Last week, Manhattan’s appellate court gave the New York City Department of Education the go-ahead to release the names and “value-added score” rankings of thousands of the city’s teachers. Designed to quantify the direct impact of teachers on student performance, these scores are calculated using a complex formula that takes into account multiple factors such as student backgrounds and class size.
The scores and rankings were originally intended for use as in-house tools for teachers to improve their craft. Last year, however, a number of newspapers made Freedom of Information Law (FOIL) requests for the records. The FOIL statute is clear: The public is entitled to data from public agencies, unless the agency can prove the information falls into one of the exceptions under the law.
The teachers’ union moved to block the release of the information, arguing, among other things, that the data itself was unreliable and the disclosure of teachers’ names and scores would constitute an unwarranted invasion of privacy. Both the lower court and the appellate court disagreed, and ordered the data to be made public. The decision has made for strange bedfellows; for example, Rick Hess, director of education policy studies at the American Enterprise Institute and frequent union critic, has come out in support of United Federation of Teachers (UFT) President Michael Mulgrew’s assertions that the court got it wrong.
It seems Mulgrew and others would like to ignore the fact that New York courts have repeatedly ruled in favor of releasing the job-performance information of public employees, including the names of prison guards accused of inappropriate behavior, written reprimands of police officers and individuals’ civil service exam scores. It’s also settled precedent that the “reliability” of the data is not a factor judges can use when making FOIL determinations. To understand why, one only needs to imagine the burden that would be placed on the legal system if a public employee could challenge the “reliability” of each piece of data in his file every time a FOIL request was made.
It’s one thing to condemn the appellate court for misinterpreting case law, or to argue that certain FOIL precedents — like the issue of reliability — should be revisited by the New York Court of Appeals. It’s quite another to blast the court because, by applying the law, it reached an outcome that is less than desirable from a policy standpoint. I agree with the premise of the UFT’s argument: Using imperfect value-added scores alone to rank teachers is bad public policy, and there’s huge potential for this data to be misused or misinterpreted by parents and the public. But it’s not the court’s job to wade into these types of issues. As Judge Pigott of the New York Court of Appeals recently wrote, “It is well settled ‘that courts are not to legislate under the guise of interpretation.’”
If union leaders and policymakers are concerned about this outcome, they should go to the statehouse and lobby to have this type of teacher data added to the list of FOIL exceptions. Alternatively, educational leaders could choose to forgo calculating value-added data until they are more reliable, or create an “opt in” system of value-added records for teachers. Both options are more promising than asking judges to answer complex policy questions that have vexed our nation’s brightest educational leaders and scholars for years.
The noble (and sometimes frustrating) thing about courts is that they have to follow the law — even when the consequences of doing so are unpalatable. That’s why convictions of confessed killers get thrown out on technicalities and radical churches are allowed to crassly demonstrate at funerals of fallen soldiers. To expect three New York City justices to pull an exception to state law out of thin air — the, “it’s not smart public policy” exception — is to subvert the role of the courts in our democracy. The UFT should readjust its strategy accordingly.
Whitney Downs (whitney.downs@aei.org) is an education policy researcher at the American Enterprise Institute in Washington, D.C.
