School districts are required under a new Pennsylvania law to implement extensive assessment and evaluation methodologies to evaluate professional employees, including permanent and temporary classroom teachers, non-teachers and administrative professionals, including principals. Those methodologies will differ depending upon how much data is available for assessment at each specific school within a district.

Under Act 13 of 2020, which was signed into law on March 27, 2020, by Gov. Tom Wolf, school districts may have to implement several different assessment methodologies to evaluate professional employees, particularly if various schools within a district have different levels and types of teacher, classroom, or building-level data available.

I. Ratings Tools, Employee Ratings, Limitations, Consequences and Reporting

The Pennsylvania Department of Education (“PDE”) shall approve a rating tool that districts must use to evaluate and rate professional employees, including classroom teachers and temporary classroom teachers, principals, and non-teacher professional employees, and to determine whether a professional employee shall be dismissed for unsatisfactory teaching performance consistent with pre-existing provisions of the School Code. 24 P.S. §§ 1125.1, 1138.2, 1138.3(d), 1138.4(e), 1138.5(d). Beginning with the 2021-22 school year, the rating form under 22 Pa. Code. § 351.21 and any alternative rating form approved under 22 Pa. Code. Ch. 351 prior to the implementation of Act 13 shall obviously be discontinued for use in the evaluation of professional and temporary professional employees. 24 P.S. § 11-1138.8.

We stress from the outset that collective bargaining agreements negotiated by school districts “may not provide for a rating system other than as provided for under” Act 13 and that any term in a collective bargaining agreement or contract currently under effect “shall be discontinued in a new or renewed agreement or contract or during the period of status quo following an expired contract.” 24 P.S. § 1138.13.

Act 13 specifically provides that individual school districts, intermediate units, and area career and technical schools may evaluate their employees through the use of locally devised rating tools that PDE has approved as meeting or exceeding the measures of effectiveness established under Act 13 and, presumably, the regulations that will be promulgated thereunder with respect to rating tools that PDE must develop and promulgate by March 31, 2021. 24 P.S. § 1138.6. It is critical that the district, intermediate unit, or area career or technical school wishing to use a locally developed rating tool obtain PDE approval before using such tools to rate professional employees for the 2021-22 school year because Act 13 specifically provides that all such rating tools are superseded, as noted herein. Id.

Each rating tool developed by PDE or developed locally and approved by PDE must identify the overall performance rating of the above classes of employees and assign them a grade of either (1) distinguished, (2) proficient, (3) needs improvement, or (4) failing. 24 P.S. § 1138.7(a). Act 13 mandates that PDE develop a rating scale to reflect student performance measures and employee observation results and establish overall score ranges for each of those potential ratings. 24 P.S. § 1138.7(c).

Grades of “distinguished” or “proficient” are considered satisfactory under Act 13, as shall grades of “needs improvement,” unless the employee receives a second overall rating of “needs improvement” from the same employer during the next four years, in which case, it shall be considered unsatisfactory. 24 P.S. § 1138.7(b)(1)-(2). Grades of “failing” are, of course, unsatisfactory. 24 P.S. § 1138.7(b)(3). All ratings shall be performed by or under the supervision of the chief school administrator, or, if the chief administrator directs, by an assistant administrator or by a principal who has supervision over the work of the employee being rated. 24 P.S. § 1138.9(4). No unsatisfactory rating shall be valid unless approved by the chief school administrator. Id.

An employer may not limit the number of employee who received particular ratings, which some employers may have been tempted to do because the various rating levels impact the order in which employees are dismissed, if the employer must cut staff. 24 P.S. §§ 1125.1, 1138.2, 1138.7(f). Importantly, no employee shall be dismissed for unsatisfactory teaching performance unless the employee has been provided a completed rating tool, which includes classroom observations of deficiencies in practice supported by detailed anecdotal records that justify the unsatisfactory rating. 24 P.S. § 1138.9(5)

If an employee receives a grade of “needs improvement” or “failing,” the employee must participate in a personal improvement plan, which Act 13 defines as a “plan, designed by an employer with documented input from the employee, that: (1) provides actionable feedback to an employee on the specific domain within the comprehensive classroom observation and practice models that prevented the employee from achieving a proficient rating; and (2) identifies the employer resources that will be provided to an employee to help the employee improve. 24 P.S. §§ 1138.1, 1138.7(b)(4).

