Tenure on Trial
On Jan. 9, 1995, the board of education of the Patchogue-Medford Union Free school district, located in this working-class community on Long Island's south shore, gathered in the cavernous auditorium of South Ocean Middle School for its monthly meeting. Among the items on the agenda that night was tenure. Specifically, Superintendent Raymond Fell had recommended that two elementary school special-education teachers, Denise McAdams and Dawn Conetta, be granted tenure, and the school board was scheduled to vote on the matter.
In years past, board members had followed the superintendent's recommendations on such personnel issues without question. But five of the six men and women now serving on the board were members of Concerned Taxpayers of Patchogue-Medford, a grassroots organization that had formed in 1993 after school taxes in the district shot up by nearly 30 percent. These five board members thought teachers' salaries were too high, and tenure, they believed, was one of the culprits. So on that cold winter's night, they decided to take on one of American education's most sacred cows.
Board member Victor Yannacone Jr., an environmental lawyer and founder of the tax-watchdog group, led the charge. "Mr. Fell," he said. "You have recommended that tenure be granted?"
"Yes, I have," Fell replied.
"And you provided for us in executive session," Yannacone continued, "two summaries of evaluations of these two teachers, which are indicative that they are both fine teachers--and they certainly have been doing a good job for this district for 2-1 / 2 years. And it is your recommendation based thereon that tenure be granted? Am I right?"
"That is correct," Fell answered.
With that, Yannacone began reading from a prepared statement. His words would reverberate for months to come, setting off a lengthy court battle and dividing the seemingly quiet little town of Patchogue (and the nearby community of Medford) into two bitterly opposed camps: those who support tenure for teachers and those who don't.
"It is with a great deal of regret," Yannacone announced, "that I am going to offer a resolution to deny tenure at this time. The reason this resolution is being offered is unfortunate but necessary. . . . Tenure, as all of us who have gone to college know, was created to allow academic freedom to protect people who had unpopular ideas and allow those unpopular ideas to be heard in college campuses throughout the country. . . .
"Tenure at the high school and elementary school level is nothing more than guaranteed job security. When it is coupled with automatic pay increases through step increases, it becomes an onerous, lifetime burden on the taxpayers for 20 years. These teachers deserve to teach in this district. However, there is no way that this board can keep them teaching without guaranteeing that for the rest of their natural lives, 20 years of teaching at least, they will be guaranteed employment at this district at constantly increasing wages. For that reason, and only that reason, I must move that we deny tenure."
Yannacone went on to explain that the board was prepared to defend its action in court if necessary. "The board," he said, "does not shrink from that litigation because it will raise a fundamental issue: 'How important is the tenure system to public education?"'
When the roll-call vote came, five of the six board members voted to approve Yannacone's resolution. The motion was greeted by applause from some of the citizens attending the meeting, but Yannacone cut them off. "There is nothing to applaud," he said. "This is done with deep regret. These two teachers are innocent victims of a system they did not create, but so are the taxpayers. It must end."
After the meeting, board member Denise Bringmann, who cast the lone dissenting vote, told a reporter: "I voted not to deny them tenure for one reason: When these teachers were hired three years ago, they had every reason to think that after three years, they would receive tenure. To say to them, in essence, 'Thank you but goodbye,' to me, that is ethically wrong." (In New York state, as elsewhere, denial of tenure is tantamount to dismissal.)
Denise McAdams had gone to the board meeting that night fully expecting to be granted tenure, so she was crushed when it didn't happen. Still, she didn't take the board's resolution that seriously. For one thing, the vote, by law, was tentative; a final decision would come at the next scheduled board meeting, on Jan. 17. "Initially, I didn't think it was a big deal," she says today. "I thought it was something that would blow over. I didn't know at that point that I was going to be terminated as well. And that was the worst part, when I was handed a termination notice. That's when I said, 'This is real."'
Dawn Conetta was at home on the night of Jan. 9, so she found out about the board's decision from her stepmother, Jane Conetta, who happens to be the executive vice president of the Patchogue-Medford Congress of Teachers, the local teachers' union. "She called me and said, 'The bastards didn't give you tenure,"' Conetta recalls. Like McAdams, she didn't grasp the seriousness of the board's resolution until later, when she, too, realized that without tenure, she would lose her job. "Then it became a big thing," she says. "But I thought, There's no way this can happen. They can't fire me. I really believed that what they were doing was so outrageous, so blatantly illegal, that I wouldn't lose my job."
