Michigan Tenure Reforms Checklist of Significant Components

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1 Michigan Tenure Reforms Checklist of Significant Components Public Acts Reference Key Public Act ( PA ) 101 (HB 4625 Rep. Rogers) Amends the Teachers' Tenure Act ( TTA ) Public Act ( PA ) 100 (HB 4626 Rep. Scott) Amends the Teachers Tenure Act ( TTA ) Public Act ( PA ) 102 (HB 4627 Rep. O Brien) Amends the Revised School Code ( RSC ) Public Act ( PA ) 103 (HB 4628 Rep. Yonkers) Amends Public Employment Relations Act ( PERA ) All Acts effective July 19, 2011 A. PROBATIONARY TEACHERS 1. Probationary period. 5 years + effective or highly effective rating on 3 most recent year-end performance evaluations (ART II, Sec 1, 3b of TTA, PA 101). a. Fast track probationary period = 4 years + highly effective rating on 3 consecutive annual year-end performance evaluations b. Grandfather intent provision. Teachers under contract remain on 4 year track; tenured teachers retain tenure status under the new reform standards. i. Note: The provision regarding probationary teachers under contract is subject to Section 3b, which requires 3 consecutive effective or highly effective ratings to achieve tenure. There is some ambiguity whether this is required for teachers under contract prior to the enactment of this legislation. c. Transfer of Tenured Teacher from Other District. Provision regarding teachers tenured in other districts and who transfer to new district was not amended; 2 year probationary period in new district still permitted. 2. Classroom Observations. The TTA requires annual year-end evaluations for probationary teachers to be based on classroom observations. (See, ART II, Sec3). a. The Tenure Act does not specify the number of classroom observations to be conducted, but instead reserves the determination of format and number to the controlling board in consultation with teachers and school administrators. b. Beginning in the school year, Section 1249(2)(c)(iv) of the RSC requires that all teachers receive multiple classroom observations as part of the annual year-end evaluation. All of the following apply to classroom observations pursuant to the RSC: i. The manner in which the observation is conducted will be prescribed in the evaluation tool for teachers (discuss infra.) ii. The observation shall review the teacher s lesson plan and the state curriculum standard being used in the lesson and a review of pupil engagement in the lesson. iii. The observation does not have to be for an entire class period. c. The format, timing, and number of classroom observations conducted for probationary teachers is now a prohibited subject of bargaining. (PA 103, Sec 15(3)(n)). 3. Annual Year-End Evaluation. Probationary teachers must have annual year-end teacher evaluations in accord with Section 1249 of the RSC. (ART II, Sec 3a of TTA, PA 101). a. By September 1, 2011, or at the expiration of a current collective bargaining agreement ( CBA ), with the involvement of teachers and school administrators, a board must adopt and implement for all teachers a rigorous, transparent, and fair performance evaluation system that does all of the following: i. Provides at least an annual evaluation. ii. Establishes clear approaches to measuring student growth. 1

