Critics Target State Teacher-Tenure Laws

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In 1985, school officials in La Mesa, Calif., reached the end of their rope.

After documenting more than 400 reasons why the Grossmont Union school district deemed Juliet Ellery unfit to teach high school biology and English--including that she belittled students and ignored their questions--the school board there fired her. The teacher disagreed with the decision and appealed it.

Eight years and more than $300,000 in fees later, the district finally saw the last of Ms. Ellery: In 1993, the teacher exhausted her last appeal.

That drawn-out scenario to fire a teacher who has tenure could change if Gov. Pete Wilson gets his way.

California is one of several states where school boards, legislators, or governors are hoping to dismantle all or part of their teacher-tenure laws. Opponents say the laws, which were designed to protect teachers from arbitrary firing, drive up districts' costs and require years of complicated legal maneuvers to dismiss incompetent teachers. Some also argue that the current laws require too little of teachers who achieve tenure.

Connecticut, Ohio, South Dakota, and Texas all have proposals in the works. Some would merely tinker with the tenure laws; others, such as California's proposal, would wipe out the concept altogether.

A Growing Sentiment

Some analysts said they expect to see more of that sentiment over the next few years. The political shift to the right in many states has left teachers' unions--the longtime defenders of such job protections--more vulnerable, they said.

Moreover, the movement to make schools more accountable could have an impact.

"I think this has been coming for quite a while," said Kathy Christie, the director of the Education Commission of the States' information clearinghouse. The Denver-based group has tracked changes throughout the country in laws providing tenure--sometimes known by terms such as "continuing contracts"--for teachers.

"Districts got used to just shifting people to another building or another position" if they were not doing their job, Ms. Christie said. "Now it's time to see results."

Right to Due Process

In most states, the debate over tenure has focused on giving schools more freedom to remove ineffective teachers.

Some union officials have objected to claims that tenure laws protect incompetent teachers from the district's interventions.

"This is nothing more than the right to due process that's found in any workplace," Jewell Gould, the director of research for the American Federation of Teachers, said.

Going after teacher tenure is "a cheap slap at quality," he added, saying that states should focus instead on better professional support for beginning teachers. School administrators, he said, have to bear some of the burden, by letting teachers know if their performance is not up to par and helping them come up with ways to improve it.

Others have argued that evaluating seasoned teachers more frequently and improving professional-development opportunities would identify teachers who need help earlier--and make tenure changes unnecessary.

But critics say tenure laws have outlived their purpose.

"Tenure is one of the last dinosaurs" in public education, said Maureen DiMarco, Governor Wilson's secretary of child development and education. "We check on the people who cut your hair more than the people who have your children's future in their hands."

Mary Jo McGrath, a lawyer who has represented the Grossmont Union schools and many other school boards in California, said: "These cases are about as tough as they get. They're much harder than anything the private sector ever faces in wrongful-termination suits."

Ms. McGrath said the Juliet Ellery case was not atypical: Such cases can last up to a decade or more.

Most districts also need an average of three years of documentation before dismissing a tenured teacher, she added, and if the termination is appealed, schools may use as many as 40 witnesses and more than 100 documents to support their case.

Tenure laws were intended to protect teachers from being dismissed for arbitrary reasons, such as their religious beliefs or personal differences with employers.

Today, all states have teacher-tenure acts on the books or other laws that give teachers certain rights if they are fired, according to the National Education Association.

Generally, tenured or permanent teachers must receive a written notice and a statement of causes for their dismissal, and they must have the option of a hearing before a school board or other panel before the final decision is made to fire them or not renew their contracts.

Most states also give teachers the right to appeal such decisions in a court or before a state agency.

Over the past few years, however, several states--including Colorado, Florida, Massachusetts, Michigan, New York, and Oklahoma--have amended their tenure laws while keeping some of the foundations intact, according to the E.C.S.

Looking to Change

Now, another wave of states is looking to change teacher-tenure laws.

Most are trying to extend the time it takes a teacher to achieve tenure, strengthen or put in place evaluation procedures for achieving such status, or shorten what is often a long and expensive appeals process when teachers contest a school board's dismissal decision.

  • In his State of the State speech earlier this year, Governor Wilson said, "Good teachers don't need tenure, [and] our children can't afford a teacher who is just punching the clock."

    The Governor, who is proposing that California abolish its entire education code and start over, has not released the details of his plan, Ms. DiMarco said.

  • Lawmakers are taking a similar approach in Texas, where state Sen. Bill Ratliff, the chairman of the Senate education committee, is sponsoring a bill that would force the state to rewrite much of its education code. (See related story.)

    Among other provisions, the proposal would make it easier for administrators to dismiss teachers: They could be fired after two consecutive unsatisfactory reviews.

    (See education reform in his campaign last fall, has praised the bill for encouraging innovation and increasing local control of schools.

  • Another new Governor, William J. Janklow of South Dakota, is introducing legislation that would give school boards more flexibility to fire ineffective teachers.

    But the legislation--which would also eliminate portions of the state's education law--would keep intact most of the basic protections in the current law, said Karon Schaak, the deputy secretary of the state education department.

  • In Ohio, Gov. George V. Voinovich has proposed extending the minimum teaching time required to become eligible for a continuing contract.

    Teachers would have to have taught at least four of the past six years in the same district to achieve that status, Paul Palagyi, an education-policy adviser to Mr. Voinovich, said.

    In addition, the Governor wants to create a state education-licensing board made up primarily of teachers. It would oversee, among other tasks, the periodic evaluation of teachers, who would have a remediation period if their performance was judged unsatisfactory.

    "We're saying teachers who are not meeting the standards of their peers can be fired," Mr. Palagyi said.

Politics of Protection

State officials who support the changes acknowledge that while such proposals may have the backing of governors and lawmakers, the teachers' unions could be a tough sell.

In Connecticut, for example, the legislature tried to amend teacher-tenure laws in a 1993 bill that would have moved the state to a performance-based education system.

The state would have added new causes for dismissing a tenured teacher: the failure to demonstrate performance that promotes student achievement or the failure to take part in activities that "enhance professional growth."

The proposal, however, drew heavy fire from both of the state teachers' unions, who argued that they were being asked to bear the burden for school reform. The bill eventually fell flat in the legislature.

Despite that failure, some lawmakers with the legislature's joint education committee are now proposing that Connecticut require five years of service for tenure instead of three.

And in New Jersey and New York, where the state school boards' associations have battled often with the unions over tenure, there is still talk of changing the laws. New York has already streamlined its procedures for disciplining teachers, but a new case involving a Long Island school district has reignited debate there about whether the state should go further.

Mr. Gould of the A.F.T. said he thinks the states are on the wrong track. Raising standards--not scrapping tenure--would do more to make teachers and schools accountable, he said.

But Ms. DiMarco of California said the unions should consider how changes in the laws could, in the end, benefit teachers.

"If they're smart, they'll look at this as an opportunity to elevate the profession," she said. "I don't know anyone who's more upset about a bad teacher than a good teacher."

Vol. 14, Issue 23

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