Lawsuits over high-stakes standardized tests? Attorney suggests test vendors and U.S., state education departments better shape up

Is it time yet to sue over high-stakes standardized tests? Maybe not quite yet, but a prominent school attorney says lawsuits are all but inevitable unless the standardized "test consortia and our federal and state governments should take a deep breath" and take a closer look at what they're doing.

Miriam Kurtzig Freedman is a former teacher and hearing officer for the Massachusetts Education Department. Since 1988 she has been with the Stoneman, Chandler & Miller law firm of Boston, "a full service labor, employment and education law firm engaged in the representation of public and private employers and public schools."

In a recent post to her blog at http://www.schoollawpro.com, Freedman suggests the Common Core tests should not be used to evaluate teachers because they were designed to measure student "college- and career-readiness," a very different purpose that calls for different kinds of testing.

"If we continue on this track of creating high stakes for teachers with tests designed for a different purpose, we may well end up with unintended consequences, including distrust of the system, questionable accountability, and lawsuits," she said.

Freedman's post was reprinted today on Diane Ravitch's education blog at http://dianeravitch.net/2015/04/16/freedman-are-the-common-core-tests-valid/.

Freedman's beef isn't with all standardized testing. It is with the new language arts and math tests being given this year as part of the federal government's Common Core initiative, and with their use to evaluate teacher effectiveness when they weren't designed to measure that.

"As an attorney who has represented public schools for more than 30 years, I am concerned about this multipurpose use," she said. "It may not get us what we need — a valid, reliable, fair, trusted, and transparent accountability system. The tests at issue include the PARCC and SBAC, two multi-state consortia that are funded by the U. S. Department of Education and private funders. They were charged with developing an assessment system aligned to the CCSS by the 2014-15 school year."

Freedman's concern is with the validity of the tests as a teacher effectiveness assessment. "Validity" is a technical term, and she defines it as used in this context/

"At its core, [validity] is the basic, bedrock requirement that a test measure what it is designed to measure," she said. "Thus, if a test is designed to measure how well 3rd graders decode [written texts], we judge the test according to how well it does that. Can students decode? If it is designed to be predictive; say, to measure if students are ‘on track’ or progressing toward college or career-readiness, we judge it accordingly. Either way, we must ask if a test whose purpose is to measure what students learn or whether they are ‘on track’ can also be used to measure something else — such as how well teachers teach?"

Her answer, in a word, is no.

"Clearly, these tests’ purpose is to (a) measure student progress on the Common Core State Standards (CCSS) and college or career readiness, (b) give teachers and parents better information about students, and (c) help improve instruction," she said. "No mention is made of gauging teacher effectiveness."

Freeman's analysis is worth reading in detail. She unpacks the statements of purpose on the PARCC and SBAC websites, and suggests their tests are not being used appropriately -- validly -- when they are used to evaluate teachers' performance for purposes of retention and/or remediation.

"If we continue on this track of creating high stakes for teachers with tests designed for a different purpose, we may well end up with unintended consequences, including distrust of the system, questionable accountability, and lawsuits," she says.

Let's repeat that. It's important.

"If we continue on this track of creating high stakes for teachers with tests designed for a different purpose, we may well end up with unintended consequences, including distrust of the system, questionable accountability, and lawsuits."

Freeman suggests the test-makers and the state and federal bureaucrats "should take a deep breath and do two things":

• "First, the consortia should remind the public that the purpose of these tests is to measure student achievement on the new CCSS and career and college readiness, provide better information to teachers and parents, and improve instruction.

• "Second, the states (with federal approval and encouragement) that intend to use these results also to evaluate teacher effectiveness must inform the public explicitly about how they intend to validate the tests for this new purpose. They need to provide solid proof that their proposed use, which differs from the stated purpose of these tests, is valid, reliable, and fair. The current silence is worrisome, not transparent, and unwise."

Freeman's conclusion reads like a shot across the bow.

"This test validity issue needs to be fully aired and resolved satisfactorily before we can begin to tackle the larger issues about the multiple uses of testing," she said. "Otherwise, in our litigious land of opportunity, the ensuing battles may be costly and not pretty. Let’s not go there."

