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Journal website: http://epaa.asu.edu/ojs/   Manuscript received: 1/17/2015 
Facebook: /EPAAA  Revisions received: 7/10/2015 
Twitter: @epaa_aape  Accepted: 7/10/2015 

 

education policy analysis 
archives 

A peer-reviewed, independent,  
open access, multilingual journal  
 
 
 
 
 
  

 Arizona State University 
 

Volume 23  Number 81    August 31st, 2015 ISSN 1068-2341 
 

 

Performance Measures for Teachers and Teacher Education: 
Corporate Education Reform Opens the Door to New Legal 

Issues 
 

Diana Pullin 
Boston College 

United States 
 
Citation: Pullin, D. (2015). Performance measures for teachers and teacher education: Corporate 
education reform opens the door to new legal issues. Education Policy Analysis Archives, 23(81).  
http://dx.doi.org/10.14507/epaa.v23.1980 
 
Abstract: Recent efforts to change the teaching profession and teacher preparation include a 
number of innovations to use portfolio assessment, value added measures (VAM), accountability 
metrics and other corporate education reform ideas.  These approaches may provoke considerable 
potential legal consequences. Traditional constitutional and civil rights issues will continue to be 
important considerations. In addition, because education is increasingly seen as a consumer product, 
new types of legal issues are arising from the way evidence about performance is gathered and used 
and about the privacy of data. Legal claims more familiar to a business context are being asserted 
and can be expected to increase. Whistle-blower claims concerning fraud in government-funded 
programs have been filed, as well as claims of breach of contract and defective products. Finally, 
criminal prosecutions are being utilized to address systemic cheating in evaluation systems.  
Keywords: Legal issues; corporate education reform; accountability; teacher education; teacher 
evaluation; teacher licensure; value added models (VAM); privacy; civil rights 

 
Las Medidas de Desempeño para Docentes y la Formación del Profesorado: La Reforma de 
la Educación Corporativa abre la Puerta a Nuevas Cuestiones Legales 

epaa aape



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 2 
 
Resumen: Los recientes esfuerzos para cambiar la profesión docente y formación del profesorado 
incluyen una serie de innovaciones como la utilización de evaluación de portafolios docentes, 
medidas de valor agregado (VAM), métricas de rendición de cuentas y otras ideas de reforma de la 
educación corporativas. Estos enfoques pueden provocar potenciales  consecuencias legales de gran 
consideración. Además, dados que la educación es vista cada vez más como un producto de 
consumo, nuevos tipos de problemas legales surgen de la forma en la evidencia sobre rendimiento es 
recogida y usada y cuestiones sobre la privacidad de los datos. Las demandas legales más familiares 
en un contexto de negocios se están afirmando y se puede esperar que aumenten. Reclamos relativos 
a fraudes en programas financiados por el gobierno se han presentado, así como las reclamos de 
incumplimiento de contrato y productos defectuosos. Por último, se están utilizando los procesos 
penales para hacer frente a las trampas sistémicas en los sistemas de evaluación. 
Palabras clave: Cuestiones jurídicas; reforma de la educación empresarial; rendición de cuentas; 
profesor de educación; evaluación de los maestros; otorgamiento de licencias del profesorado; 
modelos de valor añadido (VAM); privacidad, derechos civiles 
 
As Medidas de Desempenho para Professores e Formação de Professores: A Reforma da 
Educação Corporativa abre a Porta a Novas Questões Jurídicas 
Resumo: Os recentes esforços para mudar a profissão docente e a formação de professores incluem 
uma série de inovações, tais como a utilização de carteiras de avaliação de professores, as medidas de 
valor agregado (MVA), métricas de prestação de contas e outras ideias para reformar a educação 
corporativa . Estas abordagens podem causar potenciais consequências jurídicas de uma abrangência 
séria. Além disso, dado que a educação é cada vez mais vista como um produto de consumo, novos 
tipos de problemas jurídicos surgem da forma como evidências sobre o desempenho é recolhida e 
usada e sobre a privacidade dos dados. As demandas judiciais mais familiares a um contexto de 
negócios estão sendo afirmadas e pode ser esperado um aumento. Créditos sobre a fraude em 
programas financiados pelo governo foram apresentados, bem como as reivindicações de violação 
de contrato e produtos com defeito. Finalmente, demandas judiciais estão sendo usadas  para 
resolver fraudes sistêmicas dos sistemas de avaliação. 
Palavras-chave: Questões jurídicas; reforma do ensino do empreendedorismo; prestação de contas; 
formação de professores; avaliação de professores; licenciamento de professores; modelos de valor 
agregado (MVA); privacidade, direitos civis 
 

Introduction 
 

 One current focus of education reform efforts: educators and the institutions preparing 
them (Cochran-Smith, Piazza, & Power, 2012; Darling-Hammond, 2013; Darling-Hammond, Wise 
& Klein, 1999; Earley, Imig & Michelli, 2011; Superfine, 2014). Following up on Race to the Top 
federal and state initiatives to substantially change approaches to the evaluation of teachers 
(Umpstead, Pogodzinski & Lund, 2013), the Obama Administration has announced new federal 
requirements to judge teacher education programs by the performance of their graduates (U.S. 
Department of Education, 2014). The Council for the Accreditation of Education Preparation 
(CAEP) now uses student outcomes results for both graduates and the P-12 students they eventually 
teach to judge the quality of educator preparation programs (CAEP, 2013; Sawchuk, 2013). These 
follow recent efforts to use new portfolio assessments for educator licensure. Future educators in 
several states are now being licensed on the basis of edTPA or other portfolio performance 
assessments, rather than solely on the basis of completion of a state-approved higher education 
program and passage of an examination (American Council for the Accreditation of Teacher 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 3 
 
Education, n.d.). States and local districts have now begun to define and assess the quality of 
employed educators through the use of enhanced evaluations and value-added models (VAM) 
approaches (Amrein-Beardsley, 2014; Pullin, 2014; Knight, Lloyd, Arbaugh, et al., 2014). Current 
educators have been terminated or have received significant bonuses on the basis of VAM scores or 
new standardized teacher evaluation rubrics (Amrein-Beardsley, 2014; National Research Council, 
2015; Pullin, 2013). Individual teacher performance rankings in some districts have been published 
in local newspapers (Los Angeles Times, 2012) to inform the public about educator performance.   
 The new approaches arise in a broader context in which education is increasingly seen as a 
consumer good where a credential and enhanced socioeconomic status are more important than 
improvement of worldview or enhancement of the common good. At the same time, businesses and 
business-based approaches are increasingly utilized in the delivery of education programs and 
services. These recent approaches and associated increasingly high stakes for individuals and 
institutions have led to vigorous public policy debate and the prospect of considerable legal 
controversy (Superfine, 2014). The legal system is becoming a new battleground for weighing a 
variety of sources of new types of legal claims as well as new types of evidence concerning educator 
and institutional quality. Policymakers, judges and hearing officers are being tasked with assessing 
both traditional and well as novel types of legal claims in the implementation of the new evaluation 
and accountability systems. While traditional types of constitutional and civil rights issues will be 
important considerations, the new initiatives may also raise legal claims less frequently asserted in the 
field of education law but potentially more powerful. Privacy issues are arising from the way 
evidence about performance is gathered, used and managed. Civil claims more familiar to a business 
context are being asserted and can be expected to increase. Whistle-blower claims concerning fraud 
in government-funded programs have been filed, as well as claims of breach of contract and 
defective products. Finally, criminal prosecutions are being utilized to address systemic cheating in 
evaluation systems.  
 This article provides an overview of legal issues in portfolio or performance assessments in a 
broad range of contexts related to educator licensure, evaluation, and institutional accountability. It 
discusses the use of VAM and standardized evaluation rubrics for evaluating educators and 
educational institutions. It addresses traditional legal challenges under U.S. Constitution and federal 
civil rights statutes. The article then outlines new types of legal issues that arise in the 
implementation of these new approaches and provides a survey of legal claims in two broad 
categories: first, individual proprietary and privacy interests of educators, future educators, students, 
and education service providers and, second, fraud and error problems in the design and 
implementation of the systems. While limited to an overview of a wide range of potential legal 
issues, this article seeks to stimulate consideration of emerging public policy issues and problems of 
practice as well as future research on the new accountability challenges facing educators at all levels 
of the system and the prospects for new external scrutiny of education practices through legal 
claims.  
 

New Types of Evidence of Educator Quality 
 

 Many of the recent quality indicators for educators and the institutions that prepare them are 
premised on a theory of action focused on a human capital approach that imposing incentives on 
educators and educational institutions is the key to improved educational outcomes (Ballou & 
Podgursky, 1997; Cochran-Smith, Piazza, & Power, 2012; Gratz, 2009; Springer, 2009). They rely 
upon new types of evidence of performance. The initiatives move beyond the standardized, in 
person multiple choice and short answer examinations of individuals utilized in the past. Current 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 4 
 
initiatives include the use of value-added measures, standardized rubrics to assess portfolios of 
performance, and online big data collection systems. Included in any of these approaches is not only 
information about an educator, but also students the educator has taught or other students 
elsewhere in the school or the school system (Amrein-Beardsley, 2014; Cook v. Bennett, 2013; 
Umpstead, Pogodzinski & Lund, 2013).  
 Value-added, or student growth, measures of educator performance (VAM) “refer to a 
variety of sophisticated statistical techniques that use one or more years of prior student test scores, 
as well as other data, to adjust for preexisting difference among students when calculating 
contributions [of educators or institutions] to student test performance” (National Research 
Council, 2010, p.1). Most of these statistical approaches are an effort to calculate the “value” an 
educator adds to student test performance, mostly relying upon a statistical comparison of students’ 
performance at two different points in time and a normative approach in which teacher performance 
is compared to that of other teachers (Amrein-Beardsley, 2014; Floden, 2012; Harris, 2011; Harris & 
Herrington, 2015a, 2015b; Kane, Kerr, & Pianta, 2014). This article uses the term “VAM” to apply 
to the wide array of statistical approaches that use changes in student scores to assess educators or 
institutions. While VAM approaches have most often been implemented in the context of K-12 
schools, the approach will now be used as an indicator of the performance of educator preparation 
programs; the use of student performance data from graduates and the students of graduates of 
educator preparation programs will be used in the new CAEP accreditation (CAEP, 2013). 
 Another new initiative uses portfolio submissions to determine educator licensure; edTPA is 
one recent iteration of this approach (Cochran-Smith, Piazza & Power, 2012; Knight, Lloyd, 
Arbaugh, Gamson et al., 2014; Sato, 2014; Wilkerson, 2015). These assessments are based upon 
online submission of representations of classroom performance and accompanying professional 
materials. They are scored on a standardized rubric by a for-profit vendor (Cochran-Smith, Piazza & 
Power, 2012; Sato, 2014). The American Association of Colleges for Teacher Education (AACTE) 
and a consortium of states has designed and implemented these approaches through the Council of 
Chief State School Officers and has now handed off administration of the program and portfolio 
scoring to Pearson, the international for-profit education corporation (American Association of 
Colleges for Teacher Education, n.d.; Wilson, Hallam, Pecheone & Moss, 2014). 
 All of these new accountability approaches occur in a context in which there is increasing 
use of outside, nontraditional and for-profit vendors of education services and products in both K-
12 schools and educator preparation. Most are part of a move toward reliance on analytical metrics 
based upon the collection of big data sets of information accumulating evidence on all sorts of 
education matters, particularly assessment data. The sources of these data vary from institutional 
self-reports to attributed data gathered from other public or private sources. The collection and use 
of big data sets to generate information about educational performance range from the long-
standing work of the federal government through its regulation of higher education and its data 
reporting at the National Center for Education Statistics (National Research Council, 2001), to the 
US News and World Reports (2014) ranking of higher education institutions, The National Council 
on Teacher Quality (NCTQ) rankings of teacher education programs (Cochran-Smith, Piazza & 
Power, 2012), to local news media (many using in-house analytic journalists or hired statistical 
consultants) (Los Angeles Times, 2012).  

Corporate Reform and Educator Quality 

 These types of initiatives are part of a contemporary context privileging what some have 
defined to as “neoliberal” or “corporate education reform” (Au & Ferrare, 2015; Cochran-Smith, 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 5 
 
Piazza & Power, 2012; Ratvich, 2013/2014; Saltman, 2012; Spring, 2011; Watkins, 2012).  While 
definitions vary, these focus on increased use of marketplace approaches to the provision of public 
services, increasing corporate influence, privatization to nonprofit or for-profit vendors of what 
were formerly government-provided services, widespread influence of entrepreneurial 
philanthropists, and utilization of performance metrics to enhance accountability and drive change 
(Au & Ferrare, 2015; Reckhow, 2013; Spring, 2011; Springer, 2009; Watkins, 2012).   
 Associated with these shifts in perspective on the role of government and the provision of 
public services, either as an independent phenomenon or as an explicit component of the neoliberal 
or corporate education approach, there is a shift in perspective on the role of education in our 
society. Beginning in the late twentieth century, scholars noted changing perspectives on the role of 
education in our society associated with the changing economic, cultural and political contexts in 
which education occurs. From this perspective, the most important purpose of education is 
economic (Mehta, 2015). To a growing number of scholars, the choices concerning education by 
policymakers and the public is increasingly interpreted as based on a view of education not as a 
mechanism for promoting the common good but instead as a commodity purchased for individual 
credentialing and economic gain (Altbach, Gumport & Berdahl, 2011; Au & Ferrare, 2015; Gratz, 
2009; Labaree, 1997; Mehta, 2015; Molesworth, Nixon & Scullion, 2009).  One example of these 
approaches is an argument recently put forth that parents should be able to obtain access to district 
measures of a teacher’s effectiveness in the same way that travelers obtain ratings of their Uber car 
service drivers (Song & Walker, 2015). 
 At the same time that students are taking a more consumerist approach to their pursuit of 
education, particularly higher education, their consumerism and the increasingly loud critique of 
traditional teacher education are having a marked impact on how teacher education programs are 
regarded.  U.S. Secretary of Education Arne Duncan has lambasted teacher education as “mediocre” 
and “laughable” and called for greater accountability (Cochran-Smith, Piazza & Power, 2012, p. 7). 
Enrollments in teacher education programs have plummeted dramatically across the nation 
(Sawchuk, 2014b). In face of these threats, teacher education itself is developing its own form of a 
consumerist perspective, the need to protect its existence as a viable entity in the marketplace and in 
the eyes of government regulators. 
 The issues of public policy and professional practice associated with reforms focused on 
educator quality arise in the context of contemporary corporate education reform and increasing 
consumerism in higher education.  Given the nature of the reforms and the context, the legal issues 
that can be anticipated will range across a wide variety of fields of law, some based on fairly 
traditional claims and some presenting more novel issues associated with the types of disputes that 
arise in the commercial sector.  What follows will be an overview of the possibilities for legal 
controversies. 

