Law v. Lore in Teacher Tenure
Justin Bathon on Thursday, July 15, 2010 at 9:13AM Perry Zirkel filled in for Valerie Strauss at the Washington Post blog, The Answer Sheet, a couple days ago and wrote a provocative post about the law v. lore in teacher tenure. Perry (who I love is jumping on blogging - what a perfect medium for him) makes some great points that the law of teacher tenure is not as ironclad against dismissing teachers as most educators assume. I teach this to my future administrators all the time. Perry also makes a good point that litigation resulting from dismissal cases frequently goes the district's way. Certainly, as is almost always the case, the law is geared to support the school in these cases. So, as is always the case with Perry, he makes some great points and actually points to data to back it up.
But, I have 2 small issues with how Perry frames this issue and a different recommendation as to how to achieve the desired result.
First, I think Perry himself also inflates what tenure actually is legally. As a legal matter, it is simply a contractual automatic renewal provision - and nothing more. For me, tenure is even less than what Perry described, as the due process that is associated with the tenure system is, really, in addition to and distinct from this simple contractual provision. Thus, even Perry in his post I think unnecessarily inflated what tenure really is as a legal matter.
But, second, whether it is law or lore or something else ... the existing, practical, everyday policy of teacher tenure is construed as some type of block against dismissing teachers. Educators that have practiced, and certainly those in union districts, know the power and reverence the word tenure conjures in most educators. If the law is that substantially different from the everyday policy, then can't we say there is some type of problem with the law? I would argue that the law is not what is written but what is implemented and it is the lore of tenure that is currently the law in schools.
I, too, personally sort of like the black-letter law behind teacher tenure and I think if it were properly implemented as written and understood by lawyers we would have a very different dismissal system in schools. But this law has been around for a long time and if we don't have a proper understanding of it now, how can we assume that there will be a better application in the future?
Thus, for me, perhaps the best solution is just to simply delete the word "tenure" from the process and change nothing else - including the written law - thus supplanting the lore back with the actual law. If the law is simply a contractual automatic renewal provision, why can't we say a teacher has achieved automatic renewal instead of using the word tenure? All the mental baggage is then gone and dismissal is viewed, properly, as the distinct process that it truly, legally, is. That would allow us to move on to debating the real issue, perhaps, that is the due process provided to teachers by states and union contracts. Slightly adding or subtracting to those due process procedures is a much easier, and more politically palatable, option for reform than attacking the legal lore of teacher tenure.
Reader Comments (5)
I tend to agree that the word tenure has taken on some status that is more than what it really is in practice. I also think, that when people talk about the "problem" of tenure, they generally are talking about the misperception that teachers with tenure are difficult to fire (which is not necessarily true). They tend to blame tenure.
However, the item that I see differently is your view of tenure as being simply automatic renewal and nothing more. The only difference between dismissal of a probationary and tenured teacher is due process. In fact, in our state (WI), probationary teachers are automatically renewed just as tenured teachers are renewed annually. In both cases, some intervention must be made to non-renew. With probationary teachers, it can be for any reason, but still action must be taken to intervene in the automatic renewal process.
Years ago, I did a preliminary study related to this issue that I have been thinking about resurrecting. As I remember, I surveyed a sample of building principals in central Florida and found that they estimated a 5% incompetence rate among their tenured teachers, but they had an average dismissal rate of less than 1%. The disparity between these numbers grew as overall school size increased. I concluded from this that dismissal of incompetent tenured teachers is a function of the time available to identify and document incompetence--time which disappears as one moves into the mall-sized high schools of today's exurban world.
@Scott - It would be really interesting to look deeper into that issue. What if small schools have a tendency to have increased community pressure in the process (ie the "everybody knows everybody" syndrome where parent complaints about a teacher might have influence on how principal's judge the performance).
I would also suspect (with no real proof) that schools with frequent principal turnover would have lower dismissal rates as it usually takes some time to go through the cycle of problem identification, corrective actions, intensive supervision, and finally dismissal.
A very interesting study...
@ Joel - maybe you can explain further what's happening in Wisconsin in automatically renewing probationary teachers, as that seems more a function of statutory notice periods rather than a contract provision. Even if it is a contract provision, it would be in the CBA, not the individual teacher employment contract, right. My point is that tenure is a function only of the individual teacher contract in the automatic renewal provision at the end of the term - which are still theoretically 1 year contracts automatically renewed. Anything beyond that to me really is a function of due process, not the tenure provision. While these two things sort of go hand in hand, i think they are legally distinct concepts and should be treated as such.
I do agree with your points replying to Scott for the reasons for small schools seeing higher rates of termination. The big schools sort of become a zone where bad teachers can get away with hiding - whereas it is very hard to hide when there are only 3 math teachers in a high school of 500 kids like the one I taught in.
@ Scott - that sounds like you might consider jumping back into the education research world at some point ... Interesting :)
@ Justin--That's what has kept me from trying to replicate the study. I need to find a way to do it as a legal study. It could be a useful comment on labor & employment law in education, but I have to find a better, more trustworthy, and more generalizable source than a survey of a limited geographical area. I'm sure that there is a database out there somewhere, but finding it and figuring out how to use it will be the issue. Any help would be much appreciated.