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Teacher tenure has a long history and, hopefully, a future.

Teacher tenure is under fire as a barrier to improving education. A close examination of the history and role of teacher tenure yields many more reasons to keep and strengthen it.

Teacher tenure rights, first established more than a century ago, are under unprecedented attack in state legislatures, state courtrooms, and the media. In June 2014, in Vergara v. California, a state court judge struck down teacher tenure and seniority laws as a violation of the state's constitution. Former CNN and NBC journalist Campbell Brown has championed a copycat case, Wright v. New York, challenging the Empire State's tenure law, and similar cases are reportedly in the works in other states.

With incentives from the federal Race to the Top program, 18 states weakened tenure laws, and Florida and North Carolina sought to eliminate tenure entirely. According to the Education Commission of the States, 10 states prohibited using tenure or seniority as a primary factor in layoff decisions in 2014, up from five in 2012.

Leading media outlets have joined in the drumbeat against tenure. A cover story in Newsweek magazine in 2010 suggested that the key to "saving" American education is to fire "bad" teachers. In 2014, the cover of Time magazine showed a judge's mallet crushing an apple. The headline, referencing the Vergara case, read: "Rotten Apples: It's Nearly Impossible to Fire a Bad Teacher; Some Tech Millionaires May Have Found a Way to Change That."

Amid this sea of negative publicity for educators, journalist Dana Goldstein wrote that "the ineffective tenured teacher has emerged as a feared character," like "crack babies or welfare queens" from earlier eras (Goldstein, p. 5).

Conservatives have long attacked such policies as tenure that constrain the ability of managers to fire whomever they want, but the latest assaults on tenure have invoked liberal egalitarian ideals. In Vergara, Judge Rolf Treu, a Republican appointee, claimed that the case, funded by a Silicon Valley millionaire, was about championing the rights of poor and minority students. Treu compared his decision weakening teacher tenure rights to the landmark cases of Brown v. Board of Education (which promoted school desegregation) and Serrano v. Priest (which required equity in education spending). Treu used a serious and pressing problem--low-income students often have the weakest and least experienced teachers--not as an argument for addressing segregation or inadequate financial resources but as the rationale for weakening tenure rights.

With all the problems in education, why are we so fixated on teacher tenure? What is really going on?

What is tenure?

American public school teachers are typically awarded tenure after a probationary period of about three years. Once a teacher has earned tenure, also known as due process, he or she has a right to know why the employer is seeking a discharge and a right to have the issue decided by an impartial body. The practice recognizes that there will be some poor performers among tenured teachers. Tenure does not prevent their termination, but it does require that employers show "just cause" (a reasonable ground for action) for termination.

Critics claim that due process has, in practice, turned into "uber due process," as Judge Treu suggested. In Wrightv. New York (which has been consolidated with another case, Davids vs. New York), plaintiffs' attorneyJay Lefkowitz cited a study that claimed legal proceedings to remove tenure from teachers for pedagogical incompetence dragged on for an average of 830 days, at an average cost of $313,000 (New York School Boards Association, 2008, p. 2). The length and cost of proceedings means very few principals will pursue termination cases, the argument runs. Hoover Institution critic Terry Moe claims that tenure means that teachers who "don't murder someone or molest a child or stop showing up for work" are "assured of being able to continue in their job for as long as they want. . . . America's private sector workers can only dream of such a thing: a guaranteed, totally secure job" (Moe, 2011, p. 170).

In places like Chicago, the idea that tenure provides a "totally secure job" would presumably surprise tenured teachers who were fired under the federally funded "turnaround schools" program, in which at least 50% of teachers, including those with tenure, were replaced (Goldstein, 2014, p. 214). Overall, 2.1% of American public school teachers, including tenured teachers, were fired for cause (NCES, 2008). Goldstein notes there are no comparable data for the private sector, but in 2012, private sector companies lost less than 2% of their workforce through firings and layoffs combined (BLS, 2011).

