Use existing laws to address teacher quality 

Teacher tenure isn’t a barrier to teacher improvement say these three authors from vastly different perspectives; it is a distraction. 

 

In 2014, a trial court judge in California shocked the education community with his decision in Vergara v. California, concluding that the costly and time-consuming processes associated with terminating teachers perpetuated the employment of grossly ineffective teachers. Many viewed the decision as tenure’s Waterloo (Shapiro, 2015). 

Setting aside the merits of the Vergara decision, one thing is certain: It fanned the flames of the debate and litigation around the topic of tenure. Following Vergara, litigation seeking to overturn other state teacher tenure statutes emerged nationally — Wright v. State of New York, for example. Consequently, tenure has been depicted in draconian terms. To be sure, tenure has always been a polarizing topic among education stakeholders. But because of Vergara, many now see abolishing tenure, especially through court action, as the most efficient means to improve teacher quality. Vergara has been positioned as education’s new magic bullet. 

But this is a mistake. Efforts to abolish tenure through the courts are but an inefficient distraction from focusing all stakeholders’ efforts on strategies that improve teacher quality — even within the parameters of tenure. We argue that’s where the focus, discussion, and resources ought to be. In that regard, we offer specific recommendations for teachers and administrators that represent a triangulation of opinions drawn from different, sometimes adverse, corners of the school law community: a union-side attorney, a school district attorney, and an education law professor. Our agreement on such a controversial policy question should give hope to those at the local level. At base, we contend that the education enterprise can successfully navigate tenure and improve teacher quality within its bounds.  

Vergara decision  

The Vergara decision is education law high drama. The plaintiffs retained some of the brightest minds in the legal profession to argue their position. Over the course of several weeks, the trial court heard conflicting testimony from noted experts about the value of a teacher in the quality of students’ education.  

Perhaps the most compelling testimony came from the student plaintiffs who described deplorable classrooms and school environments. They testified, in particular, about teachers who inspired them. Conversely, they also testified about teachers described as apathetic and indifferent. They attributed the latter directly to the state’s tenure statutory structure.  

The judge concluded that the statutes at issue allowed “grossly ineffective” teachers to remain in the classroom and, therefore, violated students’ constitutional right to an education. For example, the ruling highlighted prohibitive costs the statutes imposed on school districts if they had to litigate a contested termination of tenured teachers. The court estimated these costs to be $50,000 to $450,000. But, according to the judge, the cost of not removing a teacher was conscience shocking. Indeed, one expert suggested that one year in a classroom with a “grossly ineffective” teacher would result in a $1.4 million loss of income over a lifetime for the student. Moreover, the state defendants conceded that the state did have some number of grossly ineffective teachers in classrooms. In sum, the statutes effectively perpetuated poor teaching quality and, thus, violated the state constitutional guarantee to education. 

Others now are following Vergara’s path of attacking tenure as an impediment to teacher quality. In New York, for example, Wright v. New York seeks to strike down that state’s tenure statutes on the same basic premise as Vergara: Unless and until tenure statutes are overturned, removing “ineffective teachers” is next to impossible and so the parade of tenure-protected, horrible teachers will continue, thus impeding educational opportunity.  

 Tenure is a distraction 

Framing tenure as the root of educational evil is a costly distraction from the larger goal of improving teacher quality. First, the link between teacher quality and tenure is inconclusive at best (Black, 2015; Fenster, 2014; Loeb, Miller, & Wyckoff, 2014). In addition, the focus on tenure leads the public and education stakeholders to believe that tenure is one of the largest barriers to effective education, especially in low-income schools. This discourse encourages divisiveness between unions and administrators, and it diverts scarce resources and attention from the mechanisms that research suggests improve teacher quality. 

Although tenure needs reforming and teacher quality must be improved, a state policy requiring tenure does not ipso facto prevent ineffective tenured teachers from being removed. 

Here is the reality: Although the tenure system needs reform and teacher quality must be improved, a state policy requiring tenure does not ipso facto prevent ineffective tenured teachers from being removed. Tenure and educational opportunity are not mutually exclusive. What is important in this effort — essential, in fact — is that education stakeholders avoid the attractive nuisance that the current tenure debate has encouraged. Rather, education stakeholders — teachers, unions, administrators, and attorneys — should take constructive and relatively affordable steps available under existing laws to improve schools. Here are several important recommendations in this regard:  

#1. Seek settlements when appropriate. 

Most cases settle. This is true in cases where a school district has determined to end its employment relationship with a teacher. Despite the heated rhetoric, not all teachers want to fight a termination. There are many reasons for that. Some teachers are nearing retirement; others would rather work in another school and need a reference; still others are ready for a career change.  In worst-case scenarios, a few teachers have been caught red-handed on a video, in an email, or on a social media web site. Whatever the reason, most cases settle. Such settlements often include agreements about references, lost wages or benefits, and other terms such as a resignation in lieu of termination proceedings. Sometimes these terms are low-hanging fruit that can help avoid costly litigation.  

#2. Work with the union and teacher to actively and honestly address performance issues. 