Traditional Legal Issues 

 Given the magnitude of the educational enterprise in this nation, legal disputes and court 
cases over education are not common (Pullin, 1999; Zirkel & Johnson, 2011).  When legal 
controversies over education arose in the late twentieth and early twenty-first century, they most 
frequently arose over concerns whether government was treating people fairly, whether civil rights 
were being protected, or whether the conditions the federal government attached to the receipt of its 
funding were being met (Kaplin & Lee, 2014; Pullin, 2014; Ryan, 2009; Yudof et al., 2012). These 
issues will continue to be important, so this overview first highlights how the particular focus of the 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 6 
 
traditional types of legal challenges may look given the current context for the provision of 
educational programs and services. 
 

Fair Treatment and Defensible Decision-making  

Challenges to government programs such as efforts to ensure the competence of educators 
can be based upon claims arising under United States or state constitutions or federal or state 
statutes. Challenges could be made by future or current teachers concerned about their treatment by 
the state government or public educational institutions.  In addition, teacher education programs or 
teacher educators might challenge state efforts to regulate their work. When courts assess such 
claims, the inquiry focuses upon the goals or purposes of the governmental program being 
scrutinized. For example, absent evidence of invidious discrimination, challenges arising under the 
Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution, 
will most often be based on assessing whether the government is attempting to further a legitimate 
governmental interest and whether it is using a rational means to do so. Qualifications for licensure 
imposed by the state must have a rational connection with the applicant’s fitness or capacity for the 
occupation (Baker, Oluwole, & Green, 2013; Pullin, 2014; 2010; 2001; Rossow & Logan-Fain, 2013; 
Ryan, 2009). 
 Courts generally recognize the importance of state regulation of certain occupations 
particularly those serving the public good like the teaching profession (Pullin, 2001, 2010). Courts 
have consistently recognized the importance of states’ efforts to ensure the quality of the teaching 
force and have concluded that states can redefine the standards for assessing minimum educator 
competence and that the use of educator tests and assessment is acceptable (Pullin, 2001, 2014; 
Rossow & Logan-Fain, 2013). Of course, one problem with efforts to regulate the teaching 
profession through licensure is the fact that not all teachers have to be licensed (Pullin, 2001) or 
evaluated through the same systems (Green, Donaldson & Oluwole, 2014).  For example, the 
promotion of publicly funded charter schools as a market-based innovation to foster education 
reform often includes an exemption or flexibility for their teachers when it comes to licensure or 
evaluation systems applied to other teachers in traditional public schools (Green, Donaldson & 
Oluwole, 2014).   
 Judges regularly declare that determinations about the provision of education programs 
should for the most part be left in the hands of professionals and elected officials (Flanders, 2007; 
Melnick & Pullin, 2000; O’Neil, 2010; Pullin, 2010). This doesn’t mean that education officials 
always win court cases. And, legal issues aside, it is in the interest of all of us to have assurance that 
when government sets out to improve schools, the approach it takes will lead us there through fair 
and evidence-based approaches to the attainment of meaningful increases in learning outcomes.  

While judges are generally reluctant to second-guess educators’ judgments of educational 
performance based on purely subjective evaluations, they will review decisions involving 
standardized multiple-choice tests or requirements for a diploma, licensure, or continued 
participation in a program of professional education (Baker, Oluwole & Green, 2013; Pullin, 2013, 
2001). They engage in more rigorous review in high stakes contexts, as when a license is already held 
and might be taken away or where a teacher has an ongoing contract or tenure and might lose his 
employment. In situations in which the individual stakes are not as high, such as during an educator 
preparation program for an initial licensure or during a probationary year of employment, fewer 
protections are required (Pullin, 2001, 2010, 2014).  

If a case can be made, however, that government is operating in a manner that is irrational, 
fundamentally unfair, arbitrary or capricious, then courts can be asked to look more closely at 
governmental action (Melnick & Pullin, 2000; Pullin, 2010; Ryan, 2009). Questions about the 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 7 
 
fairness of teacher performance assessments for both future teachers and the institutions that 
prepare them have arisen (Cochran-Smith, Piazza, & Power, 2012; Duckor, Castellano, Tellez, et al., 
2014; National Research Council, 2001; Wilkerson, 2015). Included in these critiques have been 
concerns about the nature of the obligation of educator programs to “teach to the test” (Duckor et 
al., 2014, p. 146), as well as concerns that current evidence doesn’t warrant the use of some portfolio 
assessments as formative evaluations to guide future educators or teacher preparation programs on 
how to improve their practice (Duckor et al., 2014; Sato, 2014; Wilkerson, 2015).   

The challenge of how to use new types of evidence to improve practice is a challenge for 
future teachers, teacher preparation programs, and current teachers and the institutions where they 
work.  While there is not yet litigation over fairness of the new types of assessments concerning 
future teachers or their preparation programs, there is now litigation concerning current teachers 
and it may illuminate how judges will approach the fairness problem. Claims of unfairness in the 
operation of new educator assessment approaches are now being asserted in litigation concerning 
the evaluation of current teachers through VAM, when teachers are assessed on the basis of student 
test scores for students they do not actually teach, as is happening for teachers who teach untested 
grades or subjects. Only about 30 to 40% of teachers teach grades, subjects, or students used to 
calculate VAM scores (McGuinn, 2012; Prince et al., n.d.). In a Florida case, the first decision in 
litigation challenging VAM for teacher evaluation, the named plaintiff never taught any of the 
students whose achievement test scores used for her VAM calculations; her VAM evaluation scores 
were generated from students in another school building where scores were available and were then 
attributed to her to evaluate her performance (Cook v. Bennett, Complaint, 2013). A federal district 
court recently upheld this evaluation system without hearing any evidence. The judge noted the 
unfairness of the system, but determined that the program furthered a governmental interest in 
incentivizing all teachers to improve (Cook v. Stewart, 2014); his decision was affirmed on appeal. 
 Although the Florida judge was not concerned, fairness issues can arise under state or federal 
equal protection and due process protections if government decision-making fails to draw rational 
distinctions between those who pass a performance requirement and those who fail to pass (Baker, 
Oluwole, & Green, 2013; Pullin, 2001; 2010; 2014; Ryan, 2009). One federal civil rights case was 
brought not only against the state, but also against local school districts that relied upon results from 
the state teacher test to make local employment decisions. A settlement between the parties occurred 
after a federal district court judge found that the private company that developed the test for the 
state engaged in unprofessional practices violating the minimum professional requirements for test 
development. Among the problems the judge found were test development decisions that resulted in 
scores that were arbitrary and capricious and bore no rational relationship to teacher competence 
(Allen v. Alabama State Board of Education, 2000; Richardson v. Lamar County Board of 
Education, 1991). 
 Claims of the denial of fairness in educator assessment systems could arise from a variety of 
implementation practices, such as issues of technical quality, inadequate decision-making processes, 
or failure to provide useful information to guide improvement (Baker, Oluwole, & Green, 2013; 
Duckor et al., 2014; Gulino v. Board of Education, 2014; Nordberg v. Massachusetts, 2011; Pullin, 
2013; Sato, 2014; Wilkerson, 2015). In addition, social scientists have raised concerns about methods 
for collecting and verifying data about an individual educator’s performance, the potential 
misattribution of a teacher’s scores from other teachers, and the fairness, reliability, and validity of 
the scoring system used to evaluate educators (American Educational Research Association, 
American Psychological Association and National Council for Measurement in Education, 2014; 
American Statistical Association; Amrein-Beardsley, 2014; Baker et al., 2013; Darling-Hammond, 
Amrein-Beardsley, Haertel, & Rothstein, 2012; Pullin, 2013). 
 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 8 
 
Procedural Protections 
 

The procedural protections under the federal and state constitutions’ due process clauses or 
clauses protecting the right to enter into contracts that are available to persons or groups impacted 
by the new requirements should be carefully considered. In North Carolina, a legislative effort to 
eliminate teacher job protections was rejected by state courts as an unlawful intrusion on teachers’ 
contractual rights under Article I of the U.S Constitution which requires government to provide just 
compensation when taking property like salary and eventual pension benefits (North Carolina 
Association of Educators, Inc. v. State of North Carolina, 2015). Some state statutes and regulations 
may have applicable procedural requirements as well. And, to the extent that an educator may be a 
member of a collective bargaining unit because they are a paraprofessional or a licensed educator 
seeking an additional license, the local collective bargaining agreement may contain applicable 
procedural protections (Pullin, 2001; 2014; Rossow & Logan-Fain, 2013). Courts have traditionally 
recognized that individuals have a general interest in a reasonable level of accuracy in governmental 
decisions that affect an important interest, most often in the form of an opportunity to be heard in 
person when significant property or liberty interests are at stake (Pullin, 2010; Rossow & Logan-
Fain, 2013).  These types of protections for teachers are under new attack. For example, a state court 
in California ruled to limit protections for teachers in the interest of protecting student access to 
educational opportunity (Vergara v. California, 2014); the case is on appeal.  

To determine procedural protections that might be necessary under the federal constitution, 
courts will look at the nature of the private interests at stake in a program, the risks to the affected 
individual(s) resulting from errors in determinations that might be made, the nature of the 
government’s interest, and the administrative and other burdens that procedural protections might 
cause (Pullin, 2001, 2010). However, for initial educator licensure decisions, most situations don’t 
involve sufficient individual interests to trigger procedural protections. But these issues, associated 
with candidate interests in their reputations, can be expected to increase. See, for example, a case in 
which an intern teacher attempted, unsuccessfully, a constitutional claim against a private corporate 
online alternate teacher education provider and the local district in which the candidate had been 
teaching over loss of professional reputational after a job and teacher education participation were 
terminated (Broughton v. Livingston, 2010).  

 

Religious and Expressive Rights  
 

In the context of the increasingly consumerist perspective on what education means to 
individuals in our society, some of the most powerful legal challenges to public education practices 
in recent years have been initiated by social or religious groups based on claims of violations of the 
speech and religious freedom provisions of federal and state constitutions; religious freedom claims 
have been particularly power bases for challenge to government requirements (Greenawalt, 2005; 
Kaplin & Lee, 2014). In this context, claims could be made that the definitions of teaching 
competence and the standards for assessing educators intrude upon rights to freedom of speech and 
religious belief and practice.  

Teacher education faculty have begun to raise concerns about the ideological differences 
between faculty determinations about what teachers need to know and be able to do and what the 
government defines as competence, particularly as measured on the performance assessment 
(National Association for Multicultural Education, 2014; Sato, 2014).  The legal argument here 
would rest on faculty claims under the free speech clause of the First Amendment to the U.S. 
Constitution to academic freedom to determine curricular content and instructional approaches. In 
the general spirit of judicial deference to education officials, the presumption here probably tips in 
favor of the state’s choice on what teachers should know and be able to do in order to qualify for a 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 9 
 
license.  In addition, courts have been reluctant to protect the academic freedoms of individual 
faculty as opposed to the freedoms of the higher education institution itself (Pullin, 2004). 

Students whose work or images are captured in a teacher performance assessment could also 
raise religious challenges. Examples would include individuals whose bona fide religious beliefs bar 
use of their own video or photographic images or members of groups who, on grounds of religious 
belief, do not engage in what some evaluators might consider fair treatment of a homosexual or 
transgender student in their classroom (see Hennesy v. City of Melrose, 1999).  

Government can intrude on religious-based practice or expressive rights, but must have 
appropriate grounds for doing so, which means the governmental interest being pursued by the 
program and the means for achieving that goal will be important, as will the extent of the intrusion 
on individual religious belief and practice or expression (Greenawalt, 2005; Kaplin & Lee, 2014).  

 

Opportunity to Learn for Future Teachers  
 

Another set of issues concerning how educator preparation fits in the new marketplace for 
education arises from state and federal constitutions and claims that might be presented either by 
future teachers who assert that their teacher education program didn’t well prepare them for 
licensure assessment or by educator preparation programs themselves who might feel they have 
claims against the state over the ways in which their programs are regulated. In addition to 
implementing or overseeing the award of teaching credentials, each state also regulates the process 
of educator preparation through the state’s mechanisms for approval of educator preparation 
programs. This control imposes on states another set of requirements to ensure that there is a 
relationship between teacher credentialing and teacher preparation (Duckor et al., 2014; Gitomer & 
Zisk, 2015). This would be true regardless of whether the state directly performs these functions or 
delegates them to some quasi-public or other agency, an accrediting body, or outside vendor or 
contractor (Pullin, 2001).  