2 iii. Evaluates teacher s performance using multiple ratings that take into account data on student growth as a significant factor. iv. Uses ratings of highly effective, effective, minimally effective and ineffective for teacher and administrator performance. v. Uses evaluations to inform decisions regarding: 1. Effectiveness of teachers and administrators; 2. Promotion, retention, and development of teachers; 3. Whether to grant tenure or full certification; and 4. Removing ineffective tenure and untenured teachers. b. By April , the Governor s Council on Educator Effectiveness shall recommend a state evaluation tool for teachers and a student growth and assessment tool, to be implemented by subsequent legislation and adopted by districts beginning with the school year. c. Beginning in the school year, the annual year-end evaluation must be based on student growth and assessment data, measured using the student growth and assessment tool discussed above, as follows: i school year at least 25% of the annual year-end evaluation ii school year at least 40% of the annual year-end evaluation iii school year at least 50% of the annual year-end evaluation d. Beginning in the school year, the RSC allows a district to choose to conduct a year-end evaluation biennially for a teacher rated as highly effective on 3 consecutive annual year-end evaluations; a teacher who is not rated as highly effective on 1 biennial year-end evaluation shall return to annual year-end evaluations This option is not provided in the TTA. 4. Statement of Effectiveness. Before the end of each school year, the board must provide a written statement as to whether or not probationary teacher s work has been effective. (ART II, Sec 3(1) of TTA, PA 101). a. Notice of non-renewal: 15 days before the end of school year or teacher shall be employed for the ensuing year (ART II, Sec 3(1) and 3(2) of TTA, PA 101). b. Teacher can be dismissed at any time. c. Note: This does not create an at-will employment relationship for probationary teachers. In the absence of specific legislation or contractual provision on point, a probationary teacher could challenge a dismissal to an arbitrator or in circuit court, where the adjudicator would only determine whether the dismissal was arbitrary and unreasonable, or whether it was an action outside the scope of the board's authority. Rockwell v Board of Education, 393 Mich 616, 227 NW2d 226 (1975). 5. IDP. Must be implemented for all years of probationary period, including the beginning of the first year, to be revised and revisited each year. Additionally, an assessment of the Individual Development Plan ( IDP ) goals must be included as part of the annual year-end performance evaluation. (ART II, Sec 3a of TTA, PA 101). a. The IDP must be developed by appropriate administrative personnel in consultation with the individual teacher. TTA regarding IDPs were not revised; therefore the IDP format and content pursuant to the TTA remain intact. 6. Mid-Year Progress Report. a. Mid-year progress reports are not required until the school year. 2

3 b. Beginning in school year, a mid-year progress report must be created for all first year probationary teachers and probationary teachers rated as minimally effective or ineffective in any subsequent years (Sec 1249a(2)(b) of RSC, PA 102). i. Must be based in part on student achievement; ii. Must be aligned with teacher s IDP; and iii. Must include specific performance goals for remainder of school year. c. The statute does not provide a definition of mid-year. d. The district may assign a mentor or coach to each teacher required to receive mid-year progress reports. 7. No Presumption of Satisfactory Performance. The TTA no longer provides a presumption of satisfactory performance for a probationary teacher where the district fails to comply with the requirements regarding performance evaluations, IDPs, or mid-year progress reports. However, failure to comply with the requirements results in reemployment of the teacher for the ensuing school year. B. TENURED TEACHERS 1. Annual Year-End Evaluation. Tenured teachers must have annual year-end teacher evaluations with multiple classroom observations in accord with Section 1249 of RSC. (ART III, Sec 3 of TTA, PA 101). a. By September 1, 2011, or at the expiration of a current CBA, with the involvement of teachers and school administrators, a board must adopt and implement for all teachers a rigorous, transparent, and fair performance evaluation system that does all of the following: i. Provides at least annual evaluation; ii. Establishes clear approaches to measuring student growth; iii. Evaluates teacher s performance using multiple ratings that take into account data on student growth as a significant factor; iv. Uses ratings of highly effective, effective, minimally effective and ineffective for teacher and administrator performance; and v. Uses evaluations to inform decisions regarding: 1. Effectiveness of teachers; 2. Promotion, retention, and development of teachers; 3. Whether to grant tenure or full certification; and 4. Removing ineffective tenured teachers. b. Decisions about development, content, standards, procedures, adoption and implementation of performance evaluation system is now a prohibited subject of bargaining. However, a teacher may be able to challenge his or her overall effectiveness rating and data upon which the district relied to determine that rating, where the CBA allows grievances for violations of board policy. c. By April , the Governor s Council on Educator Effectiveness shall recommend a state evaluation tool for teachers and a student growth and assessment tool, to be implemented by subsequent legislation and adopted by districts beginning with the school year. d. Beginning in the school year, the annual year-end evaluation must be based on student growth and assessment data, measured using the student growth and assessment tool discussed above, as follows: i school year at least 25% of the annual year-end evaluation; 3

