On June 13, Senate Bill 7 became Public Act 97-8, now known as the Education Reform Act, when Governor Quinn signed it into law. The Act follows the Performance Evaluation Reform Act (PERA) of 2010 by connecting teachers’ hiring and dismissal (including reductions in force) to teacher performance evaluation tools required by PERA. In order to accomplish these goals, the law makes major revisions to seven areas of school process.
First, school board member training is now required, as members must receive a minimum of four hours of professional development leadership training in fiduciary responsibility, financial oversight and accountability, labor law, and education within one year of the beginning of any member’s term beginning after June 13, 2011. Although no other consequence is currently specified by the law, completion of board training must be posted on the District’s website. Nothing in the law appears to prevent the board from posting other training received by the member.
Second, the Illinois State Board of Education must establish a survey of learning conditions and direct it to, at a minimum, grades 6 through 12 students and to teachers. The survey shall be administered in schools at least biannually during teacher meetings or professional development days or at other times that would not interfere with the teachers' regular classroom and direct instructional duties.
Third, the requirements for attaining tenure have been revised. As before, a teacher first employed as a full-time teacher prior to the PERA implementation date must teach under probationary status for 4 consecutive terms. A teacher first employed in a school district after the PERA implementation date is subject to new rules altering (and in some cases accelerating) the acquisition of tenure:
• The longest probationary period is 4 consecutive school terms where the teacher receives a rating of at least “Proficient” in the last school term and at least “Proficient” in the second or third school term. The law does not expressly state what happens if a teacher does not achieve the required rating, but it seems the legislation necessarily requires the teacher be terminated. Because of the notice required to terminate such a teacher, and the ease of filing a process challenge, it is incumbent upon administrators to comply with the required process.
• Accelerated tenure - a teacher who receives 3 overall evaluation ratings of “Excellent” in consecutive school terms earns tenure at the conclusion of the third year of service.
• Semi-portable tenure - a teacher can attain tenure status after 2 consecutive school term evaluations of “Excellent” if the teacher was previously tenured in a different school district, was honorably discharged, and received ratings of “Proficient” or higher in a teacher’s two most recent evaluations from the previous school district.
A teacher must teach (including sick days, personal days, and days of leave under the Family Medical Leave Act) a minimum of 120 days to be considered as teaching a school term. Failure to meet the 120 day requirement does not count toward attainment of tenure but does not “break” the teacher’s streak so long as the teacher actually teaches or is otherwise present and participating in the school district’s educational program the following school term.
The foregoing makes evaluation and formal notice procedure critical to surviving challenge on nontenured nonrenewal. School districts must provide written notice of dismissal to the teacher at least 45 days before the end of the school term to be dismissed (this is changed from 60 days for tenured teachers, but school districts should be cautious of policies or contracts with different requirements). Failure to do so shall result in reemployment the following fall. Because of changes to reductions in force, it may now be advisable in most situations to distinguish between dismissal for cause and reduction in force. This is a fact-based inquiry, and proper, thorough, and accurate evaluation will be key to the successful navigation of these issues.
Most dramatically, the fourth revision in the law changes teacher Reductions in Force (RIF) and teacher recall procedures. Replacing the former system based solely upon seniority, RIF and recall are now based primarily on performance evaluations.
Teachers are categorized into one of four groupings based on performance criteria and RIF must eliminate all members of the lowest group before eliminating members of a higher group. Thus, group one is dismissed first and group four last.
• Group 1 consists of non-tenured teachers who have not received a performance evaluation rating. Group 1 dismissal is based on the discretion of the school district. However, as evaluations are required annually for non-tenured teachers and biannually for tenured teachers, a teacher falling into this Group likely has a process argument which may subject the district to litigation. Districts should be careful to comply with evaluation plans and conduct thorough evaluations early rather than waiting until later in the year.
