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Overview:
Teacher tenure continues as a source
of considerable discussion and debate. At the heart of this
often “heated” discourse is a basic misconception. More often
than not it is believed that individual faculty members who
acquire tenure status automatically receive permanent
employment, and therefore cannot be dismissed from their job.
This is not true. Even though tenure (status) and job (position)
come together (contractually), they are nonetheless severable.
“Tenure in its general sense is a mode of holding or occupying a
position or job.”(Alexander and Alexander, 1998)
Historical
Foundations: Tenure has deep roots in old property law. It
springs from the days when “worthy individuals” were granted
rights to possess, use, enjoy, and reap profits from land
belonging to “the Crown.” The possessors never really owned the
land upon which they lived. So long as persons selected for
tenure on the land continued to satisfy “the Crown,” their
status remained in tact. As the years passed tenure in
educational institutions grew as a status deeply rooted in
property law.
Tenure Today. Translated into
contemporary American jurisprudence, teacher tenure in public
education is a creature of state statutory law. State
legislative enactment permits, but does not require, tenure
status to exist. In some states, for example Virginia, state law
makes it possible for tenure status to be awarded professors at
public colleges and universities, but not teachers in public
elementary and secondary schools. Teachers in public elementary
and secondary schools in Virginia are eligible for what the
state law calls “continuing contract” status.
An
educational institution awarding tenure to a specific faculty
member merely allows that person, and no other persons, to
occupy (possess), use, and reap benefits from his/her
faculty position. Technically, a faculty member’s mere
expectation that tenure will be conferred at some later date is
not enough. An individual must be officially offered and
formally accept tenure in a particular position for it to be
considered a “property interest.” (Board of Education v
Roth, 1972). However, in awarding tenure status in a
specific position (e.g., classroom teacher) the
educational institution (public school system, college, or
university) never actually relinquishes true ownership of that
particular faculty position. Tenure is merely possessory
in nature.
How is Tenure Acquired? To be eligible
for tenure status, a faculty member must demonstrate to the
institution, over time (considered a probationary period), that
he/she has met the qualifications necessary (i.e., is
worthy) to occupy, use, enjoy, and reap benefits from a faculty
position. Once selected for and formally awarded tenure, a
faculty member’s tenure status will remain in place, so long as
his/her “job performance” (when evaluated on job-related
criteria) is deemed satisfactory. In recent years, some
institutions have instituted a post-tenure review to
reevaluate the faculty member’s worthiness for continued tenure
status.
Is Tenure Possible in All Positions?
Generally, not all positions in an educational institution are
“tenure track positions.” For example, in some settings,
administrative positions are not considered tenure track
positions. A faculty member hired into a non-tenure track
faculty position is not eligible for tenure no matter how long
he/she stays on the job, and no matter how productive is he/she
in that position.
Tenure: What is it? Legally, teacher
tenure “is a statutory right imposed upon a teacher’s
contractual employment.” (Emma v Schenectady City School
District, 1998) It guarantees job security and fairness, and
serves two primary purposes. First, tenure exists to
protect competent and productive teachers from unconstitutional,
unlawful, arbitrary, and capricious employment actions. A
tenured teacher can be dismissed from employment only for
cause(s) enumerated in state law (e.g., incompetency,
immorality, conviction of a felony or crime of moral turpitude,
insubordination). Second, the dismissal of a tenured
teacher can occur only in accordance with prescribed procedures
(e.g., notice on or before a specific date, an
opportunity for a hearing). As with cause, these procedures are
specified in state statutory law. (Hudgins and Vacca, 1999) In
effect, tenure laws, “can help maintain a good educational
system by ensuring the stability and security of satisfactory
teachers and by outlining orderly procedures for the dismissal
of unsatisfactory teachers.” (Fischer, Schimmel, and Kelly,
1999) To discover how tenure status (continuing contract) and
its specific guarantees are attained, one must examine the
specific statutes, and case law, of a given state. Also, the
specific policies and procedures of local school boards must be
examined.
Emerging
Issues:
The
preeminent issue facing school officials concerns whether or not
it is possible to dismiss (terminate the employment of) a
tenured faculty member? The answer to this question is
“Yes.” The United States Supreme Court itself has made it clear
that state tenure statutes, where they exist, are not intended
to remove or in any way diminish the authority of local public
school boards to make necessary employment decisions.