Among those attending the Jan. 9 board meeting was Kalervo Raustiala, a high school social-studies teacher who is the vice president of the union. "I was thoroughly shocked," he recalls. "I had heard a comment prior to the meeting that the board was going to announce a major decision, but there had just been an incident at the high school--a gunshot--so I assumed it had something to do with that. So I was not prepared for the tenure vote at all. I just sat there stunned. I couldn't believe what I was hearing."
The next morning, Raustiala was on the phone with Daniel Galinson, the union's lawyer. They quickly agreed on a course of action: They would take the school board to court.
The Patchogue-Medford Congress of Teachers has a three-room office on Main Street in downtown Patchogue. One flight up from a store called the Bridal Palace, the office is clean and neat, but it contains an odd assortment of 1970s-era furniture, including mustard-colored chairs and a brown couch. The carpet is a sort of burnt-orange color. Fluorescent lights buzz overhead. A well-used industrial-strength coffee maker sits on a small table. Like downtown Patchogue itself, the office has clearly seen better, more prosperous days.
Raustiala, McAdams, and Conetta gather after school one day in the office to talk about the difficult year the two special-education teachers have endured. "It's been horrible," says Conetta, a feisty 30-year-old with long brown hair and dark brown eyes. "It's the worst nightmare a teacher could have, to work as hard as we did and to do everything we did for those children and then to be publicly belittled because these people"--the school board members--"don't believe in tenure."
What does tenure mean to these women? "It's a personal goal," says McAdams, 28, nicely dressed in a white silk blouse, a black jacket, and black slacks. "It's something you want to achieve, something that you work real hard to get. To me, it symbolizes a good teacher, someone who's made it through boot camp. It allows you to be more creative as a teacher. If you have a bad lesson, then you can go on and try to fix it and make it better. If you're a nontenured teacher, and you make a mistake, you can get in trouble."
"To be honest," Conetta says, "I hadn't given it much thought. But I never looked at it as my chance to sit back and do nothing. To me, tenure meant that there would be a little less pressure. I wouldn't have people coming in and observing me as often. But I never looked at it as, 'It's going to make my job easier.' Did I see it as security? Yes. Job security, in the sense that it would actually give me some power that I didn't have before, to work with the kids."
In New York state, tenure traditionally has been offered to public school teachers who have successfully completed a three-year probationary period. One purpose of tenure laws, in New York and elsewhere, is to protect teachers from being arbitrarily dismissed because of political or personal views. Opponents, however, argue that tenure makes it extremely difficult to get rid of incompetent teachers. Raustiala, a lanky 52-year-old who has taught at Patchogue-Medford High School for 21 years, addresses that point. "Tenure," he says, "obviously makes it more difficult to fire teachers than if there wasn't tenure because then you could just fire them on the spot. But does it make it impossible? No, it doesn't. What it does mean is that if an incompetent teacher is to be fired, the board of education will have the obligation of proving that person is, in fact, incompetent, immoral, or whatever. They can't do it for arbitrary reasons--as they did in Dawn and Denise's case. What happened to Dawn and Denise is, I think, justification for why we need tenure."
Five days after the Jan. 9 board meeting, the union filed a lawsuit on behalf of the teachers in Nassau County Supreme Court in nearby Mineola. The union charged that the board's action was based on "illegal, unlawful, arbitrary, capricious, and unreasonable grounds and reasons" and thus violated New York state tenure laws. It also filed a request for a temporary restraining order preventing the school board from making a final decision regarding tenure for the two teachers, pending the outcome of the lawsuit. Meanwhile, the school board offered the teachers the option of continuing to work in the district until the conclusion of the 1994-95 school year or the outcome of the litigation, whichever came later.
By the time the board met again on Jan. 17, the battle lines were drawn. An overflow crowd of about 700 people, representing both sides of the debate, turned out for the meeting. It was a long and tumultuous night, with much hooting and hollering. "I support this effort completely," Janet Murphy, a member of the citizens' tax group (and, as it turned out, future school board member), told the board. "I believe no one should be entitled to work based on time spent on the job. Accountability is a powerful motivator. Our community cannot afford to reward mediocrity."
