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Published in Print: January 23, 2008, as Districts Discharge Unwanted Faculty Through ‘Buyouts’

Districts Discharge Unwanted Faculty Through ‘Buyouts’

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Some teachers, under a professional cloud, are paid to leave their jobs.

It’s a fact little examined in schools or policy circles, and mostly unknown to the public. But when it does surface, it inevitably raises fears that teachers who should be out of the classroom entirely are helped to new teaching jobs at public expense.

“In general, I am against buyouts,” said Robert J. Shoop, the director of the Cargill Center for Ethical Leadership at Kansas State University. “There needs to be a specific rationale, and in many cases I think it’s the easy way out,” at the potential expense of students in some other district.

Defenders of the practice—administrators, union officials, and their lawyers—do so with a nod to an imperfect world. Most say that legal and social changes related to teacher misconduct have made it harder in recent years for teachers to hide illegal or immoral behavior and get new jobs.

“Buyout” options, many of those involved say, are mostly reserved for teachers who are under suspicion of inadequate performance in the classroom or unprofessional conduct, such as yelling at parents or supervisors. In other instances, safeguards for schools are built in to the settlements, such as teachers’ surrendering their licenses.

Without the agreements, proponents say, districts would use far too many resources—in money, time, and morale—shedding tenured teachers they don’t want. And such teachers who are ready to leave the profession for good or who need a new setting to prove their mettle can make those moves with less wear and tear, the defenders explain.

“It’s not bad they work out these strategic agreements,” said John Bukey, the general counsel for the California School Boards Association. “It’s good for the teacher and good for the district.”

Settlements before judgment are a feature of the overburdened American legal system in general, Mr. Bukey argued. “Bar-member revocations, personal-injury cases, contract disputes, civil rights cases—if they all went to trial, our judicial system would falter.”

Quest for Confidentiality

Like those agreements, many involving teachers include provisions that keep information about the settlement—including the complaints or accusations involved—confidential. But because such confidentiality can help teachers get new jobs and thus potentially put more students at risk, courts and legislatures have put a limit on what can be kept secret. They’ve also offered protection from defamation suits in cases where officials tell prospective employers what led to a teacher’s departure.

The limits and protections vary from state to state, however, and generally apply only where teachers have been accused of sexual or other kinds of abuse toward students, or other substantial breaches of moral character, including possession of illegal drugs.

Buyout Expenses

The costs of pursuing a disciplinary case against a tenured teacher in New York state rose from 1997 to 2004.

In California, for instance, a state supreme court ruling established that districts providing letters of recommendation that fail to accurately represent the harm a teacher did to students while on the job are liable for subsequent harm he or she might do. In New York and Massachusetts, alleged breaches of morality must be reported to the state education department, which can lift a teacher’s license. In Michigan, as in many other states, police must be called when a teacher is suspected of sexual misconduct with a student. Prosecution is a matter of public record, no matter the outcome.

“I love to get into our settlements language [a statement] to the effect that in the event of any request by a prospective employee, [there will be only] verification of the dates of employment and resignation,” said Kevin Harren, a senior counsel with the New York State United Teachers, an affiliate of both national teachers’ unions.

Such silence on a strictly voluntary basis, he said, is common among employers of all kinds. “[Prospective] employers are very accustomed these days to not be able to get subjective opinions from former bosses,” Mr. Harren said.

Still, some districts on some matters will not allow a confidentiality provision, he said, because officials believe it is wrong, it will leave them liable, or both.

Mr. Shoop, the expert on teacher misconduct, said in his view such provisions are never justifiable, even when—in cases of unsatisfactory performance or insubordination, for instance—a buyout itself might be.

Settlements Uncommon

Lawyers for districts and teachers, as well as school and union officials, say that while dismissals of tenured teachers through a state’s hearing process are extremely rare, settlements in which teachers receive incentives to leave are also uncommon.

In a rare look at buyouts, the Detroit Free Press found for a story last month that in the 62 districts of the Detroit metropolitan area over the past four years, 11 challenges to tenure were brought, while there were 27 buyouts in the same period. Also, according to the paper, seven of the teachers who took the buyouts later showed up on the payrolls of other Michigan districts.

Bill Raabe the director of collective bargaining for the National Education Association, the nation’s largest union, said that in the 14 years he spent doing union work in Minnesota, he was involved probably in no more than one settlement with incentives a year. Philip Katz, who recently stepped down as the president of the 900-member Brookline Educators Union, in Massachusetts, recalls three such agreements during his 12-year tenure.