Pickering v Board of Education, 1968) As indicated above,
the security inherent in tenure status lies in the process
(required by law) when employment decisions are made.
Grounds for Termination. Keeping in
mind that dismissal must be for cause, many bona fide
reasons to terminate the employment of a tenured teacher exist.
For example, an egregious act by a tenured staff member (e.g.,
sexual harassment of a colleague or student, physical assault on
a colleague or student, misuse of school funds) may trigger the
immediate removal (either with or without pay) of that tenured
person from his/her job.
Decreases in student enrollment, closing down subject areas or
entire programs, budgetary emergencies, and other such bona
fide reasons may translate to the elimination of staff
including those with tenure. In a decrease in student enrollment
and reduction-in-force situation, where it is necessary to
reduce the number of teachers in a school system,“[t]he school
board is not required to give continuing contract teachers
priority over probationary teachers….” (Underwood v
Henry County, 1993)
Substandard job performance is another bona fide reason
for dismissing a teacher. To put another way, whenever a tenured
teacher’s level of performance (as judged on job-related
criteria) falls below an acceptable standard, that
individual also may be in jeopardy of losing his/her job. Stated
succinctly, “Tenure does not protect an individual from
examination and evaluation of his or her performance nor from
possible dismissal.” (Wood, Cornelius, and Mendonca, 2000)
Documentation and Due Process. School
officials must anticipate a court challenge to the termination
(dismissal) of a tenured employee. As a general rule, two
elements must be in place to successfully defend against such a
challenge. First, documentation (substantive evidence)
must be in place and available to undergird the decision to
terminate the employee. The standard of review applied by courts
is one that poses the following question: Did the school board
have a rational basis supported by substantial (job-related)
evidence to terminate the tenured employee? Second, school
officials must show that the tenured employee was accorded
procedural due process. (Cleveland Board of Education
v Loudermill, 1985) Also, the procedural requirements
specified in state law must be met. As a general rule, courts
have held that a tenured teacher facing termination must be
given (1) written notice of termination, (2) a written statement
of reasons for the termination, and (3) a hearing before the
school board. (Gauer v Kadoka School District, 2002)
Case
Law:
Federal and state courts are in agreement that judges must
neither substitute their judgment for the judgment of a local
school board nor interfere with a board’s bona fide
exercise of discretion in matters of personnel administration.
Courts also agree that an employee who claims the protections of
a tenure (continuing contract) law must first show that he/she
occupies a position (e.g., “teacher”) covered by that
law. (Searley v Board of Education, 1999) What
follows are some examples of court decisions involving tenured
teachers.
In
Holt v Rapides School Board (La. 1996), a tenured teacher
(who also served as a coach) challenged a local school board
decision to terminate her for “willful neglect of duty.” More
specifically, the school board’s charge of willful neglect of
duty stemmed from Holt’s “failing to maintain an appropriate
professional teacher-pupil relationship with a student.” In her
lawsuit she alleged that the board’s decision was both arbitrary
and an abuse of discretion. A trial court ruled in favor of the
teacher, reversed the school board’s termination decision,
reinstated her to her job, and awarded her back pay. On appeal
from the school board the Court of Appeal of Louisiana affirmed
the trial court. To both courts the school board’s body of
evidence against the teacher “was seriously lacking” and did not
support the charge of willful neglect of duty. In the opinion of
the judges, because the evidence presented was contradictory,
inconsistent, implausible, and replete with insinuations and
innuendo, the board acted arbitrarily and abused its discretion.
Gordon v Nicoletti (D.Conn. 2000)
involved a tenured teacher who had received notice that
she was being terminated from employment as a seventh grade
language arts teacher, for “inefficiency and incompetence.”
Subsequently, a hearing panel determined that no reasons existed
for which termination was warranted. Specifically, the panel was
convinced that school officials had not formally evaluated the
teacher in compliance with the school system’s teacher
evaluation system (which included remediation for identified
deficiencies.) The next school year the teacher was reassigned
to another teaching position for which she was qualified.
Ultimately, she unsuccessfully challenged the transfer in court.
