Everyone predicted that Justice
Cynthia Kern’s ruling
last January to allow the release of the value-added
scores for New York City teachers—with the teachers’ names—would set off a
firestorm when the names were released (which is what
when Los Angeles did the same thing in 2010). And it did.

“Teachers will be right in feeling assaulted and compromised,” declared
Merryl Tisch
, chancellor of New York
State’s Board of Regents, just after New York City released
some 18,000 teacher evaluations to the public last week.

“The arrogance of some people to say that the parents don't
have the ability to look at numbers and put them in context and to make
decisions is just astounding to me,”
Mayor Michael Bloomberg shot back
. “This is about our kids' lives. This is
not about anything else.”

It is possible that in a different era, a court might very well have
concluded that releasing teachers’ names was quite insane.

That pretty much set the tone for the debate: another assault on
teachers versus the public’s right to know. And it turns out that the best
window on to the question is the January 11 New York State Supreme Court decision
itself, a sleek nine pages in which Judge Kern said her only job was to decide
whether the city education department’s decision to release the teachers’ names
with the Teacher Data Reports was “arbitrary and capricious under the law.” Did
it have a “rational basis”?

It is possible that in a different era, a court might very well have
concluded that releasing teachers’ names was quite insane. But while this lower
court decision (there are, in New
York, several higher courts) will not prove to be a
major marker in educational jurisprudence, it does show how far we have come in
righting a long-listing ship. The issues it addresses are quite fundamental to the
governance of our public schools and Judge Kern’s concise ruling is a nice
primer on the question of privacy rights in a public school context. So the
question, as Kern put it, was the Tisch question: did the release of the
teachers’ names in the context of this evaluation program constitute an “unwarranted
invasion of privacy”?

According to Kern’s interpretation of New York’s Freedom of Information
Law, the only thing excluded from public view was “employment, medical, and
credit histories, information that would be used for solicitation or
fund-raising purposes, information that would result in economic or personal
hardship or simply personal information that is not relevant to the work of the

The list of exclusions is not comprehensive, said Kern, but the “proper
test” of whether release of the personal data was “unwarranted,” quoting a
higher court’s earlier decision, is a test in which “the `privacy interests at
stake’ are balanced against the `public interest in disclosure of the
information.’” The introduction of the “public interest” here is, of course,
key. It is the Bloomberg argument: it is “about our kids’ lives.”

But how would one decide the question? Here Kern trots out the
tried-and-true “reasonable [person] of ordinary sensibilities” standard. It has
always amazed me that so much of our legal heritage hangs on such a slim thread
of unscientific, nonobjective reasoning—but it is a fact of American life
that our education policymakers would do well to consider. And it is here we
recognize the importance of the debate these last twenty years.

According to Kern, “ordinary sensibilities” in the case of Teacher Data
Reports would conclude that “release of job-performance related information,
even negative information such as that involving misconduct, does not
constitute an unwarranted invasion of privacy….The public has an interest in
the job performance of public employees, particularly in the field of
education.” And even though then-Deputy Chancellor Chris Cerf, when he was
negotiating the evaluation procedures with then-UFT president Randi Weingarten,
in 2008, had written a letter promising to work to keep the names secret, Kern
again quoted an earlier court ruling that “as a matter of public policy, the
Board of Education cannot bargain away the public’s right to access to public

Dozens, if not hundreds, of
decisions are made far from the madding crowd in the course of a day at a
normal school. And too many educators prefer it that way.

It is quite refreshing to see Kern’s high regard for “the public’s
right to access.” Too often—far, far, far too often—education decisions are
made behind closed doors or in rooms sealed by professionals and the mystique
that professionalism has thrown around them. Dozens, if not hundreds, of
decisions are made far from the madding crowd in the course of a day at a
normal school. And too many educators prefer it that way. As David Matthews
pointed out in his brilliant 2006 book Reclaiming
Public Education by Reclaiming our Democracy
battered by interest groups, become guarded, convinced that `You can’t just
pull together a group of people from the community to tell educators what to
do.’ The perception that the public has nothing to offer is apparently
widespread. One veteran educator of twenty-five years confessed to me, `I was trained to
counter influences from outside my classroom, not to work with the public.’”

I recall meeting with a room packed full of teachers to present the
results of a district task force on student performance that made 50
recommendations. “Are they research-based?” was the cat-call. I laughed. “Is
everything you do during a day in school research-based?” The question caught
them off-guard, but the encounter suggested to me the amount of hubris—and
arrogance—within the system. In fact, a major cause of the enfeebling of our
$600 billion public education system is a faux-perfectionist
standard. Education needs what the law has: the reasonable person standard. Reasonable
people make mistakes and mistakes are part of the public dialogue. Concluded

The UFT’s argument that the data reflected in the TDRs should
not be released because the TDRs are so flawed and unreliable as to be
subjective is without merit. The Court of Appeals has clearly held that there
is no requirement that data be reliable for it to be disclosed.

This is a hugely significant point in the battle for the high ground in
the education reform war. It supports the democratic ideal: that opinions,
whether factual or not, whether buttressed by scientific evidence or not, have
validity. It is a welcome reminder that our country values opinions as much as,
if not more so, than scientific proof and that science and professional opinion
must share the arena with the citizen, including parents of students. It is more
important to air the opinions of the many than to sequester them behind closed
doors monitored by the few. Next post I will explore what some of those
opinions are.

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