While some K-12 termination proceedings drag on too long at too great an expense, many places have enacted significant reforms. Although Lefkowitz cited an average of 830 days for proceedings in the New York tenure case, a more recent analysis using New York State Education Department data found that in 2013, disciplinary cases took, on average, 177 days statewide (Glazer, 2014). In New York City, United Federation of Teachers data show that the median length of proceedings is 105 days (Hupfl, 2014). For cases of alleged misconduct and wrongdoing (as opposed to incompetence), the AFT in 2011 adopted expert Kenneth Feinberg's recommendations for an expedited 100-day process. In 2012, Connecticut adopted an 85-day policy for terminations, unless there is agreement from both sides to extend the process.

Why was tenure developed?

Teacher tenure began in New Jersey in 1909 as a way to improve teaching and education. NewJersey's law drew on the well-regarded Prussian education system and was backed by Harvard President Charles William Eliot in New York City, Dana Goldstein writes, "as a clean government reform after decades of politically influenced teacher appointments, in which schools were part of the patronage machine" (Goldstein, 2014, p. 85). Education historian Diane Ravitch notes that before tenure was adopted in New York City, ward officers could dismiss an entire staff of qualified teachers and replace them with their own choices (1974, p. 85). With tenure, as former AFT President Albert Shanker noted, "An elected politician can't say, 'I'm going to fire you because you didn't support me in the last election'" (Kahlenberg, 2007, p. 283).

Tenure rights also were designed to shield teachers from improper political influence over their activities both outside and inside the classroom. Some politicians, for example, punished teachers for union membership. In 1917, after the Chicago Board of Education President Jacob Loeb fired teachers for union activism, good-government reformers allied with unionists to pass tenure protections for teachers.

During World War I, a teacher who failed to buy enough Liberty Bonds could be placed under scrutiny in certain districts, historian Marjorie Murphy writes: "If she failed to express enthusiasm for the war, or intimated that war was anything but glorious, she stood a good chance of dismissal" (1990, p. 95). Jewish socialist teachers in New York City who opposed the war were fired for "conduct unbecoming a teacher" (Murphy, p. 96). Quaker teachers were also fired because of their pacifist objections to the war (New York Times, 1918). During the civil rights movement, half of southern states voted to revoke teacher licenses for membership in organizations like the NAACP that supported school integration (Goldstein, 2014, p. 112).

Tenure was also designed to protect academic freedom in the classroom. The Scopes trial in the 1920s, for example, highlighted the need to protect the ability of teachers to educate students about evolution in the face of opposition from religious fundamentalists.

In addition, tenure provided a bulwark against sex and race discrimination. During the Great Depression, when jobs were scarce, women teachers were often fired once they were married. According to Murphy, one-third of large cities in 1930 actually had laws prohibiting marriage for female teachers (1990, p. 177). In states with tenure, female teachers were protected.

Tenure also shielded black teachers from racist principals. Indeed, Dana Goldstein notes that in 1955, in reaction to Brown v. Board of Education, several southern states--Alabama, Florida, Kentucky, North Carolina, South Carolina, Tennessee, and Virginia--repealed tenure laws in order to allow white officials to easily fire black teachers in newly integrated schools (2014, p. 112).

Why tenure is still necessary

Some critics of tenure argue that civil service laws that protect against patronage hiring, civil rights laws that prohibit discrimination based on race and sex, and labor laws that protect union organizing adequately address the abuses tenure was meant to combat. But tenure laws supplement civil service, civil rights, and labor laws in two important respects.

First, tenure significantly strengthens legal protections by shifting to the employer the burden to prove the termination is justified. Moshe Marvit, a labor and civil rights attorney, notes, "Civil rights laws may protect teachers from being fired because of race or sex, but, under a civil rights frame, it is still incumbent upon the teacher to prove that the employer acted the way it did because of race or sex. Under a tenure model, the employer must prove it has cause to fire the teacher. Flipping that burden is huge, both in terms of expenditure of resources and possibilities of success" (2015).