Acknowledging that the teacher was entitled to a formal
evaluation, the court held, however, that she was not entitled
to her position as a seventh grade language arts teacher. What
is more, the actions of school officials were not “arbitrary,
oppressive, or conscious-shocking.”
More recently, the United States Court of Appeals for the Sixth
Circuit decided a Tennessee case involving a public school
principal who had been reassigned by the superintendent to a
teaching position. In Sharp v Lindsey (6th Cir.
2002), the appellant claimed, among other things, that he
had a property interest in his position as principal. In his
view, reassignment to a teaching position (which he
characterized as a demotion) represented a deprivation of a
property interest without due process. The appellate court
disagreed. In the opinion of the court, state law, not federal
law, creates a property interest. Thus, since the Tennessee
Teacher Tenure Act specifically makes tenure status possible
only for “teachers,” any tenure that appellant had in the school
system did not attach to his employment as a “principal.” In the
opinion of the court it was clear that the Tennessee legislature
intended to create tenure (and its procedural guarantees) for
teachers and not for administrative and supervisory personnel.
In other words, the appellant in this case could not establish a
property interest in his position as a school principal.
Policy
Implications:
Based upon a review of the literature and case law involving
teacher tenure the policy implications are clear. To avoid
future problems school system policy must:
· Draw
a distinction between employment (job) position and
tenure status in the school system.
· Make
it clear that tenure status does not equate to permanent
employment in the school system.
· List
the specific position(s) in the school system where
tenure status is possible and the specific position(s)
in the school system where tenure status is not possible.
· Emphasize
that tenure status will be awarded solely on the results of a
rigorous formal review of each candidate’s job
performance and productivity, conducted over a
specified probationary period (a minimum of three years).
· Incorporate
the specific causes enumerated and the procedural
guarantees required in the state code for the dismissal
of tenured (continuing contract) employees.
· Reserve
the legal prerogative of the school board to reassign
(transfer) all employees (including those with tenure) to
any position in the school system for which they are
qualified.
· Include
a post-tenure review requirement (to be accomplished
every three to five years following the official awarding of
tenure) to ensure that tenured employees continue to (a) work to
improve their job performance, and (b) be productive members of
the faculty.
In this writer’s opinion tenure (continuing contract) status
must be protected and should not be eliminated from the
education landscape. To be effective, however, tenure must be
improved, through the implementation of a more rigorous and
continuous performance review process. If this is successfully
done, public school officials will (1) enhance the security of
effective and productive employees, (2) make it easier to
identify and weed out incompetent employees through
documentation of sub-standard performance, and (3) provide a
quality instructional program for all children.
Resources Cited
Alexander and Alexander,
AMERICAN PUBLIC SCHOOL LAW, 4th Edition (West
Publishing, 1998)
Board of Regents v Roth,
408 U.S. 564 (1972)
Cleveland Board of
Education v Loudermill, 1055 S.Ct.
1487 (1985)
Emma v Schenectady City
School District, 28 F.Supp.2d 711 (N.D.N.Y
1998)
Fisher, Schimmel, and Kelly,
TEACHERS AND THE LAW, 5th Edition (Longman 1999)
Gauer v Kadoka School
District, 647 N.W.2d 727 (S.D. 2002)
Gordon v Nicoletti,
84 F.Supp.2d 304 (D.Conn. 2000)
Holt v Rapides Parish
School Board, 685 So.2d 501 (La,App.3rd
Cir. 1996)
Hudgins and Vacca, LAW AND
EDUCATION, 5th Edition (Lexis, 1999)
Pickering v Board of
Education, 391 U.S. 563 (1968)
Searley v Board of
Education, 14 S.W.3d 597 (Mo.App.2002)
Sharp v Lindsey,
285 F.3d 479 (6th Cir.2002)
Underwood v Henry County,
427 S.E.2d 330 (Va. 1993)
Wood,
Cornelius, and Mendonca, Teacher Dismissal. In Camp, et
al., Editors, THE PRINCIPAL’S LEGAL HANDBOOK, 2nd
Edition (ELA, 2000)
Richard S. Vacca
Senior Fellow CEPI
Note: The views and opinions expressed in this commentary are
those of the author.
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