Professional employees who are considered satisfactory shall be rated no more than once annually, while those who rate unsatisfactorily shall be rated at least annually, unless the employee is temporary, in which case the employee must be rated at least twice annually. 24 P.S. § 1138.9(2)-(3). The first rating shall be calculated based upon the criteria outlined for the appropriate classification of employee, as detailed below. 24 P.S. § 1138.9(2). Any subsequent periodic rating shall be calculated as follows: 70% comprehensive classroom observation + 30% employer selected measures. Id. The 70% comprehensive classroom observation score shall be calculated as follows:

• 20% planning and preparation
• 30% classroom environment
• 30% instruction
• 20% professional responsibilities

24 P.S. § 1138.9(2)(i). The remaining 30% shall be calculated using one or more measures selected by the employer from the following list: (1) locally developed district rubrics; (2) District-designated measures and examinations; (3) nationally recognized standardized tests; (4) industry certification examinations; (5) student projects pursuant to local requirements; and (6) student portfolios pursuant to local requirements. 24 P.S. § 1138.3(b)(2). 24 P.S. § 1138.9(2)(ii).

Each school district, intermediate unit, and area career and technical school must provide PDE with aggregate results of all evaluations of professional employees, principals, and nonteaching professional employees, though Act 13 does not specify when or how often. 24 P.S. § 1138.10. Given that principals and satisfactory professional employees may only be rated once annually, unless PDE dictates otherwise, we assume that reports must be filed at least annually.

II. Professional Development Programs

Act 13 requires PDE to establish professional development programs for teachers, nonteaching professional employees, principals, chief school administrators, and evaluators that shall be specifically tailored to each group and that shall be differentiated for evaluators and individuals being evaluated. 24 P.S. § 1138.8(b)(1)-(2). Each of these professional development programs must include:

• an overview of the purposes and rationales for each component of the evaluation system;
• an suggestions for appropriate collaboration, timelines, and communications between employee and employer; and
• suggested criteria to guide quality implementation of Act 13 in both the content of an evaluation and in the process of administering an evaluation.

24 P.S. § 1138.8(b)(2). These professional development programs must be made available to all school districts, intermediate units, and area career and technical schools and available to all employees on PDE’s website, and must be designed to improve the consistency and quality of teacher-specific data measures across applicable schools. 24 P.S. § 1138.8(b)(3)-(4). Professional development requirements for individual professional employee classifications are detailed below.

III. Classroom Teachers

Building-Level Data Available

Beginning in the 2021-2022 school year, the evaluation of the effectiveness of a professional employee serving as a classroom teacher who provides direct instruction to students related to a specific subject or grade level and who works in a building where annual building-level data is available shall be weighted and calculated according to the following formula: 70% Comprehensive Classroom Evaluation and practice models that are related to student achievement + 30% Student Performance. 24 P.S. §§ 1138.3(a).

Under Act 13, comprehensive classroom observation must be conducted by a statutorily defined evaluator, who must be “the chief school administrator or the chief school administrator's designee who is an assistant administrator, supervisor or principal, has supervision over the work of the professional employee or temporary professional employee being rated and is directed by the chief school administrator to perform the rating.” 24 P.S. § 1138.1. Act 13 defines “Comprehensive Classroom Observation” as “[a]n observational classroom visit that includes a preconference and postconference between an evaluator and an employee[,]” and specifically provides that the preconference and postconference may be conducted telephone or videoconference. 24 P.S. §§ 1138.1. Upon mutual agreement of both the evaluator and the employee, the “postconference may be waived for extenuating circumstances, if the evaluator places written documentation of the comprehensive classroom observation in the [classroom teacher’s] file.” Id. If the evaluator is the one who requests that the postconference be waived due to extenuating circumstances, a classroom teacher who does not receive a rating of needs improvement or failing on the comprehensive observation component of an evaluation.” Id. Note, if the classroom teacher raises extenuating circumstances, the evaluator may still give the teacher a rating of needs improvement or failing.

