates. The consequence would be to push out exactly those teachers we most want to retain.

The University of Pennsylvania’s Richard Ingersoll has used the federal School and Staffing Survey to calculate that teachers in high-poverty schools are almost twice as likely to leave teaching as teachers in medium-poverty schools. This is a well-documented finding. In the Review of Educational Research, scholars reported in 2006, "The research revealed fairly consistent evidence that schools with higher proportions of minority, low-income, and low-performing students tended to have higher attrition rates." It would be a self-defeating, short-sighted strategy to systematically shift effective teachers to the schools where they are most likely to leave the profession. Again, to avoid unintended consequences, strategies to direct teachers to new schools must be pursued with careful attentions to incentives, retention, and context.

Third, in determining the allocation of "effective" teachers, we quickly encounter a substantial problem. We know that good teachers have an enormous impact on student learning, and we have justifiable confidence in our ability to identify good teachers observationally and through their work at the school level. The problem is that we don’t have any reliable way to consistently identify good teachers from state capitals, much less from Washington, D.C.

The "highly qualified teacher" provision of the No Child Left Behind Act does not, in fact, identify effective teachers. It merely identifies teachers with state-required credentials, and there is a wealth of evidence that those credentials do not predict teacher performance. In fact, Dan Goldhaber has observed that more than 95% of the variation in student gains from one teacher to the next cannot be explained by observable characteristics, including seniority, credentialing, and college attended.

Many might ask why not just judge teachers using value-added scores? In a small but growing number of states, we can gauge teacher effectiveness using "value-added" calculations, based on grade three-to-eight reading and math assessments. One limitation is that such scores are only available for a minority of teachers, even in states with the requisite data systems. A more fundamental problem is that these measures are imprecise and of uncertain reliability when just one or two years worth of data are being used to judge individual teachers. Finally, equating effectiveness boosting basic math and reading proficiency with teacher effectiveness writ large presumes that this is all we care about, or that these teachers will also predictably excelling their other charges. To date, there is no evidence supporting this notion and much cause for sensible caution.

Using value-added gains or other metrics as one component of a smart, system-specific strategy makes good sense, but prescribing the use of such crudely drawn metrics from Washington is an entirely different matter.

Ultimately, the principle of equitable distribution of good teachers is a sound one. But let us take care not to undermine successful schools along the way. Let us not embrace policies that will casually or reflexively strip-mine effective teachers from some schools in order to push them into others, especially if this will hobble schools that have been working well.

In places like New Orleans, New York City and Baltimore, superintendents are relying on programs like Teach for America and The New Teacher Project to provide new, effective teachers to help turnaround school and district performance. Congress would be well-advised to take care that federal law does not impede the ability of superintendents to pursue this strategy. If the real issue is attracting excellent teachers to high need schools, the focus ought to be on devising the right combination of incentives to get them there, rather than relying on equalization strategies that employ imperfect proxies. The federal government can help in this effort by promoting transparency, encouraging reform-minded local leaders, and rewarding states and districts that are devising smart solutions to securing and smartly deploying effective teachers.

The challenge of securing effective teaching is first and foremost one of increasing the total number of good teachers. This entails supporting alternative licensure models, lowering the barriers presented by licensure requirements, encouraging districts to tap the expertise and skills of those who are not full-time educators, and using pay and professional opportunities to attract and cultivate talent. Even more ambitious strategies, such as rethinking the shape of the teacher’s job and the use of technology to deliver instruction, will require new strategies to funding and monitoring provision. In the meantime, efforts to ensure that effective teachers are evenly distributed are laudable, but ought to be pursued in a fashion that will not compromise bolder efforts to attract and retain more good teachers.

Frederick M. Hess is a resident scholar and director of education policy studies at AEI.

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Wednesday, August 27, 2014 | 3:00 p.m. – 4:15 p.m.
Teacher quality 2.0: Toward a new era in education reform

Please join AEI for a conversation among several contributors to the new volume “Teacher Quality 2.0: Toward a New Era in Education Reform” (Harvard Education Press, 2014), edited by Frederick M. Hess and Michael Q. McShane. Panelists will discuss the intersection of teacher-quality policy and innovation, exploring roadblocks and possibilities.

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