Rethinking teacher tenure

A hundred years ago, teachers could be fired for any reason: race, creed, political favoritism, marriage, pregnancy. In the 1920s, some unlucky teachers were terminated for wearing pants.

While no one wants to return to those days, many people believe that the teacher tenure pendulum has swung too far the other way, making it nearly impossible for school districts to terminate ineffective teachers.

Rethinking teacher due process rights was the topic of the opening general session Thursday of NSBA’s Council of School Attorneys (COSA) School Law Seminar. The seminar at the Renaissance Hotel in Nashville is held in conjunction with NSBA’s 75th Annual Conference.

Teacher due process has become so arduous and costly for school districts that termination has become very rare, according to Floyd Dugas, with the Berchem, Moses, and Devlin law firm of Milford, Conn., one of the speakers on the panel discussion.

Teachers receive tenure after a fixed period of time, sometimes after only two years. Many state laws limit the reasons for teacher termination and contain “significant hurdles,” said Dugas. Teachers must be employed and paid through lengthy due process procedures. Some states require the school district to pay for the teacher’s attorney fees if the teacher prevails in the case.

The costs of the termination process are considerable, according to Dugas, over 200,000 in some states.

Increasingly, state legislatures have been working to weaken or even abolish the practice of teacher tenure, including the requirement to use teacher evaluation data in the decision to grant tenure.

California attorney Michael Smith of Lozano Smith in Fresno spoke about how the Vergara v. California court case has the potential of overturning teacher tenure in the state.

The 2012 case brought by nine California schoolchildren sought to change what was called the state’s “uber” due process laws. The plaintiffs said that state laws kept ineffective teachers in classrooms, depriving students of their fundamental right to education.

“If you are one of the students who have highly ineffective teachers, you are deprived of an equal education,” said Smith.

A trial judge ruled for the plaintiffs in August 2014, and it is now pending appeal.

“All across the country, there are multiple attempt to focus on our tenure system. We’ve gotten to the point where we do have too strong protections,” said Jay Worona, deputy executive director and general counsel for the New York State School Boards Association, another panel speaker.

Worona’s told the audience that due process rights are important. His grandmother, he said, was a worker at the Triangle Shirtwaist Factory. On the day of the fateful fire, she stayed home under threat of being terminated because she has a high fever.

“Employees do need due process rights,” said Worona, “but the question is getting the metrics right.”

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