Against claims that it is exceeding its authority, the State Board of Education boldly waded last week into two controversial policy areas: teacher layoffs and teacher and principal evaluations. It did so even though a majority of its members, including President Ted Mitchell, may soon be out of office, with appointments set to expire by early next year.

On Wednesday, the board voted to proceed with a proposed regulation that would carve broad exceptions to laying off teachers based on seniority ­– the standard process. It did so on the same day that the Legislative Analyst’s Office projected a jaw-dropping $25 billion state budget deficit for next year, raising the likelihood that huge cuts to K-12 budgets once again will result in teacher layoffs in many districts. Even so, it’s doubtful that the State Board’s layoff regulations can be passed and enacted quickly enough to alter how districts handle the process next year. By law, districts face a March 15 deadline to notify teachers facing possible pink slips.

The proposed regulations would create broad exceptions allowing districts to deviate from layoffs by seniority – in ways that the Legislature has so far declined to enact. In the last session, legislators killed a bill pushed by Senate President pro Tem Darrell Steinberg that would have spared schools with API scores in the bottom 30 percent from strictly seniority-based layoffs. Teachers unions lobbied heavily against that bill.

The State Board’s initiative coincides with the expected settlement of a suit filed against Los Angeles Unified over disproportionate teacher layoffs at three low-performing, low-income middle schools where there had been a constant churn of new teachers year after year. In granting a preliminary injunction, siding with lawyers for low-income students, a Superior Court judge cited a rarely used clause in state law that, he said, “expressly allows” a school district to override seniority rules when layoffs would interfere with children’s fundamental right to equal educational opportunity.

The State Board seized the same wording to justify its proposed regulations. They wouldn’t exempt low-performing schools, per se – or tell districts how to conduct the layoffs. Instead, they would permit districts to consider a number of factors when deciding how layoffs in particular schools should be done. They would consider API scores; attendance, truancy and dropout rates; rates of teacher turnover; the use of evaluations to remove ineffective teachers; as well as policies to retain effective teachers.

Low-income schools, where a disproportionately high percentage of teachers are inexperienced – and vulnerable to layoffs – have borne the brunt of layoffs. The intent is make layoffs fairer, and to spare those schools in the midst of a turnaround strategy from further disruption.

Undersecretary of Education Kathryn Gaither, representing Gov. Schwarzenegger, expressed support for the proposals. As expected, teachers unions’ lobbyists attacked it as anti-union and an overreach of board authority. But other organizations that would be more be sympathetic to the goals also questioned the vagueness of the wording and the lack of explicit correlation of factors such as the dropout rate to elimination of teacher seniority.

Sherry Griffith, lobbyist for the Association of California School Administrators (ACSA), worried that the regulations would leave districts open to being sued whether or not they chose to deviate from seniority-based layoffs. She and Bill Lucia, president and CEO of the advocacy group EdVoice, encouraged the Board to work together with the Legislature; Lucia said that would be the only way to possibly pass something by March 15.

The board, with member James Aschwanden opposed, voted to put the proposal out for public comment, with the anticipation that there would be changes.

Teacher evaluations

The board has little direct authority over teacher and principal evaluations. Teachers’ rights and evaluations procedures are determined by state law and local negotiations. But the State Board is hoping to use public awareness and indirect leverage to bring about reforms.

The least controversial proposal (except for the California Teachers Association, whose lobbyist objected to this, too) is to create a web site on evaluations that will promote best practices and share information. The State Department of Education already has posted a preliminary site.

The Board received more criticism for proposing to require districts to include information on how they do teacher evaluation as part of their annual Student Accountability Report Card, or SARC, a one-page summary of data on every school. Districts would have to state how they do evaluations; whether the evaluations are used for compensation, reassignment, tenure and removal; and how many teachers were given each rating. Under the current system, most teachers receive perfunctory high ratings.

Griffith of ACSA objected that this would be an unfunded mandate and that only the Legislature has the authority to decide what is included in the SARC. But Board Executive Director Nicolas Schweizer responded  that the cost to districts would be minimal and that the federal government is likely to mandate  that districts collect and make available the same information that the Board would require. Districts already had to make this information available as a condition for receiving federal stimulus money.

By far, the most contentious and interesting idea would grant districts the opportunity to seek potentially broad waivers from state regulations if they revamped their staff evaluation systems to meet a number of conditions. They’d have to be used to identify teachers who need improvement; to improve instructional practices; and to provide the basis for granting tenure, removing bad teachers, promoting effective teachers, and restructuring schools. For core academic subjects, 30 percent of an evaluation would have to be based on improvement in student test scores – the same standard used in the state’s Race to the Top application. An independent committee would decide which districts or schools would be entitled to waivers.

The power to obtain waivers from onerous regulations could be a powerful incentive to move unions and administrators into agreement over the evaluation process. John Deasy, deputy superintendent of Los Angeles Unified, who is leading the district’s negotiations on the issue, praised the Board for using a carrot instead of the customary stick.

But even board members were skeptical – or unclear about how the waivers would work. Would districts be restricted to waivers that affected only the evaluation process, or broad waivers in unrelated areas? Who would serve on the committee, and what would their charge be?

Liz Guillen of Public Advocates indicated she would be concerned if districts could seek waivers from protections for low-income students. CTA lobbyist Ken Burt accused the Board of choosing sides in an area subject to negotiations and doing an end-run around formal regulations.

Judy Pinegar, who runs the state Department of Education’s waiver office, was clearly miffed that the State Board had not consulted the Department before presenting the plan, and then waiting until three days before the meeting to release it.

Mitchell said that the proposal was similar to the streamlined waiver process granted to districts that achieve an 800 or better API. But Mitchell, who chaired an LAUSD task force on evaluations, couldn’t muster any support on the Board for the proposal as written.

The idea’s not dead, however. It’s likely to return, with changes, at the Board’s next meeting.