The comprehensive classroom observation and practice model portion shall be calculated according to the following formula:

• 20% planning and preparation
• 30% classroom environment
• 30% instruction
• 20% professional responsibilities

24 P.S. §§ 1138.3(a)(1). Act 13 does not provide updated metrics against which to judge those sub-parts of the comprehensive classroom observation rating, however, it requires PDE to develop and promulgate a rating tool by March 31, 2021. Subsection (e) of Section 1138.3 provides that comprehensive classroom evaluation “may include the use of multiple classroom walk-throughs in an academic year to gather evidence and artifacts to inform the classroom teacher’s ratings.” 24 P.S. § 1138.3(e). “Classroom walk-throughs used to inform [these] ratings” must be based “only on factors that are present or witnessed by the evaluator during the walk-through” and may only be used to supplement “data gathered during one or more comprehensive classroom observations except when defined by a plan of differentiated supervision.” Id. Observation and practice evaluation results and rating must be based on evidence, which can be provided by the employee to the evaluator, who has the authority to determine which evidence is relevant to the employee’s evaluation results. 24 P.S. § 1138.7(d).

The “student performance” portion of the rating given to a classroom teacher who works in a building where annual building-level data is available “shall be based upon multiple measures of student achievement.” 24 P.S. §§ 1138.3(a)(2). One third of the classroom teacher’s “student performance” rating shall be based on “building-level data” and the remaining two thirds shall be based on “teacher specific data.” Id.

Act 13 provides that the “building-level data” to be considered includes (1) student performance on assessments administered to the grade level of the building; (2) value-added assessment system data made available by the department under section 221 if the building administers assessments in grades for which annual value-added system data is made available by the department; (3) graduation rate; and (4) attendance rate as reported to the department under section 2512.[1] 24 P.S. §§ 1138.3(a)(2)(i)(A).

Building-level data must be adjusted by a “challenge multiplier” for each school building, which is calculated as follows:

I. Calculate the regression coefficient of determination, known as r2, that estimates the proportion of the variance in school-level data that is predictable by the percentage of students that are economically disadvantaged in a school.

II. Multiply the regression coefficient of determination under subclause (I) by .1.

III. Multiply the product produced in subclause (II) by the most currently available percentage of economically disadvantaged students in the school.

IV. Multiply the product produced in subclause (III) by 100.

V. Add the product produced in subclause (IV) to the building-level score.

24 P.S. § 1138.3(a)(2)(i)(B).

The remaining 2/3 of the classroom teacher’s rating consists of “teacher-specific data,” which differs depending upon whether the teacher is a “data-available teacher” which the statute defines as a “professional employee teaching English, language arts, mathematics, science or other content areas as assessed by an assessment, including the Pennsylvania System of School Assessment and Keystone Exams.” 24 P.S. § 1138.1, 1138.3(a)(2)(ii). If a teacher qualifies as a “data-available teacher,” 50% of this portion of the score shall be comprised of the following:

• student performance on assessments as applicable and attributable to the teacher;
• value-added assessment system data made available by the department under section 221 if the building administers assessments in grades for which annual value-added system data is made available by the department as applicable and attributable to the classroom teacher. The data shall be calculated using three consecutive years of data; and
• Progress in meeting the goals of student individualized education plans (“IEP).

24 P.S. § 1138.3(a)(2)(ii)(A)(I).

Act 13 does not provide any specific standards against which the teacher’s performance will be judged for the above sub-parts of the teacher’s rating, but requires PDE to develop and promulgate a rating tool in Pennsylvania Bulletin by March 31, 2021. 24 P.S. § 1138.3(d).

The remaining 50% is made up of one or more measures applicable and attributable to the classroom teacher as selected by the District selected from the following list (1) locally developed district rubrics; (2) District-designated measures and examinations; (3) nationally recognized standardized tests; (4) industry certification examinations; (5) student projects pursuant to local requirements; and (6) student portfolios pursuant to local requirements. 24 P.S. § 1138.3(a)(2)(ii)(A)(II). The classroom teacher is required to provide documented input to the evaluator on the development of teacher-specific data measures and the annual results of that data and the evaluator is required to include that input with documentation of the teacher’s overall annual rating. 24 P.S. § 1138.7(e)(1). Act 13 also mandates that the teacher have the opportunity to reflect on their success, any unanticipated barriers to success, and any supports that could have been useful when analyzing that teacher-specific data, which may be revised mid-year, if agreed upon by both the teacher and the “administrator.”[2] 24 P.S. § 1138.7(e)(2)-(3). Teacher-specific data measures may be reused on an annual basis, provided that the teacher’s goals are updated and “continue to offer reflections on their goals for improvement on an annual basis.” 24 P.S. § 1138.7(e)(4).

