TEA DOCKET NO. 087-LH-0408
DALLAS INDEPENDENT § BEFORE THE HEARING SCHOOLS DISTRICT § EXAMINER
PETITIONER, §
§
V. § MARK K. VASQUEZ
§
§
MARY STRICKLAND §
RESPONDENT. § THE STATE OF TEXAS
RECOMMENDATION OF THE CERTIFIED HEARING EXAMAINER
Statement of the CASE
1. Dallas Independent School District (“DISD”), Petitioner, has proposed the nonrenewal of Mary Strickland based upon the following:
A. A violation of DISD Board Policy No. 20 “a significant lack of student progress attributable to the educator.”
2. Mary Strickland, Respondent, appeals the proposed nonrenewal of the employment contract by the Petitioner.
FINDINGS OF FACT
After due consideration of the record and exhibits admitted therein, the following findings of fact have been proven by a preponderance of the evidence:
1. Respondent has been employed by the Petitioner for 37 years. Most recently, Respondent was assigned to Kimball High School (“Kimball”) as a Math teacher since the 2000-2001 school year.
2. The Respondent was a retired teacher that was rehired because DISD identified critical areas of need in science and math. Since Respondent was a former math teacher, Respondent was rehired. 3. Respondent’s employment contract is a term contract.
4. The employment contract of the Respondent states “no right of tenure or any other contractual obligation or other expectancy of continued employment or claim of entitlement is created beyond the contract term.”
5. Respondent’s employment contract expired on June 5, 2008.
6. DISD Board policy provides that employment decisions can be made regarding term contracts using Professional Development and Appraisal System (“PDAS”), written evaluations of teacher performance, and any other information the administration “deems appropriate” shall be considered in affecting contract status.
7. Kimball was rated academically unacceptable by the Texas Education Agency (“TEA”) for the 2005-2006 and 2006 -2007 school years.
8. Kimball was ordered to be reconstituted by the Commissioner of Education and the appointment of a Campus Intervention Team (“CIT”) was ordered since Kimball was rated “Academically Unacceptable” for 2 consecutive years.
9. The CIT is appointed by the TEA and is compromised of an internal member and an external member.
10. The CIT designated for Kimball was Lori Griffin as the internal member and Shirley Higgs as the external member.
11. The CIT under Chapter 39 of the Texas Education Code (“TEC”) specifically Section 1324 decides which teachers may or may not be retained at Kimball.
12. The CIT conducted a comprehensive onsite evaluation to determine the reason for Kimball’s low performance and lack of progress.
13. DISD provided the CIT the recommended strategy to be utilized for the reconstitution of the school.
14. The criteria used by the CIT as provided by DISD was the TAKS passing rate for the State as compared to the TAKS passing rate for the teacher and the Classroom Effectiveness Indices (“CEI”) score of less than 50.
15. CEI scores measure the academic achievement of a teacher’s students when compared to similar students around the district. The CEI compares the students at the same academic baselines and academic improvement levels. Additionally, the CEI considers and accounts for all variables and factors of a student’s characteristics.
16. DISD made numerous presentations about CEI and how the CEI would be employed by the district.
17. A teacher would not be reconstituted if a teacher had a TAKS passing rate higher than the state average. Also, if the teacher’s CEI score was above 50, the teacher would not be subject to reconstitution.
18. The DISD compiled a list of math teachers at various schools identified as “Academically Unacceptable” for two years and subject to reconstitution. Respondent was on the list of math teachers subject to reconstitution.
19. Teachers at the DISD were aware that CEI scores would be used as grounds for a nonrenewal or termination of their employment contract.
20. The CEI score can be used in making employment decisions that affect contract status.
21. DISD made presentations at Kimball to inform teachers and explain the CEI formulations and use of the scores.
22. DISD provided CEI score access to teachers through My Data Portal, which contained how scores were calculated, the students included, TAKS passing rates, and other information.
23. DISD provided extensive training on My Data Portal and its functions to all teachers.
24. All teachers have access to My Data Portal to obtain CEI scores, “frequently asked questions,” and student information.
25. A teacher’s CEI score could be adjusted to reflect absences above 30 days that would impact instructional time and thus affect the CEI score.
