Answer: Probably not, but it would be fun to watch them try.
When United Teachers Los Angeles learned last week that the Los Angeles Times planned to publish a database of teacher performance, the union's first instinct was to sue.
“Our attorneys are looking into the legalities of the database,” said A.J. Duffy, president of UTLA, in a robocall to members. In an interview with the Times on Sunday, Duffy said he'd keep his litigation plans to himself.
We haven't heard much about it since then, and that's probably because UTLA's lawyers determined there's not much they can do.
Duffy has objected strenuously to the Times' use of “value added” analysis to track 6,000 elementary school teachers' effects on student performance. Once the database is published, parents will be able to go online and see whether their child's teacher boosts students' test scores or makes them worse.
Duffy argues that the analysis is misleading and will have troubling consequences. But in order for it be libelous, the analysis has to be wrong.
“There's no basis for a libel lawsuit unless there's actually an error,” said Eugene Volokh, a UCLA law professor who blogs on legal issues at The Volokh Conspiracy. “It may be upsetting to a public servant. It may be seen as misleading or unfair. That's the normal response people make to newspaper articles about them… The question is: Is there anything false? And I know of no basis to think there is.”
Even if there were, it would still be difficult to win a lawsuit, said Erwin Chemerinsky, the dean of the UC Irvine School of Law. “If they could show the information is false or puts them in a false light, they could have a claim, but I think it's going to be a very difficult claim to win,” he said.
The only other conceivable claim would be along the lines of public disclosure of private facts. But this is public data, released by L.A. Unified in response to a records request. It's not as though the Times was combing through the teachers' personnel files. (In fact, that's kind of the point. The data wasn't being used in evaluations, so LAUSD couldn't very well claim a personnel exemption to the Public Records Act.)
Of course, the legalities are a separate issue from whether the Times should post the data. That debate has been lighting up the education policy blogs for a couple days.
Here's a representative sample of the arguments opposed:
Frederick Hess, EducationNext:
I'm for the smart use of value-added by districts or schools. I'm all for building and refining these systems and using them to evaluate, reward, and remove teachers. But I think it's a mistake to get in the business of publicly identifying individual teachers in this fashion. I think it confuses as much as it clarifies, puts more stress on primitive systems than they can bear, and promises to unnecessarily entangle a useful management tool in personalities and public reputations.
Daniel Willingham, Washington Post:
Value added models assume that kids are assigned to classrooms at random. They aren't. This is just one problem with value-added models. There are others, which I've written about before. Were the writers for the Times unaware of such problems? Were the editors, who put the story on the front page?
Sabrina, Failing Schools:
But the most disturbing thing is the precedent it sets for how efforts to improve teacher and school quality may proceed in the future. For starters, adding yet another incentive- the specter of public humiliation- to teach to standardized tests can hardly be considered a good thing. If our goal in education is to produce well-rounded critical thinkers who are ready for 21st Century challenges, does it make sense to assess their progress-and teachers' effectiveness- with 20th Century pencil-and-paper tests?
And here are some arguments in favor:
Kevin Drum, Mother Jones:
I don't live in Los Angeles and don't follow its affairs closely, but there's at least one thing I can say about this: every single person I know who does follow LA politics, both liberal and conservative, thinks the LAUSD is a complete disaster. … So should the Times be doing this? Regardless of LA's specific problems, I think so. The data is public, and either you believe that the press should disseminate public data or you don't. I do — despite the fact that I know I'd be pretty unhappy to be one of the teachers included in this project.
John Fensterwald, The Educated Guess:
Leaders of United Teachers Los Angeles, always 20 steps behind and 20 decibels too loud, cling to the position that STAR test results shouldn't be part of a teacher's performance review. As long as they do, parents and school critics will seize on the results as evidence that teachers are making excuses and covering for the weakest colleagues. They should be welcoming sophisticated analyses of student test results as tools for their improvement and as proof of their accomplishments.
Parents consider the effectiveness ratings important; teachers should assure parents that they do, too – and prove it by incorporating them into performance reviews, with consequences and rewards.
Publishing the database may finally force the UTLA to confront an issue that it has reflexively resisted.
Stephen Sawchuk, Education Week:
Way back in 2008, when I first wrote about value-added data for EdWeek–presciently, it seems– the president of the National Council on Teacher Quality told me she felt that the data, when unveiled, would create a demand for more such information. “If the public were given half a chance to learn about the power of value-added-data systems, I doubt they'd remain unengaged and tolerate depriving schools and teachers themselves of the data,” she said. She may be about to be proved correct.