If the classroom teacher is not a “data-available teacher,” the “teacher specific data” is comprised only based upon (1) progress in meeting the goals of student IEPs (50%); and (2) one or more measures applicable and attributable to the classroom teacher as selected by the District selected from the following list (1) locally developed district rubrics; (2) District-designated measures and examinations; (3) nationally recognized standardized tests; (4) industry certification examinations; (5) student projects pursuant to local requirements; and (6) student portfolios pursuant to local requirements.

Act 13 requires schools to incorporate training on the teacher observation and evaluation model inclusive of the consistent use of quality teacher-specific and building-level data within student performance measures into induction programs required under 22 Pa. Code. § 49.16. Teachers must complete condensed versions of the professional development program designed for them once every seven years, though Act 13 does not specify a time within which classroom teachers must first participate in professional development programs. 24 P.S. § 1138.8(c)(4).

Building-Level Data Not Available

Teachers who are either primarily assigned in a building or buildings within a school entity that does not actually employ the teacher and teachers who work in buildings where building-level data is not available are rated in a slightly different manner. Instead of a 70/30 split between comprehensive classroom observation and student performance, teachers who fall into this category receive ratings comprised of 80% classroom observation and 20% student performance. 24 P.S. § 1138.3(b).

The “classroom observation” portion of these teachers’ ratings is calculated as follows:

• 20% planning and preparation
• 30% classroom environment
• 30% instruction
• 20% professional responsibilities

24 P.S. § 1138.3(b)(1).

Though likely a drafting error, this portion of the statute excludes the word “comprehensive” when referencing the 80% of the rating system that consists of “classroom observation,” which is curious because “comprehensive classroom observation” is a specifically defined term under Act 13. 24 P.S. §§ 1138.1, 1138.3(b)(1). Observation and practice evaluation results and rating must be based on evidence, which can be provided by the employee to the evaluator, who has the authority to determine which evidence is relevant to the employee’s evaluation results. 24 P.S. § 1138.7(d).

The remaining 20% of the rating for teachers in this category consists of “student performance,”, which is split 50/50 between (1) progress in meeting IEP goals; and (2) one or more measures applicable and attributable to the classroom teacher as selected by the District selected from the following list (1) locally developed district rubrics; (2) District-designated measures and examinations; (3) nationally recognized standardized tests; (4) industry certification examinations; (5) student projects pursuant to local requirements; and (6) student portfolios pursuant to local requirements. 24 P.S. § 1138.3(b)(2). The legislature specifically reserved one subpart of this statutory provision to allow it to add additional rating methodologies if it chooses to do so in the future.

Act 13 requires schools to incorporate training on the teacher observation and evaluation model inclusive of the consistent use of quality teacher-specific and building—level data within student performance measures into induction programs required under 22 Pa. Code. § 49.16. Teachers must complete condensed versions of the professional development program designed for them once every seven years, though Act 13 does not specify a time within which classroom teachers must first participate in professional development programs. 24 P.S. § 1138.8(c)(4).

Temporary Professional Employees

Temporary classroom teachers will be rated entirely based upon comprehensive classroom observation and practice models, which shall be calculated and weighted as follows:

• 20% planning and preparation
• 30% classroom environment
• 30% instruction
• 20% professional responsibilities

24 P.S. §§ 1138.3(c), 1138.9(3). Observation and practice evaluation results and rating must be based on evidence, which can be provided by the employee to the evaluator, who has the authority to determine which evidence is relevant to the employee’s evaluation results. 24 P.S. § 1138.7(d). Temporary professional employee must be conducted at least twice annually. 24 P.S. § 1138.9(2)(iii).

Temporary classroom teachers must complete the appropriate professional development program tailored for classroom teachers during the employee’s probationary period. 24 P.S. § 1138.8(c)(1).

