How Do I Evaluate Someone Who Isn’t There?
Article written and provided by Lusk Albertson, PLC
The question is often asked, “what do I do with the evaluation of a teacher that is on leave for all (or a large part) of a given school year?” It is an issue that can be difficult to wade through and one that, unfortunately, there is little in the way of concrete answers. But there are points that we can glean from the statute and apply to scenarios that arise. Specifically, there are two general scenarios when this problem presents itself. The first is when a teacher misses an entire year while on leave. The second is when a teacher misses less than, but a significant portion of a year on leave. The first scenario is more easily dealt with than the second.
The starting point for such questions is the evaluation statute – section 1249 of the Revised School Code (RSC), MCL 380.1249. Specifically, section 1249 requires that teachers be evaluated “at least annually” and requires that the evaluation system used to evaluate the teachers rate them as “highly effective, effective, minimally effective, and ineffective.” The statute further provides that during the 2015-16 school year and continuing for the next three years, “25% of the annual year-end evaluation shall be based on student growth and assessment data.” The statue further provides that the evaluation system must include at least two classroom observations. All of these provisions must be considered when determining how to handle situations of teachers on leave.
When a teacher is out for an extended period of time that includes an entire school year, an evaluation should not be given and the teacher should not be assigned an evaluation rating for that year. First, as discussed above, section 1249 requires certain benchmarks upon which the evaluation must be based. This includes student growth data and at least two classroom observations. If a teacher is not present, those benchmarks cannot be obtained and considered. As such, if an evaluation rating is given it would not be compliant with state law.
Moreover, assigning an evaluation rating in such a situation could become problematic if the School District must make personnel decisions. Under section 1248 of the RSC (MCL 380.1248), personnel decisions of teachers (including layoff and recall) must be based on retaining the most effective teachers. Teachers that believe a personnel decision is made in violation of section 1248 have the ability to file a lawsuit to get their job back. If an evaluation rating is used as part of the basis for such a decision, the Michigan Court of Appeals has made clear, part of that case may be based on whether section 1249 was properly followed in regard to evaluations. Summer Southfield Bd of Educ, 310 Mich App. 660 (2015). As a result, a decision that is based on a performance evaluation that was not earned, even in part, would likely be invalidated by a court.
The more difficult situation is when a teacher is on leave for a significant period of time but less than the full year. This can arise in many different ways. For example: a teacher could start the year but end up going on leave shortly thereafter and remain out for remainder of the year; a teacher could be out for all or the majority of the year only to return within the last month or two of school; and, finally, a teacher could be out intermittently and miss a significant amount of work in the process. The key in analyzing these situations is going to be whether the school district is able to comply with the requirements of section 1249. As previously discussed, the biggest factors in this regard are going to be the conducting of at least two classroom observations and the collection of student growth data.
The statute does not require that the observations be a specified length of time apart from each other (though be careful, as your district’s policy may). Accordingly, it should not be overly difficult to comply with that requirement. The student growth data, however, will likely be more difficult. Depending on the growth data used by your district, it may be difficult (if not impossible) to collect relevant data that relates specifically to that teacher. Since a significant portion of the yearly performance rating must be based on student growth data under the law, a performance rating should not be given if the school district cannot comply with the law. That does not mean, however, that the teacher should not be given a year end evaluation document. A school district should provide feedback where is can because the ultimate goal of an evaluation is to aid in the professional growth of the teacher. That having been said, a final rating should not be provided unless the District is able to comply with the law.
One question that often comes up in these situations is what to do with the Registry of Educational Personnel (REP). That database requires that school districts put in a performance rating for each teacher it employs. It is our understanding that the database does, however, contain a possible entry response where a teacher is “on leave.” Accordingly, it is clear in a situation where the teacher has missed the entire year that the leave code should be used. The more difficult scenario, again, is when a teacher has missed a significant portion of the year, but is not actually “on leave” at the end of the year when the REP data is entered. While the teacher may not be on leave at that time, it is our opinion that is what should be used if the teacher is unable to be evaluated because of an extended leave of absence.