Notes From Babel

Teachers’ Tenure and Due Process: When Is Too Early, How Much Is Enough?

with 3 comments

E.D. Kain’s recent piece on “firing teachers with due process” contains so much spin and sleight of hand that I, even with no particular knowledge of or interest in education policy, could not let it go unremarked upon.  To begin, here’s Kain explaining why it should be hard to fire teachers:

First, this chart only applies to tenured teachers. Bad teachers can be weeded out much quicker before gaining tenure. School officials need to use this time window appropriately.

Second, the point of tenure is to protect teachers from arbitrarily being fired. Teachers need protection from over-zealous bosses and ideological politicians. This is the same thinking behind seniority rules, which protect more expensive teachers (i.e. veterans) from being laid off due to budget cuts. Teaching is not a high-paying job compared to jobs in the private sector, and one of the benefits is some job security. Occasionally this means bad teachers take longer to fire.

So many questions.  First, the typical “window” before teachers gain tenure is just three years—in many states it is just two years, and in Nevada, Hawaii, and Mississippi, teachers are granted tenured after only a single year on the job.  Compare this with the average five year tenure-track in most universities.  This gives administrators a very small dataset from which to make a decision on teachers’ ability.  And it’s a short enough period that even bad teachers can fake it long enough to get tenure.  Thus, Kain’s suggestion that administrators have all the tools they reasonably need to weed out bad teachers before they get tenure is unpersuasive.

Second, tenure is a misnomer when applied to K-12 educators.  The academic tenure system was designed to promote a policy of freedom in academic research among university faculties.  According to the Wikipedia entry on tenure:

Academic tenure is primarily intended to guarantee the right to academic freedom: it protects teachers and researchers when they dissent from prevailing opinion, openly disagree with authorities of any sort, or spend time on unfashionable topics. Thus academic tenure is similar to the lifetime tenure that protects some judges from external pressure. Without job security, the scholarly community as a whole might favor "safe" lines of inquiry. The intent of tenure is to allow original ideas to be more likely to arise, by giving scholars the intellectual autonomy to investigate the problems and solutions about which they are most passionate, and to report their honest conclusions. In economies where higher education is provided by the private sector, tenure also has the effect of helping to ensure the integrity of the grading system. Without tenure, professors could be pressured by administrators to issue higher grades for attracting and keeping a greater number of students.

For this reason, “[a] junior professor will not be promoted to such a tenured position without demonstrating a strong record of published research, teaching, and administrative service.”  Think of it this way:  Tenure is essentially a status in which the burden of proof in justifying termination is shifted from the employee to the employer.  Pre-tenure, a university may terminate for no reason, and it would be up to the professor to demonstrate the termination violated the law.  This state of affairs is essential to universities in maintaining an effective, top-notch faculties that not only provide competent instruction, but perform significant academic research to advance the reputation of the institution.  A professor can flip this burden only by meeting a burden of his own by providing quality instruction, and publishing important and novel research. Once the professor achieves tenure, to justify a termination, the university bears the burden of proving the professor violated the law or some documented rule of conduct.

Bearing in mind what tenure actually is, consider now the “tenure” track of most K-12 educators.  What sort of “strong record” must they demonstrate?  What sort of important academic research must they perform?  What role does intellectual autonomy play in kindergarten and grade school as compared to university?  Quite simply, none of the reasons underlying tenure in the university system apply to K-12, and teachers need not demonstrate anything like the body of research and academic excellence that professors do to earn tenure.  Instead, as long as K-12 teachers stay under the radar, they’re awarded tenure.  Not only that, K-12 teachers earn tenure in roughly half the time as professors—i.e., between one and three years, versus five years in most universities.

So, if “the point of tenure is to protect teachers from arbitrarily being fired,” this is a goal that unilaterally advances the interests of teachers’ unions, not the public.  If it is the case that over-firing teachers is a real problem such that it is chilling participation of qualified educators in that profession, I’d love to see some persuasive evidence of it.  At the very least, a school voucher system would seem to present a nice solution:  If it’s true that “over-zealous bosses and ideological politicians” are creating a glut of qualified unemployed educators, this translates to a ready hiring pool for charter schools.  This would be a more elegant and self-executing way of disincentivizing public school administrators from casually firing gads of qualified teachers—if indeed we are convinced that is a truer picture of what’s happening than this is.

I also disagree with Kain when he suggests that teaching is such “a very difficult job” that it would be impossible to attract enough qualified educators to the profession unless they were given Kevlar-grade job security in addition to their already generous compensation packages.  No doubt the job has its challenges.  But it’s rewarding, too, and comes with lots of flexibility and perks.  But at the end of the day, it’s a job.  It cannot be too much to ask that employees—even public employees—work to impress their employers if they want to keep their jobs. 

I also sense Kain and I might be living in two very different worlds when it comes to what constitutes a “high-paying job.”  In a previous post, Kain groans that the average $90,000 teachers make in Wisconsin is too little compensation for nine-months’ work.  Even were teachers merely considered “babysitters,” Kain argues, they ought to earn at least $108,000 for the same period.  That’s $144,000 for a full year.  Adjusting for cost of living where I live in Orange County, California, Kain’s methodology suggests that $192,932 a year is still not enough compensation for a K-12 teacher.  If that is the mentality represented by teachers unions, it is no wonder that bilateral reform has proved unsuccessful.