Accountability for individuals seeking a license is one goal of teacher performance 
assessment programs; another is accountability for teacher education programs (Knight, Lloyd, 
Arbaugh, et al., 2014). In a special issue of the Journal of Teacher Education devoted to teacher 
performance assessment, the editors note that one goal of the use of teacher performance portfolios 
like the edTPA is to provide information not just for accountability but also for program 
improvement in teacher education programs (Knight, Lloyd, Arbaugh, et al., 2014). They note that 
the extent to which performance assessments and teacher education programs are congruent is 
important.  
 Performance assessment of future educators is a component of professional preparation 
programs to determine progress through the program. However, the new uses of external 
performance assessment for licensure assume that a performance assessment is used for both 
summative and formative purposes to guide future teachers as well as those who prepare them 
during an educator preparation program (Wei & Pecheone, 2010). As a result, questions can arise 
whether the state-regulated educator preparation programs have a meaningful opportunity to 
incorporate into their programs what the state requires educators to know and be able to do as 
reflected in the licensure assessment. This would obligate the state to ensure that its standards for 
program approval are consistent with what would be required to prepare future educators to meet 
licensure requirements including the performance assessment requirements. This obligation would 
include the provision of sufficient feedback on performance to allow a meaningful opportunity to 
improve future performance, particularly when the performance is being judged in a formative 
evaluation (Pullin, 2001). Some teacher educators have argued that contracting out to a private 
vendor the scoring of edTPA eliminates the opportunity for teacher educators to understand and 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 10 
 
influence the assessments (Duckor, 2015; Wilkerson, 2015). These issues of alignment to allow a fair 
opportunity for educators to prepare themselves become a particular challenge when states move 
rapidly to implement the new common core curriculum standards. 
 The state may have a constitutional obligation to assess whether teacher candidates are 
offered instruction in the state’s approved or accredited programs, including programs within higher 
education institutions as well as programs by other types of providers (Pullin, 2001). In addition, the 
state may be obligated to assess whether educator preparation programs are offering the curriculum 
and instruction that will prepare students in educator preparation programs to meet the testing or 
assessment requirements for certification or licensure. In a similar situation requiring successful 
performance on a minimum competency test in order to receive a high school diploma, courts ruled 
that, where compulsory attendance is required and students expected that they would receive a 
diploma as a result of having met high school requirements, the state must show that schools 
provided students a fair opportunity to be taught what is covered on the test (Debra P. v. 
Turlington, 1981). 

Civil Rights Statutes Barring Discrimination in Licensure and Employment 

The heightened attention on educator evaluation, with higher stakes consequences with 
potential loss of important credentials for future employment, will mean more potential individual 
suits claiming invidious discrimination in the form of differential treatment of individuals during the 
evaluation process (see, for example, Hutchins v. Bibb County Sch. Dist., 2014). 

Federal civil rights laws (and, often, analogous state laws) have been used to successfully 
challenge criteria used to make decisions concerning employment, training programs, and licensure 
(Baker et al., 2013; Pullin, 2001, 2013; Ryan, 2009). If an employment test, selection process, or 
evaluation has disparate results for protected groups or individuals, such as racial or ethnic 
minorities or older workers, or creates barriers to participation for individuals with disabilities or 
based on gender role stereotypes, the nondiscrimination requirements of federal statutes will apply 
(Baker, Oluwole, & Green, 2013; Green, Baker, & Oluwole, 2012; Pullin, 2011; Ryan, 2009). Some 
critics of edTPA have raised concerns that the assessment undermines efforts at multicultural 
education in particular (Sato, 2014). 

Title VI of the Civil Rights Act of 1964 bars discrimination in education programs receiving 
federal financial support, including state and local educational agencies. The more widely used basis 
for challenging discrimination in testing, selection, and evaluation is Title VII of the Civil Rights Act 
of 1964, which bars employment discrimination on the basis of race, color, religion, sex, or national 
origin. Title VII bars discrimination in employment, but permits the use of professionally developed 
ability tests for employment decisions, provided that they are not designed, intended, or used to 
discriminate because of race, color, religion, sex, or national origin. It is in the application of Title 
VII that courts have in the past been most heavily involved in issues of the validity and reliability of 
inferences based on tests and evaluations. Local school systems that use an assessment are subject to 
Title VII requirements, even if they only use the assessment because the state requires them to do 
so. For example, successful race discrimination claims were brought against the New York City 
Public Schools on grounds that the district was utilizing an invalid licensure test, even though that 
test was state-mandated and created by a vendor under the direction of the state (Gulino v. Board of 
Education, 2014, 2015; see also, Association of Mexican-Am. Educators v. California, 2000).  

The provisions of other federal civil rights statutes also allow tests and objective criteria, but 
only if they do not cause unlawful discrimination on the basis of gender (regulated under Title IX, 
which bars gender-based discrimination in federal education programs or activities receiving federal 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 11 
 
financial assistance), age (Age Discrimination in Employment Act), or disability (Section 504 and the 
Americans with Disabilities Act) (Pullin, 2001, 2013, 2014).  

Traditionally, a test that has a disparate impact on protected groups requires a demonstration 
by the employer that the test is job-related with regard to the position in question and consistent 
with business necessity. This requires evidence that the test actually measures skills, knowledge, or 
ability required for job performance. Broad coverage also exists under Title VII and the Equal 
Employment Opportunity Commission’s (EEOC) Uniform Guidelines for Title VII concerning all 
employee selection approaches, including performance evaluations.  

Title VII requirements were recently used by a federal court in New York in determining the 
illegality of one of that state’s teacher licensure tests.  Where a licensing test has a disproportionate 
impact on racial or ethnic minorities, there must be evidence that the test validly measures only the 
specific knowledge, skills, and abilities necessary for competent job performance based upon validity 
studies utilizing appropriate job analysis of the work of teaching according to the requirements of 
the federal Equal Employment Opportunity Commission (EEOC) Guidelines (Gulino v. Bd. of Ed. 
of City School Dist. of City of New York, 2015). 

Recent legal claims of discrimination in access to online education programs and services are 
being brought on behalf of people with disabilities (Lewin, 2015; National Federation for the Blind, 
2014). Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA) 
are broad nondiscrimination laws that apply to educational institutions and activities, including all 
public elementary and secondary education programs, the vast majority of higher education 
programs in all of their educational and employment activities, all state departments of education, 
and independent licensing boards (Bartlett v. N.Y. State Bd. of Law Examiners, 2000). Both Section 
504 and the ADA bar discrimination on the basis of disability when employers use job criteria that 
intentionally or unintentionally screen out individuals with disabilities who are capable of performing 
a specific job. An assessment cannot be utilized for a job requirement if it bars individuals with 
disabilities from employment unless the test can be shown to be job-related and necessary to meet 
legitimate business needs for a particular position. Therefore, if an assessment is used as a 
requirement for qualifying for a teaching credential or job, evidence should exist that the assessment 
measures an essential function of the job and no reasonable accommodation in the assessment could 
be provided given the specific disability a candidate presents.  
 The ADA includes specific provisions requiring nondiscrimination in the administration of 
examinations (42 U.S.C. § 12189; see also 28 C.F.R. § 36.309). These provisions include ADA 
requirements that testing sites be physically accessible and that test formats be the most effective 
manner for persons to demonstrate that they can perform necessary job-related skills and 
knowledge. 
 One of the key issues in using performance assessment for educator licensure for individuals 
with visual and other physical disabilities will be the extent to which they can access the online 
platforms for the assessment (Areheart & Stein, 2015). Online submission is the approach used by 
edTPA for its performance assessment for licensure and multiple platform vendors are utilized in 
different states. A growing number of concerns have been addressed about accessibility to online 
educational platforms for individuals with visual impairments. And, there is now a claim that 
individuals with disabilities ought to be included in field tests during assessment development when 
accommodations can be tried out, so that they have a fair opportunity to participate in field tests and 
to have their needs considered during the development process rather than being forced to face 
accommodations or refusals to provide accommodations later when the assessments have high 
stakes consequences (National Federation for the Blind, 2014).  



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Next Generation Legal Issues 

 The types of civil rights and constitutional law claims addressed above have been to date the 
most common legal issues in disputes over educator preparation and licensure. Certainly many other 
legal issues have arisen in the contexts of educator evaluation for termination (Pullin, 2010), but 
those are not within the scope of this article. However, worth further attention here are new types of 
what might be deemed “next generation” legal issues involving educator quality and educator 
preparation as seen from the perspective of the new consumerism and corporate approaches to 
education reform. These fall into two broad categories: first, issues related to the privacy, reputation, 
and proprietary interests of educators and their students and, second, issues that are more common 
in the business context and involve fraud, error, and misrepresentation, and professional negligence. 
 

Privacy Law Issues 
 

One of the cornerstones of corporate education reform is the utilization of performance metrics 
to enhance accountability and drive change.  Many of these metrics and associated products and 
services to improve performance are provided by outside vendors, often for-profit entities.  For 
example, edTPA portfolio submissions are sent to Pearson for scoring, which means that all of the 
licensure candidate materials and considerable information on the students the candidate teaches are 
in the hands of a multinational for-profit corporation that sells many assessments and educational 
programs and services (www.pearson.com). Enthusiasm for these approaches by policymakers and 
many practitioners are now beginning to conflict with consumer concerns to protect their individual 
data and those of their family members.   

Portfolio assessments for teachers include representations of their own work as well as student 
work and video recordings of classroom interactions; in addition online metadata may be collected 
as a result of online submission of materials in the assessment.  One characteristic of the new 
consumerism in education is an increasing level of vigilance on the part of parents of K-12 students 
about data collection from or about their children. Increasing attention to individual privacy rights in 
the implementation of education reform initiatives can be expected, presenting issues for both P-12 
students and their parents as well as current and future teachers. State and federal laws set out 
individual privacy rights for educators and both P-12 students and students in educator preparation 
programs (Cascia, 2011; Mutkoski, 2014; Sprague, 2015; Trainor, 2015). These individual interests 
must be weighed against the public right to accountability from educators and educational 
institutions. And individual privacy interests must be balanced against the state’s right to have access 
to assessment information that is needed to meet statutory requirements (Herold, 2014a). 
 Privacy interests potentially arise in classroom observation and video or audio recording, in 
VAM calculations, and in use of P-12 student work in the teacher performance assessment evidence 
submitted for licensure. A second set of privacy issues arise when the assessment information might 
be used for purposes other than the licensure of the individual candidate who submitted the 
assessment materials. Concerns have been raised about how the content of how an assessment 
might be used once it is in the hands of the entity receiving the materials (Sprague, 2015; Winerip, 
2012). What will happen to the work of the educator submitting the work once it is scored and what 
will be done with the information collected about the P-12 students and their parents included in the 
portfolio or incidental information collected about the cooperating classroom teacher or school 
administrators? Will privacy of all these people be protected? Will other products be created from 
information in the submission? Several different potential sets of privacy considerations are 
implicated: privacy of all the P-12 students (and their parents) in the classes used for the candidate’s 
performance assessment; privacy of the individual students whose work is examined in the 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 13 
 
assessment; privacy of the individual classroom teacher (teacher of record); and privacy of the 
candidate or future educator. These individual interests need to be balanced against the potential 
interests of: the P-12 school/district in which the performance occurs, the state regulating P-12 and 
higher education systems, and the interests of the public in the performance and accountability of 
educational institutions, educators, and public education systems.   
  In an era in which the economic and property interests associated with education are 
increasingly privileged in our society, privacy and the ownership or control of personal information 
potentially become major issues. And, increasingly, as interest in the use of big data sets to enhance 
performance and accountability continues to grow, more attention needs to be paid to identifying 
and understanding the interests not only of individual students and educators, but others impacted 
by these systems: educator preparation institutions; the state agency implementing the licensure 
system; the state agency overseeing P-12 school accountability; the state agency overseeing educator 
preparation institutions; the educator preparation programs themselves; and the federal government 
(U.S. Department of Education, 2014) and independent accrediting bodies, such as the Council for 
the Accreditation of Educator Preparation (CAEP), which are all now more focused on outcomes 
measures of program and student quality. The new standards for accreditation adopted by CAEP, 
for instance, call for the use of performance data for program graduates based on the performance 
of the P-12 students those graduates teach (CAEP, 2013; Sawchuk, 2014). In addition to these 
interests, the public at large may have an interest in data on educational performance reflected in 
efforts by the press seeking access to information on the performance of P-12 schools and educators 
under new data journalism approaches to news gathering (Los Angeles Unified Sch. Dist. v. Superior 
Court, 2014; Morris Publishing Group v. Florida, 2014) or educator preparation institutions by an 
outside entity that conducts rankings like the National Council on Teacher Quality (NCTQ) (2014) 
or the US News and World Report (2014). 
 There is wide a range of privacy issues associated with educator assessment materials, 
particularly when the materials contain the work of P-12 students or video or audio recordings of 
actual classrooms or other school experiences. Privacy concerns arise for the P-12 students (both 
those who are focused upon in the portfolio and also for non-focus students who may be 
incidentally captured in records, work products, or recordings), the families of the P-12 students, 
and their classroom teachers of record. The educator candidate may have his or her own privacy 
interests at stake as well if the assessment materials are used for purposes other than licensure, as 
will be discussed below. 
 To the extent that legal issues concerning claims of privacy turn in part on considerations of 
what are reasonable expectations of privacy in our society, it is worth considering the rapid changes 
in our notions of what constitutes a “reasonable” privacy expectation today (Reidenberg, 2014). 
Note, for example, the recent U.S. Supreme Court decision recognizing that there are particular 
legitimate privacy expectations related to cell phones (Riley v. California, 2014). No matter how 
much society may be changing in terms of (over)sharing one’s own information, fundamental issues 
concerning the protection of personally identifiable information (PII), the privacy of children, and 
the expectations around the intimacy of relationships between parents and their children suggest that 
great care is warranted in adopting an approach to protections for PII. 

Perhaps inspired in part by prominent media accounts of national security and credit/debit card 
hacking, as well as a flurry of social media-targeted marketing initiatives based upon information in 
databases, a new digital privacy rights movement has quickly developed (Crawford & Schultz, 2014; 
Reidenberg, Russell, Kovnot, Norton, Cloutier & Alvarado, 2013; Rotenberg & Barnes, 2013). This 
follows efforts on the part of social conservative advocacy groups to protect parental rights to 
influence or control what happens to their children in schools and to amend state laws to do so 



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(American Legislative Exchange Council (ALEC), 2014, 2013; Ujifusa, 2014). As a result, more 
attention to privacy issues is warranted. The issue is complicated by the fact that the existence of big 
databases on educational performance, available in an era of increasing focus on accountability, have 
resulted in calls for access to the data on the part of journalists and activists. The fact that many of 
these databases are in the hands of private vendors, some with associated corporate interests to 
generate new programs and materials, only complicates the matter further (Mutkowski, 2014; 
Reidenberg et al., 2013; Rotenberg & Barnes, 2013). For example, one of the biggest education 
vendors in the nation, Pearson, is also the vendor providing edTPA scoring (AACTE, n.d.).   

