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Middle Georgia RESAMiddle Georgia RESALegal UpdateLegal Update

for Administratorsfor Administrators

September 28, 2009

Cory O. Kirby

Harben, Hartley & Hawkins, LLP

Legislation From the Gold Dome

Parental Choice WithinParental Choice Withinthe School Districtthe School District

HB 251HB 251

O.C.G.A. § 20-2-2131

(a)(1) Beginning in school year 2009-2010, the parent of a student enrolled in a public elementary or secondary school in this state may elect to enroll such student in a public school that is located within the school system which the student resides other than the one to which the student has been assigned by the local board of education if such school has classroom space available after its assigned students have been enrolled. The parent shall assume the responsibility and cost of transportation of the student to and from the school.

HB 251HB 251

O.C.G.A. § 20-2-2131

(a)(1) Beginning in school year 2009-2010, the parent of a student enrolled in a public elementary or secondary school in this state may elect to enroll such student in a public school that is located within the school system which the student resides other than the one to which the student has been assigned by the local board of education if such school has classroom space available after its assigned students have been enrolled. The parent shall assume the responsibility and cost of transportation of the student to and from the school.

HB 251HB 251

O.C.G.A. § 20-2-2131

(a)(1) Beginning in school year 2009-2010, the parent of a student enrolled in a public elementary or secondary school in this state may elect to enroll such student in a public school that is located within the school system which the student resides other than the one to which the student has been assigned by the local board of education if such school has classroom space available after its assigned students have been enrolled. The parent shall assume the responsibility and cost of transportation of the student to and from the school.

HB 251HB 251

O.C.G.A. § 20-2-2131

(a)(1) Beginning in school year 2009-2010, the parent of a student enrolled in a public elementary or secondary school in this state may elect to enroll such student in a public school that is located within the school system which the student resides other than the one to which the student has been assigned by the local board of education if such school has classroom space available after its assigned students have been enrolled. The parent shall assume the responsibility and cost of transportation of the student to and from the school.

HB 251HB 251

O.C.G.A. § 20-2-2131

(a)(1) Beginning in school year 2009-2010, the parent of a student enrolled in a public elementary or secondary school in this state may elect to enroll such student in a public school that is located within the school system which the student resides other than the one to which the student has been assigned by the local board of education if such school has classroom space available after its assigned students have been enrolled. The parent shall assume the responsibility and cost of transportation of the student to and from the school.

Intradistrict Choice – HB 251Intradistrict Choice – HB 251

Took effect 7/1/09Universal streamlined process developed

by the District, including, at a minimum, the process developed as model by SDOE

Notice to parents by July 1 every year

HB 251 – Student TransfersHB 251 – Student Transfers

NCLB/State Accountability Provisions Unsafe School Option Systems under court supervision Other court orders IDEA/Special Ed placements Medically Fragile students Placement of homeless students Placement of migrant students Inter-district contracts DHR & DJJ placements SB 10 students Students in foster care Local tuition policies: student

currently enrolled & future enrollees Students in newly annexed areas Emancipated Students Open campus schools

Magnet schools System implementing student choice Enrollment of siblings Enrollment of twins Enrollment of employee’s children Proximity/distance enrollments Curriculum transfers Seniors who move to another zone but

remain in current school Parent requests for transfer due to lack of

available permanent classroom space Student transfer requests as victim of

violent crimes School Attendance Protocol Committee

findings 2 year old pre-enrollment Enrollment of students with discipline

problems Discipline & suspension issues

SDOE ModelSDOE Model

Each district will define “classroom space available”Uses SB 10 definition of available space as modelMust give priority to desegregation orders, IDEA,

NCLBMay define other priorities with the district plan

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Nepotism – HB 251Nepotism – HB 251 No person with relative on the board or employed

as superintendent, principal, assistant principal or system administrative staff is eligible to serve on the BOE

Relative: spouse, child, sibling, parent(or spouse) Applies only to BOE members elected or

appointed after 7/1/09 “Nothing… shall affect the employment of any

person employed on or before 7/1/09 … or when immediate family member becomes a board member”

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And Superintendents too…And Superintendents too…

No person with relative on the board or hired or promoted to principal, assistant principal or system administrative staff is eligible to be employed as Superintendent

“Nothing… shall affect the employment of any person employed on or before 7/1/09 … or when immediate family member becomes superintendent”

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HB 455 HB 455

May 15 deadlineTeachers who earn leadership degrees after

7/1/10, but who are not employed in a leadership position (as defined by SBOE), will not be paid for the leadership certificate

