Michigan Court of Appeals Determines Which Challenges to Teacher Evaluations are Permissible
The effects of the extensive statutory changes made in 2011 to the Public Employment Relations Act, the Teacher Tenure Act, and the Revised School Code continue to be fleshed out. Last week, the Michigan Court of Appeals clarified two previously uncertain areas, concluding that an individual teacher may not bring a court challenge to the merits of his or her own evaluation, but that a teacher laid off on the basis of a poor evaluation may challenge whether the district's evaluation system as a whole satisfies state requirements.
In Summer v Southfield Board of Education, the teacher was laid off at the end of the 2011-2012 school year, after having received a "minimally effective" rating. She brought suit in Circuit Court challenging her layoff, and specifically challenging both her own evaluation and the evaluation procedure adopted by the district. The Circuit Court granted summary disposition for the district, on two primary bases. First, the Court concluded that a challenge to the teacher's evaluation was within the exclusive jurisdiction of the Teacher Tenure Commission. Second, the Court held that, even if a court challenge were permissible, the teacher's challenge to her evaluation under Section 1249 of the School Code failed to state a cause of action. The teacher appealed.
The Court of Appeals issued its decision on June 2, affirming the Circuit Court's decision in part, reversing it in part, and remanding the matter to the Circuit Court for further proceedings. The Court of Appeals initially had no trouble rejecting the Circuit Court's determination that the teacher's claim was solely within the jurisdiction of the Tenure Commission, in view of the Court of Appeals' March 2015 decision in Baumgartner v Perry Public School (decided well after the Circuit Court had ruled in Summer). Baumgartner held that by virtue of the 2011 amendments to the Revised School Code, the Legislature had removed the subject of teacher layoffs from the jurisdiction of the Tenure Commission, and that in fact only the courts had the authority to review layoff-related charges. The Court noted that under Section 1248(3), a successful teacher's exclusive remedy in a layoff-related court challenge was an order of reinstatement; damages, such as backpay, are not available.
Since the Circuit Court in Summer thus had jurisdiction, the question was the nature of that jurisdiction. The Court of Appeals first looked at Section 1249 enacted in 2011, and requiring annual evaluations of teachers under an evaluation system that meets a number of criteria. The Court agreed with the Circuit Court that, while Section 1249 imposes obligations on districts, it does not establish a private right of action that would permit a teacher dissatisfied with his or her evaluation to go into court to challenge that evaluation. The Court observed that Section 1249 did establish several enforcement provisions, including the provision that receipt of state funding is conditioned upon a district's compliance with Section 1249. If the Legislature had wished to provide an additional enforcement provision permitting a dissatisfied teacher to sue to challenge an evaluation, it could easily have done so. The Legislature not having done so, the Court concluded that the Legislature did not intend for teachers to be able to assert a private right of action under Section 1249.
The Court of Appeals went on to look at Section 1248 of the Code which, as noted above, does permit a private right of action. One of the key purposes of Section 1248 is to regulate the policies and criteria regarding personnel decisions that result in the elimination of a position, with those decisions required to be "based on retaining effective teachers." Districts are to determine which teachers are effective, and which are not, using a "performance evaluation system" developed under Section 1249. The Court concluded that, while a teacher could not challenge the merits of his or her own individual evaluation, the teacher could challenge a layoff resulting from an evaluation on the basis that the district had not implemented a performance evaluation system that complied with Section 1249. The Court stated:
Therefore, based on the specific language of §1248, the requirement that the school district must utilize a "performance evaluation system" in compliance with §1249 as it evaluates teachers and makes layoff decisions is one of the requirements with regard to which a teacher may assert a private cause of action under §1248(3). Accordingly, if a school district lays off a teacher because she is deemed ineffective, but the school district measured the teacher's effectiveness using a performance evaluation system that did not comply with § 1249 (e.g., if a school district failed to use a "rigorous, transparent, and fair performance evaluation system," MCL 380.1249(1)), or made a personnel decision that was not based on the factors delineated in MCL 380.1248(1)(b)(i)-(iii)), the teacher could assert a cause of action under §1248(3) based on a violation of §1248(1)(b).
Thus, teacher evaluations may not be challenged directly, on the merits, since Section 1249 does not permit such an action. However, evaluations may be challenged indirectly, since a teacher can contend that his or her layoff was the result of an unfavorable evaluation that was itself the consequence of a performance evaluation system that did not conform to Section 1249.
The Court of Appeals observed that its conclusion that a laid-off teacher can challenge the district's performance evaluation plan as a whole should not be viewed as allowing teachers a backdoor means of challenging their own evaluations. Under the ruling, challenges can only be brought under Section 1248, so as a practical matter the only challenge that can be made would be from a laid off teacher; a teacher disgruntled but still with a job would have no claim. But it is not hard to imagine that many teachers laid off because of their evaluations will consider challenging the district's overall evaluation plan.
The Court of Appeals in Summer did not determine whether the teacher had stated a valid challenge to the district's evaluation plan, since that issue had not been thoroughly addressed in the Circuit Court. The Court thus remanded the case to Circuit Court to determine if the teacher had asserted, or could support, a valid challenge to the district's evaluation plan under Section 1248.
The Summer decision underscores how important it is that districts implement evaluation systems that comport with Section 1249. If a district fails to do so, it risks not only the wrath of the State, but also challenges to any layoffs it makes on the basis of evaluations under the faulty system.
If you have questions about this or other tenure-related issues, please contact Mark McInerney at email@example.com | (313) 965-8383, or another member of Clark Hill's Education Law group.