One reaction to these types of concerns is increased legislative activity.  California, for example, 
recently amended its state statutes concerning business and the professions with a “Student Online 
Personal Information Protection Act” (California, 2014). The law requires online services to 
promote student privacy with security protections and limits targeted advertising by data 
warehouses.  It does allow the online providers to engage in data use for their own purposes in 
developing and improving education services; how far this opportunity will extend remains to be 
determined. 

 

Common Law Privacy Law Protections 
 

State court case law and some state statutes set broad parameters for protecting privacy in 
situations in which individuals would ordinarily expect privacy. In settings in which privacy is 
expected, unreasonable or serious interference with privacy that causes harm to individuals can 
result in cases seeking damage awards from the parties or the institutions or entities alleging privacy 
violations (Blair v. Rutherford Cnty Bd. of Ed., 2013; Carr & Bellia, 2015; Fishman & McKenna, 
2014; Reidenberg et al., 2013). 

 

Laws Related to Video Recording or Audio Recording of Students and Classrooms 
 

Legal issues associated with educator assessment arise from the inclusion of any videotapes 
of classroom or individual student performance as part of the materials submitted. There are two 
potential sets of issues here, those concerning the future educator himself and those concerning his 
students who are video recorded as part of the educator’s performance assessment. Federal student 
records laws can apply and these will be discussed in a later section of this paper. State and federal 
general privacy laws and wire-tapping laws are relevant to these recordings and videotapes; those 
state laws can vary considerably (Carr & Bellia, 2015).   

The use of video or audio recording requires consideration of where the recording occurs 
and the expectations of privacy that exist in that context or are specifically defined by state or federal 
law (Carr & Bellia, 2015). The general principle is that recording of a private place or of a private 
interaction requires prior and specific consent from those being recorded or from the parents of P-
12 students, while videotaping in a public place doesn’t require consent (Reidenberg, 2014; Sprague, 
2015). The language and interpretation of state laws vary from state to state on whether a school or 
a classroom should be regarded as private places and the ways schools operate can impact this 
consideration as well. Many courts have found no legitimate expectation of privacy from videotaping 
for either students or teachers in classrooms (Fishman & McKenna, 2014). For example, if security 
cameras are widely deployed in schools and everybody knows that, little reasonable expectation of 
privacy may exist. In most instances, the more publicly accessible parts of schools are probably not 
regarded as private. What is less clear is whether the individual classroom is private or the more 
intimate interactions between educator and student or among students themselves are private. This 
is likely a matter of state law or may not be clearly resolved yet under state law.  It will also be a 
matter of federal student privacy law, as will be discussed in a later section of this article. 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 15 
 
 As an example of one atypical state approach, California imposes criminal sanctions on 
those who surreptitiously record in a classroom (Cal. Educ. Code § 51512 (West, 2015) but it has 
explicitly addressed the issue of using classroom videotape by a teacher to improve her individual 
performance:  

Any classroom teacher who, in the interest of improving his or her personal teaching 
techniques, wishes to use an audio recording device in a classroom to record 
classroom instructional presentations, may employ that device without the necessity 
of obtaining the approval of the school principal or other school officials (Cal. Educ. 
Code § 44034, 2015). 

Texas has a similar provision in its law (Tex. Educ. Code Ann. § 26.009, 2015)). These are rare state 
provisions compared to most states, which have not addressed the issue. 
 In addition to specific issues about videotaping, some states have wiretapping laws that can 
apply broadly, including at school (Carr & Bellia, 2015). In Massachusetts, for example, there is a 
very broad privacy law protecting individual privacy (Massachusetts Gen. Laws 214 § 1B). Under 
these types of laws, when one person records another (unless a court order or appropriate consent 
by a third party is in place) the law presumes that the recording cannot be secret and requires the 
prior consent of those whose utterances or actions might be picked up by the recording. The broad 
Massachusetts law requires consent of all participants. Under federal law, the consent of just one of 
the participants is required. In the case of P-12 students, the permission required to use a recording 
presumably would be from the parents or legal guardians of students (Shmueli & Blecher-Prigat, 
2011). Under some state laws, both parental and school administrator permission are required prior 
to classroom recording.  
 

Federal Statutes Protecting Student and Family Privacy 
 

 The primary federal statute concerning student privacy is the Family Educational Rights and 
Privacy Act (FERPA), which will be discussed in detail below. In addition to FERPA, several other 
federal statutes and regulations protect family and individual privacy and the use of personally 
identifiable information (PII) (Mutkoski, 2014).  
 Among the federal laws, the most noteworthy here are the Children’s Online Privacy 
Protection Act (COPPA) and the Protection of Pupil Rights Amendment (PPRA). Also potentially 
applicable are the provisions of Health Insurance Portability and Accountability Act (HIPPA), 
which protects medical information about individuals and the Individuals with Disabilities 
Education Act (IDEA), which focuses on addressing the education of individuals with disabilities 
who need special education and provides privacy protections.  

The COPPA regulates the online collection of personal information from children under the 
age of 13 to promote children’s privacy and provide security of personal information about them. It 
requires parental notification and consent to data gathering, along with a provision that allows a 
parent to limit the use of information already collected about a child. The Federal Trade 
Commission (FTC) is responsible for administering this law (Mutkoski, 2014). Parents 
overwhelmingly oppose the sale of individual student data (Cascia, 2011). 
 At least one commentator has noted that COPPA is out-of-date given recent technology 
developments (Cascia, 2011). In response to an effort to exclude school-based data gathering from 
the coverage of COPPA and to allow schools to be deemed consent providers on behalf of parents 
when online data is gathered at school, the FTC determined that COPPA can apply in schools, but 
that if information is obtained directly from school districts, and not from a child under 13, then 
COPPA does not apply (Federal Trade Commission, 2013). This leaves a clear ambiguity about 
whether and how COPPA would apply to information gathered at school by future teachers or by 



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commercial vendors processing school data or teacher performance data. To the extent COPPA 
might apply, parental consent for data gathering from students under age 13 will be important, 
particularly when schools or educators allow or require students to participate in online activities or 
e-learning that teacher candidates might incorporate into their assessment materials. 
 Some of the information that educator candidates collect about P-12 students represented in 
their assessment materials could involve very sensitive information addressed under the Protection 
of Pupil Rights Amendment (PPRA). This information might be presented, for example, in an effort 
for the future educator to explain student performance or might be elicited from the student herself 
in the course of class participation or in the completion of class assignments. The PPRA provides 
parents of P-12 children the opportunity to opt a student out of school surveys involving protected 
personal information and the data collection, disclosure, or use of personal information obtained 
from students for marketing, sale, or for other distribution of the information to third parties. It 
addresses marketing to students or sale of information about students, but might also be applicable 
to the gathering of personal information by a school or a teacher. 
 The PPRA covers eight protected categories of information: political affiliations or beliefs of 
the student or his or her parents; mental or psychological problems of the student or the student’s 
family; sexual behavior or attitudes; illegal, anti-social, self-incriminating, or demeaning behavior; 
critical appraisals of other individuals with whom respondents have close familial relationships; 
legally recognized privileged or analogous relationships; religious practices or beliefs; and 
information about family income other than when required by law to determine eligibility for 
programs or financial support (20 U.S.C. §1232h). 

Family Educational Rights and Privacy Act (FERPA) 

 The most significant federal statute concerning PII of students is the Family Educational 
Rights and Privacy Act (FERPA). FERPA creates a statutory privacy right for parents and age-
eligible students to inspect and review student records, to exercise prior consent over the disclosure 
of many education records, to know school records policies (including a requirement that logs be 
maintained of disclosures to outside parties), and to have due process protections in records 
disputes, including the right to seek corrections or deletions of inaccurate, misleading, or otherwise 
inappropriate data. FERPA applies to both P-12 and higher education programs that receive federal 
financial assistance (Daggett, 2008; Mutkoski, 2014; Penrose, 2011). It is also extremely out of date 
given recent initiatives (Daggett, 2008). And, it has been argued that while FERPA was enacted to 
protect student and family access to and protection of PII, the most frequent use of the law has 
become instead its use by educational institutions to shield themselves from accountability to the 
public or media (Penrose, 2011). 
 The cornerstone of FERPA is the requirement for prior written parental consent (or student 
consent for higher education students) prior to the disclosure of PII. FERPA exceptions can apply 
to this requirement and are potentially relevant to educator assessment materials submissions. Prior 
consent is not required when information is provided to those with a legitimate educational need to 
know information, such as school officials, those conducting studies on behalf of an educational 
agency, and those conducting evaluations of programs funded with federal money. Some have 
argued that these provisions have been loosely followed, at best (Daggett, 2008). Recently, the 
exceptions to the general prior consent to disclosure of PII requirement have been considerably 
expanded by the U.S. Department of Education, as will be discussed below. 

Judges are now being asked to determine whether the broad protections of the federal 
Family Educational Rights and Privacy Act (FERPA), which will be discussed below, apply to videos 
made in schools. In one controversy over access to information in a legal dispute, one state court 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 17 
 
judge recently held that hallway videos were education records covered by FERPA, allowing parental 
access to a video of a hallway altercation, but requiring the parent to pay for the redaction of the 
identities of other children (Bryner v. Canyons School District, 2015). This is consistent with the 
U.S. Department of Education’s interpretation of FERPA (U.S. Department of Education, 2013b). 
 FERPA controversies have been addressed by courts in other litigation where evidence 
about a student is needed, but it is important to note that FERPA doesn’t provide an individual right 
to go to court directly to enforce its provisions, despite the word “rights” in the title of the law 
(Gonzaga University v. Doe, 2002). The ultimate remedies for FERPA violations are federal 
monetary sanctions, such as the withdrawal of federal funding, or sanctions on researchers and 
vendors barring them from activities supported by the U.S. Department of Education (Daggett, 
2008). These are rarely imposed sanctions, but when imposed, they could be stiff; the ultimate result 
for educational agencies could be denial of or required payback of federal funding for educational 
programs. For vendors or others outside education programs who use PII from schools, the remedy 
is limited to the withdrawal of federal funds to the sponsoring entity or a not less than five year ban 
on accessing PII from education records. 
 

Data Warehouses, Outside Vendors, Security, and Digital Privacy Rights 
 

 Current FERPA provisions are not really sufficient to address all of the new innovations in 
information collection and use (Daggett, 2008; Penrose, 2011). Race to the Top funding called for 
longitudinal data systems to support instruction (U.S. Dept of Ed, 2009), as did the America 
COMPETES Act of 2013. Every state created a P-12 Statewide Longitudinal Education Data 
System (SLED) as a result of these requirements if they didn’t already have such systems. Many of 
these systems were turned over to private for-profit vendors to manage and they often do so using 
cloud-based computing (Reidenberg et al., 2013; U.S. Department of Education, 2013a). 
 A new opportunity that might be offered by these private vendors is the collection and 
analysis of data across classrooms, schools, districts and states, as well as the collection and use of 
data across platforms, including data from educator assessment materials. These vendors collect 
data, with identifying information, at the individual student and teacher level. They often have more 
control, or ownership, over data than do public education authorities, so the use of the data they 
collect, including any metadata they may capture, may create new commercial opportunities for 
them. Many new types of legal issues concerning privacy arise from the current focus on big data 
approaches to education reform and accountability (Cascia, 2011; Mutkoski, 2014) and the 
widespread increase in the privatization of many information functions as a result of efforts to 
maximize technical expertise and offset the dwindling workforce of many government agencies. 
And, one of the challenges of determining how to proceed in this context is that it is simply 
impossible to forecast the ways those handling big data sets and generating metadata associated with 
them will innovate to create new uses of data not yet imagined by most people (Crawford & Schultz, 
2014). 
 Strong concerns have been raised about: the security of the cloud storage of personal data; 
insufficient public control in the contractual relationships with vendors providing information 
services; insufficient parental privacy protections and provisions for parental control over student 
data; lack of consent to data collection and dissemination; and commercialization of school and 
student data, with particular concerns that private information companies can track students online 
for marketing or other purposes (Cascia, 2011; Class Size Matters, 2013; Common Sense Media, 
2013; Reidenberg et al., 2013; Rotenberg & Barnes, 2013).  
 The U.S. Department of Education (2011, 2014) clarified its FERPA implementation 
guidance to make clear its interpretation that FERPA should permit easy handoff of student data 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 18 
 
from schools to private vendors for statewide longitudinal education data systems SLEDS or other 
data management activities. Taking a very broad interpretation of the law, the Department 
broadened its approach concerning who can use PII without prior parental consent. The new 
regulation allows disclosure without consent to entities and programs not administered by 
educational agencies or institutions directly (34 C.F.R. 99.31). This change was coupled with broad 
flexibility to entities regulated by FERPA in terms of how they implement FERPA requirements and 
how they designate authorized representatives with legitimate interests to handle data on their behalf 
as part of audit, evaluation, enforcement, or compliance activities. Further, it broadened the 
definition of the “school officials” covered by FERPA to include “contractors, consultants, 
volunteers, and other parties to whom an educational agency or institution has outsourced 
institutional services or functions it would otherwise use employees to perform” (34 C.F.R. § 
99.31(a)(1)(i)(B)). The same revision of the regulations was also designed to broaden access to 
student PII “to organizations conducting studies for, or on behalf of, educational agencies or 
institutions to: (a) develop, validate, or administer predictive tests; (b) administer student aid 
programs; or (c) improve instruction” (34 C.F.R. § 99.31(a)(6)(i)); see Reidenberg, et al., 2013).  
 The most recent FERPA regulations require educational institutions or agencies providing 
student records to vendors to have a written agreement specifying terms of use (U.S. Department of 
Education, 2013a). The entity providing the PII to a vendor is assumed to retain control over the 
data. The obligations imposed on a vendor include parental access provisions and recording of re-
disclosures of PII. The U.S. Department of Education recognizes that a vendor receiving student 
records can be involved in the development of educational products for the schools from which PII 
student records information is received. The Department seems to envision a role for the use of 
student records data to create or improve educational products so long as the product was intended 
for use in the district that disclosed the PII to a vendor, but would not allow the provision of 
student records data to a vendor solely for the purpose of creating a product. Of course, the lines 
here can be quite blurry. The recent regulations on digital data privacy rights do not directly address 
the potential privacy intrusions that may arise in the implementation of a performance assessment, 
either in terms of what might occur relative to a candidate or to the students that candidate teaches.  
 The expansion of FERPA regulations to broaden access to outside vendors and researchers 
has been challenged in court already by privacy advocates, although the case was dismissed on 
grounds that the plaintiffs didn’t have standing to bring the case to court (Electronic Privacy 
Information Center v. U.S. Department of Education, 2014). Given the extent of concern about 
these changes among privacy rights advocates, more legal challenges to the new approaches can be 
expected. 
 