Second, tenure protects a range of discriminatory firings not covered under race and gender antidiscrimination laws. As Leo Casey, executive director of the Albert Shanker Institute, notes, tenure, by requiring a just cause for termination, guards against an employer's discrimination based on a teacher's "political views, her friends, or the fact that she is an experienced teacher, earning a higher salary, in times of austerity and budget cuts" (2014).

With the exception of certain categories of discrimination --such as race, gender, and national origin--employers are generally free to fire nontenured employees for any reason. As Cynthia Estlund writes, "Absent a contractual provision for job security or a prohibited discriminatory or retaliatory motive, it remains true in every American jurisdiction, except Montana, that employees are subject to discharge without justification" (2002, p. 9).

The argument for tenure--and the requirement of "just cause" firing--is especially compelling in the case of educators. Teachers feel enormous pressure from parents, principals, and school board members to take actions that may not be in the best interests of students. Teacher and blogger Peter Greene notes that because teachers "answer to a hundred different bosses," they "need their own special set of protections" (2014). Because all adults--from parents to school board members--have themselves attended school, they feel qualified to weigh in on how educators should teach. Richard Casagrande, a lawyer for the New York State United Teachers, said during recent litigation that tenure laws are "not a gift to teachers. These laws empower teachers to teach well" (Brody, 2015).

Teachers need tenure to stand up to outsiders who would instruct them on how to teach politically sensitive topics. A science teacher in a fundamentalist community who wants to teach evolution, not pseudoscientific creationism or intelligent design, needs tenure protection. So does a sex education teacher who doesn't want to be fired for giving students practical information about how to avoid getting HIV. So does an English teacher who wants to assign a controversial and thought-provoking novel.

Tenure also protects teachers from well-connected parents who may push their own children's interests to the detriment of others. Tenure protects teachers with high standards from the wrath of parents angry that their children received poor grades or were disciplined for misbehavior. Without tenure, will a teacher give a failing grade to the son of an influential parent who might shorten that teacher's career? Without tenure, will the teacher be able to resist the powerful parent who wants his or her mediocre daughter to get the lead part in the play? Without tenure, what happens when uninformed but powerful parents demand that a highly trained special education teacher exclude students with special needs from the classroom?

Tenure also allows teachers to stand up and openly disagree with a boss pushing a faddish but unproven educational practice, without fear of being fired. In Holyoke, Mass., for example, administrators asked teachers to post student test scores on the walls of classrooms. When an untenured English teacher (who was also a union official) objected publicly in 2014 that this was an unsound tactic and was humiliating to students, he was fired, despite having previously received excellent ratings (Jaffe, 2014). Tenure would have ensured a fair process.

More generally, tenure empowers teachers to become more involved in school decisions. When teachers have a say in how schools are run, they are more likely to be invested in the school and to stay longer, and are more engaged with colleagues in cooperative work. Having this sort of strong culture, furthermore, is linked to increased academic achievement for students. By contrast, schools that lack teacher voice have higher turnover, which is wasteful and disruptive to student learning.

Eliminating tenure reduces teacher voice in a very direct way. Peter Greene argues in the Huffington Post: "It's not the firing. It's the threat of firing" that shifts the power balance between teachers and administrators. "The threat of firing allows other people to control every day of that teacher's career. . . . It takes all the powerful people a teacher must deal with and arms each one with a nuclear device." Greene concludes, "The biggest problem with the destruction of tenure is not that a handful of teachers will lose their jobs but that entire buildings full of teachers will lose the freedom to do their jobs well" (2014).

Teacher tenure is an important feature of American public education for yet another reason: It is a significant carrot for attracting qualified candidates to the teaching profession. Teacher recruitment and retention is difficult, in part because of relatively low pay for college-educated professionals ($57,000 a year was the mean salary in 2012). Teacher pay is in the 30th percentile for male college graduates and the 40th percentile for female college graduates. Overall, American teachers make 68% of what other college-educated Americans make, on average, whereas in Organization for Economic Cooperation and Development countries, the average is 88%.

