Tackling T-TESS: The Legal Perspective
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12 www.tepsa.org September/October 2016 Legal Ease / Kevin Lungwitz a face-to-face setting during a district’s first year of T-TESS implementation and include all state and local appraisal policies and the local appraisal calendar. 3 T-TESS Technical Components Common with PDAS If you have memorized most of the PDAS technical components, you are in luck. Many of those apply to T-TESS. Here are some of the most recognizable places where PDAS and T-TESS regulations mostly align. • ere must be at least one, uninterrupted, 45-minute, formal classroom observation, unless the teacher and appraiser consent to a fragmented observation. 4 • A teacher may agree to a less-than-annual appraisal if the previous appraisal resulted in a rating of proficient on at least 9 of 16 “dimensions” (formally called criteria) with no deficiencies noted. 5 • e teacher must be given a copy of the classroom observation within 10 workdays; but, unlike PDAS, the observation must be shared in an observation post-conference and “only aſter a discussion of the areas for reinforcement and areas for refinement.” 6 • Cumulative data is still required. Walkthrough notes and other pieces of information related to teacher performance shall be verified by the appraiser and shared with the teacher within 10 workdays of the appraiser’s knowledge of the occurrence. 7 • As with PDAS, if the appraiser is not the principal, the principal shall be notified in writing of the cumulative documentation. 8 • ere must be an end-of-year conference at least 15 workdays before the last day of student instruction to review all appraisal data. 9 Tackling T-TESS: The Legal Perspective T he teacher appraisal process has begun. is year, many districts will move to the new, state-adopted Texas Teacher Evaluation and Support System (T-TESS), replacing its predecessor, the PDAS evaluation system. (A school district may adopt T-TESS or its own alternative system.) e new T-TESS regulations went into effect on July 1, 2016. Since it is new, there is little legal guidance on T-TESS. However, like T-TESS predecessors, if the appraiser follows the technical requirements of the law, the appraiser’s substantive judgments on the instrument will most likely withstand legal scrutiny. Here are some of those technical components. Beginning of School Year Requirements: Orientation and Calendar Each school district shall establish a calendar for the appraisal of teachers and provide that calendar to teachers within three weeks from the first day of instruction. 1 Lawyers representing teachers in appraisal cases would be wise to carefully examine the calendar for administrator compliance. Administrators would be wise to carefully follow the calendar. A school district must provide each teacher with a T-TESS orientation within the first three weeks of school and at least two weeks before the first observation when: (1) e teacher is new to the district; (2) e teacher has never been appraised under the T-TESS; or (3) District policy regarding teacher appraisal has changed since the last time the teacher was provided with an orientation to the T-TESS. 2 e orientation may not be online or by email. Rather, the teacher orientation shall be conducted in
Transcript of Tackling T-TESS: The Legal Perspective
12 www.tepsa.org September/October 2016
Legal Ease/Kevin Lungwitz
a face-to-face setting during a district’s first year of T-TESS implementation and include all state and local appraisal policies and the local appraisal calendar.3
T-TESS Technical Components Common with PDASIf you have memorized most of the PDAS technical components, you are in luck. Many of those apply to T-TESS. Here are some of the most recognizable places where PDAS and T-TESS regulations mostly align. • There must be at least one, uninterrupted,
45-minute, formal classroom observation, unless the teacher and appraiser consent to a fragmented observation.4
• A teacher may agree to a less-than-annual appraisal if the previous appraisal resulted in a rating of proficient on at least 9 of 16 “dimensions” (formally called criteria) with no deficiencies noted.5
• The teacher must be given a copy of the classroom observation within 10 workdays; but, unlike PDAS, the observation must be shared in an observation post-conference and “only after a discussion of the areas for reinforcement and areas for refinement.”6
• Cumulative data is still required. Walkthrough notes and other pieces of information related to teacher performance shall be verified by the appraiser and shared with the teacher within 10 workdays of the appraiser’s knowledge of the occurrence.7
• As with PDAS, if the appraiser is not the principal, the principal shall be notified in writing of the cumulative documentation.8
• There must be an end-of-year conference at least 15 workdays before the last day of student instruction to review all appraisal data.9
Tackling T-TESS: The Legal Perspective
The teacher appraisal process has begun. This year, many districts will move to the new,
state-adopted Texas Teacher Evaluation and Support System (T-TESS), replacing its predecessor, the PDAS evaluation system. (A school district may adopt T-TESS or its own alternative system.) The new T-TESS regulations went into effect on July 1, 2016. Since it is new, there is little legal guidance on T-TESS. However, like T-TESS predecessors, if the appraiser follows the technical requirements of the law, the appraiser’s substantive judgments on the instrument will most likely withstand legal scrutiny. Here are some of those technical components.