State Privacy Laws 
 

 Federal privacy laws may allow data disclosures that state laws might prohibit (Cascia, 2011; 
Ujifusa, 2014). A state court case was filed in New York on behalf of parents seeking to prohibit the 
New York Department of Education from moving data collected by local schools to a cloud-based 
service (Davids v. King, 2013). The data at issue involved data warehouses with millions of students’ 
individual grades and test performance, SES and race, language proficiency, attendance, suspensions, 
and eligibility for special education. The data were intended to serve as the basis for data dashboards 
maintained by third-party vendors for local schools and districts under the Race to the Top funding 
received from the federal government. One New York advocacy group asserted that the cloud 
storage vendor couldn’t guarantee the security of the information stored or that the information will 
not be intercepted when it was being transmitted (Class Size Matters, 2013; Molnar, 2013). The 
court case presented legal claims arising from an assertion that the state failed to meet its obligations 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 19 
 
to protect student privacy and the private company data sharing program subjected students’ PII to 
commercial use and potential identity theft, grave risk of data hacking by the private vendors who 
provide cloud services, and the probable “grave risk of injury to students’ future educational and 
career opportunities” (Davids v. King complaint, p. 2). The complaint in the case asserted that state 
privacy laws were violated by the data arrangements when government entities gave up control of 
PII to private vendors without sufficient assurances that data privacy and confidentiality 
requirements would be met by the vendors. The case was dismissed by a trial court. New York 
recently amended its statutes to limit vendor activities and one leading education warehouse vendor 
(InBloom) announced that it was ending its operations, in part due to the difficult controversies in 
New York over privacy (Herold, 2014b; Singer, 2014). 

The Public’s Right to Know About Public Education Versus the Privacy of Individuals 

 As more and more data are collected on current and future educators, as more and more 
metrics are calculated, and as the demands for educational accountability increase, another new type 
of legal issue has arisen concerning performance data. These arise from tensions between the 
provisions of state freedom of information and public records laws designed to protect the public’s 
interest in government transparency and accountability versus the protections for individual privacy 
embedded in most state laws. The federal government and many states have freedom of information 
statutes and regulations designed to allow access to certain government information. At the same 
time, state and federal laws and regulations protect the privacy of individuals for certain information 
held by the government. These two types of provisions, one set allowing for transparency in 
government and the other protecting individual and family privacy, are increasingly coming into 
conflict. In the context of a dispute between teacher privacy rights and the public interest in 
knowing more about teacher performance, some state statutes are unclear (Dammeier, 2012).  

 An issue recently brought to the attention of a few state courts involves efforts of journalists 
to obtain access to individual educator performance information that is based on their students’ test 
performance. This student growth, or value-added modeling (VAM), information was sought for 
current practitioners either because a local district had calculated the information or because a 
newspaper wanted to hire an expert to calculate its own teacher performance metrics (Los Angeles 
Unified v. Superior Court, 2014; Morris Publishing Group v. Florida Dept. of Ed., 2014; Song, 
2012). While these controversies have focused on k-12 educators, similar issues could arise 
concerning teacher educators. 

 State courts in Florida and Los Angeles have been asked to review efforts by the media to 
obtain public release of data on individual teacher performance, student test scores, or VAM results. 
These disputes brought into direct conflict educators’ privacy interests in protecting their 
professional reputations and the media’s interest in reporting on government programs. Similar 
issues might arise when public interest or advocacy research entities like National Council for 
Teacher Quality (NCTQ, 2014) seek information about individuals or educator preparation 
programs. Since public school teachers serve in the public interest, the media asserted it was in the 
public’s interest to know individual teacher scores so that citizens could assess the quality of their 
schools and parents could know more about their children’s current or future teachers.  
 A state court interpreting New York laws allowed release of individual teacher performance 
data because release of public sector job-performance information did not, in the court’s view, 
constitute an unwarranted invasion of privacy (Mulgrew v. Bd of Ed., 2011). Subsequently, the state, 
in response to concerns of the teacher unions, revised state law to limit access to a teacher’s 
evaluation data to the parents or guardians of students in that teacher’s class. In Florida, an 
intermediate state appellate court held that the state’s public records law did not exempt from 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 20 
 
disclosure individual VAM scores for educators since the statute did not clearly exempt those scores 
from disclosure (Morris Publishing Group v. Florida Dept. of Ed., 2014; the state statute also allows 
disclosure of individual teacher evaluations after a waiting period of a school year). 
 The detailed consideration of the balancing of interests undertaken by a California state 
court in interpreting that state’s laws is notable for the manner in which it frames the competing 
interests of individual educator privacy and the public’s right to know about government 
performance. The court held that the interests of an individual parent in knowing the evaluation 
scores of teachers so they could know about their own child’s current or future potential teachers 
were not “public interests”. The “public interest” is in knowing about the functioning of 
government agencies (Los Angeles Unified v. Superior Ct., 2014). 

New Types of Legal Issues from the Business Context 

The new contexts for assessment in education suggest that many types of legal claims that 
previously were either not used, or infrequently used, will be possible, as was highlighted above in 
the consideration of privacy issues. These new types of legal challenges require some new ways of 
thinking about legal issues and public policy goals in education. The challenges arise from the 
increasing consumerist and proprietary influences on the provision of education. These phenomena 
suggest that the types of legal issues that come up in a commercial or business context may be used 
with more frequency to challenge practices rather than the more traditional constitutional or civil 
rights challenges to government programs. This section of the article discusses issues of intellectual 
property and commercial interests as well as highlighting new types of criminal and fraud concerns 
that are starting to arise.  

Intellectual Property Interests and Copyright  

 When education is increasingly seen through a consumerist lens, education providers can be 
expected to become more vigilant about their own proprietary interests. While court cases are not 
happening in any number yet, one new potential business law issue associated with performance 
assessment of educators seeking licensure arise from questions that have already been presented in 
public policy disputes over performance assessments for licensure. A boycott over the 
Massachusetts field testing of edTPA focused in part on the ownership of student submitted 
materials in the performance assessment system (Cochran-Smith, Piazza, & Power, 2013; Winerip, 
2012). This issue focuses on ownership of the teaching materials created for the performance 
assessments used for licensure. In addition to commercially available products, a small industry has 
already developed online where practicing teachers sell teaching materials to other teachers or 
provide them for free. The practice may be particularly active now as teachers struggle to find 
materials appropriate for teaching to the new common core curriculum standards. 
 When educator assessment materials are submitted to a scoring or review body, does the 
educator candidate “own” the materials? Can the scoring entity use the materials a candidate submits 
for benchmarking scores or as samples for training future scorers or for training future educator 
candidates or to create other education programs or services? This can be a particular concern if the 
scoring entity might generate revenue from the use of candidate materials in its other lines of 
business such as the provision of education programs and services. 
 The resolution of the legal issues concerning ownership or copyright of a teacher’s curricular 
and instructional materials is not clear in many states. Most of the relevant cases have arisen in the 
context of professors, not P-12 educators (Straus, 2011; VerSteeg, 1990). However, while 
emphasizing that the legal standards are not definitive, some contextual issues might be 
determinative in the outcome of a dispute over who “owns” a candidate portfolio and the 
instructional materials created for it by a teacher seeking licensure. 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 21 
 
 The general rule of copyright is that the individual (or group of individuals) creating an 
intellectual product has copyright ownership of that product, can control use and obtain resulting 
profits. Exceptions to this broad rule can exist if the creator contracts away their ownership or if the 
context in which the work was created takes the presumption of ownership away from the creator. 
An employee who creates materials as part of meeting their job responsibilities often doesn’t own a 
“work”, the employer does under the “work for hire” exception to the general rule of copyright law. 
Under this rule, it is up to the employer to determine what will be done with creative materials and 
to obtain whatever financial gains might result (Straus, 2011; VerSteeg, 1990).  
 One basis for determining ownership of P-12 teaching materials by employees of a school 
could be based on local factors, such as the contract between a school and an employee, a collective 
bargaining agreement with a union, or a stated policy of an institution about ownership of teaching 
materials. Another might be a specific provision of state law or regulations concerning ownership of 
teaching materials. But in many instances, these issues have not been spelled out (Straus, 2011). 
 The creation of teaching materials by future teachers is another matter, however, since the 
considerations above apply to employees. While some teacher candidates may be employees of a 
school district, most are not. Most teacher candidates serve in schools solely as unpaid participants 
in an educator preparation program, but others are in a preparation program while also employed at 
that school (as part of a educator residency program, for example, or because they are seeking a 
second license). This might suggest that the broad “work for hire” exception has no role at all 
concerning the creative work of student teachers and that they own full copyright for the teaching 
materials they create. This, however, creates a strange anomaly in which employed teachers, if they 
have not been granted copyright protections for their work by their employer, may have fewer rights 
than student teachers who work in a school but are not employed there.  

Commercial Law Approaches Using Contract Law, Misrepresentation, Anti-trust or a 
Defective Products Approach to Challenge Assessments or Their Use 

 Once the possible commercial issues arising from educational assessments begin to be 
considered, several other new varieties of legal claims become evident. The number of business 
fraud and breach of contracts cases filed against higher education institutions or companies has been 
increasing. Many of these disputes have focused on whether students or graduates received the 
educational programs or services they were led to believe they would receive when they enrolled in a 
program or a course, paid tuition, and participated in the program only to be disappointed in some 
respect subsequently (Olivas, 2013). These cases can result in both compensatory and punitive 
damages awarded to successful plaintiffs, which makes these cases particularly high stakes.  
 In fact, these types of legal issues have already arisen over a scoring error on a teacher 
licensure exam. A federal multi-district class action case was brought on behalf of over 30,000 future 
teachers denied licensure due to a scoring error on PRAXIS, an Educational Testing Service (ETS) 
teacher licensure test. The future teachers asserted claims under four theories: (1) breach of contract 
for failure to fairly administer the test, correctly score the test, and issue a correct score report; (2) 
negligence in failure to exercise reasonable care in the design, administration and scoring of the 
licensure test; (3) negligent misrepresentation of performance; and (4) violation of federal anti-trust 
laws. The argument brought by the educators was, in short, that the scoring error was the result of 
bad business practices. The case was quickly settled for over $11 million in favor of the plaintiffs (In 
re Educational Testing Services PRAXIS Principles of Learning and Teaching: Grades 7-12 
Litigation, 2006, 2007).  
 Because these new types of claims are no doubt associated with the growing socio-cultural 
and economic phenomenon in which education credentials are seen as a consumer good as well as 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 22 
 
an educational benefit, as discussed previously, the potential exists for many more business law types 
of claims, most often filed by attorneys with little familiarity with education or civil rights issues, but 
with a great familiarity with business law claims, some of which can be lucrative, as the ETS case 
was for the attorneys who brought it. Of course, not all these issues relate to attorney creativity. An 
individual in Texas, acting as his own attorney, brought an unsuccessful federal case alleging denials 
of constitutional rights and tortious interference with prospective business relations and injurious 
falsehoods. The case was brought against the state, a school district, and a private corporate online 
alternate teacher education program after the teacher was pressed to resign his job due to poor 
performance in evaluations and placed on inactive status by the certification program on grounds 
that teaching was not the best career for him. The claims were dismissed (Broughton v. Livingston 
Ind. Sch. Dist., 2010), but the plaintiff’s notion that a bad performance evaluation result was part of 
a set of bad business practices is worth noting. 

Whistleblower Claims and Criminal Charges - Fraud, Breach of Contract, and Making False 
Claims to the Government 

 The increasingly high stakes for individuals and institutions associated with test scores, 
performance measures, or analytic metrics like VAM scores or institutional performance report 
cards suggest some other possible fallout and associated legal controversies. When student 
performance data is used in an assessment system, two new types of legal controversies over the use 
of student test scores are now arising: criminal prosecutions for systemic test cheating on student 
tests used for high-stakes educator accountability and whistle-blower claims that teacher evaluation 
programs have resulted in fraudulent use of federal or state funds. While these have arisen among 
experienced educators in public k-12 schools, similar issues may arise in the new systems under 
consideration in this paper. 
 As the stakes grow higher, incentives for cheating increase (Amrein-Beardsley, Berliner, & 
Rideau, 2010; Cohen & Wollack, 2006). Given the increasing use of student test performance data to 
determine educator or institutional quality, it is perhaps not surprising that recent high stakes 
accountability initiatives have led to allegations of inappropriate teacher and administrator behavior. 
States have acted accordingly, suspending or revoking licenses and, in one case successfully 
incarcerating the El Paso, Texas superintendent after a criminal case (Strauss, 2012). Courts tend to 
support education officials in these types of actions to address cheating. For example, a Georgia 
appellate court found that it was appropriate for the state to temporarily suspend the license of a 
kindergarten teacher who changed some of her student’s incorrect answers on the Iowa Tests of 
Basic Skills (Professional Standards Commission v. Denham, 2001).  