• Group 2 consists of teachers with a “Needs Improvement” or “Unsatisfactory” performance evaluation rating on either of the teacher’s last two performance evaluations. Dismissal within the group shall be based on the average performance evaluation rating. Should there be a tie, the teacher with the shorter length of continued service must be dismissed first, unless otherwise established in the Collective Bargaining Agreement. Although evaluation may not be intended to result in dismissal for cause, the effect (which may be delayed by several months or years pending a reduction in force) may result in a loss of employment suffered by the teacher. Careful support of evaluation ratings is critical to avoiding challenge or loss.
• Group 3 consists of teachers with a performance evaluation rating of at least “Satisfactory” or “Proficient” on both of the teacher’s last two performance evaluations. Dismissal within the group follows the same procedures as Group 2. Because of the number of employees likely falling into Groups 3 and 4, it is critical that the employer carefully distinguish between “Proficient” and “Excellent” employees with thorough evaluation and other documentary support. No longer should long-term teacher evaluation be considered non-critical: each and every evaluation should be considered important because every evaluation now requires support to differentiate it from others.
• Group 4 consists of teachers with a performance evaluation rating of “Excellent” on the last two evaluations, and teachers with a performance evaluation rating of “Excellent” in two out of the last three evaluations, with the third evaluation rating being “Satisfactory” or “Proficient.” Dismissal within the group follows the same procedures as Group 2.
Teacher RIF notices must be delivered at least 45 calendar days before the end of the school term. The Reform Act further delineates the necessary recall procedures should there be any vacancies. School districts must develop their teacher evaluation process, including the method and determination of whether there has been adequate student growth following PERA implementation, the execution of which is the critical component to success in all hiring and termination decisions.
A public hearing must now be held in a district that exceeds five RIF notices or 150% of the average number of teachers honorably dismissed in the previous three years (a provision which previously applied only to tenured teachers – it now applies to all teachers in a district). Following the hearing, the board must approve the reduction by majority vote.
School districts, through a joint committee of equal representation selected by the school board and the teachers, may create a performance evaluation review that is in compliance with Illinois law. The committee may also alter the groupings within certain limitations.
The fifth major change creates new guidelines for the hiring of new or vacant teaching positions. Factors that must be considered include, but are not limited to certifications, qualifications, merit and ability, and relevant experience. Unlike previous law in which seniority was the most important or decisive factor in reductions in force, the length of continued service with the school district must not be considered as a factor unless all other factors are equal.
Sixth, the legislation updates the definition of incompetency to include teachers who receive an unsatisfactory performance evaluation in two or more school terms within a seven year period. Being deemed incompetent is grounds for potential dismissal, suspension, or license revocation action by the Illinois State Superintendent of Schools, though it is currently unclear as to if, when, or how often the State Superintendent will use this provision. Moreover, funding to support such action may or may not be forthcoming. The bill also amends the process for dismissal of tenured teachers and challenge of dismissal of teachers, including a new alternative dismissal process based upon the revised PERA evaluation tool.
And finally, impasse procedures in a collective bargaining session have been modified. Although it is unlikely the changes alter the definition of “impasse,” (which has been defined by the courts as occurring only when no ray of hope with a real potentiality for agreement if explored in good faith in bargaining sessions, and further discussions would be futile) the legislation added a method for publication of final offers following declaration of impasse. If impasse is declared after 15 days of mediation, the parties must notify the Illinois Educational Labor Relations Board (IELRB) of the declaration. Within seven days of declaring impasse, each party must submit final offers and a cost summary to the mediator, the other party, and IELRB. Within seven days of receiving the offers, IELRB must publish the offers and cost summaries. Teachers may not engage in a strike until at least 14 days have elapsed after IELRB has made public the offers.
The Education Reform Act is still in its infancy; we await regulatory and legislative clarification as to how this law will be implemented. Miller, Tracy, Braun, Funk & Miller, Ltd. looks forward to working with you to keep you abreast of the changes and help you learn how best to handle the new rules.
Read the rest of our Fall 2011 Newsletter HERE.