26. Teachers could make corrections to their CEI via an adjustment form that was provided to all teachers.
27. Respondent’s TAKS passing rate for school year 2005-2006 was 19.40 percent.
28. Respondent’s TAKS passing for school year 2006-2007 was 23.19 percent.
29. The state TAKS passing rate for school year for 2005-2006 was 40 percent and for 2006-2007 was 45 percent respectively.
30. Respondent’s CEI score for school year 2005-2006 was 40.86.
31. Respondent’s CEI score for school year 2006-2007 was 44.42
32. Respondent agreed with DISD that the TAKS passing rate for her students was a concern.
33. Respondent met the criteria for reconstitution since Respondent had a TAKS passing rate below the state average and the Respondent’s CEI score was below 50 for two consecutive years.
34. Respondent was also made aware of the implications of reconstitution based on low CEI scores.
35. Respondent was made aware and placed on noticed regarding her low CEI scores by the principal at Kimball.
36. Respondent was identified as needing assistance due to low CEI scores and was referred to additional district level professional development for assistance in content area and classroom management.
37. Principal Stiggers had numerous staff meetings to discuss CEI scores.
38. DISD’s Chief of Human Development testified that Respondent’s employment was recommended for nonrenewal for the reason of a lack of significant student growth.
39. Respondent submitted an incomplete CEI adjustment form.
40. DISD provided the Respondent with an opportunity to correct the incomplete form.
41. Respondent testified that she did not recall if she received anything back about correcting the CEI form because teachers get too many things in their box.
42. Respondent testified that a second CEI adjustment form was submitted with updates; however, the form was never produced by Respondent.
43. Respondent did not have the required number of absences for readjustment of the CEI score.
44. Respondent was absent 21.5 days.
45. Respondent has undergone numerous evaluations under the PDAS.
46. Respondent has no scores under the PDAS system lower than “proficient” throughout the Respondent’s years at DISD.
47. The PDAS are a subjective standard of evaluation that does not measure student growth.
48. Discipline at Kimball is not out of the ordinary in respect to causing a detrimental teaching environment.
49. Respondent does not write many referrals as it pertains to discipline.
50. DISD teacher Clarence Davis testified that the environment at Kimball has improved to “medium and more civil” under the current administration.
51. Respondent does not have issues with discipline in her classroom.
52. Respondent was provided written notice on March 27, 2008 that the DISD was not going to renew her employment contract at the end of the term.
DISCUSSION
Under the TEC, school districts are not required to renew a teacher’s employment contract after the expiration of its term. The school district has discretion in its decision to renew a teacher’s employment contract. The TEC under Chapter 21 places two restrictions on the school districts as it pertains to the nonrenewal of teachers’ contract. First, the school district must have an adopted board policy that provides a reason for nonrenewal. Second, the school board must give a teacher notice of the reasons for proposed nonrenewal. The notice of proposed nonrenewal must be in writing and the teacher must be provided an opportunity for a hearing to contest the nonrenewal.
Moreover, Chapter 21 of the TEC requires that at a nonrenewal hearing, evidence of a pre-established reason for nonrenewal is stated in the policies of the school board. Accordingly, in a nonrenewal hearing, the district is not required to show good cause in the nonrenewal of the teacher employment contract. Furthermore, a teacher does not have a property interest in a contract beyond its term.
Also, under Chapter 39 of the TEC, procedures have been formulated for the reconstitution of schools that have been identified as “Academically Unacceptable” for failing to improve its performance on state mandated assessment instruments as established by criterion in the TEC. A component under the reconstitution of schools is the reconstitution of teachers at the respective school site. Whereas, the identified reconstituted teacher can no longer provide instruction at the campus. As part of the reconstitution of the schools, a CIT is charged with conducting an onsite comprehensive evaluation of the school campus to determine the cause for the low performance of the school, conduct needs assessments and recommend plans for improvement that include interventions for the campus.
In the case at hand, Kimball was designated as “Academically Unacceptable” for the second consecutive year. As a result, Kimball was identified for reconstitution pursuant to the TEC. Consequently, a CIT was appointed for conducting the comprehensive evaluation. The CIT at Kimball carried out the comprehensive onsite evaluation by reviewing data, specifically, TAKS test scores and the CEI.
The CEI is a measure of student academic achievement scaled to a mean of 50. A CEI of above or below 50 signifies that a teacher’s students are progressing at greater or lesser rates than similar students in the district. As part of the CIT mandate, teachers were identified for reconstitution based on the TAKS test results and CEI scores.