Whistleblower lawsuits. In Washington, D.C., student test scores were used as part of 
individual value-added measures used for teacher terminations and bonuses as part of a highly 
visible initiative led by then Schools Chancellor Michelle Rhee (Brill, 2011; National Research 
Council, 2015). The U.S. Department of Education Inspector General and the District of Columbia 
Inspector General became involved when a former D.C. principal filed a whistleblower case alleging 
fraudulent use of federal funds from the Race to the Top initiative in the implementation of the 
program when educators cheated in the administration of student tests used for school and educator 
evaluations. A successful whistleblower case can result in fines or criminal penalties for those 
committing fraud, coupled with substantial monetary awards for the individuals who successfully 
blew the whistle, so the stakes are high on both sides. The Inspectors General found evidence of 
cheating and educator admissions of cheating but concluded the evidence was insufficient to 
substantiate criminal or whistleblower claims (Brown, 2013; Office of the District of Columbia 
Inspector General, 2014; U.S. Dept of Ed. Office of the Inspector General, 2013). This was one of 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 23 
 
the first uses of federal whistleblower claims in k-12 public education, but it foreshadows a new set 
of legal possibilities. 

Criminal law cases involving irregularities in assessments. In Atlanta, Georgia, the 
former superintendent and 34 high level education leaders faced criminal charges and substantial 
prison time for engaging in a criminal conspiracy in violation of state laws by either perpetrating, 
covering up or turning a blind eye to cheating on student tests used in high stakes accountability 
programs. The allegations focused on teachers and principals altering answer sheets or committing 
other violations of appropriate test security or use including teaching to the test. The student tests 
were used for school accountability calculations and substantial salary bonuses for school leaders 
resulted. The Atlanta cheating charges followed an extensive statistical investigation by the local 
newspaper. A substantial forensic investigation followed, conducted by a large team of experienced 
criminal investigators working under the purview of the state governor’s office (Office of the 
Governor of Georgia, 2011). Criminal charges resulted and a number of accused educators pled 
guilty; one educator was acquitted. Following a lengthy trial, guilty verdicts were entered for the 
remaining teachers and administrators, not including the former superintendent who had passed 
away. (Maxwell, 2013, 2015). The punishment for three of the convicted defendants exemplify the 
magnitude of the consequences:  each was sentenced to 2000 hours of community service, a $10,000 
fine, seven years in prison, and three years of probation (Fausett & Blinder, 2015; Mitchell, 2015). 

Professional Negligence 

The ultimate legal outcome of the new consumerism in education may be what several 
commentators suggest as one potential result of the new approaches to educational accountability: 
the reincarnation of educational malpractice claims against educational institutions seeking the award 
of monetary damages and attorney fees for acts of educational negligence for failure to follow 
professional norms of good practice. In addressing these types of assertions in the past, courts 
across the country were overwhelming unwilling to embrace the legal claims in large part because 
they couldn’t define what the obligation to educate entails. Now, it is asserted, the recent initiatives 
to quantify teacher performance and the performance of teacher education programs create 
established professional norms that could be used to hold educators and education institutions 
accountable for monetary damages through negligence law for bad professional practice 
(DeMitchell, DeMitchell, & Gagnon, 2012; Hutt & Tang, 2013).  

Conclusion and Implications 

Recent efforts to address the quality of the education professions have received considerable 
attention and garnered considerable political support from many different constituencies. However, 
as these activities proceeded, little attention was paid initially to the potential legal complications 
associated with these programs. The uses of productivity measures and analytic metrics to judge or 
incentivize educators and education preparation programs are approaches based on what some 
characterize as types of corporate education reform. The responses of the individuals and 
institutions negatively impacted by these reforms may be legal challenges based on traditional 
constitutional or civil rights claims. But a growth in less traditional types of legal challenges may be 
even more likely. These challenges will arise from a contemporary context in which the value of 
education is increasingly seen as individual economic benefit and where the early 21st century has 
already been marked with uncertainties over privacy protections and privatization of educational 
services.  

It is early yet in the emergence of these new types of legal claims, but there are clearly ample 
reasons to predict considerable activity in the future. The implications of these new legal issues for 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 24 
 
k-12 educators, teacher educators, teacher preparation programs, public education officials, and 
members of the public will not be entirely clear until further into the implementation of the new 
reform initiatives. However, one clear implication can be drawn at present. People are beginning to 
view education and its role in their lives differently than in the past.  When they are concerned about 
how education is being conducted, they now have new ways of using legal issues to present 
challenges. This is not to suggest that educators and education officials should fear lawyers but 
rather to suggest that we could all benefit from understanding the different ways people now view, 
and may challenge, policies and practices aimed at the reform of the education professions and how 
law is used to pursue different policy perspectives on education in our society. 

 
References 

 
Age Discrimination in Employment Act, 29 U.S.C. A. §§ 621-634 (1967). 
Allen v. Alabama State Board of Educ., 976 F. Supp. 1410, 1427 (M.D. Ala. 1997) aff'd, 164 F.3d 

1347 (11th Cir. 1999) vacated after consent decree implemented, 216 F.3d 1263 (11th Cir. 
2000). 

Altbach, P., Gumport, P., & Berdahl, R. (Eds.). (2011). American higher education in the twenty-first 
century: Social, political, and economic challenges. Baltimore, MD: The Johns Hopkins University 
Press. 

American Association of Colleges of Teacher Education (AACTE). (n.d.). About edTPA. Retrieved 
from http://edtpa.aacte.org/about-edtpa#Overview-0  

America Competes Act (America Creating Opportunities to Meaningfully Promote Excellence in 
Technology, Education, and Science Act), 20 U.S.C. §9871(e)(2) (2013).  

American Educational Research Association, American Psychological Association, National Council 
for Measurement in Education (AERA/APA/NCME) (2014). Standards for educational and 
psychological testing. Washington, DC: American Educational Research Association. 

American Legislative Exchange Council (ALEC). (2013, September 29) Student data accessibility, 
transparency, and accountability act [model statute]. Retrieved on April 13, 2014 from 
http://www.alec.org/model-legislation/student-data-accessibility-transparency-
accountability-act/  

American Legislative Exchange Council (ALEC). (2014, January 9) Student achievement backpack 
act [model policy]. Retrieved on April 13, 2014 from http://www.alec.org/model-
legislation/student-achievement-backpack-act/  

Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1990).  
Amrein-Beardsley, A. (2014). Rethinking value-added models in education: Critical perspectives on tests and 

assessment-based accountability. New York: Routledge. 
Amrein-Beardsley, A., Berliner, D., & Rideau, S. (2010, June 30). Cheating in the first, second, and 

third degree: Educators' responses to high-stakes testing. Education Policy Anaylsis Archives, 
18(14). 

Areheart, B., & Stein, M. (2015, February). Integrating the internet. George Washington University Law 
Review, 83, 449-498. 

Association of Mexican-Am. Educators v. California, 213 F. 3d 572, 580-81, 84 FEP 474 (9th Cir. 
2000) (en banc). 

Au, W., & Ferrare, J. J. (Eds.). (2015). Mapping corporate education reform: Power and policy networks in the 
neoliberal state. New York: Routledge. 

Baker, E., Barton, P., Darling-Hammond, L, Haertel, E., Ladd, H., Linn, R., Ravitch, D., Rothstein, 
R., Shavelson, R. & Shepard, L. (2010).  Problems with the use of student test scores to 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 25 
 

evaluate teachers. Economic Policy Institute.  Retrieved at 
http://epi.3cdn.net/b9667271ee6c154195_t9m6iij8k.pdf 

Baker, B., Oluwole, J. & Green, P. (2013). The legal consequences of mandating high stakes 
decisions based on low quality information: Teacher evaluation in the Race-to-the-Top era, 
Education Policy Analysis Archives 21: 1.  Retrieved at 
http://epaa.asu.edu/ojs/article/view/1298 

Ballou, D., & Podgursky (1997). M. Teacher pay and teacher quality. Kalamazoo, MI: W.E. Upjohn 
Institute for Employment Research. 

Bartlett v. N.Y. State Bd. of Law Examiners, 156 F. 3d. 321 (2d Cir. 1988) aff’d in part, vacated in 
part, 226 F.3d 69 (2d Cir. 2000). 

Blair v. Rutherford Cnty. Bd. of Ed., 2013 WL 3833516 (Ct. App. Tenn., July 19, 2013). Appeal den., 
Nov. 13, 2013. 

Brill, S. (2011). Class Warfare: Inside the fight to fix America’s schools. New York: Simon & 
Schuster. 

Broughton v. Livingston Indep. Sch. Dist., 2010 WL 3056862 (E.D. Tx., July 29, 2010). 
Brown, E. (2013, April 12). D.C. report: Teachers in 19 classrooms cheated on students’ high-stakes 

tests in 2012. The Washington Post. Retrieved at 
http://www.washingtonpost.com/blogs/mike-debonis/wp/2013/04/12/missing-dcps-
cheating-memo-is-revealed/ 

Bryner v. Canyons School District (2015).  2015 WL 3562726 (Utah Ct of Appeals 2015, May 29). 
California Student Online Personal Information Protection Act (2014). Chapter 22-2 Business and 

Professions Code. Retreived July 4, 2015 at 
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB1177 

Camera L. (2014, June 27). Teacher-prep ranking system in higher ed. proposal irks teachers' unions. 
Education Week. 

Carr, J., & Bellia, P. (2015, March). Law of Electronic Surveillance. Retrieved July 3, 2015, from Westlaw. 
Cascia, A. (2011). Don't lose your head in the cloud: Cloud computing and directed marketing raise 

student privacy issues in K-12 schools. West's Education Law Reporter, 261, 883-917. 
Children’s Online Privacy Protection Act, 15 U.S.C §§ 6501-6506 (1998). 
Civil Rights Act of 1964, 42 U.S.C. §§ 2000d and 2000e. 
Class Size Matters. (2013). Inbloom and the need to protect student privacy. Retrieved from 

www.classsizematters.org/inbloom_student_data_privacy/ 
Cochran-Smith, M., Piazza, P., & Power, C. (2012, Dec. 21). The politics of accountability: Assessing 

teacher education in the United States. The Educational Forum, 77(1), 6-21.  DOI: 
10.1080/00131725.2013.739015 

Cohen, A. and Wollack, J. A. (2006). Test administration, security, scoring, and reporting. In R. L. 
Brennan (Ed.), Educational measurement (4th Ed., pp. 17-64). Westport, CT: American Council 
on Education and Praeger.  

Common Sense Media (2013, December 13). Statement from Common Sense Media Founder and 
CEO on new research showing students’ data and person information is at risk. Retrieved 
from http://www.commonsensemedia.org/about-us/news/press-releases/statement-from-
common-sense-media-founder-and-ceo-on-new-research  

Cook v. Bennett, complaint, N.D. Fl. Gainesville Division, Case No. 1:13-cv-72-MW/GRJ, filed 
April 16, 2013. 

Cook v. Stewart, 2014 WL 2959248 (N.D. Fl., Gainesville, May 6, 2014), aff’d WL 4086148 (July 7, 
 2015. 

Council for the Accreditation of Educator Preparation (CAEP) (2013). CAEP 2013 standards for 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 26 
 

accreditation of educator preparation. Retrieved from 
http://caepnet.org/accreditation/standards/ 

Crawford, K. and Schultz, J. (2014). Big data and due process: Toward a framework to redress 
predictive privacy harms. Boston College Law Review 55: 93-128. 

Daggett, L. (2008, Fall). FERPA in the Twenty-First Century: Failure to effectively regulate privacy 
for all students. Catholic University Law Review, 58, 59-132. 

Dammeier, D. (2012, Summer). Fading privacy rights of public employees. Harvard Law and Policy 
Review, 6, 297-313. 

Darling-Hammond, L., Wise, A., & Klein, S. P. (1999). A license to teach: Raising standards for teaching. 
San Francisco: Jossey-Bass Publishers. 

Darling-Hammond, L. (2013). Getting teacher evaluation right: What really matters for effectiveness and 
improvement. New York: Teachers College Press. 

Davids v. King (2013). Article 78 Proceeding Petition for Temporary Restraining Order and 
Preliminary Injunction. Supreme Court of New York, Albany County (no index number).  

Debra P. v. Turlington, 474 F. Supp. 244 (M.D. Fla. 1979), aff’d in part, vacated in part, 644 F. 2d 
397 (5th Cir. 1981). 

DeMitchell, T., DeMitchell, T., & Gagnon, D. (2012). Teacher effectiveness and value-added 
modeling: Building a pathway to educational malpractice? Brigham Young University Education 
and Law Journal, 2012, 257-301. 

Duckor, B., Castellano, K., Tellez, K., Wihardini, D., & Wilson, M. (2014). Examining the internal 
structure evidence for the performance assessment for California teachers: A validation 
study of the elementary literacy teaching event for Tier I teacher licensure. Journal of Teacher 
Education, 65(5), 402-420. 

Earley, P., Imig, D., & Michelli, N. (Eds.). (2011). Teacher education policy in the United States: issues and 
tensions in an era of evolving expectations. New York: Routledge. 

Electronic Privacy Information Center v. U.S. Dep’t of Educ., 2014 WL 449031 (D.D.C. Feb. 5, 
2014). 

Family Educational Rights and Privacy Act Regulations, 34 CFR Part 99 (2012).  
Fausset, R., & Blinder, A. (2015, April 14). Atlanta school workers sentenced in test score cheating 

case. The New York Times. Retrieved from www.nytimes.com/2015/04/15/us/atlanta-
school-workers-sentenced-in-test-score-cheating-case.html?_r=1 

Federal Trade Commission, Bureau of Consumer Protection. (2013, July). Complying with COPPA: 
Frequently asked questions. Retrieved from 
http://www.business.ftc.gov/documents/Complying-with-COPPA-Frequently-Asked-
Questions 

Fishman, C., & McKenna, A. (2014). Wiretapping and Eavesdropping.  Retrieved from Westlaw: 
www.westlaw.com 

Flanders, J. (2007). Student dismissals at public institutions of higher education: When is academic 
deference not an issue? Journal of college and university law, 34, 21-78. 

Floden, R. E. (2012). Teacher value added as a measure of program quality: Interpret with caution. 
Journal of Teacher Education, 63(5), 356-360. 