4 ii school year at least 40% of the annual year-end evaluation; iii school year at least 50% of the annual year-end evaluation. e. Beginning in the school year, the RSC allows a district to choose to conduct a year-end evaluation biennially for tenured teachers rated as highly effective on 3 consecutive annual year-end evaluations; a tenured teacher who is not rated as highly effective on 1 biennial year-end evaluation shall return to annual year-end evaluations This option is not provided in the TTA. f. Beginning in the school year, a tenured teacher may also request review of an ineffective rating by the superintendent. This review may not be requested more than twice in a 3-year period. 2. Multiple Observations. The TTA requires multiple observations for all annual year-end evaluations for tenured teachers. (See, ART III, Sec3) a. The TTA does not specify the number of classroom observations to be conducted, but instead reserves the determination of format and number to the controlling board in consultation with teachers and school administrators. b. Beginning in the school year, Section 1249(2)(c)(iv) of the RSC requires that all teachers receive multiple classroom observations as part of the annual year-end evaluation. All of the following apply to classroom observations pursuant to the RSC: i. The manner in which the observation is conducted will be prescribed in the evaluation tool for teachers (discuss infra.); ii. The observation shall review the teacher s lesson plan and the state curriculum standard being used in the lesson and a review of pupil engagement in the lesson; and iii. The observation does not have to be for an entire class period. 3. IDP. A tenured teacher rated ineffective or minimally effective on his or her annual year-end performance evaluation must be provided with IDP which requires teacher to make progress toward individual development goals within a specified time period, not to exceed 180 days (ART III, Sec 3 of TTA, PA 101). a. The IDP must be developed by appropriate administrative personnel in consultation with the individual teacher. b. TTA regarding IDPs were not revised; therefore the IDP format and content pursuant to the TTA remain intact. 4. Mid-Year Progress Report. a. Mid-year progress reports are not required until the school year. b. Beginning in school year, a mid-year progress report must be created for all tenured teachers rated as minimally effective or ineffective in his or her most recent annual year-end evaluation. (Sec 1249a(2)(b) of RSC, PA 102). i. Must be based in part on student achievement; ii. Must be aligned with teacher s IDP; and iii. Must include specific performance goals for remainder of school year. c. The statute does not provide a definition of mid-year. d. The district may assign a mentor or coach to each teacher required to receive mid-year progress reports. 5. No Presumption of Satisfactory Performance. The TTA no longer provides a presumption of satisfactory performance for a tenured teacher where the district fails to comply with the 4

5 requirements regarding performance evaluations, IDPs, or mid-year progress reports. While the statutory language providing that probationary teacher shall be employed in the ensuing year where a district fails to follow the notification requirements of the TTA is not in place for tenured teachers, a tenured teacher may argue an adverse employment claim in violation of the TTA requirements using the arbitrary or capricious standard. 6. Dismissal. A tenured teacher must be dismissed after 3 years of ineffective ratings on annual yearend evaluation. This provision does not limit a district s ability to dismiss a teacher before 3 ineffective ratings (Sec 1249(2)(h) of RSC, PA 102). 7. Discipline or Discharge. The Tenure Commission ( Commission ) will review discipline and discharge decisions to determine whether district s decision was arbitrary or capricious (ART IV, Sec 1(1) of TTA, PA 100). a. Discipline and discharge matters are now prohibited subjects of bargaining for school employees subject to the Tenure Act; Standard for discipline and discharge of these employees must be arbitrary or capricious (Sec 15(3)(m) of PERA, PA 103). b. The TTA retains the same procedural hearing protections for tenured teachers, but shortened the tenure hearing timelines by 15 days. The TTA now provides that tenure hearing may not begin more than 45 days after service of the controlling board s answer to the claim of appeal and must not conclude more than 75 days after a claim of appeal is filed. C. ADMINISTRATORS 1. Annual year-end evaluations. Administrators must receive an annual evaluation in accord with Section 1249 of the RSC. (Sec 1249(3)(a) of RSC, PA 102). a. By September 1, 2011, or at the expiration of a current CBA, with the involvement of teachers and school administrators, a board must adopt and implement for all school administrators a rigorous, transparent, and fair performance evaluation system that does all of the following: i. Provides at least an annual evaluation; ii. Establishes clear approaches to measuring student growth; iii. Evaluates school administrator s performance using multiple ratings that take into account data on student growth as a significant factor; iv. Uses ratings of highly effective, effective, minimally effective and ineffective for school administrator performance; and v. Uses evaluations to inform decisions regarding: 1. Effectiveness of school administrators; 2. Promotion, retention, and development of school administrators; and 3. Removing ineffective school administrators. b. By April , the Governor s Council on Educator Effectiveness shall recommend a state evaluation tool for administrators and a student growth and assessment tool, to be implemented by subsequent legislation and adopted by districts beginning with the school year. c. Beginning in the school year, the annual year-end evaluation for administrators must be based on student growth and assessment data, measured as the aggregate student growth and assessment data used in teacher annual year-end evaluations: i school year at least 25% of the annual year-end evaluation; ii school year at least 40% of the annual year-end evaluation; 5