Part of what offsets low American salaries--and allows American schools to continue to attract talent --is tenure. The polling of teachers by the Hoover Institution's Terry Moe suggests that "tenure is a highly valuable form of compensation." In a 2003 survey, Moe found that most teachers would need to be paid 50% more to give up tenure. Polling by Public Agenda and Education Sector came to similar conclusions. If you take away tenure, school districts would have two choices: Accept a diminished pool of applicants, or significantly increase salaries to keep quality at its current levels.

Because the latter option is not in the cards, Ken Futernick notes that "administrators' power to fire teachers without real due process will only exacerbate the teacher recruitment problem" (2014). Economist Jesse Rothstein found that "firing bad teachers actually makes it harder to recruit new ones" because new teachers don't know whether, once on the job, they will turn out to be strong or weak educators (2014).

Abolishing tenure would make it especially hard to recruit in schools with lots of low-income students--the purported beneficiaries of the Vergara litigation. Under current accountability standards, teaching in a high-poverty school is risky because low-income students face extra obstacles and so, on average, perform less well academically than middle-class students. Strong tenure laws allow dedicated, high-quality teachers to know they are unlikely to be fired. But as Alyssa Hadley Dunn writes in the Washington Post, "Without due process rights, it is even less likely that qualified teachers will want to work in high-needs schools with difficult conditions, because it would also mean that students' lower test scores could jeopardize their employment with no available recourse" (2014).

For all these reasons, it is not surprising that states with strong tenure laws (and strong unions to back up these laws) tend to perform better than those with weak laws. As former teacher Brian Jones wrote in the New York Times, "If teacher tenure is an important obstacle to achievement, Mississippi (with no teacher tenure) should have stellar schools and Massachusetts (with teacher tenure) should have failing ones. Instead, it's the other way around" (2014). Likewise, some of the leading education systems in the world--Germany, Japan, and South Korea, for example--have long had tenure protections even stronger than those in the United States.

Can tenure laws be improved?

If tenure laws are fundamentally sound, that does not mean the statutes in all 50 states are perfect. Reasonable reforms are underway, but they are needed in more places in two areas: the process by which tenure is earned and the procedure by which ineffective tenured teachers are removed.

To begin, tenure should mean something, so teachers need a sufficiently long period to demonstrate skills and not everyone who tries should succeed. Most states employ a three-year probationary period, and in Vergara, Judge Treu was correct to note that California's period of less than two years is an outlier and not optimal. Indeed, such a short time frame is unfair to teachers, as a decision must be made before they are able to fully demonstrate their mastery of the craft.

With respect to the rigor of tenure, there should not be a set percentage of teachers who fail, but neither should success be automatic. In 2007, 97% of New York City public school teachers who applied got tenure. That's a high figure, even when one acknowledges that many teachers leave the profession before they apply for tenure. However, New York City has made getting tenure more rigorous. By the 2013-14 school year, 60% of New York City teachers who were eligible for tenure received it, 38% were deferred, and 2% were denied. Clearly, achieving on-time tenure means more in New York City than it did in the past.

In a 2008 poll, 66% of teachers said they would favor their local union playing a role in guiding ineffective teachers out of the profession (Duffett, Farkas, Rotherham, & Silva, 2008, p. 9). At the same time, teachers suggest in polls that they don't want to go to the other extreme, and they oppose eliminating tenure by a margin of 77% to 23% (Moe, 2011, p. 101-102).

So what is to be done? Many who believe that eliminating tenure is out of the question and that defending teacher incompetence is equally intolerable, have converged around a third way: tenure combined with peer assistance and review. First used in Toledo, Ohio, peer assistance and review involves master teachers evaluating new and veteran educators, providing assistance, and in some cases recommending termination of employment. Under the plan, the brainchild of Dal Lawrence, former president of the Toledo Federation of Teachers, Toledo set up an advisory board consisting of five teachers and four administrators to make decisions on assisting and, if necessary, terminating the employment of new and veteran teachers. Six votes are required for action. Evaluators teach the same subject as teachers being evaluated but come from different schools.