Gitomar, D., & Zisk, R. (2015, March). Knowing what teachers know. Review of Research in Education, 
39, 1-53. 

Gonzaga Uni. v. Doe, 536 U.S. 273 (2002). 
Gratz, D. (2009). The peril and promise of performance pay: Making education compensation work. New York: 

Rowman and Littlefield. 
Green, P., Donaldson, M., & Oluwole, J. (2014). An analysis of the policy, research, and legal issues 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 27 
 

surrounding the exclusion of charter schools from the teacher evaluation revolution. Journal 
of Law and Education, 43 463-483. 

Green, P. C., Baker, B. D., & Oluwole, J. (2012). The legal and policy implications of value-added 
teacher assessment policies. Brigham Young University Education and Law Journal, 1-29. 

Greenawalt, K. (2005). Does God belong in the public schools? Princeton, N.J.: Princeton University Press. 
Gulino v. Bd. of Educ. of the N.Y. City Sch, Dist. (2014), 13-1001-CV, 2014 WL 402286 (2d. Cir. 

February 4, 2014). 
Gulino v. Bd. of Educ. of the City Sch, Dist. of the City of New York (2015, June 5). No. 96-CV-

8414 (KMW),  2015 WL 3536694 (S.D. N.Y., June 5, 2015). 
Harris, D. (2011). Value-added measures in education: What every educator needs to know. Cambridge, MA: 

Harvard Education Press. 
Harris, D., & Herrington, C. (2015, March). The use of teacher value-added measures in schools: 

New evidence, unanswered questions, and future prospects. Educational Researcher, 44(2), 71-
76. 

Harris, D., & Herrington, C. (Eds.)(2015, March). Special issue: Value added meets the schools: The 
effects of using test-based teacher evaluation on the work of teachers and leaders. Educational 
Researcher, 44(2). 

Health Insurance Portability and Accountability Act, 42 U.S.C. §300gg (1996). 
Hennesy v. City of Melrose, 194 F. 3d 237 (1st Cir. 1999). 
Herold, B. (2014a, April 15). Arne Duncan responds to criticism over student privacy data. 

Education Week’s blogs: Digital Education. Retrieved from: 
http://blogs.edweek.org/edweek/DigitalEducation/2014/04/duncan_on_data_privacy_tec
hnol.html?cmp=ENL-EU-NEWS1 

Herold, B. (2014b, April 21). InBloom to shut down amid growing data-privacy concerns. Education 
Week’s blogs: Digital Education. Retrieved from: 
http://blogs.edweek.org/edweek/DigitalEducation/2014/04/inbloom_to_shut_down_ami
d_growing_data_privacy_concerns.html 

Higher Education Act (1999), Pub. Law 105-244, 20 U.S. C. §§ 1021-1030 
Hutchins v. Bibb Cnty Bd. of Ed., 2014 WL 66615 (M.D. Ga., Jan. 8, 2014). 
Hutt, E., & Tang, A. (2013, May). The new education malpractice litigation. Virginia Law Review, 99, 

419-492. 
In re Educ. Testing Serv. PRAXIS Principles of Learning and Teaching: 
 Grades 7-12 Litig., 447 F. Supp. 2d 612 (E.D. La. 2006), 517 F. Supp. 2d 832 (E.D. La. 

2007). 
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1401 et seq. 
Kane, M., Kerr, K., & Pianta, R. (Eds.). (2014). Designing teacher evaluation systems: New guidance from the 

Measures of Effective Teaching Project. San Francisco, CA: Jossey-Bass. Available at  
http://www.metproject.org/downloads/Designing%20Teacher%20Evaluation%20Systems
_freePDF.pdf 

Kaplin, W., & Lee, B. (2014). The law of higher education. San Francisco CA: Jossey-Bass. 
Knight, S., Lloyd, G., Arbaugh, F., Gamson, D., McDonald, S., Nolan, J., et al. (2014). Performance 

assessment of teaching: Implications for teacher education. Journal of Teacher Education, 65(5), 
372-374. 

Labaree, D. (1997). How to succeed in school without really learning: The credentials race in American education. 
New Haven: Yale Univ. Press 

Lewin, T. (2015, February 13). Harvard and M.I.T. are sued over lack of closed captions. The New 
York Times, A18. 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 28 
 
Los Angeles Times (2012). Value-added in education. Retrieved at projects.latimes.com/value-

added.  
Los Angeles Unified Sch. Dist. v. Superior Ct., 175 Cal. Rptr. 3d 90, 306 Ed. Law Rep. 919 (Ct of 

Appeal, 2nd Dist., July 23, 2014). 
Maxwell, L. (2013, April 4). Atlanta cheating scandal reverberates. Education Week. 

http://www.edweek.org/ew/articles/2013/04/04/28atlanta.h32.html?cmp=ENL-EU-
SUBCNT 

Mehta, J. (2015, Summer). Escaping the shadow:  A Nation at Risk and its far-reaching influence. 
American Educator, 39(2), 22-26, 43-44. Retrieved at www.aft.org/ae 

Melnick, S., & Pullin, D. (2000). Can you take dictation? Prescribing teacher quality through testing. 
Journal of Teacher Education, 51(4), 262-275. 

Mitchell, C. (2015, April 30). Judge slashes sentences of three convicted in Atlanta test-cheating 
scandal. Education Week, from 
http://blogs.edweek.org/edweek/District_Dossier/2015/04/atlanta_judge_slashes_sentenc
e.html?cmp=ENL-EU-NEWS2 

McGuinn, P. (2012). The state of teacher evaluation reform: State agency capacity and the 
implementation of new teacher-evaluation systems. Washington, D.C.: Center for American 
Progress. 

Molesworth, M., Nixon, E., & Scullion, R. (2009, June). Having, being, and higher education: the 
marketization of the university and the transformation of the student into consumer. Teaching 
in Higher Education, 14(3), 277-287. 

Molnar, M. (2013, Dec. 27). New York battle over inBloom, data privacy heading to court. 
Education Week’s blogs: Marketplace P-12. Retrieved from: 
http://blogs.edweek.org/edweek/marketplacek12/2013/12/new_york_battle_over_inBloo
m_data_privacy_heading_to_court.html 

Morris Publishing Group v. Florida Dept. of Ed., 133 So. 3d 957, 302 Ed. Law. Rep. 1219 (Dist. Ct. 
of Appeal, 2013). 

Mulgrew v. Bd. of Ed. of City of New York, 919 N.Y.S.2d 786, 265 Ed. Law Rep. 1206 (Supreme 
Ct. New York County, 2011), aff’d 87 A.D.3d 506 (Sup. Ct. New York County Appellate 
Division, 2011) 

Mutkoski, S. (2014, Spring). Cloud computing, regulatory compliance, and student privacy: A guide 
for administrators and legal counsel. Journal of information technology and privacy law, 30, 511-533. 

National Association for Multicultural Education. (2014, January 21). NAME position statement on 
the edTPA. Retrieved from www.nameorg.org 

National Council on Teacher Quality (NCTQ) (2014). Teacher prep review. Retrieved at  
 http://www.nctq.org/dmsStage/Teacher_Prep_Review_2014_Report 
National Federation for the Blind. (2014, January 24). Press release: National Federation for the 

Blind and parents of blind child file suit to make P-12 assessments accessible. Retrieved 
from https://nfb.org/national-federation-blind-and-parents-blind-child-file-suit-make-P-12-
assessments-accessible 

National Research Council (2015). An Evaluation of the Public Schools of the District of Columbia: Reform in 
a Changing Landscape. Committee for the Five-Year (2009-2013) Summative Evaluation of the 
District of Columbia Public Schools. Board on Testing and Assessment, Division of 
Behavioral and Social Sciences and Education. Washington, D.C.: National Academies Press. 
Retrieved at nap.edu/openbook 

National Research Council. (2010). Getting value out of value-added. Washington, DC: National 
Academies Press. Retrieved at nap.edu/openbook 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 29 
 
National Research Council (2001). Testing teacher candidates: The role of licensure tests in improving teacher 

quality.  Committee on Assessment and Teacher Quality. Center for Education, Board on Testing and 
Assessment, Division of Behavioral and Social Sciences and Education. Washington, D.C.: National 
Academies Press. Retrieved at nap.edu/openbook 

Nordberg v. Massachusetts Dept. of Ed., 29 Mass. L. Rptr 163 (Superior Ct., Worchester Cnty, Dec. 
7, 2011). 

North Carolina Association of Educators, Inc. v. State of North Carolina (2015, June 2).  2015 WL 
3466263, ___S.E. 2d ___ (Ct of Appeals of No. Carolina). 

 Office of the District of Columbia Inspector General (2012, August 8). Report of the investigation 
into cheating on the D.C. Comprehensive Assessment System standardized exams 
administered by the District of Columbia Public Schools. OIG No. 2011-0318. Washington, 
D.C.: Author. 

Office of the Governor of Georgia, Special Investigations Unit (2011, June 30). Investigative report 
into allegations of cheating in the Atlanta Public School System. Atlanta, GA: Author. 

Olivas, M. (2013). Suing alma mater: Higher education and the courts. Baltimore, MD: Johns Hopkins 
University Press. 

O'Neil, R. (2010). Judicial deference to academic decisions: An outmoded concept? Journal of college 
and university law, 36, 729-750. 

Penrose, M. (2011). In the name of Watergate: Returning FERPA to its original design. NYU Journal 
of legislation and public policy, 14, 75-131. 

Prince, C., Schuermann, P., Guthrie, J., Witham, P., Milanowski, A., and Thorn, C. (n.d.). The other 
69 Percent: Fairly rewarding the performance of teachers of nontested subjects and grades. 
Nashville, TN: Center for Education Compensation Reform, Vanderbilt University. 

Professional Standards Commission v. Denham, 556 S.E.2d 920 (Ga. App, 2001). 
Protection of Pupil Rights Amendment, 20 U.S.C. §1232h (1978).  
Pullin, D. (1999). Whose schools are these and what are they for?  The role of the rule of law in 

defining educational opportunity in American public education. In G. Cizek (Ed.), Handbook 
of educational policy  (pp. 3-29).  San Diego, CA: Academic Press.  

Pullin, D. (2001, July). Key questions in implementing teacher testing and licensing.  
 Journal of Law and Education. 30, 383-429. 
Pullin, D. (2004).  Accountability, autonomy, and academic freedom in educator preparation 

programs. Journal of Teacher Education, 55(4), 300-312. DOI: 10.1177/0022487104266717 
Pullin, D. (2010). Judging teachers: The law of teacher dismissals. Teacher assessment and the quest for 

teacher quality. (M. Kennedy, ed.). San Francisco, CA: Jossey-Bass. 
Pullin, D. (2013). Legal issues in the use of student test scores and value-added models to determine 

educational quality. Education Policy Analysis Archives, 21. Retrieved from 
http://epaa.asu.edu/ojs/article/view/1160 

Pullin, D. (2014, September).  Performance, value and accountability – public policy goals and legal 
implications of the use of portfolio assessments in the preparation and initial licensing of 
teachers.  Paper commissioned by the Council of Chief State School Officers and Stanford 
University’s Center for Assessment, Learning, and Equity (SCALE).  Washington D.C.: 
Council of Chief State School Officers. 

Ravitch, D. (2013, 2014). Reign of error: The hoax of the privatization movement and the danger to America's 
public schools. New York: Vintage Books/Random House. 

Reckhow, S. (2013). Follow the money: How foundation dollars change public school politics. New York: 
Oxford University Press. 

Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994). 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 30 
 
Reidenberg, J. (2014, Fall). Privacy in public. University of Miami Law Review, 69, 141-159. 
Reidenberg, R., Russell, N., Kovnot, J., Norton, T., Cloutier, R., and Alvarado, D. (2013, Dec. 13). 

Privacy and cloud computing in public schools. New York: Center on Law and Information 
Policy, Fordham University School of Law. Retrieved from 
http://ir.lawnet.fordham.edu/clip/2/ 

Richardson v. Lamar County Bd. of Educ., 729 F. Supp. 806 (M.D. Ala. 1989), aff'd 935 F.2d 1240 
(11th Cir. 1991). 

Riley v. California, 134 S. Ct. 2473 (2014). 
Rossow, L. and Logan-Fain, L. (2013). The law of teacher evaluation (3rd ed.). Dayton, OH: Education 

Law Association. 
Rotenberg, M. and Barnes, K. (2013, Jan./Feb). Amassing student data and dissipating privacy 

rights. Educause Review. Retrieved from: www.educause.edu/ero 
Ryan, J. (2009). A legal perspective on teacher compensation reform. In M. Springer (Ed.), 

Performance incentives: Their growing impact on American K-12 education. Washington, D.C.: 
Brookings Institution Press. 

Saltman, K. (2012). The failure of corporate school reform. Boulder, CO: Paradigm. 
Sato, M. (2014). What is the underlying conception of teaching of the EdTPA? Journal of Teacher 

Education, 65(5), 421-434. 
Sawchuk, S. (2014a, January 30). Teacher-prep accreditor adopts outcomes standards: Programs 

must prove their value. Education Week. Retrieved from 
http://www.edweek.org/ew/articles/2013/09/11/03caep.h33.html 

Sawchuk, S. (2014b, October 21). Steep drops seen in teacher-prep enrollment numbers. Education 
Week, from http://www.edweek.org/ew/articles/2014/10/22/09enroll.h34.html 

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 
Shmueli, B., & Blecher-Prigat, A. (2011). Privacy for children. Columbia Human Rights Law Review, 42, 

759-795. 
Singer, N. (2014, April 21). InBloom student data repository to close. The New York Times, 

Retrieved from http://bits.blogs.nytimes.com/2014/04/21/inbloom-student-data-
repository-to-close/ 

Song, J. (2012). Times sues L.A. Unified for teacher ratings. Retrieved November 1, 2012, 2012, 
from http://latimesblogs.latimes.com/lanow/2012/10/times-sues-la-unified-for-teacher-
ratings.html 

Song, J., & Walker, T. (2015, May 7). 'Don't Yelp us!' Debate over teacher evaluation data spans a 
new bad idea. NEA Today.  Retrieved July 4, 2015 at 
http://neatoday.org/2015/05/07/dont-yelp-us-debate-over-teacher-evaluation-data-
spawns-a-new-bad-idea/ 

Sprague, R. (2015, April 20). Welcome to the machine: Privacy and workplace implications of 
predictive analytics. Richmond Journal of Law and Technology, 21, 13-51. 