Perhaps it reads like a shot across the bow because it is a shot across the bow.

"Corporate guy" and school board member compares standardized test scores to real-world corporate metrics, concludes high-stakes test school ratings are a "complete farce and damaging to 'my team'"

Damon Buffum of Fairport, N.Y., a local school board member and engineer with Cisco Systems, has what is simply the best and most knowledgeable brief discussion I've seen in 10 years of reading this stuff why metrics borrowed from industrial engineering simply do not work in an educational setting. This especially stands out:

... I've been on the school board for 2 years now (5 total but in different districts). I can firmly say, there's is almost nothing similar between the education and corporate world. Children are not binary, families are not a controlled environment and educational "output" is not easily or fully quantified in the short term (and may not manifest itself until years later).

But the whole thing is worth reading. (So is the article in today's New York Daily News that Buffum linked to, and which I'll link to below.) Buffum's piece was posted to his Facebook page and widely shared. But it didn't quite go viral, so I'm archiving it here:

Full disclosure: I'm a Corporate Guy. For the past 26 years I've worked for large, multinational, corporations. I've worked for my current corporation for the past 19 years and I drink, sleep, and live a corporate (professional) life. I use data extensively. It shows me the current status of my business, the trends over time, the strengths and the gaps. I can then apply resources to improve areas that show the need for improvement.

As a leader of a professional team, I use multiple measures for my evaluations (as I'm also evaluated). These measures include business metrics and stakeholder feedback, but primarily come from direct observation. I spend time with my team, we discuss goals and objectives, I watch them execute, and then I give them feedback on what I saw and provide a couple of comments on things that could be considered. I always say, "you can't be a hitting coach in baseball and never watch your players swing the bat".

So I've been on the school board for 2 years now (5 total but in different districts). I can firmly say, there's is almost nothing similar between the education and corporate world. Children are not binary, families are not a controlled environment and educational "output" is not easily or fully quantified in the short term (and may not manifest itself until years later).

However... Leadership, development and evaluation principals are consistent across any professional. Effective leadership involves creating a shared vision, common and clear goals, trust, regular communication and feedback, coaching for improvement, professional enablement and direct observation of every individual. There's mutual buy-in and accountability to this relationship. As a "Manager", my most important asset is the team that I support. Their professional capabilities, confidence and enablement is what makes me successful and what makes the organization work. Without my team, we would be nothing. My role, as a manager, is to enable them, communicate with them, give them regular feedback and support and, occasionally, provide constructive feedback to do a course correction.

Sorry for being wordy.. but the current Teacher evaluation being implemented (and being reformed) in NY is a bunch of *&#$. It does not adhere to anything I've ever known and is the exact text book of "what not to do" if you want to be an effective leader or stay in business. It is bad for the individual, bad for the organization and, ultimately, bad for our children.

This article [linked below] explains the details. As a Board member, this rating system is, indeed, a complete farce and damaging to "my team". I'm against it.

Buffum links to a New York Daily News op-ed piece blasting Governor Cuomo's new teacher rating system. Written by Arthur Goldstein, an ESL (English as a Second Language) teacher, it argues, convincingly, that the "tests are rigged to produce whatever results the pols want — and right now they want public schools and teachers to look bad," and concludes: "It’s a disgrace that members of the Assembly and Senate, who have no idea who my kids are or what they need, are charged with not only telling me what to teach, but also judging me on factors having nothing to do with whether or not I’m doing my job well."

Why do civil rights groups support high-stakes standardized testing?

Back in 2013 Diane Ravitch connected some of the dots. In a August 29 post headed "Do Civil Rights Groups Want More High-Stakes Testing?" she traced some of the funding of a group called the Campaign for High School Equity, which says waivers to No Child Left Behind "are allowing too many schools to avoid the consequences of being low-performing" and advocates closing schools with low test scores. Like so many other aspect of school "reform," the dots connect back to Bill Gates.