Supporters of tenure--including parents and students who praised McAdams and Conetta for their teaching abilities--had their say, too. The board responded by passing a resolution directing the district's lawyer to "take such action as necessary" to respond to the union's lawsuit. This time, Bringmann--who cast the lone vote in favor of tenure for McAdams and Conetta at the Jan. 9 meeting--went along with her colleagues, after being assured that the two teachers would continue working until the matter was resolved. "I honestly believe in my heart and soul that we have to reform tenure," she told a reporter for Newsday. (The newspaper also reported that privately some board members expressed doubt that they could defeat the teachers in court.)
So, as the debate over tenure raged on, McAdams and Conetta continued to teach--with a huge cloud hanging over their heads.
On June 8, Justice John Lockman issued his ruling, a simple six-page decision stating that the school board had violated New York state law when it denied tenure to two apparently qualified teachers. The board, the judge wrote, "has a legitimate obligation and is free to address the concerns of the taxpayers in its district. However, where the cost of teachers' salaries is the concern, the collective-bargaining table is the place to address such concerns. Indeed, in addition to negotiating salaries, it is possible to negotiate and to have 'no tenure' clauses in collective-bargaining agreements. What [the board] is not free to do is to withhold tenure at the end of a probationary period for fiscal reasons unrelated to the qualifications of those seeking tenure." Judge Lockman ordered the school board to start over again, this time basing its determination not on "philosophical opposition to tenure" but on "proper considerations and criteria in accordance with law."
And that seemed to be the end of the matter. McAdams and Conetta would be granted tenure after all, and the board members would move on to other issues. But the board had other plans. The district's 600 teachers had been working without a contract for more than a year, and negotiations between the union and the school board had reached an impasse. Judge Lockman's suggestion that tenure could be negotiated was enough for the board members to claim a partial victory in the case. Board President Raymond Sperl said he intended to put the issue on the bargaining table, even though it would probably make contract negotiations with the union even more difficult.
Meanwhile, the board had no choice but to reconsider tenure for McAdams and Conetta. The vote was scheduled for June 19, again at South Ocean Middle School. That evening, nearly 500 teachers, led by Raustiala, rallied for their colleagues in front of the school before entering the building. The meeting got off to a rocky start when Sperl announced that the personnel agenda--which now included tenure decisions for 15 teachers, including McAdams and Conetta--would be postponed until June 26. The teachers in the audience were not amused. According to press accounts, one teacher stood up and shouted, "As a taxpayer, I object," which prompted a huge ovation from union members. Heated arguments broke out among audience members. When Sperl threatened to adjourn the meeting, the union members stood in unison and began filing out of the auditorium, chanting, "We'll be back."
One week later, on June 26, they were back in full force. At that meeting, described as "out of control" by a reporter from the Long Island Advance, the board denied tenure to three teachers and granted tenure to another by "estoppel," that is, by abstaining from taking a vote. (In New York state, school board members may abstain from voting on a teacher's tenure decision, but if a majority of them do so, the teacher is automatically granted tenure.) Decisions on the 11 other teachers were postponed.
McAdams and Conetta were presumably among the three teachers denied tenure that night, but they had no way of knowing; the names of the teachers were not made public, pending notification by mail. Conetta, who doesn't live in Patchogue or Medford and therefore is technically not allowed to speak at board meetings, was furious at being kept in the dark. "I stepped up to the microphone," she says, "and said very politely, 'Mr. Sperl, I would just appreciate if you would please tell me if I was one of the teachers denied tenure tonight, or abstained from, or tabled.' And he just looked at me with this evil look in his eyes and said, 'Are you a taxpayer?' And I said, 'No, I'm not a taxpayer, but you know who I am. I'm asking you out of common courtesy. Denise and I have been going through this for six months. Please tell me if I was one of those teachers.' And so he said, 'I'll ask you again. Are you a taxpayer?' And I said, 'No, I'm not a taxpayer.' And he said, 'Well, if you're not a taxpayer, then you can't stand there and talk to me.'
"It was just rudeness, the inhumane treatment. So that's when I realized that these people hate me. And that hurt. And the crowd went insane! It almost went to a riot situation. Everyone went running up to the microphone, demanding to know if I had been denied tenure. The board members got so nervous that they adjourned the meeting.
