Time to Get Off the Tenure Track
Published New York Times, July 8, 1997
Last month The Florida Times-Union of Jacksonville reported on the case of a local teacher who officials said had gotten into repeated book-throwing brawls with her students. In rambling letters, the teacher told the authorities that evil spirits had invaded her students' eyes; later she changed her last name to "God."
Yet under teacher-tenure rules it took three years to get her out of the classroom, by which time children had repeatedly been hurt by flying missiles and were cowering beneath desks. (The newspaper said Ms. God "could not be located for comment.")
For those alarmed by such accounts, there is good news: the National Education Association, the largest teachers' union, is finally softening its hard line on tenure. On Saturday, at its annual meeting in Atlanta, the union voted to drop its opposition to the practice by which teachers help administrators to identify and, potentially, oust incompetent colleagues -- a step widely viewed as making removals more likely. And in interviews, the union's leaders have been taking a new line: maybe tenure is negotiable after all.
Why the shift? The union is said to be trying to control anti-tenure momentum in state capitals. Last week Oregon lawmakers voted to scrap that state's tenure law in favor of renewable contracts of two years for teachers and three years for administrators. Gov. John Kitzhaber, a Democrat, has pledged to sign the bill.
It is also likely that union members have tired of defending the indefensible: the New Haven teacher who got off with a 30-day suspension after helping her class cheat on the state mastery exam; the North Carolina educator who won his case despite yanking students' hair and other rough behavior that "probably would have been ruled child abuse had he done it to his own children at home," to quote a commentary in The Greensboro News & Record.
New York State lags in the trend toward making it easier to remove bad teachers. When an outcry arose in 1994 over a special education administrator who was still drawing a salary while in prison for drug dealing, Albany lawmakers passed the narrowest corrective measure, as if aiming to get the embarrassment off the front page while affecting as few other cases as possible.
But there is a wider problem: all sorts of employees are digging in these days, with or without explicit tenure rules. New employment laws encourage all of us to feel we "own" our jobs, even if higher- ups would rather we leave. Countless executives, doctors and other affluent professionals now dial their lawyers when threatened with dismissal for cause. "Few who are fired do not have some kind of claim," a Washington lawyer cheerfully assured Consumer Reports in 1991.
The side effects of entrenchment are mounting. Just as school districts offer buyouts to teachers to avoid the huge procedural costs and the risks of removal, so buyouts are fast emerging as the standard for removing managers at big private organizations, especially now that employers have lost the right to set automatic retirement at 65. And big employers, like school systems, now often wait for the chance to conduct mass layoffs -- couched as economically motivated -- rather than oust underperformers one at a time.
Meanwhile, disability-rights law is beginning to rival teacher-tenure laws as a font of outrageous cases. A pilot for Northwest Airlines who flew passengers while drunk emerged from prison and got his job back. A Florida man who stole thousands of dollars from co-workers' desks and purses won a ruling that the "chemical imbalance" in his brain was a handicap entitled to accommodation.
Would the Americans With Disabilities Act protect Ms. God? Quite possibly. A skilled lawyer might put the school in a tough spot by offering to have her try medication; when she had a relapse, the lawyer could keep the dispute going by arguing that she deserved the chance to adjust her medication or to try a different one.
The shift by the teachers' union may clear the way for a long overdue rethinking of our teacher-tenure laws. But unless we also rethink the way we've been drifting toward a culture of tenure for "regular" employees under "wrongful firing" legal doctrines and enactments like the disabilities act, we may find that problem educators can simply resort to other legal strategies to hold on -- while children pay the price.