Stay tuned for interpretations

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HB 229 – SHAPEHB 229 – SHAPE

2011-2012 – annual fitness assessment program, as approved and funded by SBOE, 1X /year for students in 1-12, only through a PE course taught by certified PE teacher in which student is enrolled

Measure level of physical fitness, report to parent and aggregate by school to SBOE

SHAPELIEST SCHOOL – state recognition

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HB 243 – National Board HB 243 – National Board CertifiedCertified

Any person enrolled on 3/1/09 shall be eligible for salary increases, subject to appropriation

After 7/1/09, only those shall be eligible2010 appropriation based on 10% of base

salary for T4, 1st year

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HB 193 – New definition of HB 193 – New definition of “school year”“school year”

Changes requirement for 180-day school year for students and allows “equivalent determined in accordance with SDOE guidelines”

SB 114 – Children of Military FamiliesSB 114 – Children of Military FamiliesPolicies AffectedPolicies Affected

School Admissions Transfer &

Withdrawals Absences and Excuses Transferring Credits Graduation

Requirements

Student Records Immunization Promotion &

Retention Entrance Age Extracurricular

Activities Scheduling for

Instruction

SB 8 – Epi Pen AdministrationSB 8 – Epi Pen Administration

Each local board of education shall adopt a policy authorizing a student to carry and self-administer prescription auto-injectable epinephrine. Such policy shall provide that in order to carry and self-administer prescription auto-injectable epinephrine, the student’s parent shall provide a written statement from physician and release to consult with physician and from liability

Provisions to protect the safety of all students from misuse or abuse

Federal LegislationFederal Legislation

The New Americans with The New Americans with Disabilities Act Disabilities Act (Effective Jan. 1, 2009)(Effective Jan. 1, 2009)

A disability is defined as: (this is not a change)– A physical or mental impairment that substantially

limits one or more major life activities;– A record of such an impairment; or– Being regarded as having such an impairment.

Shift in FocusShift in FocusIs there a disability?

Is there a reasonable

accommodation?

Shift in FocusShift in FocusIs there a disability?

Is there a reasonable

accommodation?

Shift in FocusShift in FocusIs there a disability?

Is there a reasonable accommodation?

Major Life ActivityMajor Life Activity

Caring for one’s self

Performing manual tasks

Seeing

Hearing

Eating

Sleeping

Walking

Standing

Lifting

Bending

Speaking

Breathing

Learning

Reading

Concentrating

Thinking Communicating

Working

The operation of a major bodily function

Major Life ActivityMajor Life Activity

Caring for one’s self

Performing manual tasks

Seeing

Hearing

Eating

Sleeping

Walking

Standing

Lifting

Bending

Speaking

Breathing

Learning

Reading

Concentrating

Thinking Communicating

Working

The operation of a major bodily function

Major Life ActivityMajor Life Activity

Caring for one’s self

Performing manual tasks

Seeing

Hearing

Eating

Sleeping

Walking

Standing

Lifting

Bending

Speaking

Breathing

Learning

Reading

Concentrating

Thinking Communicating

Working

The operation of a major bodily function

New ADA and Section 504:New ADA and Section 504:Both Effective 1/1/09Both Effective 1/1/09

Importance of job descriptions and documentation

Is every employee entitled to accommodation plan?

Retaliation claims and recent RIFs

Section 504 made consistent with ADA

What about response to intervention?

Can RTI save us from IEP for every child? 

Personnel Issues Student Issues

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When is a RIF Policy NOT When is a RIF Policy NOT Needed?Needed?

At Will Employees Nonrenewal of Nontenured Teachers Normal Attrition and Reassignment What about Fairness & Politics?

NOT

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Fair Dismissal ActFair Dismissal Act

1. Incompetency;

2. Insubordination;

3. Willful neglect of duties;

4. Immorality;

5. Inciting, encouraging or counseling students to violate any valid state law, municipal ordinance, policy or rule of the board;

6. Reduction of staff due to loss of students or cancellation of programs;

7. Failure to secure and maintain necessary educational training; or

8. An other good and sufficient cause.

Reduction of staff due to loss of students or cancellation of programs;

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"A reduction in force involves the efficient administration of the school system and the need to adjust how the school system is operated, regardless of when the need arises."

“Decisions such as whether to institute a RIF are legislative in nature and will not be overturned by the courts unless they amount to a gross abuse of discretion.”