"After I spoke, I walked up to the superintendent and said, 'Mr. Fell, will you tell me?' And he said, 'Dawn, I can't. I'll notify you tomorrow.' And then I turned to Ray Sperl and said, 'I'll see you in court.' And he said, 'Fuck you."' (Sperl did not return phone calls.)
On Aug. 8, the board of education made it official: Four teachers would now be denied tenure. The board members, it seemed, had decided to play hardball. McAdams and Conetta received virtually identical letters stating that tenure had been denied because there was "no evidence" that their students had fulfilled the goals set forth in their individualized education plans. "Moreover," the letters said, "there is no evidence beyond a doubt that your students have received outstanding benefits from your instruction." The letters also accused the teachers of failing to appear for a pre-tenure physical examination. "Over all," the letters concluded, "because you have not demonstrated performance standards and on-the-job conduct of the kind this board expects, we have rejected the superintendent's recommendation and determined to terminate your employment with the Patchogue-Medford Schools."
Conetta's letter contained an additional accusation. In 1991, before she was hired by the district, Conetta had taken a routine drug test, which came out positive for codeine and morphine. She denied taking the drugs, and, in fact, when she took the same test eight days later, it came out negative. The district hired her, and the matter was dropped. Now, however, the school board had decided to use the initial test as one more reason to deny the teacher tenure.
Conetta is still angry about the letter. "I couldn't believe that people could treat other people like that," she says. "I don't know how they can sleep at night. They had our records; they knew we had excellent evaluations. We had glowing reviews. Even the board members had said we were excellent teachers. There was no reason to turn around and say that we weren't. It still tears me apart."
McAdams remembers the day her letter arrived, by registered mail. "It was very hurtful," she says. "That was probably the worst part. The way they put it, the way they phrased it."
Back in January, Yannacone, who by this time was no longer on the school board, had called McAdams and Conetta "fine teachers." What made the board change its mind? "We went back and looked at their files," board member Andrea Wieder says, "and our decision was based on what we read." In other words, the superintendent's recommendation wasn't good enough.
Conetta has a different theory. "They were sore losers," she says. "They lost on the initial decision, and they couldn't let it go. It became a personal thing because we weren't willing to lay down and take it. They were willing to destroy our careers. And I think they realized what they were doing, and they went ahead with it anyway."
Once again, the teachers' union went to court. It argued that the school board's second decision to deny tenure to McAdams and Conetta was still based on a philosophical objection to tenure, not on the teachers' qualifications and evaluations. Not true, said school board President Sperl. "We went exactly by the law and voted based upon the teachers' personnel files," he told the Long Island Advance.
Meanwhile, McAdams and Conetta were out of work, although they were still being paid by the district until the dispute could be resolved. (As for the other two teachers, their names were never made public. But the union was prepared to defend them in court if necessary.)
On Aug. 28, just days before the Patchogue-Medford schools were set to open, Judge Lockman issued his ruling, and this time it left no room for interpretation. The board's decision to deny tenure to McAdams and Conetta, he wrote, was based "upon grounds which do not withstand scrutiny and are utterly irrational and/or unsupported by the record." The teachers' performance evaluations, the judge noted, "contain not a whisper of dissatisfaction with their work. Indeed, the evaluations indicate that [McAdams and Conetta] are talented and able teachers, dedicated to their work and their students."
Lockman then cited examples from the evaluations themselves, all of which were favorable. The judge seemed to go out of his way to make it clear that these were two exceptional teachers. As for the matter of the missed physical examinations, Lockman noted that they had been scheduled for Jan. 10--the day after the teachers were first denied tenure. "Accordingly," he wrote, "they could not have been expected to appear for the scheduled physical examinations the following day. The law does not require a futile act." Similarly, the judge dismissed the board's reference to Conetta's positive drug test. "As this concern was addressed to the school district's satisfaction four years earlier, and Ms. Conetta was hired after retaking the test, this objection is deemed waived."
Barring an appeal, the board members would have no choice but to grant tenure to the teachers. But they were in no hurry to do so. As it turned out, Judge Lockman's decision was announced on the day before a scheduled school board meeting, but the board elected to put the matter on hold. "We are still exploring our legal options," Sperl told a reporter that night. "I do think it is substantially likely that an appeal will follow, however."
