HarvardCRCL.org is proud to post submissions from our newly selected General Board members.  The following post from one of those new members discusses the recent publication by the New York Times of teacher performance rankings and raises questions about the disclosure’s possible privacy implications.

On February 24th, the New York Times reported New York City’s release of its official ranking of 18,000 public school teachers. “The reports, which name teachers as well as their schools, rank teachers based on their students’ gains on the state’s math and English exams over five years and up until the 2009-10 school year. The city released the reports after the United Federation of Teachers exhausted all legal remedies to block their public disclosure,” the article said. The purpose of the rankings, according to the article, is to improve instruction, and the data has been used by principals and other school administrators in their decisions to promote, compensate, or dismiss teachers.

However, it is not entirely clear from the Times piece how releasing this data to the public is anticipated or intended to further the goal of improving instruction (the piece focuses on an evaluation of the data’s contents and reliability). Perhaps the New York City Department of Education hopes that the public pressure that could come from release of this information will spur principals and school administrators to give it greater weight in decision-making and/or be pushed to act on the data’s contents with regard to the employment status of individual teachers.

Although not discussed in the article, release of this information speaks to a tension between the rights of parents and the public to transparency regarding the system of public education and the rights of teachers and public employees to some degree of privacy regarding their employment, in this case, their performance (or their students’ performance) in relation to standardized tests.

There are several objections to raise to the release this kind of information linking employee performance data to individual names and places of work. First, considering the controversy over the truthfulness of the data and its accuracy in measuring teachers’ performance in the classroom, the public school teachers included in these rankings might have causes of action for defamation or libel.

In the private employment context, courts have held that employer defenses against defamation claims from employees may be permissible under the doctrine of conditional privilege.  For example, in Zinda v. Louisiana Pacific Corp., a Wisconsin court held that an employer’s publication of the reason for the firing of an employee in a company newsletter was covered by the conditional privilege and thus not defamatory to the employee. However, that privilege extends only to communication of legitimate common business, property or professional interests. Two ways in which an employer can impermissibly abuse its privilege for defamatory speech are by publicizing the information to persons not reasonably necessary or by publicizing information that is itself is not reasonably necessary to accomplish an intended purpose.

While the government, as a public employer, is generally given leeway in intruding into the privacy of its employees, it too is held to a general reasonableness standard in such cases; see, e.g. O’Connor v. Ortega (1986). It is difficult to imagine, however, how publication of controversial information, such as the New York City rankings, that is tied to individual employees’ identifications is reasonably necessary to improve instruction in New York City public schools.

The article states that the City itself cautioned the public against using this information as a definitive statement of teacher quality, and several experts quoted therein expressed concerns about its use, particularly in isolation. Given these concerns, it seems especially important that the data be used only by professionals who are aware of its shortcomings and who are in a position to contextualize the data, rather than take it as the end-all and be-all of teacher quality. It is reasonably foreseeable that parents will try to use this information to pressure their children’s schools into firing certain teachers or to assign their children to particular classrooms – actions which will not serve the broader purpose of improving instruction. Furthermore, parents’ interest in achieving the best educational experience for their children would be reasonably served by releasing this data aggregated by school, rather than at the granular level of individual teachers. That form of the data would still enable parents to make informed decisions about where to send their children to school. The level of detail with which the data has been released can only serve to publicly humiliate teachers and is only reasonably necessary for school administrators’ use, not the general public.