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

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.

Judge Vinson’s Extra-Judicial Order in the Individual Mandate Lawsuit

Orin Kerr reports that Judge Vinson, the federal judge who recently ruled ObamaCare’s individual mandate was unconstitutional, ruled on the DOJ’s motion seeking clarification of whether the court had meant to enjoin the Obama administration from rolling out ObamaCare pending appeals.  In granting the DOJ’s motion for clarification—clarifying that it did prevent the administration from enforcing the Act—the court also unexpectedly ruled:

To the extent that motion is construed as a motion to stay, it is also GRANTED, and the summary declaratory judgment entered in this case is STAYED pending appeal, conditioned upon the defendants filing their notice of appeal within seven (7) calendar days of this order and seeking an expedited appellate review.

What does this mean?  Basically, it means Judge Vinson is tweaking the DOJ’s appellate strategy and applicable procedural rules.  As Kerr notes, the ruling forces the DOJ to choose whether to “wait seven days, let the stay order lapse, then immediately seek a stay in the Court of Appeals,” or “go to the Court of Appeals now and seek an amendment to the stay order.”  (Apparently the DOJ has chosen the latter.)

But all this is surprising—and improper—because the DOJ did not move for a stay.  As Judge Vinson’s ruling itself noted, the Florida attorney general argued in its opposition to the motion for clarification that “[i]f the Government was not prepared to comply with the Court’s judgment, the proper and respectful course would have been to seek an immediate stay, not an untimely and unorthodox motion to clarify.”  Obviously, then, the opposing party understood the DOJ’s motion to be one for clarification only, not for a stay.

What this means is Judge Vinson order arguably violates procedure rules—including the really big procedural rule: the Fifth Amendment’s Due Process clause.  This is a problem because courts aren’t self-executing entities.  The nature of judicial power (as opposed to executive power or legislative power) is that it requires a claimant to first ask for relief before a court may act.  This is so for two basic reasons.  First, it is the nature of judicial power to decide only “cases” or “controversies.”  There can be no case or controversy until a claim or motion is formally brought before the court.  Second, there can be no due process unless all affected parties are notified of which of their interests may be impacted by the relief sought from the court, and given an opportunity to respond or oppose.

Here, both of these notions are undermined by Judge Vinson’s ruling.  As the ruling acknowledges:

The plaintiffs have asserted that the defendants’ motion to clarify is, “in fact, a transparent attempt, through the guise of seeking
clarification, to obtain a stay pending appeal.” See Pl. Resp. at 2. At certain parts in the pleading, the defendants’ motion does seem to be more of a motion to stay than a motion to clarify. Because the defendants have stated that they intend to file a subsequent motion to stay [Def. Mot. at 15] if I were to “clarify” that I had intended my declaratory judgment to have immediate injunction-like effect (which I
just did), I will save time in this time-is-of-the-essence case by treating the motion to clarify as one requesting a stay as well.

Simply put, whatever the true goals or motives of the DOJ as the moving party might have been, they are irrelevant if not plainly stated in the request for relief.  Time may be of the essence, but the rules of procedure provide mechanisms for immediate relief.  It is up to the parties to avail themselves of them.  Their failure to do so does not authorize the court to issue rulings beyond its jurisdiction.

[Update.  I failed to raise that Judge Vinson’s new ruling is also arguably a violation of the separation of powers doctrine to the extent it purports to trump the rules of appellate procedure.]