It's a subject that can make even the most progressive person hem and haw just a little. People who are otherwise die-hard union supporters often distance themselves from it. It drives conservatives absolutely nuts. And I find that it's one of the more misunderstood concepts around.
I'm talking about K-12 public school teacher tenure. (As opposed to higher ed tenure, which is an altogether different animal.)
The number one myth surrounding K-12 teacher tenure is that it means that a teacher has a job for life. If you can find me a tenure law that guarantees that, then I'll...actually, you can't find a tenure law that guarantees that, so I'm not even going to bother making any promises.
K-12 teacher tenure is controlled by individual state legislatures, and codified in state law. Each state's tenure laws are going to vary somewhat. Since I am quite familiar with the tenure law in my state, I will use that law as my example. And although I am not as familiar with the other 49 tenure laws in the United States, I am confident that Tennessee's law is fairly representative of the great majority of those laws. (Note: I am not a lawyer. My analysis is that of a lay person.)
A K-12 teacher in Tennessee must serve a probationary period of three school years, or not less than 27 months in a five-year period. He or she must also hold a valid Tennessee teaching license, issued by the State Board of Education. At the end of each of the three probationary years, a nontenured teacher may be nonrenewed with a simple letter from the director of schools, dated on or before April 15th. No reason need be given, and there is no legal recourse, unless the nonrenewed teacher can prove that there was a discriminatory motive for the nonrenewal. Each year, hundreds of nontenured teachers are nonrenewed by local school systems across the state, for reasons good, bad or indifferent.
K-12 tenure in Tennessee is an "up-or-out" proposition, meaning that each teacher must be affirmatively recommended for tenure at the end of his or her third year, and that recommendation must be voted on by the local board of education. This makes it difficult, if not impossible, for a teacher to obtain tenure by "accident".
Certainly, three years should be enough time for a competent school administration to judge whether or not a teacher is performing at a level high enough to warrant a continuing contract. If they don't make the cut, then they are nonrenewed.
So, after getting tenure, a teacher is set for life, right? Well, no, not quite.
We all know that any employee can develop performance problems after a probationary period is served. Not to worry. The tenure law has that covered.
Tenured teachers can be (and are) terminated for cause, the operative word being cause. What that means is that a tenured teacher is entitled to due process in the form of written charges with specification of evidence and an opportunity to contest those charges, usually before the local board of education, but sometimes (rarely) before an administrative judge. (The charges have to be presented to the board and voted on by the board before they are presented to the teacher. The same board that will hold the hearing and vote whether or not to dismiss. Not exactly a neutral group.)
Tennessee's tenure statute lists five causes for the discharge of a tenured employee: incompetence, inefficiency, insubordination, neglect of duty, and conduct unbecoming a member of the teaching profession. Each of these causes are defined in the law, but they are also fairly self-explanatory. These five causes are broad enough that they can cover just about any performance-related deficiency, as well concerns about behavior outside of the classroom.
A teacher facing dismissal charges has the right to be represented by counsel. The teachers' union provides the services of an attorney to teachers who are members of the organization (in so-called right-to-work states, of which Tennessee is one, union membership cannot be a condition of employment, so membership is voluntary). The attorney will examine the evidence, interview witnesses, prepare a defense, and act as the teacher's advocate during the hearing. A hearing normally takes part of one day or evening to complete. A negative result (dismissal) from the board of education or the administrative judge is appealable to the local Chancery Court. If the teacher is being represented by his or her union, the union attorney makes the decision whether or not to appeal, based on an analysis of the legal merits of the case.
Granted, all of this sounds very dull and dry, but here is the bottom line: K-12 teacher tenure means that, if a board of education wants to dismiss a teacher and deprive that teacher of his or her livelihood, the board of education has to have a performance-related reason for doing so, and has to be able to prove that the teacher is unfit.
Why is this considered such a burden? Isn't that what we pay principals and school administrators to do - to observe and evaluate the performance of their employees? If a teacher is deficient, there should be ample documentation to prove it. If there is no documentation, it's the administration that's not doing its job.
Again, what we're talking about here is due process. Document the deficiencies, present them to the board of education, and let the board decide. It is not a particularly onerous process, but it is a process.
It seems that there is a lot of lip service paid to the teaching profession. People often say that it's the most important job there is. But the fact is that, without tenure, good teachers would lose their jobs because the director of schools wants to hire his cousin or because the teacher is an "outsider" in the community. (Believe me, these kinds of things happen more than you think, especially in little podunk school systems. Nontenured teachers have to deal with this stuff all the time.)
I've heard people complain that since they don't have job protection like that, teachers shouldn't have it either. I have always found the attacking of the rights someone else has fought for to be rather strange. I would think that, instead of attacking, more people would want to fight for basic job protections for themselves and others. Being an at-will employee means that your job can be taken away at any time and, without defined due process, any legal remedy you might pursue is going to be a long and expensive battle.
I am a union member (not a teacher), and I am proud to say that I cannot be disciplined, suspended or dismissed without just cause. This is, basically, a form of tenure, and I won't apologize for it. I believe that makes me a better employee, because I am not constantly worried about being fired for no reason at all. It increases my loyalty to my employer, and it frees me to be more creative on the job.
I hope that this has helped to explain how K-12 tenure works, and that it has dispelled some of the myths surrounding due process and job protection.