IV. Principals

Building-Level Data Available

Principals, assistant principals, vice principals, supervisors of special education, and directors of career and technical education (referred to collectively by Act 13 as “Principals”) who serve in buildings where building-level data is made available by PDE shall be calculated as follows: (1) 70% comprised of planning and preparation, school environment, delivery of service and professional development utilizing a rating tool that PDE must develop by March 31, 2021; (2) 10% student performance as measured under the classroom professional rubric detailed above; and (3) 20% based upon performance goals. 24 P.S. § 1138.4(a)-(c).

The 10% building-level data related to student performance shall include, if available, including, but not limited to:

• Student performance on assessments;
• Value-added assessment system data made available by PDE under section 221 if the building administers assessments in grades for which annual value-added system data is made available by the department;
• Graduation rate; and
• Attendance rate as reported to the department under section 2512.

24 P.S. § 1138.4(b)(1)-(4). As noted above with respect to the evaluation of classroom teachers with building-level data available, the total score for building-level data shall be adjusted by a challenge multiplier for each school building as follows:

I. Calculate the regression coefficient of determination, known as r2, that estimates the proportion of the variance in school-level data that is predictable by the percentage of students that are economically disadvantaged in a school.

II. Multiply the regression coefficient of determination under subparagraph (I) by .1.

III. Multiply the product produced in subparagraph (II) by the most currently available percentage of economically disadvantaged students in the school.

IV. Multiply the product produced in subparagraph (III) by 100.

V. Add the product produced in subparagraph (IV) to the building level score.

24 P.S. § 1138.4(b)(5). Act 13 requires PDE to develop, issue, and transmit a rating tool for the “student performance” portion of the rating for publication in the Pennsylvania Bulletin consistent with Section 1138.4(b). 24 P.S. § 1138.4(e)(1). That rating tool will supersede all previous rating tools and any changes to that tool will be made in the future by the State Board of Education through regulations promulgated under the Regulatory Review Act. 24 P.S. § 1138.4(e)(2)-(3).

The remaining 20% of the principal’s annual evaluation shall be determined prior to the beginning of a given school year between the principal and the principal’s immediate supervisor based upon district-specific of building-specific goals. 24 P.S. § 1138.4(c). Act 13 provides that “[p]erformance goals should include specific measurable areas and the evidence to be collected during the year[,]” but does not mandate it. 24 P.S. § 1138.3(c)(1) (emphasis added). Act 13 does require, however, that the principal and his or her immediate supervisor shall meet midyear to monitor progress on established goals and to modify goals and that the two meet at the conclusion of the school year to evaluate the principal’s performance. 24 P.S. § 1138.4(c)(2)-(3). During the post-school year evaluation meeting, the principal’s immediate supervisor will rate the principal’s performance in achieving established goals by giving the principal a score of 3 for “distinguished” performance, 2 for “proficient” performance, 1 for “needs improvement,” and 0 for “failing.” Id.

Principals must complete the professional development programs tailored to evaluators and to the principal evaluation within the employee’s first six months of employment and then must complete a condensed version of the programs every seven years thereafter. 24 P.S. § 1138.8(c)(2). Act 13 requires schools to incorporate training on the teacher observation and evaluation model inclusive of the consistent use of quality teacher-specific and building—level data within student performance measures into induction programs required under 22 Pa. Code. § 49.16. Act 13 does not specify when principals who are already in their positions must first take these professional development programs.

Building Level Data Not Available

Principals who serve in buildings where building-level data is not available will be rated in a similar manner, excluding the “student performance” metric, meaning that their rating will consist of (1) 80% planning and preparation, school environment, delivery of service and professional development utilizing a rating tool that PDE must develop by March 31, 2021; and (2) 20% based on performance achieving performance goals established between the principal and the principal’s immediate supervisor. 24 P.S. § 1138.4(d)(1)-(2). The performance goal metric is calculated exactly as detailed above for principals who serve in buildings where PDE makes building-level data available, with one exception: for principals who fall into this category, “[p]erformance goals may include specific measurable areas and the evidence to be collected during the year[,]” whereas for principals who have building-level data available, their performance goals “should include specific measurable areas and evidence….” 24 P.S. § 1138.4(d)(2) (emphasis added). It is unclear why the legislature worded Sections 1138.4(c)(3) and 1138.4(d)(2) differently and equally unclear why the legislature did not mandate that performance goals be based upon specific measurable, which would seem to be best practice.