Which meant McAdams and Conetta were still in limbo. McAdams spent Sept. 6, the first day of school, at home. "It was sad," she said. "I saw a lot of the school buses go by, and I thought, 'This is a killer.' Then I took it one step further, and I thought, 'This school district is willing to pay me and not have me be there. They must hate my guts!"' Conetta had simply turned her back on the Patchogue-Medford schools, taking a job (at a lower salary) in the nearby town of Islip.
Two weeks later, the school board threw in the towel. On Sept. 18, the board reversed its previous decision and granted tenure by estoppel to McAdams, Conetta, and the two other teachers. "It's time to put the tenure issue on the back burner," Sperl said. The board members didn't give up easily, however. They passed three resolutions tightening district policy on teacher evaluations, drug testing, and academic standards.
When McAdams and Conetta left the meeting that night, they were given a standing ovation by several hundred teachers who had gathered outside South Ocean Middle School. "It was nice," McAdams recalls. She went back to work two weeks later. Conetta, having already taken the job in Islip, decided not to return to Patchogue. "The teachers here went out of their way to support Denise and me," she says, "and that made it hard not to come back. But when I drive into Patchogue, I get sick to my stomach. Because to me, those six people on the board are truly bad people."
Sperl wasn't exactly heartbroken by Conetta's departure. "I'm happy for the children that we don't have a teacher in the district who tested positive for drugs," he told the Advance. "It was kind of a waste of time and money to put the taxpayers through this rigmarole when she had another job lined up."
It isn't hard to find critics of tenure these days. Ask a citizen on the street what he or she thinks about the practice, and more than likely the response will be, "I don't have tenure in my job, so why should teachers have it?"
Yet tenure has a long and noble history in American public education. Tenure laws, which date back to the late 19th and early 20th centuries, were designed to insulate teachers from "bossism" (and the spoils system that went with it), a common feature of public employment at the time. Advocates believed that teacher tenure would help establish a cadre of public servants who would be free to teach without fear of losing their jobs due to arbitrary and capricious actions of administrators and boards of education. "Tenure," according to a brief history of the topic published by the American Association of School Administrators, "would protect students' freedom to learn from teachers secure enough in their own positions that they could devote their full attention to the pursuit of truth, without looking fearfully over their shoulders to see whether they were getting the daily approval of the boss and the public. Tenure would protect the right of students and teachers to pursue and examine even currently unpopular or distasteful ideas."
As the teachers' unions became more powerful, tenure laws took hold in nearly every state in the nation. For many teachers, tenure--normally granted after a probationary period of several years--helped make up for the relatively low salaries they earned.
Critics, however, say tenure has outlived its usefulness. "It's definitely a relic from the past," says Louis Grumet, the executive director of the New York State School Boards Association. Tenure laws, he adds, made sense before the advent of collective bargaining. "But now, teachers in New York state make very good salaries. They work five or six hours a day, 10 months a year. They don't need tenure."
Patchogue board member Wieder agrees. "Tenure for schoolteachers is not appropriate anymore," she says. "All their rights under the Constitution seem amply protected. What it means is that we can't get rid of bad teachers."
"I don't think anybody in the whole world should have tenure, with the exception of federal judges," says former U.S. Assistant Secretary of Education Chester E. Finn Jr., now a senior fellow at the Hudson Institute in Washington. "I think people should have their jobs as long as they're good at them. I don't even think tenure is good for teachers. It preserves the impression that bad teachers don't get fired, so it gives good teachers a bad name."
There's no doubt that tenure has allowed some bad teachers to keep their jobs. In many states, the process of firing a tenured teacher is so daunting that it is rarely even attempted. When it is, districts must be prepared to pay a high price. For example, in a 1990 statewide survey, the New York State School Boards Association found that the average disciplinary hearing against a teacher took 513 days to decide at a cost to the school district of $91,335. (The New York state legislature has attempted to address the problem by streamlining the process by which tenured teachers can be disciplined or removed. The new law, which went into effect in September, "is a big step in the right direction," Grumet says.)
In Patchogue itself, the school board is currently trying to get rid of a tenured teacher who has been charged with insubordination, unprofessional conduct, pedagogical incompetence, neglect of duty, and unauthorized absence from work. According to Superintendent Fell, it is the first time in 15 years that the district has taken action to dismiss a tenured teacher. "And it will cost a fortune," Wieder, the board member, adds.