Beginning of School Year Requirements: Orientation and CalendarEach school district shall establish a calendar for the appraisal of teachers and provide that calendar to teachers within three weeks from the first day of instruction.1 Lawyers representing teachers in appraisal cases would be wise to carefully examine the calendar for administrator compliance. Administrators would be wise to carefully follow the calendar.
A school district must provide each teacher with a T-TESS orientation within the first three weeks of school and at least two weeks before the first observation when: (1) The teacher is new to the district; (2) The teacher has never been appraised under the T-TESS; or (3) District policy regarding teacher appraisal has changed since the last time the teacher was provided with an orientation to the T-TESS.2
The orientation may not be online or by email. Rather, the teacher orientation shall be conducted in
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• A written, summative annual appraisal report shall be shared with the teacher. The summative report must be given to the teacher within 10 workdays of the end-of-year conference but not less than 15 workdays before the last day of instruction.
• The written summative annual appraisal report shall be placed in the teacher’s personnel file by the end of the appraisal period.10
New Goal Setting RulesThe passage of time will illuminate other differences between PDAS and T-TESS. For now, the biggest difference that jumps out of the new regulations is related to teacher growth plans. Formally called a TINA (Teacher In Need of Assistance) in PDAS, TINA’s were almost exclusively used to correct deficiencies and were almost always viewed as punitive by the teacher. Under T-TESS, every appraisal shall include a “Goal-Setting and Professional Development Plan.” This is a collaborative plan for improvement for every teacher, not just those viewed as deficient. The GSPDP must be submitted to the teacher’s appraiser within the first six weeks from the T-TESS orientation described above, or drafted in conjunction with the teacher’s end-of-year conference from the previous year, revised as needed based on changes to the context of the teacher’s assignment during the current school year, and submitted to the teacher’s appraiser within the first six weeks of instruction.11 For teachers new to T-TESS, there must be a GSPDP conference prior to the submission of the plan.12
The GSPDP is maintained throughout the course of the school year by the teacher to track progress in the attainment of goals and participation in professional development activities. It is then shared with the teacher’s appraiser prior to the end-of-year conference; and used after the end-of-year conference in the determination of ratings for the goal setting
and professional development dimensions of the T-TESS rubric.13
Since every teacher will have a GSPDP, it remains to be seen whether the GSPDP will be used as a corrective instrument for serious performance deficiencies, like the TINA in PDAS. Some commentators have suggested using an intervention plan outside of T-TESS to correct serious deficiencies, leaving the GSPDP as a focus on continuous improvement.14
Teacher ResponsesSimilar to PDAS, in T-TESS a teacher is entitled to submit a written rebuttal after receiving a copy of an observation, the summative appraisal or any cumulative data.15 The rebuttal must be submitted within 10 workdays of the teacher’s receipt of the documentation. The T-TESS regulations make it clear that a teacher may not submit a rebuttal to data associated with the summative appraisal if that data was previously shared with the teacher and remains unchanged on the summative.16 This new rule is apparently intended to invalidate end-of-year rebuttals by the teacher in some circumstances. For better or worse, employees have begun to learn they must object to perceived injustices sooner rather than later or else waive the right to object. A teacher may still request a second appraisal by a different appraiser for Domains I, II, and III scored on the observation, but also for Domain IV and the student performance component scored on the summative.17 A teacher may also file a grievance over the appraisal and must do so to preserve error in the event the appraisal becomes an issue in a nonrenewal hearing.18
Student Performance ComponentBeginning in the 2017-2018 school year, each teacher appraisal shall include the performance of teacher’s students. One way to measure student
October 13, 2016Tackling T-TESS: The Legal Perspective Two new acronyms translate into a host of new rules and procedures! You can’t afford to miss this compre-hensive overview of the new teacher and principal appraisal systems, T-TESS and T-PESS.
