Can a state punish its school teachers for not having a progressive ideology? Thatâ€™s what Virginiaâ€™s Board of Education appears to be doing. Its newly adopted â€œperformance standardâ€ for teacher evaluations is based on whether a â€œteacher demonstrates a commitment to equity and provides instruction and classroom strategies that result in culturally inclusive and responsive learning environments and academic achievement for all students.â€
This standard is full of buzzwords and ideologically-charged phrases that can be used to punish conservative teachers or reward bad teachers for mouthing politically-correct platitudes. Its adoption will make it even harder to get rid of bad teachers and attract good teachers.
A â€œcommitment to equityâ€ sounds nice until you learn that â€œequityâ€ means something very different from equality and non-discrimination, in â€œVirginiaâ€™s Roadmap to Equity.â€ In that book, â€œequityâ€ is about racial â€œoutcomes,â€ and it is not about equal â€œopportunitiesâ€ or achievement based on â€œability.â€ It describes â€œculturally responsive educatorsâ€ as those who fight â€œinjustice,â€ not just â€œracism,â€ or effectively teaching minority children.
This new performance standard refers to both â€œa commitment to equityâ€ and â€œacademic achievement for all students,â€ so it may not be enough that the teacher effectively teaches all students, including minority students. (A separate performance standard has long evaluated teachers based on â€œstudent academic performance,â€ so this new performance standard is not necessary to give teachers an incentive to effectively educate their students, or their minority students).
So, this new performance standard could easily be interpreted as requiring an ideological â€œcommitmentâ€ separate and apart from effective teaching.
But it would be very wrong for schools to require such an ideological commitment as part of a performance standard. People cannot be required to adhere to a particular ideology or philosophy to teach or study in our schools. As the Supreme Court once noted, â€œno official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.â€ (West Virginia Board of Education v. Barnette (1943)).
Thus, the Supreme Court struck down a stateâ€™s requirement that a student salute the flag. Similarly, the Supreme Court has struck down state laws requiring commitments to particular ideas or convictions, in the form of loyalty oaths for teachers and other state employees. (See, e.g., Baggett v. Bullitt (1964)).
In Cole v. Richardson (1972), the Supreme Court set out conditions an oath for government employees must meet to survive constitutional muster â€” such as that a government job cannot be conditioned on a commitment by the employee to not engage in protected speech activities or activity protected by the First Amendment.
Protected speech activities include a lot of speech that is at odds with a â€œcommitment to equity.â€
Schools are not entitled to punish speech about political and social issues just because they think it violates their â€œvalues or principles.â€ For example, a collegeâ€™s discipline of a fraternity was overturned by the federal appeals court in Richmond on First Amendment grounds, even though the fraternityâ€™s racially insensitive skit was at odds with the universityâ€™s â€œmission statementâ€ of teaching â€œvalues of equal opportunity and equal treatmentâ€ and â€œrespect for diversity.â€ (See Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1993)).
In Thompson v. Board of Education of Chicago (1989), a court ruled that a teacherâ€™s remarks to a newspaper about problems in the Chicago school system (such as gang activity) were constitutionally protected, even though â€œindividuals in the community had expressed outrage over the remarks,â€ and viewed them â€œas racist and inflammatory.â€
Similarly, a federal appeals court ruled that the First Amendment protected an â€œassistant fire chief in charge of personnelâ€ from being fired for expressing views at odds with his cityâ€™s own â€œpolicy on affirmative actionâ€ to a minority-advocacy group. (See Meyers v. City of Cincinnati (1991)).
And a prison guardâ€™s angry diatribe against his employerâ€™s affirmative-action plan was ruled protected speech by a California state appeals court. (See California Department of Corrections v. State Personnel Board (1997)).
Yet, on March 18, the Virginia Board of Education amended its Guidelines for Uniform Performance Standards and Evaluation Criteria for Teachers to add the new â€œequityâ€ standard to its existing seven performance standards for all Virginia teachers. Pursuant to state law, teacher evaluations must be consistent with these performance standards.
What does equity mean? Itâ€™s not defined in the performance standard itself. But elsewhere, it never seems to mean equality. There isnâ€™t a single definition, but definitions of various kinds of equity are found in the Virginia Department of Educationâ€™s book Navigating EdEquityVA: Virginiaâ€™s Roadmap to Equity (2020).
One definition of â€œequityâ€ in this book absurdly requires â€œeliminating the predictability of student outcomes based onâ€¦.ability [or] socioeconomic status.â€ It says:
Education Equity: Eliminating the predictability of student outcomes based on race, gender, zip code, ability, socioeconomic status or languages spoken at home. (VDOE. Adapted from the National Equity Project. Educational Equity Definition.)
But it is entirely predictable that a student with more â€œabilityâ€ will perform better than a student with less â€œability.â€ Moreover, if poor students from broken homes â€œpredictablyâ€ do worse because they are less prepared for school or have lower IQs, this is not the teacherâ€™s fault. This definition of equity is an unattainable goal that no teacher can truly meet, and thus can be used to get rid of even good teachers.
Another definition of â€œequityâ€ requires not just â€œequitableâ€ â€œopportunities,â€ but also â€œoutcomesâ€ that are equitable for all races, and says the mere â€œabsence of discriminationâ€ is not equity:
Racial Equity (Racial Justice): The systematic fair treatment of people of all races, resulting in equitable opportunities and outcomes for all. It is not just the absence of discrimination and inequities, but also the presence of deliberate systems and supports to achieve and sustain racial equity.
This definition seems to be an indirect endorsement of affirmative action, although its language is so vague and confusing that one cannot be certain. Vague employment oaths and commitments violate the First Amendment. (See Baggett v. Bullitt (1964)).
Moreover, government employees cannot be punished for disagreeing with their employerâ€™s affirmative action policy. (See, e.g., Cal. Dept. of Corrections v. State Personnel Bd. (1997)).
The Constitution requires only the absence of discrimination in our schools, not â€œdiversity,â€ affirmative action, or other things that might be seen as â€œequity.â€ (See Schuette v. BAMN (2014)).
The Roadmap to Equity defines â€œculturally responsiveâ€ in a nakedly political way that focuses on teachersâ€™ belief and perception, not merely their classroom conduct. It requires teachers to â€œsee cultural differences as assetsâ€ rather than challenges to be overcome, and to challenge â€œintolerance, injustice, and oppression,â€ without defining those vague terms. It says:
Culturally responsive educators:
- See cultural differences as assets
- Validate the inequities impacting studentsâ€™ livesâ€¦â€¦
- Utilize studentsâ€™ cultures as vehicles for learning
- Challenge racial and culture stereotypes, prejudice, racism, and other forms of intolerance, injustice, and oppression
- Mediate power imbalances in classrooms based on race, culture, ethnicity, gender, and class.