Would if I could end this post and go about with my Sunday.  But Kain insists on overblowing the concept of “due process”:

Third, the chart claims that it take 2-5 years to fire a bad teacher. This is true, but also misleading. The process requires one year of remediation. Is anyone suggesting that a remedial period is unwarranted? Many private sector jobs require similar remedial steps for ‘unsatisfactory’ employees. These steps take longer and are more complicated as the job in question becomes more difficult to assess. Successful teaching is very difficult to assess.

Then there are a series of hearings. This is the due process period put in place to ensure that the actual reasons behind firing the teacher are legitimate. Is the Tribune suggesting that there should be no hearing process at all? Even then, the hearings only take place if the teacher requests them. Many teachers will not put up this much of a fight, but some do.

Here’s the chart Kain is referring to.  Here’s an even better one describing New York City’s process.  Even before getting to them, however, note how Kain shifts the discussion away from firing teachers with disciplinary problems, excessive absences, and other misconduct, and instead to the firing of instructors simply because they are not “successful,” noting that “successful teaching is very difficult to assess.”  The threshold question is not whether administrators can fire otherwise competent teachers who, to the bewilderment of everyone, are just not getting great scores from their students.  The question is why can’t administrators fire teachers who exhibit chronic misconduct.  This is the sort of sleight of hand that labor supporters engage in to avoid talking about the issues.  Rather than sitting at the same table with reformers and talking about things mainstream Americans care about, they set up their own table and invite reformers to sit down and talk about nominal problems that no one cares about.

But to answer Kain’s question, no, no one is “suggesting that there should be no hearing process at all.”  What folks are suggesting is that there should not be so many hearings that all put the burden on the administration while the allegedly offending teacher—against whom there must be multiple disciplinary write-ups to begin with—continues to teach with full pay.  That is, there must be a preliminary determination that the teacher is unsatisfactory, and that determination is subject to confirmation and appeal by different reviewing bodies.  Only then can termination proceedings be initiated.  At that point, the teacher is entitled to special evidentiary and discovery rules, including not having to provide certain documents even if they might lead to the discovery of relevant evidence against the teacher.  Usually, the teacher continues to receive full compensation pending the outcome of the hearing.  Remember that all of this “due process” is in addition to the teacher’s right to file a regular civil lawsuit once the termination is upheld.

Administrative procedures are important in providing employees a more informal, less expensive adjudicative process as an alternative to expensive civil litigation.  On the other hand, however, these “savings” to the employee are shifted to the employer, who is disincentivized from making prudent employment decisions that benefit the school and its students unless and until the teacher is so bad as to warrant the heightened expenses and burdens placed on the school.  Given that tenure is a misnomer to begin with when applied to K-12 educators, it ought to be clear there is such a thing as too much process, particularly where that process so impedes the normal operations of the public employer that it is unable to effectively serve its public function.


3 Responses

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  1. According to the Bureau of Labor Statistics, the median K-12 salary ranges from $40,426 for an elementary school teacher to $43,860 for a special education teacher in secondary school. Even with medical coverage and what is, at best, a modest pension, the total compensation figures being bandied about don’t come anywhere close to $91,000 or more. Sen. Moynihan’s famous quote applies to this “debate.”
    Tenure isn’t the problem with our educational system, nor is teacher pay (or pensions) the cause of state budget crises. The burden of unfunded pensions exists because states (and corporations) used creative (suspect) acounting assumptions to game the system and then the stock market crash of 2008-2010 (also not caused by teachers or any other unions except the “villains, thieves and scoundrels union” on Wall Street) blew a huge hole in the funds.
    States have less revenues because of the collapse of housing values (most states peg taxes to actual value, assessed every year, unlike CA) and the loss of jobs and related income and sales taxes. At the same time, demands on state governments have gone up, as people lose their jobs and medical coverage.
    The reality is that people won’t give up anything and nobody wants to pay for what they demand.
    “Don’t blame you, don’t blame me, blame that (insert your ideological enemy here) behind the tree.”
    Bottom line – we’re screwed.

    Tom Vogele

    March 6, 2011 at 4:41 pm

    • I took the $90,000 number from Kain’s post, though the estimate is on the high end, and Wisconsin pays more than many states. But yes, it is important to note that we are talking about total compensation, not just salary.

      I agree with the rest. What I’d personally love to see is a grand, truly bipartisan effort to take down the big special interests on both sides of the political spectrum: public sector unions, and the financial sector. Robert Reich mentioned that there are billionaires who pay only the 15% capital gains rate. If that’s true, it’s appalling. It just really bothers me when we cherry pick our special interests, and instead of fighting them directly, we prop up other special interests. What if the strategy works? What if Mechagodzilla kills Godzilla? You’ve still got Mechagodzilla running around wreaking havoc. The solution to an alien monster problem is not more alien monsters.

      Tim Kowal

      March 6, 2011 at 4:58 pm

  2. I’m a full professor at a university and “earned” tenure after 5 years of grueling work. My portfolio comprised of five copies of a three-inch thick binder documenting my scholarly activity, service, and teaching evaluations for every semester. I had to defend its contents to a university-wide committee, and their decision had to be approved by the Provost and the President. I know teachers in the k-12 system who have a salary greater than mine AND they are tenured, which is just crazy.


    October 30, 2011 at 1:59 pm

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