Among the CHSE's member organizations and/or grant recipients are respected organizations like the Urban League, NAACP, the Mexican American Legal Defense and Educational Fund, the League of United Latin American Citizens. Ravitch asks:

Why are they in favor of high-stakes testing, even though the evidence is overwhelming that NCLB has failed the children they represent? I can’t say for sure, but this I do know. The Campaign for High School Equity is funded by the Gates Foundation. It received a grant of nearly $500,000. Some if not all of its members have also received grants from Gates to support the CHSE.

Ravitch has the details, with a link to CHSE's website for their side of the story, on her blog at http://dianeravitch.net/2013/08/29/do-civil-rights-groups-want-more-high-stakes-testing/. CHSE is only one of many pro-corporate school "reform" organizations, and its grants are only one piece of the puzzle. I wouldn't necessarily say groups like the NAACP and LULAC have been co-opted. But I think the evidence strongly supports Ravitch's claim that high-stakes standardized testing does not in fact help the communities they serve:

When CHSE demands more high-stakes testing, more labeling of schools as “failed,” more public school closings, more sanctions, more punishments, they are not speaking for communities of color. They are speaking for the Gates Foundation.

Whoever is actually speaking for minority communities and children of color is advocating for more pre-school education, smaller class sizes, equitable resources, more funding of special education, more funding for children who are learning English, experienced teachers, restoration of budget cuts, the hiring of social workers and guidance counselors where they are needed, after-school programs, and access to medical care for children and their families.

Is this the future of school privatization?

Is this how corporate school "reform" will play out? As charter schools in Albany, N.Y., discovered teaching is hard work, especially in low income neighborhoods, they closed their bright new campuses and now the public schools have to take up the slack. A story in Capital New York, a magazine and website that covers politics, government and media in Albany and New York City, suggests that may be the case.

Charter schools in Albany opened several years ago to a lot of hoopla about how they'd "[herald] a new beginning for children living in grinding poverty and stuck in a long-troubled school district," to quote the Capital New York story by state government reporter Scott Waldman. But now, dogged by persistent low student test scores and graduation rates, as well as investigations into shady financial practices, they're closing one by one.

Says Waldman:

In total, Albany taxpayers have spent more than $300 million on the city’s charter schools in the last decade, Albany school district spokesman Ron Lesko said. Many of those schools have now been closed.

“We didn’t need to spend scores of millions of dollars to find out that the work our teachers and staff do and the staff in Rochester, Syracuse, Buffalo and New York City, and every city in poor communities in America is doing is hard work,” he said. “There is no quick and easy fix and privatizing education is no answer and that’s been proven here.”

The failure in Albany has shown the disruption that charters can cause to public school systems and surrounding neighborhoods. The Brighter Choice middle schools set to close were built just a few years ago, near the foundation’s headquarters. Half of a city block was leveled and residents were displaced from their homes.

The closure of those schools has created an administrative nightmare for the Albany city school district, which must now establish an entirely new middle school in the next six months to handle the almost 400 charter school students who were enrolled in the failed Brighter Choice schools.

Waldman said the charters initially brought great promise to Albany. But over time the promise faded as financial irregularities were discovered and, more importantly, the charter schools failed to measure up academically.

Privately, Albany city school district officials have acknowledged that charter competition has spurred changes to the public school curriculum, the addition of extracurricular activities and more intense focus on student achievement. Some Albany schools also extended their school day and provided students with uniforms.

In many cases, charter schools have also provided stability to students who come from unstable home environments, offering them clean uniforms, two or three meals a day and a safe building that was open to them for up to twelve hours a day, including weekends and much of the summer. One Albany charter, the Kipp Tech Valley Middle School, regularly sends students to some of the northeast’s top boarding schools on full scholarships.

For a time, Albany’s charters created such a highly competitive market for students that forced the public school system to run advertisements on public buses, and to sell off schools that it no longer needed.

Now, the Albany city school district is again looking to create space for hundreds of charter students returning to the system. Lesko said the district is interested in purchasing the soon-to-be shuttered charter schools, just as it did with the former New Covenant Charter School building.

Meanwhile, the taxpayer funds that paid for the charter schools, often through leases far above market rates, has essentially evaporated.