State Board of Education Georgia Court of Appeals

Challenging the Decision to RIF

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“nothing in this policy shall be construed to extend to any employee substantive or procedural rights not required under state law. Specifically, nothing in this policy shall extend to professional personnel any expectation of re-employment or due process rights greater than are available under the Fair Dismissal Law of Georgia. This policy is not to be construed to mandate the promotion or transfer of an employee to any other position with the School District, even though the employee who is to be terminated may be qualified or certified for a higher or other position.”

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“When the Superintendent determines that the application of this reduction in force policy is necessary, it shall be his or her primary responsibility to prepare for presentation to the Board of Education a plan for reduction in force (RIF) in the affected program area(s).”

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“In making recommendations for termination, nonrenewal or downgrading of employee positions, the Superintendent may determine the group of employees to which the RIF will be applied or may consider any position or employee of the Board of Education.”

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“Factors to be considered by the Superintendent in devising a RIF plan shall include, first and foremost, the professional expertise, effectiveness and overall job performance of individual employees. Only where demonstrated competence and expertise are equal among employees shall other factors such as tenure status, level of certification, and length of continuous service with the Board by considered in order to make recommendations for the termination, nonrenewal or downgrading of an employee’s position.”

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Issues after the RIFIssues after the RIF

Right to Recall

References

Illegal Discrimination or Other Federal Claims

Unemployment

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Teacher EvaluationTeacher Evaluation::

It’s Not Just for Tenured Teachers

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Documentation & Evaluation in Documentation & Evaluation in Light of Education Reform Light of Education Reform

LegislationLegislationWhat has been the impact of education reform

acts on evaluating teacher performance?Significant shift from evaluating teacher

performance to evaluating student achievement.

History of evaluating teachers focused on whether teachers had mastered certain discrete techniques.

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QBE and Teacher EvaluationQBE and Teacher Evaluation

20-2-210: All personnel…shall have their performance evaluated annually by appropriately trained evaluators.

[Educators] who have deficiencies and other needs shall have professional development plans.

Progress relative to completing the [PDP] shall be assessed [ as part of ongoing evaluation].

“Cumulative evaluative record”

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QBE: Assessing Teacher QBE: Assessing Teacher PerformancePerformance

Identify competencies associated with effective teaching

Assumption: If teacher can demonstrate these competencies, students will learn

Evaluation: Observing teacher performance & determining whether teacher complies with duties and responsibilities

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QBE: Assumptions about QBE: Assumptions about EvaluationsEvaluations

All teachers in all school districts would be evaluated using the same criteria if administrators received the same training

Fundamental purpose of teacher evaluation to improve instruction—not to document failure to perform

Teachers would model techniques, methodologies teacher training programs touted as effective

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What Results from QBE What Results from QBE Evaluations?Evaluations?

Many administrators were not well trained to evaluate teachers

Teachers learned the expected routineEvaluations became paper work burden—

not an effective teacher improvement program

Satisfactory = minimally acceptable

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QBE Evaluations: ResultsQBE Evaluations: Results

Minimum time spent in observing teachersGTDRI seldom used effectivelyEvaluations were not accurate reflection of

teacher performance or adherence to duties and responsibilities

Evaluations could not be used for documentation

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More Results of QBE More Results of QBE EvaluationsEvaluations

Evaluations became barriers to adverse employment decisions

Evaluations were a teacher’s best defenseTeachers resented any “needs

improvement” indicatorsGTEP evaluations regarded as a “joke”Over 95% of all teachers did not need

improving in any area

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Legislative Response to QBE Legislative Response to QBE EvaluationsEvaluations

1995: Legislature struck requirement that SBOE shall adopt regulations and standards.

New language: local units of administration are authorized to use the models developed by the State Board of Education.

School systems now decide how much—if any– of the GTEP procedures to retain

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The The A+A+ Education Reform Act Education Reform Act of 2000 and Evaluationsof 2000 and Evaluations

20-2-210 amended again by the omnibus HB 1187 to address teacher evaluations.

Act mandates that annual teacher evaluations must “at a minimum take into consideration” seven discrete factors.

School leaders must use these factors and other relevant factors in assessing quality of instruction and effectiveness of teachers [and other employees].

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The Steps in the Evaluation The Steps in the Evaluation ProcessProcess

IdentificationRemediationConfrontationDocumentation

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ARE STUDENTS ARE STUDENTS LEARNING?LEARNING?

1. The role of the teacher in meeting– The school’s

student achievement goals

– The academic gains of students assigned to the teacher

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ARE TEACHERS ARE TEACHERS TEACHING?TEACHING?

2. Observations of the teacher by the principal and assistant principals– During the delivery of

instruction– At other times as

appropriate

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IS THE TEACHER IS THE TEACHER LEARNING?LEARNING?