At first, peer review was hugely controversial. When Shanker endorsed the concept in 1984, he estimated that only 10% to 20% of teachers supported the idea. But, he said, it was time to acknowledge "that some teachers are excellent, some are very good, some are good, and some are terrible." The charge that labor defends incompetent teachers was the Achilles' heel of the teacher union movement, and labor needed a credible answer.

Peer review weeds out bad teachers in a way that enhances rather than diminishes the teaching profession. Peer review and assistance is common among professors, doctors, and lawyers, who police themselves, as Shanker argued, and it strengthens the case for teacher involvement in other areas, like textbook selection and curriculum development.

While some critics liken union involvement in terminating teachers to the fox guarding the hen house, in practice, teachers have been even tougher on colleagues than administrators have been in several jurisdictions. In Cincinnati, which was the second city to adopt peer review, 10.5% of new teachers were found less than satisfactory by teacher reviewers, compared with 4% by administrators, and 5% were recommended for dismissal by teachers, compared with 1.6% of those evaluated by principals. The same has been true in other places. In Montgomery County, Md., for example, the Washington Post reported in March 2012 that a peer assistance and review program had "led to the dismissal of 245 teachers and the resignation of 300" since 2001. In the prior decade, when peer review was not in place, only "a handful were terminated for poor performance" (Chandler, 2012).

Unfortunately, peer review has not spread as widely as it should have. In some districts, teachers have expressed concerns about being evaluated by colleagues; in others, management has not wished to share power over personnel decisions with teachers. The up-front costs of hiring new teachers to cover classes while expert consulting teachers provide peer assistance and conduct reviews also can be substantial. Fortunately, districts often recoup costs by increasing teacher retention and reducing costs of dismissal. Especially as attacks on tenure increase, local unions could incorporate this innovative answer to the spurious charge that unions are chiefly in the business of protecting incompetent members.

What's really behind attacks on tenure?

Cases like Vergara are problematic in part because they elevate a peripheral issue--tenure--which detracts from the really necessary debates over poverty and segregation. Worse, at a time when we need to recruit and retain the very best teachers, the inordinate focus on bad teachers further demoralizes the education profession. Between 2008 and 2012, a MetLife survey found that teacher job satisfaction "plummeted from 62% to 39%, the lowest level in a quarter century," Dana Goldstein notes (2014, p. 3). Some pundits think eliminating tenure will elevate the profession, but by a 3-1 ratio, teachers disagree that they would have greater prestige if collective bargaining and lifetime tenure were eliminated (Duffett et al., 2008, p. 8).

That the attack on tenure has gained traction in courts, state legislatures, and major media outlets is enormously problematic. Teachers unions are not perfect, but they are one of the few voices speaking on behalf of disadvantaged kids. As journalist Jonathan Chait has noted, politicians have a short-term horizon so tend to underinvest in education. Teachers unions "provide a natural bulwark" against such tendencies, he writes (2011).

Taking on poverty and segregation--long recognized as the largest drivers of educational inequality --is hard work and can be expensive, so conservatives have focused attention elsewhere. For years, the right wing has been using the sad reality that poor and minority kids are stuck in lousy, segregated schools as an argument for private school vouchers to dismantle public education. Now, in Vergara and Davids, inequality in access to good teachers is leveraged to promote an antiunion agenda. That this is done in the name of poor kids and civil rights turns the world upside down.

RICHARD D. KAHLENBERG is a senior fellow at the Century Foundation, Washington, D.C. This article is excerpted with permission of the author from the original article, "Tenure: How due process protects teachers and students," American Educator, Summer 2015. www.aft.org/ae/summer2015/kahlenberg

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Title Annotation:Tenure
Author:Kahlenberg, Richard D.
Publication:Phi Delta Kappan
Article Type:Excerpt
Geographic Code:1USA
Date:Mar 1, 2016
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