Principals must complete the professional development programs tailored to evaluators and to the principal evaluation within the employee’s first six months of employment and then must complete a condensed version of the programs every seven years thereafter. 24 P.S. § 1138.8(c)(2). Act 13 requires schools to incorporate training on the teacher observation and evaluation model inclusive of the consistent use of quality teacher-specific and building-level data within student performance measures into induction programs required under 22 Pa. Code. § 49.16. Act 13 does not specify when principals who are already in their positions must first take these professional development programs.

V. Non-Teaching Professionals

Building Level Data Available

Nonteaching professional employees shall be evaluated using a rating tool specifically designed for those professionals and those who work in buildings with building-level data available will receive a rating that consists of (1) 90% of the overall rating of the employee with respect to individual metrics; and (2) 10% based upon student performance. 24 P.S. § 1138.5(a). The 90% individual employee metrics shall be comprised of (1) planning and preparation (25%); (2) educational environment (25%); (3) delivery of service (25%); and (4) professional development (25%). 24 P.S. § 1138.5(a)(1). Act 13 does not provide specific guidelines by which any of those metrics shall be calculated, but provides that PDE must develop and promulgate a rating tool in Pennsylvania Bulletin by March 31, 2021. 24 P.S. § 1138.5(d). Observation and practice evaluation results and rating must be based on evidence, which can be provided by the employee to the evaluator, who has the authority to determine which evidence is relevant to the employee’s evaluation results. 24 P.S. § 1138.7(d).

Student performance shall be gauged the same way that it is gauged for classroom teachers, as detailed above, though PDE’s rating tool may alter those metrics for the two classes of employees to some extent. 24 P.S. §§ 1138.3(a)(2), (d) and 1138.5(a)(2), (d).

Nonteaching professional employees must complete the appropriate professional development program tailored to the evaluation system for nonteaching professionals during the employee’s probationary period and then every seven years thereafter. 24 P.S. § 1138.8(c)(1). Act 13 does not specify when nonteaching professional employees who are already in their positions must first take these professional development programs.

Building Level Data Not Available

Nonteaching professionals who serve in buildings without building-level data will be rated solely on (1) planning and preparation (25%); (2) educational environment (25%); (3) delivery of service (25%); and (4) professional development (25%). 24 P.S. § 1138.5(b). Observation and practice evaluation results and rating must be based on evidence, which can be provided by the employee to the evaluator, who has the authority to determine which evidence is relevant to the employee’s evaluation results. 24 P.S. § 1138.7(d). Again, PDE will develop and promulgate a rating tool by no later than March 31, 2021. 24 P.S. § 1138.5(d).

Nonteaching professional employees must complete the appropriate professional development program tailored to the evaluation system for nonteaching professionals during the employee’s probationary period and then every seven years thereafter. 24 P.S. § 1138.8(c)(1). Act 13 does not specify when nonteaching professional employees who are already in their positions must first take these professional development programs.

Temporary Professional Employees

Temporary nonteaching professionals who serve in buildings without building-level data will be rated solely on (1) planning and preparation (25%); (2) educational environment (25%); (3) delivery of service (25%); and (4) professional development (25%). 24 P.S. § 1138.5(c). Observation and practice evaluation results and rating must be based on evidence, which can be provided by the employee to the evaluator, who has the authority to determine which evidence is relevant to the employee’s evaluation results. 24 P.S. § 1138.7(d). Again, PDE will develop and promulgate a rating tool by no later than March 31, 2021. 24 P.S. § 1138.5(d).

Temporary nonteaching professional employees must complete the appropriate professional development program tailored to the evaluation system for nonteaching professionals during the employee’s probationary period. 24 P.S. § 1138.8(c)(1). Act 13 does not specify when temporary nonteaching professional employees who are already in their positions must first take these professional development programs.

VI. The Future

As noted above, Act 13 contemplates that professional employees, evaluators and administrators will work to improve the rating tools and mechanisms used to rate employees as part of the evaluation process. Act 13 requires PDE to review the revised rating system within 5 years of the statute’s effective date and to submit a report of its findings to the Education Committee of the Senate and the Education Committee of the House of Representatives. 24 P.S. § 1138.16. In the interim, Act 13 also empowers the State Board of Education to develop regulations consistent with the provisions of Act 13, which may impact or clarify how affected districts, intermediate units, and area career and technical schools carry out their obligations under the statute.

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