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performance is by using “value-added data” based on student state test scores.19 “Value-added data” is a mysterious term not defined in the regulations. Several Texas school employee organizations are suing the commissioner of education over value-added data. TEPSA will keep you posted on the outcome of that litigation.
ConclusionThe evaluation process is important. It is hard for a teacher to win a substantive dispute about the evaluation. But if the process is botched, a teacher will have an easy grievance or appeal to the commissioner of education. One final note: Putting aside documentation of egregious acts, the purpose of the evaluation process is so that staff can improve and is never a “gotcha” game. If you have done your job with repetitive, documented attempts to help a struggling teacher improve (T-TESS orientation, the GSPDP, cumulative data, proper evaluations, etc.) these documents will speak for themselves at nonrenewal time.
Don’t miss Kevin’s webinar October 13: Tackling T-TESS: The Legal Perspective.
► Tackling T-TESS: The Legal Perspective continued from page 13
Endnotes119 Tex. Admin. Code Sec. 150.1003 (d)2 19 Tex. Admin. Code Sec. 150.1006 (a)319 Tex. Admin. Code Sec. 150.1006 (b)419 Tex. Admin. Code Sec. 150.1003 (b)(4), (g)519 Tex. Admin. Code Sec. 150.1003 (l)619 Tex. Admin. Code Sec. 150.1003 (b)(5)719 Tex. Admin. Code Sec. 150.1003 (b)(6), (f)8Id.9 19 Tex. Admin. Code Sec. 150.1003 (i)10 19 Tex. Admin. Code Sec. 150.1003 (h)11 19 Tex. Admin. Code Sec. 150.1003 (b)12 Id.13 Id.14 Kemerer, F. & Crain, J. (2016) Texas Documentation Handbook 6th Ed., Austin, Texas: Texas School Administrators’ Legal Digest, p. 6-4. 1519 Tex. Admin. Code Sec. 150.100416 Id. 17 19 Tex. Admin. Code Sec. 150.1004 (c)18 Markray v. Dallas ISD, Docket No. 013-R2-1105 (Comm’r Educ. 2006); Lyman v. Blooming Grove ISD, Docket No. 046-R1-0608 (Comm’r Educ. 2008); Lewis v. Austin ISD, Docket No. 104-R1-600 (Comm’r Educ. 2000), aff’d Lewis v. Austin Indep. Sch. Dist., Docket No. 03-02-00325-CV 2003 WL 124250, (Tex. App.—Austin January 16, 2003, no pet.) 19 19 Tex. Admin. Code Sec. 150.1001 (f)(2)(D)
Kevin Lungwitz is TEPSA’s Outside General Counsel.
Note: Information from Legal Ease is believed to be correct upon publica-tion, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome. Archives of past columns are available to members in Legal Resources at www.tepsa.org.
The September issue of Instructional Leader features the first article in a new three-part series on Lean for School Leaders by Shannon Flumerfelt and JJ Villarreal. In the first article, “A Primer on Lean for School Leaders: Are You Wondering What to Do About Teacher Evalu-ation?” the authors provide an overview of how the Lean Performance Management System is being used in education to drive continuous improvement using team-based work to identify, test and solve problems.
The authors also discuss how Lean may be applied to T-TESS to help you address critical questions including:1. How will I manage teacher thinking, fears and
expectations (both positive and negative) in order to produce dynamics for school improvement about T-TESS?
2. How can I better understand, collaborate and communicate what T-TESS entails to create a
New Instructional Leaders Series on Lean for School Leaderspositive and improving professional culture?
3. What should I do to deploy T-TESS with fidelity?
If you are not an Instruc-tional Leader subscriber, visit http://www.tepsa.org/?InstLeaderHome to subscribe now and access the first article in the series. See page 18 for information on the September Lunch & Learn (free to current mem-bers) webinar “Lean Essentials for School Leaders” with Shannon Flumerfelt.
