Compelled pedagogy: How Washington, DC’s opaque teacher evaluation systems relate to First and Fourteenth Amendment cases
By Ezra Lee
The IMPACT teacher evaluation system's reliance on opaque evaluation tools raises First Amendment issues about compelled pedagogy and orthodoxy and Fourteenth Amendment issues on disparate impact and due process. With the rise of big data, opaque evaluation tools in teacher evaluation systems that compel educators to adopt prescriptive pedagogical approaches threaten to violate First Amendment protections as well as the Dual Process and Equal Protection Clause of the Fourteenth Amendment. In Washington, DC, the District of Columbia Public Schools (DCPS) Chancellor implemented an evaluation system called IMPACT, a test claimed to be a “value-added teacher evaluation system that ties an educator’s employment and compensation to their students’ test scores.” However, the nature of the test targets teachers in low-income school districts. Furthermore, the IMPACT test, “in seeking to improve the quality of teachers, manages to simultaneously perpetuate stubborn workforce inequalities and exacerbate an already alarming shortage of teachers of color.” The consequences are clear. In a city divided by “wards,” with Ward 3 being the wealthiest in Washington, DC, and Ward 8 being one of the poorest wards, the difference in IMPACT scores across these regions and teacher support reveal a stark contrast. While the necessity of reform in the DCPS system was necessary with DCPS failing to “prepare seven out of 10 students to do college-level work,” the means through which change was created exacerbated inequality. In the 2013-2014 school year, less than 20% of teachers from Ward 8 earned the highest distinction — and with it heightened compensation — while 50% of teachers from Ward 3 earned the same distinction. This issue raises clear questions of violations of the 14th Amendment as well as potential violations of the First Amendment in looking at West Virginia State Board of Education v. Barnette and Wooley v. Maynard.
Beginning in 1942, the West Virginia Board of Education required that all West Virginia public school teachers and students alike must salute the American flag. When the children of Jehovah's Witnesses refused to salute the flag, they were disciplined. In a short period of time, the situation escalated to the parents of these children being prosecuted for causing “juvenile delinquency.” Decided in 1943, West Virginia State Board of Education v. Barnette became a cornerstone SCOTUS case arguing not only against a violation of the Free Exercise Clause but also that the “First Amendment cannot enforce a unanimity of opinion on any topic,” according to Justice Robert Houghwout Jackson.
34 years later, in 1977, another First Amendment case, Wooley v. Maynard, came to the SCOUTS, this time questioning a New Hampshire State law which said that the state's motto, "Live Free or Die," had to be displayed on all non-commercial vehicles' license plates. In the case of another Jehovah’s Witness who cut of the words “or die” from their license plate, arguing it was contrary to their religion, the Supreme Court ruled that the state of New Hampshire could not mandate its citizens to have their motto on all license plates and that “the right of individuals to hold a point of view different from the majority and to refuse to foster an idea they find morally objectionable” was foundational to the First Amendment.
Due to the opaque nature of these guidelines, it is difficult to ascertain whether these tests violate the First Amendment. However, given that the test rewards teachers in the wealthiest districts, it can be argued that IMPACT enforces an orthodoxy of teachers that unnecessarily compels teachers to conform to a certain standard of pedagogy, and not one that is inherently best for the students. This is true not just with the IMPACT test system but has also become a recent point of contention in general standardized testing. Given that in standardized testing, “even the most carefully designed standards are only as effective as the tests that assess how well students have achieved them,” the limits of such tests become clear on a broader scale. Not only has there been a shown change in curriculum due to the “need to make test performance the first priority forc[ing] many teachers to push topics and activities that do not appear on the test to the end of the school year,” but Wayne Au, a professor in the University of Washington Bothel who has studied this topic found that in a “synthesis of 49 recent studies,” there was “a strong relationship between high-stakes testing and changes in curriculum and pedagogy.” The issue with the opacity of the test is that while the system has been praised for leading to a rise in teacher IMPACT scores, the tests don’t take into account student performance, creating a huge omission of the basis on which teachers are rewarded. In this sense, Wooley v. Maynard and the IMPACT test system may have key alignments.
Issues with IMPACT also strongly relate to past cases involving violations of the 14th Amendment. Most notably, in 1977, a cornerstone case to roadmapping the racial implications of policies like IMPACT, titled Village of Arlington Heights v. Metropolitan Housing Development Corporation, ruled that the denial of a zoning request — one that was necessary for the “creation of low-and moderate-income housing” — could not be deemed a violation of the Fourteenth Amendment's Equal Protection Clause because there was no proof of racially discriminatory intent. While IMPACT does not demonstrate explicit racial intent as is the case in Arlington, its disparate impact creates room for concern.
In looking at Cleveland Board of Education v. Loudermill, an 8-1 decision saying that a state cannot “remove a civil servant's property rights to employment before providing an opportunity for that worker to respond to the charges offered for his termination” becomes apparent that the largest legal issue with IMPACT would become that of firing teachers without cause. However, indirectly, through less than half as many teachers receiving raises in Ward 8 compared to Ward 3, the IMPACT system is continuing to disadvantage the most vulnerable school districts. Due to the opaque evaluation systems and transparency about the algorithm, issues of due process similar to that in Loudermill arise.
As big data becomes increasingly popular and opaque evaluation systems — be it in hiring decisions or KPIs — become more opaque, the consideration of how the law will adapt to protect vulnerable populations must be considered.
In 2009, the DCPS were faced with the challenge of reform. In a system failing to prepare more than 70% of its students for life beyond high school, change was necessary. IMPACT was a hasty choice that, being a plan aimed to “forge ahead [the] furthest and fastest” faced “criticism from those who say they are reckless.” Not only did the IMPACT system deal with early criticism, but throughout the running of the system, the criticism has evolved from that of concern about an overly punitive approach to one that disproportionately penalises lower income teachers based simply off the area in which they teach. As such, the imperative nature of implementing constitutional safeguards that evolve in order to ensure that growing involvements in big data – such as the use of opaque algorithmic evaluations – becomes clear insofar as not to impede the freedoms and rights to equal protection promised in the First and Fourteenth Amendments.