Spring, J. (2011). The politics of American education. New York: Routledge. 
Springer, M. (Ed.). (2009). Performance incentives: Their growing impact on American K-12 education. 

Washington, D.C.: Brookings Institution Press. 
Straus, N. (2011). Anything but academic: How copyright’s work-for-hire doctrine affects 

professors, graduate students, and P-12 teachers. Richmond Journal of Law and Technology 18(1), 
4-63. 

Strauss, V. (2012, October 5). Cheating scandal lands ex-schools chief in prison in El Paso. The 
Washington Post. Retrieved at washingtonpost.com. 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 31 
 
Superfine, B. M. (2014). The promises and pitfalls of teacher evaluation and accountability 

reform, Richmond Journal of Law and the Public Interest. 17(2), 591-622. 
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d.  
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e. 
Trainor, S. (2015). Student data privacy is cloudy today, clearer tomorrow. Phi Delta Kappan, 96(5), 

13-18. 
University of Texas Southwestern Medical Center v. Nassau, 133 S.Ct. 2517 (2013). 
U.S. Department of Education (December 3, 2014). Teacher preparation issues: Proposed rule. 

Federal Register 79:232, pp.71820-71892.  
U.S. Department of Education, Privacy Technical Assistance Center. (2013a, May). Written 

agreement checklist. Washington, DC. Retrieved February 13, 2014, from 
http://ptac.ed.gov/sites/default/files/data-sharing-agreement-checklist.pdf 

U.S. Department of Education, Privacy Rights Clearninghouse (2013b, May). Privacy in Education: 
Guide for Parents and Adult-Age Students (Retrieved at https://www.privacyrights.org/fs/fs29-
education.htm#5 

U.S. Department of Education (2011). Family Educational Rights and Privacy Act: Guidance for 
Reasonable Methods and Written Agreements, 756 Fed. Reg. 75645 Appendix A (2011). 

U.S. Department of Education (2009, November). Race to the Top Program, Executive Summary. 
Retrieved form: http://www2.ed.gov/programs/ 

U.S. Equal Employment Opportunity Commission (EEOC) (2015). Uniform Guidelines, 29 C.F.R. 
Part 1607. 

U.S. News and World Report (2014). Best Education Schools. Retrieved at  
 http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-education-

schools 
Ujifusa, A. (2014, April 15). State lawmakers ramp up attention to data privacy. Education Week. 

Retrieved at 
 http://www.edweek.org/ew/articles/2014/04/16/28data.h33.html?cmp=ENL-EU-

NEWS1 
Umpstead, R., Pogodzinski, B., & Lund, D. (2013). An analysis of state teacher evaluation laws 

enacted in response to the federal Race to the Top initiative. West's Education Law Reporter, 
286, 795-820. 

Vergara v. State of California and California Teachers Association (June 10, 2014). Case No. 
BC484642, Superior Ct. of California, County of Los Angeles.  

VerSteeg, R. (1990). Copyright and the educational process: The right of teacher inception. Iowa Law 
Review, 75, 381-433. 

Watkins, W. H. (Ed.). (2012). The assault on public education: Confronting the politics. New York: Teachers 
College Press. 

Wei, R., & Pecheone, R. (2010). Assessment for learning in preservice teacher education: 
Performance-based assessments. In M. Kennedy (Ed.), Teacher assessment and the quest for teacher 
quality: A handbook (pp. 69-132 ). San Francisco CA: Jossey-Bass. 

Wilson, M., Hallam, P J, Pecheone, R.L., Moss, P. A. (2014). Evaluating the validity of portfolio 
assessments for licensure decisions. Education Policy Analysis Archives, 22(6). Retrieved March 
7, 2014 from http://dx.doi.org/10.14507/epaa.v22n6.2014 

Wilkerson, J. (2015). The need for instructional sensitivity and construct clarity in PACT: A 
commentary on "Examining the internal structure evidence for the performance assessment 
for California teachers" Journal of Teacher Education, 66(2), 184-192. 

Winerup, M.  (2012, May 6). Move to outsource teacher licensing process draws protest.  New York 



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 32 
 

Times. Retrieved January 1, 2015 at  
 http://www.nytimes.com/2012/05/07/education/new-procedure-for-teaching-license-

draws-protest.html?pagewanted=all&_r=1& 
Yudof, M. et al., (2012). Educational Policy and the Law (5th ed.).  Wadsworth. 
Zirkel, P., & Johnson, B. (2011, April 2). The "explosion" in education litigation: An updated 

analysis. West's Education Law Reporter, 265(1). 
 
 
 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 33 
 

About the Author 

Diana C. Pullin, J.D., Ph.D.  
Professor of Education Law and Public Policy 
Lynch School of Education and the School of Law 
Boston College 
pullin@bc.edu 
The focus of Dr. Pullin’s work is the impact of law on education practice and the impact of social 
science on the law. She is former Dean of Education at Boston College. She has served as legal 
counsel for students, educators, and school systems in many different types of education disputes, 
particularly over high stakes uses of testing. She has published numerous books, chapters, and 
articles on education law and public policy, educational and employment testing, educator quality, 
and individuals with disabilities.  Professional standards of practice have also been a focus of her 
work; she is one of the co-authors of the 1999 Standards on Educational and Psychological Testing and she 
served as well for a number of years as a member of the Joint Committee on Standards for 
Educational Evaluation. She is a Fellow of the American Educational Research Association, is a 
Lifetime National Associate of the National Academy of Sciences and is Associate Editor of the 
interdisciplinary journal Educational Policy. 

 

education policy analysis archives 
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education policy analysis archives 
editorial board  

Editor Gustavo E. Fischman (Arizona State University) 
Associate Editors: Audrey Amrein-Beardsley (Arizona State University), Jeanne M. Powers (Arizona State 

University) 
 
Jessica Allen University of Colorado, Boulder Jaekyung Lee SUNY Buffalo 
Gary Anderson New York University  Christopher Lubienski University of Illinois, 

Urbana-Champaign 
Michael W. Apple University of Wisconsin, 

Madison  
Sarah Lubienski University of Illinois, Urbana-

Champaign 
Angela Arzubiaga Arizona State University Samuel R. Lucas University of California, Berkeley 
David C. Berliner Arizona State University  Maria Martinez-Coslo University of Texas, 

Arlington 
Robert Bickel Marshall University  William Mathis University of Colorado, Boulder 
Henry Braun Boston College  Tristan McCowan Institute of Education, London 
Eric Camburn University of Wisconsin, Madison  Michele S. Moses University of Colorado, Boulder 
Wendy C. Chi Jefferson County Public Schools in 
Golden, Colorado 

Julianne Moss Deakin University 

Casey Cobb University of Connecticut  Sharon Nichols University of Texas, San Antonio 
Arnold Danzig California State University, San 

Jose  
Noga O'Connor University of Iowa 

Antonia Darder Loyola Marymount University João Paraskveva University of Massachusetts, 
Dartmouth 

Linda Darling-Hammond Stanford University  Laurence Parker University of Utah 
Chad d'Entremont Rennie Center for Education 

Research and Policy 
Susan L. Robertson Bristol University 

John Diamond Harvard University  John Rogers University of California, Los Angeles 
Tara Donahue McREL International  A. G. Rud Washington State University 
Sherman Dorn Arizona State University  Felicia C. Sanders Institute of Education Sciences 
Christopher Joseph Frey Bowling Green State 

University  
Janelle Scott University of California, Berkeley 

Melissa Lynn Freeman Adams State College Kimberly Scott Arizona State University 
Amy Garrett Dikkers University of North Carolina 

Wilmington  
Dorothy Shipps Baruch College/CUNY 

Gene V Glass Arizona State University  Maria Teresa Tatto Michigan State University 
Ronald Glass University of California, Santa Cruz  Larisa Warhol Arizona State University 
Harvey Goldstein University of Bristol  Cally Waite Social Science Research Council 
Jacob P. K. Gross University of Louisville  John Weathers University of Colorado, Colorado 

Springs 
Eric M. Haas  WestEd  Kevin Welner University of Colorado, Boulder 
Kimberly Joy Howard University of Southern 

California 
Ed Wiley University of Colorado, Boulder 

Aimee Howley Ohio University  Terrence G. Wiley Center for Applied Linguistics 
Craig Howley Ohio University  John Willinsky Stanford University 
Steve Klees University of Maryland  Kyo Yamashiro Los Angeles Education Research 

Institute 



C orporate E ducation R eform  O pens the D oor to N ew  L egal Issues 35 
 
archivos analíticos de políticas educativas 

consejo editorial 
Editores:  Gustavo E. Fischman (Arizona State University), Jason Beech (Universidad de San Andrés), Alejandro 

Canales (UNAM) y Jesús Romero Morante  (Universidad de Cantabria) 
 

Armando Alcántara Santuario IISUE, UNAM   
         México 

Fanni Muñoz Pontificia Universidad Católica de 
Perú, 

 
Claudio Almonacid University of Santiago, Chile Imanol Ordorika Instituto de Investigaciones 

Economicas – UNAM, México 
Pilar Arnaiz Sánchez Universidad de Murcia,  
        España 

Maria Cristina Parra Sandoval Universidad de 
Zulia, Venezuela 

Xavier Besalú  Costa Universitat de Girona, 
España 

Miguel A. Pereyra Universidad de Granada, 
España   

Jose Joaquin Brunner Universidad Diego Portales, 
Chile 

Monica Pini Universidad Nacional de San Martín, 
Argentina 

Damián Canales Sánchez Instituto Nacional para 
la Evaluación de la Educación, México 

Paula Razquin Universidad de San Andrés,  
         Argentina 

María Caridad García  Universidad Católica del 
Norte, Chile 

Ignacio Rivas Flores Universidad de Málaga,  
         España      

Raimundo Cuesta Fernández IES Fray Luis de 
León, España 

Daniel Schugurensky Arizona State University, 
        Estados Unidos 

Marco Antonio Delgado Fuentes Universidad 
Iberoamericana, México 

Orlando Pulido Chaves Instituto para la 
Investigacion Educativa y el Desarrollo 
Pedagogico IDEP 

Inés Dussel DIE-CINVESTAV,  
         Mexico 

José Gregorio Rodríguez Universidad Nacional de 
Colombia   

Rafael Feito Alonso Universidad Complutense de 
Madrid. España 

Miriam Rodríguez Vargas Universidad 
Autónoma de Tamaulipas, México 

Pedro Flores Crespo Universidad Iberoamericana, 
México 

Mario Rueda Beltrán IISUE, UNAM   
         México 

Verónica García Martínez Universidad Juárez 
Autónoma de Tabasco, México 

José Luis San Fabián Maroto Universidad de 
Oviedo, España 

Francisco F. García Pérez Universidad de Sevilla, 
España 

Yengny Marisol Silva Laya Universidad 
Iberoamericana, México 

Edna Luna Serrano Universidad Autónoma de 
Baja California, México 

Aida Terrón Bañuelos Universidad de Oviedo,  
       España 

Alma Maldonado DIE-CINVESTAV 
        México 

Jurjo Torres Santomé Universidad de la Coruña, 
España   

Alejandro Márquez Jiménez IISUE, UNAM 
        México 

Antoni Verger Planells University of Barcelona,  
        España   

Jaume Martínez Bonafé, Universitat de València, 
España  

José Felipe Martínez Fernández University of 
California Los Angeles, Estados Unidos 

Mario Yapu Universidad Para la Investigación 
Estratégica, Bolivia   



E ducation P olicy A nalysis A rchives  V ol. 23 N o. 81 36 
 
 

arquivos analíticos de políticas educativas 
conselho editorial 

Editor:  Gustavo E. Fischman (Arizona State University) 
Editores Associados: Rosa Maria Bueno Fisher e Luis A. Gandin  

(Universidade Federal do Rio Grande do Sul) 
 
Dalila Andrade de Oliveira Universidade Federal 

de Minas Gerais, Brasil 
Jefferson Mainardes Universidade Estadual de 

Ponta Grossa, Brasil 
Paulo Carrano Universidade Federal Fluminense, 

Brasil 
Luciano Mendes de Faria Filho Universidade 

Federal de Minas Gerais, Brasil 
Alicia Maria Catalano de Bonamino Pontificia 

Universidade Católica-Rio, Brasil 
Lia Raquel Moreira Oliveira Universidade do 

Minho, Portugal 
Fabiana de Amorim Marcello Universidade 

Luterana do Brasil, Canoas, Brasil 
Belmira Oliveira Bueno Universidade de São 

Paulo, Brasil 
Alexandre Fernandez Vaz Universidade Federal 

de Santa Catarina, Brasil 
António Teodoro Universidade Lusófona, Portugal 

Gaudêncio Frigotto Universidade do Estado do 
Rio de Janeiro, Brasil 

Pia L. Wong California State University 
Sacramento, U.S.A 

Alfredo M Gomes Universidade Federal de 
Pernambuco, Brasil 

Sandra Regina Sales Universidade Federal Rural 
do Rio de Janeiro, Brasil 

Petronilha Beatriz Gonçalves e Silva 
Universidade Federal de São Carlos, Brasil 

Elba Siqueira Sá Barreto Fundação Carlos 
Chagas, Brasil 

Nadja Herman Pontificia Universidade Católica –
Rio Grande do Sul, Brasil 

Manuela Terrasêca Universidade do Porto, 
Portugal 

José Machado Pais Instituto de Ciências Sociais da 
Universidade de Lisboa, Portugal 

Robert Verhine Universidade Federal da Bahia, 
Brasil 

Wenceslao Machado de Oliveira Jr. Universidade 
Estadual de Campinas, Brasil 

Antônio A. S. Zuin University of York