Statistics on resignation buyouts are almost nonexistent because no government agency keeps track of them. Nor it is easy to know how much teachers receive in such settlements or to estimate how much districts save by not pressing for a dismissal hearing.

Lawyers consulted for this story said the buyouts ranged from a few months of health insurance to payouts that, with the equivalent of salary and benefits such as health insurance and retirement contributions, topped $100,000. A survey conducted by the New York State School Boards Association in 2004 found the average settlement cost in cases where charges were filed to be about $50,000.

“Most of the time, it’s less than a year’s worth of salary, especially with younger teachers or those teachers who engage in misconduct,” said Mr. Harren of NYSUT. Sometimes, such as when there is a criminal conviction, no money changes hands, he said. Rather, the district withdraws its charges in exchange for a resignation.

Cost-Benefit Analysis

Lawyers on both sides say the agreements are the result of calculations about the cost of pursuing dismissal through a hearing, which in dollar terms is often put at $100,000 to $200,000. The New York State School Boards Association survey found that the most recent average cost of a disciplinary case in the state, excluding New York City, was $129,000, and that the length of time needed for a decision was 520 days.

Those amounts are up from 1997, according to the survey, which might account for the rise in settlements, said Jay Worona, the general counsel for the school boards group. In 1997, about a third of the disciplinary cases in New York were settled after charges were brought; in 2004, it was almost half.

Expenses that districts may incur include not only lawyers’ fees, but also substitute teachers’ pay when a teacher is removed from the classroom and lost time on the job for witnesses such as a principal. With some exceptions, such as a conviction in a court of law, teachers are paid while they are waiting for their cases to be decided.

There are also costs in morale. “Very often these hearings will create hard feelings and animosity that last for a career,” Mr. Harren said.

“Both the union and the district engage in cost-benefit analysis,” said Michael E. Smith, whose law firm represents more than 250 California districts. Among the factors weighed, according to Mr. Smith, is the strength of the district’s case against the teacher.

Some of the hardest cases to win through a hearing and some of the most appropriate to settle, according to several experts, are those in which there is disagreement over the quality of a teacher’s classroom work.

A high school teacher who got a buyout in such a dispute and did not want to be named likens what happened to a no-fault divorce. In deciding to leave, he reasoned that no one was benefiting from an argument over, as he saw it, teaching philosophy. “We were divorced for irreconcilable differences,” said the teacher, who now teaches elsewhere.

Mr. Smith and other lawyers for districts see the problem not so much as the settlements, which can be reasonable solutions for all concerned if districts act responsibly, but with the elaborate job protections that make firing so costly in the first place.

The public may well be impatient in either case. “The majority of noneducators … felt teachers had too much protection,” said Peggy Walsh-Sarnecki, who wrote the story in the Detroit Free Press and said she is still getting reaction. “Many, many readers were surprised by how much it cost, either for [getting a dismissal] or a buyout, especially since we’re a state with a lot of economic problems and schools are begging for more funding.”

Better Solutions Needed

Lawyers for districts and union officials tend to agree that districts should strive to stay out of the buyout business.

“Where the conflict is too deep, there might be reason to buy someone out,” said Joan Devlin, a senior associate director of the education issues department at the American Federation of Teachers. “But it’s a practice to avoid.”

If a teacher is harmful to children, the teacher should be fired or, better, counseled out of the profession, she said.

Long before that point, Ms. Devlin and others say, school systems should engage in careful hiring, mentoring, and evaluation. Since every state has a two- to four-year probationary period for teachers before the protections of tenure kick in, they say, districts should not keep weak teachers who have not shown improvement. With a robust system of help for tenured teachers, a district should either be able to bring a teacher up to speed or have all the documentation needed to fire him or her.

Thomas Israel, the executive director of the Montgomery County Education Association, in Maryland, said he can’t recall the last teacher buyout in the 138,000-student district, where he has worked for 18 years. In that NEA affiliate, teachers in trouble for performance are evaluated and helped by a designated peer.

“As a result, we have far fewer contested actions, and those that move forward are ones where the system thinks they have a compelling case and no reason for a buyout,” he said.

As for cases of misconduct, Mr. Israel added, “the system views those harshly, and buyouts are fairly unlikely in those circumstances.”

Vol. 27, Issue 20, Pages 1,16

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