Defenders of tenure argue that it should be difficult to get rid of tenured teachers. "I don't ever want it to be cheap to lay off an incompetent teacher," Keith B. Geiger, the president of the National Education Association, told Time magazine in 1994. "But I don't want it to be impossible, either."
"What tenure does," Raustiala says, "is provide for due process. It simply protects teachers from being dismissed arbitrarily, as Dawn and Denise were. Not based on performance, but arbitrarily. It's not that different from what other civil servants have, in terms of job protection. And it doesn't protect teachers from layoffs. When people use phrases like 'guaranteed job security,' well, it's not guaranteed job security if you can still get laid off. And the board of education has the right to lay off teachers if it doesn't need them."
Like most teachers who enjoy tenure, Raustiala sees no reason to mess with a good thing. "We've had the tenure system in New York state for at least 70 years," he says, "and it's evolved over time. But the essence of it doesn't need to be changed."
Nonetheless, tenure is now under fire like never before. In October, Virginia's top education official, William Bosher Jr., said he would like to replace the state's tenure system with three- to five-year contracts for teachers, thus making it easier for local school systems to remove incompetent educators. Some Republican governors, such as William Weld of Massachusetts and George E. Pataki of New York, have proposed modifications to their states' tenure laws. Pataki, for instance, recently suggested that, as an "experiment," tenure could be eliminated from the state's worst-performing schools. Meanwhile, the New York State School Boards Association would like to see tenure replaced with five-year renewable contracts. "It's an uphill battle, though," says Bill Pape, the group's spokesman. "The teachers' union is the largest single political-action committee in the state of New York."
"I'm just beginning to see some states nipping away at the heels of the teachers' unions," says Finn, "but it's going to be an awfully tough row to hoe." He proposes renewable contracts that, for new teachers, would last for one year and then get longer as teachers get more experience, "maxing out in the single digits." "The contract," he suggests, "would be renewable based on the teacher's performance, with some due-process mechanism in place for firing the teacher during the life of the contract."
Despite such proposals, the tenure system remains firmly in place in most public school systems. Still, teachers are beginning to realize that nothing--not even tenure--can be taken for granted. "It will continue to be an issue," Raustiala acknowledges, "mainly because public education in general is under attack."
Even opponents of tenure seem somewhat embarrassed by the actions of the Patchogue-Medford school board. "They took a very controversial stand," Pape says, "and in doing so, they broke the law. We don't agree with their methods, but we agree with their views on tenure." Newsday, in an editorial, put it this way: "The Patchogue-Medford School Board is right to fight for a good deal on raises, benefits, and work rules. But the district's trustees are wrong to arbitrarily deny tenure to well-qualified teachers, as officials have acknowledged they've done to force changes in the job security of teachers. Ironically, it's the board's own action that makes the case for tenure to protect the employment rights of teachers."
Have McAdams and Conetta ever asked themselves, "Why me?" (After all, even Victor Yannacone, the man who had started the whole tenure controversy in the first place, had called the teachers "innocent victims.")
"Everything happens for a reason," McAdams says. "I was very detached from the political end of education, and now I'm not. I know exactly what is going on. It was an eye-opener. I didn't know much about the union, and now I do."
Conetta's father had been president of the union for nearly 20 years, before Raustiala took over. She doesn't think it was a coincidence that Anthony Conetta's daughter had been denied tenure by an anti-union school board. "I think there was a personal issue involved," she says. "But I also believe that whatever is put on your plate, you can handle it. And Denise and I are very strong people. I knew it was going to be a hell of a year and that there would be a lot of public criticism. But maybe it happened to us because we were strong enough to handle it. We could fight them. We stood up to them."
For her part, Wieder has no regrets about what happened. "I'm a very bad loser," she concedes, "but I don't have any regrets. I can live with what we did." She and her colleagues on the school board have vowed to continue their fight against tenure, but now they have their sights set on Albany, the state capital.
"Which is where they should have started to begin with," says Raustiala. "Tenure is something that is put there by the legislature. It's public policy in New York. We tried to say that to them at the beginning, that this was the wrong way to go. Certainly if they're opposed to something, they have a right to fight it. But they have to follow the law. They should have done that from the beginning."