Special education teachers win grievances on PSSA testing violations

Published September 2008 Voice

Donna Clapper believes that a teacher’s first obligation is to provide the best possible educational support for each child. So in April 2007, when a fourth grade special needs student needed clarification on a question during the PSSA tests, she offered the student assistance. This child was taking a fourth-grade math exam, even though he could only read on a first-grade level. Clapper clarified for the student that the word “participant” meant a “person.”

For her decision to help the student that day, the Keystone Central School District told Clapper she violated the protocol for administering the PSSA tests and fired her. But after a year fighting the accusations, Clapper won her grievance and a court appeal and now is back in the classroom with full back pay, seniority and all other contractual benefits to which she is entitled.

In July, a Commonwealth Court Judge in Clinton County upheld the arbitrator’s decision that Clapper’s attempts to ensure that her student understood the directions and the questions were not improper attempts to influence the student’s answers.

The judge’s decision concluded that because the testing guidelines were confusing and a “work in progress” created by the PDE and that the district failed to identify “any public policy of the Commonwealth that had been violated, let alone one that is well-defined, dominant and ascertained by reference to the laws and legal precedent,” the arbitrator’s ruling should stand.

Clapper, a 30-year teaching veteran, spent the past year working in a pre-school and dealing with the emotional turmoil from the accusation. Like many special education teachers, Clapper is confused and torn about how to help special education students who are faced with taking standardized tests that may be too advanced for their abilities.

“Quite honestly, I am a child advocate, and I want parents to know what is happening. I don’t think this is fair to their children, and it shouldn’t continue. What can you do as a teacher?” Clapper asked. “What about the rights of the children? Their rights for special needs are not being met.”

Clapper has chosen to move to a second grade regular education classroom so she won’t have to deal with the issue of giving the PSSA tests. She says special education teachers need to be very careful in how they handle testing because of the ambiguity in the Department of Education’s testing guidelines and questions of whether a student’s Individual Education Plan should take precedence in these cases.

PSEA attorney Bill Hebe, who litigated the case, said the Department of Education needs to articulate clear standards and require school districts to provide appropriate training for special education teachers.

“This case certainly stands for the proposition that if we are going to hold teachers to standards, then the courts and arbitrators are going to require that those standards be articulated clearly and that there be an investment in appropriate training,” Hebe said.

“This is a case where a week before testing, teachers were handed literally dozen of pages of information and given about 45 minutes of training late on a Friday afternoon. The PDE needs to say to districts, here are the rules and here is how you need to train your people.”

Clapper added: “I would say the most important thing is, you need to know exactly what you can and can’t do and have it in writing. Make sure the principal gives it to you in writing. It can’t be those vague directions from PDE. It needs to be specific.”

A similar case in DuBois has also resulted in a grievance win for DuBois Area Education Association member Denise Thunberg. Thunberg was accused of “coaching” her special education students during the PSSA exam in 2007. Thunberg was awarded back pay for the 33 days she was suspended in 2007, and the district was required to rescind a letter that was placed in her file.

In this case, the arbitrator concluded that there was no evidence that Thunberg had provided students with correct answers or that what she did resulted in better test results. In particular, Thunberg was accused of failing to continually move around the room, and that she defined a word for a student during the test.

“The emotional toll was worse than the financial toll. It was hanging over my head for a year. My union colleagues knew I was innocent and they were great. I could look in the mirror and know I didn’t do anything wrong, but I had to prove it. This whole experience has made me an even stronger member,” said Thunberg, who is a former DAEA president and a member of the Central Region Executive Committee. “I chose to teach, not test.”

Thunberg said special education teachers are dealing with both an ethical and professional dilemma when they administer the state-mandated PSSA tests to students. The dilemma is how much support they can legally provide for their students without violating test protocols, and possibly facing suspension or termination. They also face the dilemma of whether to follow a student’s Individual Education Plan which may contradict the testing protocol.

Statements in PDE’s PSSA guidelines strongly suggest that a special education teacher should do what is necessary to produce a level playing field for their students. At the same time, these teachers are being told not to violate testing protocols. For Clapper and Thunberg, this ambiguous and inconsistent language led to dismissal and suspension.

In the Clinton County arbitration, a state Department of Education witness testified that there appears to be confusion concerning the appropriate guidelines to be followed in administering PSSA tests to special needs students. She testified that there is an ongoing effort on the part of the PDE to adjust and modify guidelines to meet questions and confusion existing “in the trenches.”

In the DuBois case, the arbitrator ruled that PDE’s Do’s and Don’ts list, while forbidding certain conduct, does not define the conduct. She noted that other PDE guidance suggests that test administrators be available as a resource to provide clarification or direction.