Houston Schools Must Face Teacher Evaluation Lawsuit

HOUSTON (CN) – A proprietary system that measures teacher performance based on student test scores may violate teachers’ civil rights because they can’t verify the results are accurate, a federal judge ruled, advancing a lawsuit against Texas’ largest school district.

Houston Independent School District has more than 215,000 students and 283 schools. It is the seventh largest school district in the United States.

Opposition to U.S. school districts’ widespread practice of judging teachers’ skills based on their students’ standardized test scores has intensified in recent years, with critics saying such exams force teachers to curtail their lesson plans, tailoring them to the test questions, while encouraging memorization rather than critical thinking in students.

Houston ISD jumped on the big-data bandwagon in 2011 when it signed a license agreement with the SAS Institute, a North Carolina-based multinational, to use the company’s Educational Value-Added Assessment System, or EVAAS.

The system tracks teachers’ impact with a proprietary algorithm that compares their students’ test results to the statewide average for students in that grade or course.

In the first lawsuit in the Fifth Circuit to allege such systems violate teachers’ Fourteenth Amendment procedural due process rights to their jobs, the Houston Federation of Teachers Local 2415 and six Houston ISD teachers sued the district in April 2014. The Fifth Circuit has jurisdiction over federal courts in Louisiana, Mississippi and Texas.

Shortly after implementing the system in 2012, Houston ISD announced a goal of firing 85 percent of teachers it rated as ineffective, the case record states.

The union, which has more than 6,100 members, argues in court filings that the system violates Fifth Circuit precedent and Texas law, which gives teachers on the chopping block a right to hear evidence about why the district has chosen to fire them, with enough detail for them to show the decision was made in error.

That detail is lacking in the SAS Institute’s software because the company deems its algorithms as trade secrets and refuses to share them Houston ISD or its teachers, so teachers have no way of knowing if an error in the program has decreased their scores.

U.S. Magistrate Judge Stephen Smith sided with the teachers, refusing to dismiss their procedural due process claims in a May 4 opinion.

“The EVAAS score might be erroneously calculated for any number of reasons, ranging from data-entry mistakes to glitches in the computer code itself. Algorithms are human creations, and subject to error like any other human endeavor,” Smith wrote.

The union successfully compared its case to claims made by air-traffic controllers in Banks v. Federal Aviation Administration before the Fifth Circuit.

The controllers were fired after lab tests of their urine samples showed trace amounts of cocaine. They argued they were denied due process because the lab had destroyed their samples and they could not independently test them to see if it made a mistake. The New Orleans-based appeals court agreed in a 1982 ruling that gave the controllers their jobs back.

“Plaintiffs assert that Banks is controlling here, and that due process similarly requires an opportunity by teachers to test on their own behalf the accuracy of their HISD-sponsored value-added scores. The court agrees,” Smith wrote.

The school district meanwhile claimed that 42 states and the District of Columbia lump student performance into teacher evaluations and that such systems have been vetted and widely endorsed by academics.

Smith partially sided with the district, dismissing the union’s substantive due process claims.

He found the union could not prove the evaluation system is unconstitutionally vague, or that there’s no rational link between teacher scores and HISD’s goal of “having an effective teacher in every HISD classroom.”

Plaintiff Andy Dewey taught history at HISD’s Carnegie Vanguard High School for nearly 40 years before retiring after the lawsuit was filed in 2014. He said he’s hopeful the ruling will motivate Houston ISD to start settlement talks.

“My thought is that if HISD is wise they will sit down and meet with us and try to come to a settlement. I can’t say that they’ll do that so I don’t know if it’s going to go to trial, but from the judge’s wording it seems like we have a very strong case,”  Dewey said on Monday by phone.

Dewey is now business manager and executive vice president of the Houston Federation of Teachers Local 2415. He is one of nine current or former HISD teachers who are co-plaintiffs in their first amended lawsuit, which they filed in February 2015.

The district ended its contract with SAS in 2016 and did not replace the teacher-evaluation system with other software.

“They haven’t taken it off the table though as far as using a similar system or coming back and using EVAAS again, so if they do want to sit down and settle that’s one thing we’ll be talking about,” Dewey said.

Judge Smith echoed that concern in his ruling and explained why the contract termination did not moot the lawsuit.

“The voluntary cessation of allegedly illegal conduct does not render a case moot. … HISD concedes that it is investigating all of its options for value-added modeling going forward, including SAS’s EVAAS product,” Smith wrote.

Houston ISD did not immediately respond Monday when asked why it terminated the SAS contract. Its spokeswoman said Courthouse News would have to submit a public-information request to find out how many teachers it fired during the contract period.

The district’s attorney, Chelsea Glover with Gibson Dunn and Crutcher in Dallas, would not comment on the ruling.

Houston voters on Saturday agreed to cut Texas a $77.5 million check this year to subsidize less property-wealthy school districts, rather than the more expensive option of detaching some of the city’s most valuable properties from the tax rolls and sending those taxes to poorer districts.

Houston ISD officials say the state’s “Robin Hood” school-funding system unfairly penalizes districts in big cities by taking funds it needs to educate its students, more than 75 percent of whom come from “economically disadvantaged” families.

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