Presented By: Bennett Rodick Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP Legal Issues Related to Common Core, Teacher Evaluations, and High Stakes Testing Education Law and Policy Institute at Loyola University Chicago School of Law June 25, 2014 These materials and the presentation made based on these materials are solely educational in nature and do not constitute legal advice to any person. These materials and the presentation based on these materials are not intended to create an attorney/client relationship between the presenter (or the presenter’s law firm) and any attendee of the presentation. Copyright 2014 All Rights Reserved HODGES, LOIZZI, EISENHAMMER, RODICK & KOHN LLP 1

Agenda 2 Legal challenges to Common Core State Standards Recent lawsuits challenging RIF based on teacher evaluations under SB-7 Legal issues related to high stakes testing

LEGAL CHALLENGES Common Core

4 In 2010, Illinois joined more than 40 states in a collaborative effort to create high, clear, and uniform standards and improve college and career readiness. New standards are referred to as Common Core State Standards (CCSS). Teachers and administrators across the state fully implemented the new standards during the school year.

Common Core Legal Challenges 5 The first lawsuit challenging Common Core was filed in Kentucky by the father of two public school students. Plaintiff claimed the General Assembly violated the state’s constitution by accepting and implementing Common Core State Standards in Kentucky schools before the standards were even written. The judge dismissed the lawsuit in January 2014, saying the plaintiff had no standing to bring the suit and did not demonstrate a “unique, personal injury.”

Common Core Legal Challenges 6 The second lawsuit was filed in February 2014, by parents in Utah against the Alpine School District. Among other allegations in the suit, the parents claimed the district denied their child a free appropriate education (FAPE) in retaliation for reaching out to Anti-Common Core groups. It appears that this case is still pending.

Common Core & IEPs 7 The adoption and implementation of CCSS creates the need for changes to the goals section of students’ Individualized Education Programs (IEPs). ISBE issued non-regulatory guidance on documenting Common Core State Standards in IEPs. In connecting student’s IEP goals with CCSS for English/Language Arts and Mathematics, referencing the standard is sufficient to meet federal requirement that annual goals must enable the student to be involved and make progress in the general education curriculum. 34 CFR (a)(2)(i)(A)

Considerations for Aligning IEP Goals with the CCSS 8 Revision of goals sections of students’ IEPs may be required since adoption of CCSS. In referencing a CCSS in an IEP, the standard itself is NOT a goal. Align the CCSS referenced in a student’s IEP goals with the student’s grade level, regardless of his/her performance/instructional level.

RECENT LEGAL CHALLENGES TO RIF BASED ON TEACHER EVALUATIONS UNDER SB-7 Teacher Evaluations

Teacher Evaluations in RIFs 10 Probationary teachers are evaluated once every year. Tenured teachers are evaluated once every other year. SB-7 replaced seniority lists with a “sequence of honorable dismissal list.” Teachers are now placed in one of four groupings based on their most recent performance evaluations.

Teacher Evaluations in RIFs 11 The original SB-7 groupings were as follows:  Group 1 – Probationary teachers who have not been evaluated*  Group 2 – Teachers with a “needs improvement” or “unsatisfactory” rating on either of the last two evaluations (unless altered by joint committee on RIFs)  Group 3 – Teachers with “satisfactory” or “proficient” ratings in both of their last two evaluations (or on their last evaluation if only one rating is available)  Group 4 – Teachers who received “excellent” ratings on both of their last two evaluations or received “excellent” ratings on two of their last three evaluations and a “satisfactory” or “proficient” rating on the third evaluation (unless altered by joint committee on RIFs)

Teacher Evaluations in RIFs 12 *As of January 1, 2014, Group 1 now includes each teacher who is not in contractual continued service and meets one of the following: 1) has not received an evaluation, or 2) is employed for one school term or less to replace a teacher on leave, or 3) is employed on a part-time basis. Teachers in Group 1 must be dismissed first and teachers in Group 4 are dismissed last. Only teachers in Groups 3 and 4 have recall rights under SB-7.

Lawler v. Peoria No The Board approved the RIF of both tenured and non- tenured teachers, which became effective on the last day of the school year. The RIF was based on the Board's good faith decision to decrease the number of full-time teachers due to uncertainty regarding student enrollment numbers and future funding. For the first time, the District used SB-7’s new RIF procedure.

