In the New York Daily News today, Stanford education professor Erik Hanushek argues that UFT [is] wrong to fight Joel Klein's attempt to release teacher data. Hanushek makes three arguments here:
- Value-added methods are valuable even if imperfect
- The public has a right to know about teacher effectiveness
- Erik Hanushek personally does not want test score data to be the sole method of evaluating teachers (so you can trust his motives)
Problems with the op-ed, at least on first reading:
- Feel-good/macho union-bashing. Hanushek writes, "Unfortunately, many in the schools, led by the teachers unions, are not particularly interested in entering a discussion of which teachers are performing poorly." Let's see: in the context of New York City, where there was an explicit agreement to begin to use test scores to help teachers in instruction, and where the union is out in advance of a number of its members…. Yeah, go ahead and slam one of the locals that's moved at all on test scores. That may feel good or be good "politics," but I think it's foolish.
- Internal inconsistency. Hanushek's statement that test score data shouldn't be the only instrument to evaluate teachers flies in the face of releasing only the mediocre value-added measures that have been requested, when anyone knows that the New York tabloids will slap the "this is an effectiveness measure" label on them.
- "The problem is so bad, it's okay if we paint teachers in a false light." Hanushek's argument essentially boils down to, "Yeah, the data's unreliable. It's better than nothing, so we should publish it." That's pretty close to reckless disregard of the truth, when you know that of the thousands of teachers whose mediocre value-added measures would be published, hundreds and hundreds would be portrayed as far less effective than they are in reality. (This is simply playing the odds.) I don't know if New York state has a tort of false light, but you have all the elements here: publication of data that the publisher knows is false (even if the publisher doesn't know which teachers the data is blatantly wrong on), and where the data is designed to shame both the schools and the individual teachers.
Most of the privacy-related discussion on the L.A. Times publication of a teacher database focused on issues that are probably not actionable in court, because the newspaper could defend teacher effectiveness (however framed) as newsworthy. "False light" is a different story. Note: my understanding is that torts based on violations of privacy are only a little over a century old, and they're fairly dependent on state-specific case law, especially false-light lawsuits. But I think the notion of "false light" is the right one here.
Why do Hanushek and his kindred spirits in the accountability circus always seem to get a free pass regarding their inability to answer the problems with VAM, and the longstanding precautions about this approach issued by APA/AERA/NCME? Why do people who do research for a living, and supposedly know about validity, want to impose teacher effectiveness “measurements” that have never been validated for that use? Yeah, Hanushek’s motives are so pure…
We have been conducting a discussion of this issue over at Edjurist (http://www.edjurist.com/blog/value-added-evaluation-data-and-foia-state-versions-that-is.html), but none of us have considered the “false light” angle–we have been focusing on other privacy torts, such as “public disclosure of private facts” (I understand that the NY teachers were not initially told that these scores would be published in the news media), and the non-privacy tort of defamation (specifically, “defamation per se,” because this flawed set of scores impugns the professional reputations of the teachers involved).
Each of these approaches is problematic when the information we are dealing with can reasonably be characterized as a “government document.” If so, the publication of such information is generally privileged, which would knock out defamation and probably public disclosure of private facts (unless state privacy laws or FERPA protect the information in question, thus leaving space for possible “public disclosure” claims against government officials for improperly releasing the information).
Any editorializing by the news outlets would constitute opinion, so it would not qualify for either tort, though editorializing that purports to put a factual gloss on the information might create a “false light” harm in some states. You are correct that this tort is highly state-specific (Florida’s Supreme Court just recently abrogated it). My information is not current, but I understand that the tort is also not recognized in New York’s courts. Also, the element of primary importance to the tort is that the information, as portrayed, must be “highly offensive to a reasonable person.” The “effectiveness” scores themselves may meet that standard, but probably not. Portrayals of the scores as inscrutible judgments of relative teaching effectiveness might be more likely to meet the standard, but as I say above, I do not think the tort exists in New York.
Assuming that the papers engage in editorializing that purports to put a factual gloss on the scores, perhaps the harmed individuals should consider proceeding on a “single publication” theory in a state where (1) this theory is valid; (2) the relevant news outlets have subscribers and paper boxes; and (3) the “false light” tort also exists. If so, they would not only have to prove publication and offensiveness. but also that the papers acted with “actual malice” (knowledge that their portrayals create a false impression, or reckless disregard of the likelihood that they do). The truth of the underlying information is generally not a defense. Barring this (I think unlikely) scenario, the teachers likely will have to suffer through yet another indignity at the hands of those with no good answers to educational problems looking for scapegoats.
I think this is less a matter of legal possibility than a way to explain that the concerns here go beyond the question of being a public figure. Theresa Pinilla points out the first example that comes to mind, but I think there’s another one that is perhaps better and addresses the fragility of any test-score derivative: suppose a news organization acquired all the residents within a 50-mile radius whose names appeared on the federal No-Fly list. The federal government acknowledges that the list is highly imperfect, and while there are certainly some suspicious characters on the list, there are also a number of people on the list who are there by mistake.
Would it be ethical for a newspaper to print such a list? (For the moment, wish away the national-security implications of such a publication. This is about the consequences for individuals.) An editor could rationalize the publication of such as list as in the public good, for certainly you might want to know of any neighbor whom the federal government considers unreliable… or so would an editor explain. So what if the list is imperfect? The public need is great! The no-fly list is different from a set of test-score measures (one is a list of private citizens, the other data about public employees), but the imperfection of the data exists for both.
I wonder, how many of the folks touting public ralease of VAM data would favor publication of similarly flawed data on their own job performance. I know that reporters argue they are not public employees, but the fact is, every time I buy a newspaper or magazine contribute to that journalist’s salary. Am I not then entitled to know how ‘effective’ that journalist is, and how much value he or she contributes to the publishing enterprise? Similarly, Dr. Hanushek’s university received public funding in various programs and departments. I don’t know whether he has directly received publicly funded grants, but as an employee of the University (which has and does), shouldn’t I get to see his VAM rating? Let’s face it, this cuts both ways.
As a teacher who has had students deliberately blow the tests (and admit it, even brag to their friends about it), I resent the co-dependent thinking that makes me responsible for someone else’s choice to learn or not. I spend hours every day teaching my students with disabilities that they have choices to make, all of whic carry consequences whether good or bad. I do not make those choices for them, nor does anyone else. If an individual does not find value in education and learning, please teach me how to change that (and pray that I care enough to learn, lest you be rated “ineffective”), or else accept that it is beyond my control.
Please correct me if I am wrong, but did you say that the union has agreed to use test scores to help teachers in NYC improve? If so, what you quoted from that op ed piece isn’t “foolish”, it is an outright falsehood.
And as for ratings, that guy doesn’t show up anywhere in “Rate My Professor”, so he has never taught a college class, or, at least, one that anyone cared anything about. That means HE has never added any value in any classroom anywhere. Makes for a perfect expert, I suppose, but lets see him teach in a NYC classroom and find out.
CCPhysicist,
Hanushek is in Stanford’s grad school of education. Lots of grad-only faculty never appear in RMP, and I rarely see upper-division courses there. I’ve taught more than 2500 students, but I think I only have 30 or so “ratings.”
Is there a category for subtracted value, when someone who has never taught in or run a school teaches people how to run schools or prepare teachers without ever having taught? I’d propose sending some of his grads to a few schools we could each identify and see if they turn them around or just make them worse. VAM for ed grad schools.