6 iii school year at least 50% of the annual year-end evaluation. d. Beginning in the school year, the portion of the administrator annual year-end evaluation not based on student growth and assessment data shall be based on at least the following: i. The school administrator s training and proficiency using the evaluation tool for teachers, including a random sampling of his or her evaluations to assess the quality of the school administrators input in the teacher evaluation system, or the training and proficiency of the administrator s designee, including random sampling, where the school administrator being evaluated does not conduct teacher evaluations; ii. The progress made by the school or school district in meeting the goals of the school s or school district s improvement plan; iii. Pupil attendance in the school or school district; and iv. Student, parent, and teacher feedback, and other information considered pertinent by the superintendent or other school administrator conducting the performance evaluation or the board. e. Beginning in the school year, the RSC allows a district to choose to conduct a year-end evaluation biennially for an administrator rated as highly effective on 3 consecutive annual year-end evaluations; an administrator who is not rated as highly effective on 1 biennial year-end evaluation shall return to annual year-end evaluations. 2. Improvement Plan. a. Improvement plans for school administrators are not required until the school year. b. Beginning in the school year, an administrator rated as minimally effective or ineffective on his or her most recent annual year-end evaluation must receive an improvement plan. i. The person(s) conducting the administrator s evaluation shall develop and require the school administrator to implement the improvement plan to correct his or her deficiencies. ii. The improvement plan must recommend development opportunities and other measures designed to improve administrator s rating (Sec 1249(3)(f) of RSC, PA 102). 3. Tenure in Administrative Position. A contract for a teacher employed in an administrative capacity may not provide that the teacher will be considered to be granted tenure in that administrative capacity. (ART III, Sec 7 of TTA, PA 101). a. The teacher shall be considered to have been granted tenure only as an active classroom teacher. b. Upon termination and nonrenewal of the administrative contract, the teacher shall be employed as an active classroom teacher with salary as if he or she had been continuously employed. 4. Nonrenewal of Administrator Contracts. Nonrenewal provisions for administrators under Section of the RSC were not amended by recent reforms a board must give a superintendent 90 days notice before the termination of the contract and 60 days notice before the termination of the contract for all other administrators, with not less than 30 days advance notice that the board is considering the nonrenewal. MCL

7 5. Discipline and Discharge. Discipline and discharge matters are now prohibited subjects of bargaining for school employees subject to the TTA; Standard for discipline and discharge of these employees must be arbitrary or capricious. (Sec 15(3)(m) of PERA, PA 103). D. LAYOFF/RECALL PROVISIONS 1. Prohibited Subject of Bargaining. Decisions about layoff and recall procedures are now prohibited subjects of bargaining and are subject to board policy. (Sec 15(3)(k) of PERA, PA 103). 2. Right of Recall. The TTA no longer provides a 3-year right of recall to a vacancy for certificated and qualified tenured teachers. a. This creates an ambiguity as to whether or not a teacher has an indefinite right of recall. b. Boards may want to establish policies implementing an appropriate timeline. 3. Policies For Layoff/Recall. Districts may not adopt, implement, maintain or comply with a policy that provides length of service or tenure status as the primary or determining factor in personnel decisions (Sec 1248(1) of RSC, PA 102). a. All personnel decisions must be based on retaining effective teachers. b. Teachers rated ineffective on performance evaluation system under Section of the RSC may not be retained over teachers rated minimally effective, effective, or highly effective. (Sec 1248(1)(b) of RSC, PA 102). c. A probationary teacher rated effective or highly effective shall not be displaced by a tenured teacher solely because that teacher has obtained tenure. (ART II, Sec 2a of TTA, PA 101). i. Prohibiting displacement of a probationary teacher rated effective or highly effective solely on the basis of tenure results in superseniority for probationary teachers rated highly effective. d. In addition to effectiveness ratings pursuant to Section 1249 of the RSC, personnel decisions in program reduction situations shall be based on the following factors: (1248(1)(b)(i)-(iii) of RSC, PA 102) i. Individual performance this must be the majority factor in making decisions and be based on: 2. Evidence of student growth as a predominant factor; 3. Teacher s knowledge of subject area and ability to impart that knowledge; 4. Teacher s management of classroom, manner and efficacy of disciplining students, rapport with parents and teachers, and ability to withstand the strain of teaching; and 5. Teacher s attendance and disciplinary record. ii. Significant, relevant accomplishments and contributions. iii. Relevant special training. e. Tenure or length of service may be used in making personnel decisions where ALL other factors distinguishing the employees are equal. (Sec 1248(1)(c) of RSC, PA 102). 4. Existing CBA. Where CBA is in effect and prevents compliance with the provisions above, the requirements do not apply until the expiration of the CBA. (Sec 1248(2) of the RSC, PA 102). 5. Sole and Exclusive Remedy for Layoff and Recall: For violation of the layoff and recall provisions of the RSC, the only remedy is reinstatement of teacher; no lost wages, benefits, or any 7