3. Participation in professional development opportunities– Application of

concepts learned to classroom and school activities

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HOW DOES THE TEACHER HOW DOES THE TEACHER RELATE TO OTHERS?RELATE TO OTHERS?

4. Communication and interpersonal skills– Interaction with students and

parents– Interaction with other

teachers, administrators and other school personnel

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DOES THE TEACHER COME DOES THE TEACHER COME TO WORK AND ON TIME?TO WORK AND ON TIME?

5. Timeliness and attendance for assigned responsibilities– Showing up and on time is essential to be

effective

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DOES THE TEACHER DOES THE TEACHER FOLLOW RULES?FOLLOW RULES?

6. Adherence to school and local school system procedures and rules

This would include– Special education IEP’s and procedures– SST plans and procedures– Discipline procedures– Assessment of students

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DOES THE TEACHER DOES THE TEACHER BEHAVE? BEHAVE?

7. Personal conduct while in the performance of school duties– Does the teacher behave in a professional

manner at all times With students especially, but also With parents, other teachers and administrators?

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HOW TO DETERMINE IF HOW TO DETERMINE IF STUDENTS ARE LEARNINGSTUDENTS ARE LEARNING

Evaluators should make every effort to– Utilize wide range of student achievement

assessments– Utilize the teachers’ own testing of students– Assessments set by the local board– Assessments required by state law or rule

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EVALUATING TEACHERS BASED EVALUATING TEACHERS BASED UPON STUDENT PERFORMANCEUPON STUDENT PERFORMANCE

Student assignments and tests as a measure of student achievement

Teachers’ grades as a guide to assessing teacher performance

Student achievement as measured by CRCT, other standardized assessments

Promotion/Retention and Teacher Effectiveness

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WHEN EVALUATIONS MUST WHEN EVALUATIONS MUST BE COMPLETED?BE COMPLETED?

The evaluator must complete evaluation for each professional person by April 1 of each year, and

The superintendent is accountable to ensure this is done

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Which Teacher Falls Below Which Teacher Falls Below the Acceptable Standard?the Acceptable Standard?

Which teacher am I longing for his/her retirement?

Which teacher’s students do other teachers not want because they didn’t learn anything the previous year?

Which teacher would I not let teach my child?

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Beginning with the Principal’s Beginning with the Principal’s Principles Principles

Improving teacher performance is the most important responsibility of the school leader

Allocation of time for evaluating teacher performance: The 90/10 and 10/90 rule

Goal: To ensure that each child has a competent and effective teacher, and

To support and enable each teacher for whom the leader is responsible to become fully proficient

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Enlisting Support for the Enlisting Support for the ProcessProcess

Do you have the support of the best teachers? How effective teachers can assist in implementing

teacher improvement strategies Developing a team approach to teacher evaluation

and improvement plan Keeping the Board and Superintendent Informed

(The Teachers Will)

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What is effective What is effective documentation?documentation?

Clear, concise and unambiguous languageLanguage that conveys the intent of the

writerWhat message will the unintended reader

receive?Documentation as the most effective

witness

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Is Documentation Is Documentation Harassment?Harassment?

Legal v. Illegal harassment?How to deflect allegations of harassmentThe boss is not always right—but is always

the boss

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How Much and How Long?How Much and How Long?

How thick must the file be?How long must we document?Quality vs. QuantityHow long must students endure?Tying documentation to student

achievement

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A Review of Sample A Review of Sample Documentation that WorkedDocumentation that Worked

The ineffective teacher and how to direct effectiveness

The chronically absent or tardy teacherThe ineffective communicatorEnlisting the help of othersThe rule breakerGet a commitment from the teacher

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Inspiring a resignationInspiring a resignationCounseling or Coercing? Advising or Intimidating?Accepting resignationsCan you make a deal?When do you need the lawyer?

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US Supreme Court: Safford US Supreme Court: Safford Unified v. ReddingUnified v. Redding

Strip search of middle school student was too intrusive given the threat imposed by the pills and the lack of information they would be found

Watch out for the footnote about bookbagsDoes a clear notice to the student and parent

help?Involvement of the SRO

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Decision of the Georgia Decision of the Georgia Supreme CourtSupreme Court

Supreme Court finds a ministerial duty and upholds Court of Appeals in Smith v. McDowell

A principal’s directive creates a ministerial duty

What effect does the admission of the secretary that she had no discretion have?

Why does it matter?

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Your Turn:Your Turn:

What Questions Did Not Get Answered?

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ADJOURNADJOURN