The CIT identified the Respondent and determined that there was no significant academic progress or improvement by the students taught by the Respondent. Consequently, this required the reconstitution (i.e., removal) of the Respondent from Kimball. Therefore, DISD decided to propose the nonrenewal of her contract for the reason stated under DFBB Local #20 “a significant lack of student progress attributable to the educator.”
As the TEC requires under nonrenewal of term contracts, the DISD school board has adopted a board policy that provides reasons for the proposed nonrenewal of a teacher’s term contract. There is a litany of reasons provided for under the board policy. Furthermore, the board has also adopted at policy providing for the provision of written notice to teachers of the proposed nonrenewal of their contracts. Also, the board policy provides the teacher an opportunity for a hearing regarding the proposed nonrenewal of the employment contract.
Accordingly, DISD notified the Respondent in writing of their recommendation of proposed nonrenewal of her term contract on March 27, 2008. The written notice included the reasons for the proposed nonrenewal and provided her with an opportunity for a hearing. Specifically, the written notice from the DISD informed the Respondent that the proposed nonrenewal of her teacher employment contract was for the reason of “a significant lack of student progress attributable to the educator” as found in local board policy DFBB-Local #20.
Accordingly, there was no issue regarding the parties pertaining to the Respondent’s TAKS passing rates. Respondent’s passing rate for the TAKS test for 2006 was 19.40% and 23.19% for 2007 respectively. Therefore, for 2006, approximately 81% of the students in Respondent’s class failed the TAKS test. In 2007, approximately 77% of the students in Respondent’s class failed the TAKS test. The TAKS passing rate for the State of Texas was 45% in 2006. In light of these percentages, the Respondent failed to significantly improve the academic progress of her students.
Turning to Respondents CEI scores; the CEI for 2006 was 40.86 and 44.42 for 2007 respectively. These scores also represent that Respondent’s students progressed at a lesser rate than similar students in the DISD. Accordingly, Respondent’s CEI scores further represent that Respondent fails to significantly improve her students’ academic progress.
The evidence establishes that the Respondent knew that her TAKS passing rates and CEI scores were low and needed to improve or else she would be faced with nonrenewal of her contract as Kimball was under reconstitution. Therefore, since Respondent failed to improve her scores, DISD appropriately proposed the nonrenewal of her employment contract.
Respondent makes the argument that the CEI scores are flawed because there is no scientific and research basis to use the CEI as a tool to evaluate teachers. The Respondent argues that the PDAS should be taken into account instead of the CEI scores by the CIT in reconstitution decisions--given that the PDAS is used by all districts and State mandated. The argument made by Respondent is without merit since the CEI is research based and peered reviewed in the scientific community as being accepted as a reliable assessment tool. Additionally, the evidence demonstrated that the CEI is objective and provides for safeguards. When viewing the PDAS, in light of scientific reliability, the PDAS does not have any control for scientific reliability due to the subjective nature of the evaluation. Since PDAS depends on the subjective interpretation of the evaluator. Also, the CIT under the TEC has discretion in the use of any research based data or information during the process.
Respondent also raises the issue that her CEI scores were incorrect and needed to be adjusted to take into account the number of times that she was absent. The CEI provides for adjustments and corrections of the CEI score to take into account days absent. The correction is done through the submission of a CEI adjustment form. According, to the testimony of the Respondent, she was under the impression if she was absent more than 30 days she would not receive a CEI score, thereby not face the reconstitution process. Accordingly, Respondent testified that she was absent for 40 days. As a result, Respondent submitted a CEI adjustment form. However, the form was incomplete and basically blank. The Respondent testified that she submitted a second form with the necessary information; however, no form was ever produced.
Nevertheless, for arguendo, assuming the forgoing is true regarding the CEI adjustments vis-à-vis days absent, the evidence demonstrated that at most the Respondent was absent 28 days. Nevertheless the official DISD record illustrates that the Respondent was absent 21.5 days. The Respondent attempted to explain that the attendance records were incomplete because the times that she was absent other teachers covered her class and this did not show up in the attendance records. There was no evidence presented to support Respondent’s testimony in the form of teachers testifying that covered her class. Therefore, the Respondent’s argument is also without merit.