8 other economic damages. (Sec 1248(3) of RSC, PA 102). However, this does not preclude economic damage remedies for other claims, such as those for discrimination. 6. Grievances. For CBAs which allow grievances for violation of general board policies, a displaced employee may be able to have his or her grievance regarding layoff and recall heard before an arbitrator pursuant to the grievance policy. E. UNREQUESTED LEAVES OF ABSENCE 1. Boards can grant an unrequested leave of absence because of physical or mental disability for a period not to exceed 1 year. (ART V, Sec 2(1) of TTA, PA 100). 2. Unrequested leave of absence is subject to renewal at the will of the controlling board. (ART V, Sec 2(1) of TTA, PA 100). 3. Teacher placed on unrequested leave has right to a hearing before the Commission. (ART V, Sec 2(1) of TTA, PA 100). 4. As a condition to reinstatement, boards can require teacher to furnish verification acceptable to the board of the teacher s ability to perform essential job functions. (ART V, Sec 2(2) of TTA, PA 100). F. APPLICATION OF PERA AMENDMENTS PA 103 adds seven items to the list of prohibited subjects of bargaining found in Section 15 of PERA. 1. Placement of Teachers. Any decision made by a public school employer regarding the placement of teachers, or the impact of that decision on an individual or the bargaining unit. 2. Layoff and Recall for Teachers. Decisions about the development, content, standards, procedures, adoption, and implementation of a public school employer s policies regarding personnel decisions when conducting a reduction in force or any other personnel determination resulting in the elimination of a position or a recall from a reduction in force pursuant to MCL Performance Evaluations for All Teachers and All School Administrators. Decisions about the development, content, standards, procedures, adoption, and implementation of a public school employer s performance evaluation system pursuant to Section 1249 of the RSC, or decisions concerning the content of a performance evaluation of an employee under that section or the correlating section under the TTA. 4. Discipline and Discharge For All Public Employees Subject to the Tenure Act. For employees subject to the TTA, the policy regarding discharge or discipline of an employee (based on the arbitrary and capricious standard), or the impact of such a decision on an individual employee or the bargaining unit; Standard other than arbitrary or capricious may not be implemented. 5. Classroom Observations for Teachers. The format, timing, or number of classroom observations conducted for the purpose of performance evaluations, or the impact of those decisions on an individual employee or bargaining unit. 6. Merit Pay for All Teachers and All Administrators. Decisions about the method of compensation for merit pay, and decisions about how an employee performance evaluation is used to determine performance-based compensation. 8

9 Note: The provisions for merit pay pursuant to the RSC remain in place since the implementation of Race to the Top ( RTTT ). 7. Parental Notification Regarding Ineffective Teachers. Decisions about the development, format, content, and procedures of the notification to parents and legal guardians required for students who have been placed in the class of a teacher who has been rated as ineffective on his or her 2 most recent year-end evaluations under Section 1249a of the RSC , v. 1 9

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