Michigan Court of Appeals Again Addresses When Teachers May Challenge Their Evaluations
In June of 2015, the Michigan Court of Appeals decided Summer v Southfield Board of Education (“Summer I”), addressing the circumstances and bases under which a teacher may challenge his or her annual evaluation as a result of the 2011 amendments to the Tenure Act. The teacher had been evaluated as “minimally effective,” and on the basis of that evaluation had been laid off. The Circuit Court had dismissed her challenge to her layoff, holding that challenges to layoffs were within the exclusive jurisdiction of the Tenure Commission, and alternatively holding that under Section 1249 of the School Code challenges to layoffs were not permitted. The Court of Appeals’ 2015 decision reversed the Circuit Court’s dismissal of the case and remanded it for further consideration. The Court first held that the courts do have jurisdiction in layoff situations and that in fact the Tenure Commission no longer had jurisdiction over layoffs as a result of the 2011 amendments. More importantly, the Court concluded that, while Section 1249 does not permit a private court action to challenge an evaluation, Section 1248 does permit a challenge to a layoff, but only in limited circumstances: where “the teacher was laid off based on length of service or tenure status,” which directly contravenes Section 1248, or where the teacher was laid off based on an unfavorable evaluation that was itself the consequence of an evaluation system that did not conform to Section 1249. Since the Circuit Court in Summer I had not determined whether the teacher’s complaint asserted a challenge to the appropriateness of the evaluation system under Section 1249, the Court of Appeals remanded the case to the Circuit Court to determine that issue. Our e-alert discussing Summer I may be found here.
On remand, the Circuit Court again dismissed the teacher’s claims, on two different bases. The Court accepted the district’s claim that a statutory amendment enacted after Summer I (Public Act 173 of 2015) providing that Section 1249 “does not affect the operation or applicability of section 1248” effectively overruled Summer I. Second, the Court held alternatively that the teacher’s challenge to the district’s evaluation system was not sufficient, even if Summer I was still binding. The teacher appealed.
A different Court of Appeals panel issued its decision (“Summer II”) on May 1, 2018. Again, the Court reversed the Circuit Court and remanded the case for further proceedings.
The Court first rejected the conclusion that Public Act 173 had overruled Summer I, and held instead that Summer I remained effective. The Court then held that the teacher’s complaint did state a valid cause of action under Summer I. The teacher contended that her evaluation of minimally effective was based at least in part on her evaluator’s personal bias or animus against her. The Court concluded that, if proven, this would mean that her evaluation was not based on the statutory criteria, but was instead founded on a “consideration not permitted by the statute” – i.e. personal feelings. In addition, the teacher alleged several other specific violations of the Section 1249 requirements. She claimed that she was not given the results of a key observation, was not provided with an improvement plan, and was not given an opportunity to improve. If proven, these factors would mean that the evaluation was not “a rigorous, transparent and fair performance evaluation system,” as required by Section 1249. Section 1249 specifically requires “timely and constructive feedback,” as well as “ample opportunities for improvement,” the Court further noting that “giving teachers an opportunity to improve is, by statutory command, part and parcel of the evaluation of a teacher’s effectiveness.” Any evaluation system that permits not sharing the observation results with the teacher or giving the teacher an opportunity to improve does not provide the “fair and transparent evaluation system” Section 1249 requires.
The Court’s opinion in Summer II did not determine that the teacher would ultimately prevail. To do so, she would have to prove the allegations about bias, not being timely provided with feedback, and not being given a sufficient opportunity to improve. The Court made clear that these determinations would generally be for the finder of fact – i.e., a jury.
The Summer II Court’s conclusion that a failure to provide the teacher the results of her observation or a sufficient opportunity to improve would violate the requirements of Section 1249 is, in fact, consistent with the statute. Of more concern is the idea that a teacher’s allegation of bias or personal animus by her evaluator is enough to state a claim that the district used an inappropriate evaluation system. Nearly any teacher dissatisfied with his or her evaluation could suggest personal animosity as a reason for the poor evaluation, and under Summer II the mere allegation might be enough to get a claim to a jury. The prospects for abuse of this ruling are apparent. Districts could find challenges to layoff decisions now nearly as easy, if not easier, to support than challenges within the Tenure Commission under the pre-2011 statutes. This almost certainly was not the intention of the Legislature in 2011 and seems to go even further than the decision in Summer I.
It is conceivable that the Summer decision may ultimately be reviewed by the Michigan Supreme Court, either currently or perhaps after a trial following remand. Until then, however, it is governing law, and districts should keep its principles in mind when evaluating teachers.
If you have questions about this or other tenure-related issues, please contact Mark McInerney at email@example.com or (313) 965-8383, or another member of Clark Hill’s Education Law group.