Lawler v. Peoria No Both Plaintiffs in this case were in Group 2. When the District later received accurate funding and student enrollment data, it recalled teachers with recall rights to fill teaching vacancies. The District did not offer any teachers from Group 2 the remaining positions. Instead, the remaining vacant positions were filled with new hires, including some of the RIF’d teachers from Group 1. Based on their placement in Group 2, Plaintiffs were not entitled to recall rights under SB-7. The Circuit Court of Peoria County dismissed the teachers’ lawsuit, holding that the uncertainty of enrollment and state funding were valid reasons for a RIF and that the District properly followed the new RIF procedure. Plaintiffs’ appeal is still pending.

Pioli v. North Chicago CUSD No Earlier this year, the Illinois Appellate Court ruled on a very similar case. In Pioli and Edelson v. North Chicago Community Unit School District No. 187, the District used SB-7’s RIF procedure to dismiss teachers in Groups 1 & 2, including the two tenured teacher Plaintiffs in Group 2. This was the first appellate consideration of the legality of a teacher RIF under SB-7. The appellate court’s decision is consistent with the trial court ruling in Lawler.

Pioli v. North Chicago CUSD No In this case, the District established that it was operating at a $9 million deficit. To address the shortfall, the District decided to RIF individuals from Groups 1 and 2. The District selected which teachers to dismiss by creating a sequence of honorable dismissal list according to the requirements of SB-7.

Pioli v. North Chicago CUSD No Among the teachers dismissed, the District dismissed the two tenured teacher Plaintiffs based on their assignment to Group 2. Subsequently, the District received new enrollment information and suddenly needed to fill positions. The District rehired the Group 1 teachers it desired, but did NOT rehire any Group 2 teachers, including the Plaintiffs. Like the trial court in Lawler, the appellate court found that the District properly implemented the RIF consistent with the requirements of SB-7.

Sb-7 Clean Up Bill 18 HB 5546  Sent to Governor Quinn on 6/6/14  Must be acted on by 8/5/14 Gives certain Group 2 teachers limited recall rights:  Certain Group 2 teachers – Those who have one “needs improvement” rating (if only one rating is available) or one “needs improvement” rating on either of the last two ratings with the second rating no less than “proficient” or “satisfactory”  Limited recall rights – Only applies to vacancies from the beginning of the following school term through Feb. 1 of the following school term (unless a date later than Feb 1 but no later than 6 months from the beginning of the following school term is agreed to in CBA) All other Group 2 teachers still get no recall rights. Applies to RIFs in school year.

Sb-7 Clean Up Bill 19 HB 5546 also provides that: Copies of sequence of honorable dismissal (SOHD) lists shall be given to union showing each teacher by name and categorized by position and groupings. No more than one evaluation rating each school term shall be used in determining sequence of honorable dismissal. If multiple performance evaluations are conducted in a school term, only the rating from the last evaluation before SOHD list is established shall be used in determining the sequence of honorable dismissal. Districts may not average ratings from multiple evaluations.  Unless agreed to in a CBA

LEGAL CHALLENGES High Stakes Testing

21 The use of high stakes testing has become a common way to measure adequate yearly progress as required by the federal No Child Left Behind Act of At least 26 states use exit exams as a condition of getting a standard high school diploma. At least 17 states now require students to pass standardized tests as a condition of grade-to-grade promotion. Tests are also increasingly used as a measure of educator accountability. (PERA)

Standardized Testing in Illinois 22 Illinois uses Illinois State Achievement Test (ISAT) to measure individual student achievement in compliance with No Child Left Behind. This past spring, a number of parents across the state voiced strong opposition to ISAT and decided to “opt out” of the exam for their children. The Illinois State Board of Education responded by telling parents that they have no legal right to opt their children out of the mandatory test. Technically, the law requires that schools administer the test, but does not explicitly require students to take test.

Standardized Testing in Illinois 23 A group of 25 parents in the Chicago Public School District filed a complaint with the American Civil Liberties Union urging the ACLU to file suit against ISBE for not allowing students to opt out of the exam. The parents claim that their due process rights will be violated if their children are tested, despite the parents’ objection. The ACLU has not yet filed suit, but parent opposition is still vocal.

Standardized Testing in Illinois 24 ISBE released guidance to school districts in which parents oppose the tests:  Schools and districts will not be penalized for any student's refusal to take the test.  However, school personnel who encourage students to refuse testing could be suspended or lose their license.

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