The best administrators know their staff well enough to figure out how to address poor performance issues. These administrators know when they can work with the teacher and the union to prevent the termination process from becoming a straightjacket of procedural posturing and hard-knuckle confrontations. Good teacher representatives know the value of exploring options and finding common ground. It is not always easy or possible to work collaboratively with the other side, but when it is possible, it is worth the effort. Remember, it takes two to tango. A good-faith effort requires a commitment to a solution from both sides. 

Everyone deserves a fair opportunity to improve. If improvement does not come, a separation is often much less contentious when there has been transparency and where performance problems have been documented.  

#3. Be transparent.

Transparency is an aid to all. A talk about exiting or terminating a teacher should not be a surprise to anyone — teacher, union, or administration. Observe teachers openly and frequently. An evaluation is more than just walking around; not telling a teacher that he or she is being observed is unfair. Evaluate regularly, confer as needed, and document, document, document.  Follow up on your observations with the teachers and document that, too. Follow up if you say you are going to follow up. Everyone deserves a fair opportunity to improve. If improvement does not come, a separation is often much less contentious when there has been transparency and where performance problems have been documented.  

#4. Consult with the appropriate professionals outside the building. 

Consultation also is a two-way street. On the one hand, administrators need to consult with human relations professionals or legal counsel before deciding to terminate a teacher. Too often, administrators shoot first and ask questions later. In one case, for instance, an email from the superintendent to the school principal said, “Yes, I agree, the teacher should be dismissed immediately.” The principal’s reply to the superintendent asked, “What reason should I give her?” Better to have figured that out sooner. Such emails make excellent exhibits for the union. And, importantly, they reflect an inattention to specific details related to an accurate assessment of the teacher’s performance. Thus, administrators should think through such significant decisions, talk them through with trusted advisers (over the phone or in person, rather than by email, as the above exchange demonstrates), and decide best how to talk to the teacher and the teacher’s representative.   

On the other hand, the teacher needs time to consult with his or her representative. Being told you may be fired is not good news, and even seasoned professionals understandably need time to digest that news. As we said above, most of these cases settle, more or less amicably. But that takes some time and an appropriate heads-up makes constructive discussion far more likely. The teacher needs to talk it through with a trusted adviser, too. Not all cases will settle, but given the time and cost of litigation, a rush to judgment should be avoided. 

#5. It is OK to proceed to litigation or arbitration. 

As we note, most cases settle; a minority do not. As odd as it may sound, when a case does end up in litigation or arbitration, it may be good. Often, when parties cannot settle, there are legitimate questions and reasonable disputes that need to be decided. No one likes going to litigation or arbitration, so it is a place of last resort. If the parties feel that they must go to litigation or arbitration, it can clarify and determine each party’s rights and obligations. The litigation or arbitration is never as scary as participants imagine. Not that it is fun; it is not. It is a complex and time-consuming process for both sides — which is why most cases settle.  

#6. Improving teacher quality is not easy and requires hard work. 

There is no avoiding this: Administrators should provide teachers an opportunity to improve. Provide feedback and evaluations in a professional manner. Do not berate teachers when providing advice. Document evaluations and feedback. Track whether the teacher is implementing the suggestions. At the same time, the burdens to improving practice must be shared equally by teachers. Teachers must assume the best intentions with respect to feedback, and they must respond and dedicate themselves to honest reflection and improvement based on the evaluations of administrators. They cannot just put the evaluations in the desk drawer to never see the light of day. Teachers should approach evaluations and suggestions as a means to enhance their teaching and student learning. In sum, improving teaching through evaluation is not easy.   

Conclusion  

The debate over tenure statutes has reached a fever pitch. It is easy to fall prey to the notion that there is a powerful, singular solution — abolishing tenure, for example — to a complicated problem. That’s part of the appeal of the forces to eliminate it. If we just eliminate tenure through court action or otherwise — we can finally pave our way to a better teaching workforce. Moreover, seeking a remedy through the courts is also alluring. But the truth is more complicated. If we waived a magic wand today and wiped tenure from all state statutes, the real work of improving teacher quality remains. Thus, the most important question is what administrators, educators, and teachers can do within the tenure system. By taking proactive steps, working collaboratively, and documenting efforts, school districts can counsel out and/or terminate ineffective teachers, improve teacher quality, and provide qualified educators the protections that they have a right to under the law.   

References 

Black, D.W. (2015, February). The Constitutional challenge to teacher tenure. California Law Review, 104, 2016. http://bit.ly/1JCvsP9  

Fenster, D. (2014). Implications of teacher tenure on teacher quality and student performance in North Carolina. Durham, NC: Duke University. http://bit.ly/1PYx5G3 

Loeb, S, Miller, L.C., & Wyckoff, J. (2014). Performance screens for school improvement: The case of teacher tenure reform in New York City. Washington, DC: National Center for the Analysis of Longitudinal Data in Education Research. http://stanford.io/1Sj2J4a 

Shapiro, E. (2014, July 28). Campbell Brown tearfully files tenure lawsuit. Politico. http://politi.co/1KdYpvv 

Wright v. State of New York. (2014, July 28). Plaintiff’s complaint, Supreme Court of New York.  

Vergara v. California. (2014, June 10). Cal. Super. Ct. No. BC484642, 2014 WL 2598719. 

 

Citation: Paige, M., Cote, F., & Allmendinger, J. (2016). Use existing laws to address teacher quality. Phi Delta Kappan, 97 (6), 38-41.