Assemblymember Felipe Fuentes said that the passage of AB 5, the teacher evaluation bill that he authored, could “potentially serve as a key piece” of the state’s application for a waiver from the No Child Left Behind law – and free up hundreds of millions of federal dollars to fund districts’ evaluations and other education needs.

Erin Gabel, director of legislative affairs of state Superintendent of Public Instruction Tom Torlakson, said that AB 5 would make a waiver application “more attractive” to the feds.

Sue Burr, executive director of the State Board of Education and adviser to Gov. Jerry Brown on education, said that key federal education officials have given encouraging signs that AB 5 would satisfy the teacher and principal evaluation requirement for a waiver.

To which Arun Ramanathan, executive director of Education Trust-West and an opponent of the bill, wrote in an email, “When pigs fly.”

There’s opinion and speculation, and there are rules and regulations.

What would Arne Duncan say? Ask him next month in Sacramento.

A read of the federal Department of Education’s conditions that states must meet to qualify for a waiver from NCLB – or the Elementary and Secondary Education Act, as it’s officially called – would certainly indicate that AB 5 won’t meet Secretary of Education Arne Duncan’s demands for an effective teacher and principal evaluation system. Along with pigs, AB 5, which the Legislature will vote on this week or next, would appear to lack wings.

The clearest explanation can be found in sections C-51 through C-53 in the 81-page ESEA Flexibility: Frequently Asked Questions, which was updated this month. Among the half-dozen criteria for “evaluation and support systems,” the state Department of Education and districts must commit to:

  • Meaningfully differentiate performance using at least three performance levels. The feds recommend but don’t require that one of the levels designate outstanding performers, who would be recognized for their performance and given preference for retention. AB 5 specifies only two levels – unsatisfactory and satisfactory – just as under the current law, although local districts could negotiate for additional categories. Offering only two categories, favored by the California Teachers Association, locks in the current seniority system for purposes of layoffs and job preferences and rules out pay differentials, at least for the same job. A pass-fail system also creates the possibility of more of the same: In many districts, between 95 and 98 percent of teachers receive a satisfactory rating.
  • Use multiple valid measures in determining performance levels, including, as a significant factor, data on student growth for all students (including English Learners and students with disabilities), and other measures of professional practice (which may be gathered through multiple formats and sources, such as observations based on rigorous teacher performance standards, teacher portfolios, and student and parent surveys). The key here is both the requirement that states use data on student growth as a factor in teacher evaluations and that it be a “significant” piece. AB 5 includes neither. It permits districts to negotiate with teachers unions to include hard data on student achievement, but it’s not mandatory, and, consistent with local control, each district would determine the weight given each measure. AB 5 mentions observations and portfolios but not student and parent surveys as options, although parents can request them in public hearings that a new version of the bill would require.

The Stull Act, as the current teacher evaluation law is called, requires that districts devise local assessments and use the California Standards Tests to measure a teacher’s impact on student achievement. That was confirmed this spring by a Superior Court judge’s ruling in a lawsuit brought against Los Angeles Unified on this issue.

The federal waiver also requires that a state “define a statewide approach for measuring student growth” using those assessments for the subjects and grades in which they’re given. That covers about half of the teachers in California.

AB 5 would remove the mandate requiring the use of state assessments – the most contentious of its changes. Given the California Teachers Association’s opposition to using CSTs as part of a teacher’s evaluation, districts will face stiff resistance in local negotiations to include student test results.

Will principals be covered?

Eligibility for a waiver requires regular evaluations of not only teachers but also principals and administrators. This is an area that has been and will remain murky under state law.

Evaluations under AB 5, as under the Stull Act, would apply to all certificated personnel. Although administrators, like teachers, are certificated, AB 5 deals only with teacher evaluations, with no mention of evaluating administrators. A separate bill, SB 1292, sponsored by Sen. Carol Liu, would establish a comprehensive evaluation system for first- and second-year principals, based on the California Professional Standards for Educational Leaders and including evidence of student growth in an administrator’s schools. But, because of funding concerns, the bill would set up a voluntary system of evaluations, contrary to the federal waiver’s requirements.

So far, the Department of Education has granted 33 states waivers from the penalties of NCLB, along with significant flexibility to use Title I money. California submitted its own version of a waiver application earlier this year, but it excluded any mention of teacher evaluations and so isn’t likely to go anywhere. Duncan has declined to answer questions from the press about it – an unhopeful sign.

That’s why Sue Burr said last week that the State Board (presumably with Brown’s consent) is considering applying formally for the last round of waivers, and will include AB 5 as evidence of compliance. Although the application is due Sept. 6, the state could still apply if the State Board ratifies it at its next meeting, a week later, Burr said.

Burr suggested that the State Board could bolster the application by adopting models for evaluations that districts could use. Opponents say that just won’t cut it; Duncan won’t bend for California.

Duncan will be in Redwood City on Sept. 12 to kick off his third annual nine-day national back to school bus tour, then he will head to Sacramento, according to a press release. If members of the State Board want to know whether California’s new evaluation law will pass the test, then they could ask him directly.

Correction: An earlier version incorrectly stated that the State Board had extended an invitation to meet with Duncan. Instead, the secretary’s staff  have asked whether Board members would like to attend an event on his tour.




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  1. Bea 10 years ago10 years ago

    What’s the alternative? If AB 5 isn’t passed, California still doesn’t meet the requirements for a waiver, right?

  2. navigio 10 years ago10 years ago

    Is Arun still reviewing waiver applications for the Dept of Ed..?


    • John Fensterwald 10 years ago10 years ago

      Navigio: Arun reports that family obligations and the time involved prevent him from doing another round.

  3. Fred Jones 10 years ago10 years ago

    John: There’s political responses and then there’s substantive responses to the NCLB mandates and incentives. AB 5 attempts to weave in between both, but your incredibly insightful article specifically calls-out some of the weaknesses of this approach. Incredible job of reporting a complicated — and highly charged — subject.


    • John Fensterwald 10 years ago10 years ago

      Thanks, Fred.