Tuesday, November 17, 2009

Understanding tenure 

Eric Austin (sometimes known as Political Muse of Liberal in the Land of Conservatives) chatted via Twitter with me one night about tenure. Sometimes our chats are public, and sometimes not. We had arrived at an understanding about it. Last night he tweets that he has written a piece in part inspired by that conversation. Well, I think, I should read it! I agree with more than I normally do with him, but I think he's missed the bigger point. Two points, in fact.

Eric's major point is that you can remove someone in a public school (elementary or secondary) who has tenure (three years after initial hire) but only for cause. On this he relies properly on state law. "In the first three years of employment," he writes, "known as the probationary period, a teacher may be terminated for virtually any reason allowed by law." But the law he quotes includes the phrase may or may not be renewed after consulting with the peer review board, which is a joint school board-teacher union construction. Can the school board ignore peer review? I guess it could, but it probably makes for tough dealings with the union later. Still, it appears the system works fine, since all sides agree that there is plenty of turnover in teachers in the probationary period. Perhaps even too much, since letting someone stay three years might mean you're stuck with them.

"Whoa now, King! Eric just showed that you're not stuck with them!" After the three years, Eric says, you have to show cause. Specifically the law says
After the completion of such probationary period, without discharge, such teachers as are thereupon reemployed shall continue in service and hold their respective position during good behavior and efficient and competent service and must not be discharged or demoted except for cause after a hearing.
The words "good behavior and efficiency and competent service" are of course subject to interpretation. And who gets to interpret that is often not the teacher but instead an arbitrator. Christine Ver Ploeg of the William Mitchell College of Law notes that almost all cases to terminate for cause are requested by Education Minnesota to go to an arbitrator. Why? Because the evidentiary standards change; the law calls for the board to provide a "preponderance of the evidence" to support the decision to terminate. Arbitrators can hand out back pay too. If instead a board's decision was appealed to a court, the teacher's termination could only be overturned if somehow the board did not follow the law. I'd encourage Eric to read Ver Ploeg's article, plus Minnesota Code 122A.40 (in addition to reading again the arbitration provisions in 122A.41) to see if he's misunderstood the nature of the process by which a tenured teacher can be removed.

Now Eric is correct, that it's the job of the board to get rid of bad teachers. Unions are not guilds empowered to clean up their own memberships. Guilds maintain standards and remove those who don't perform to them. Unions don't do that, and you shouldn't expect them to.

I think the arbitration rights given to teachers (and I think most other state employees in Minnesota) tip the scale too much towards protecting bad teachers, though, and I think that point has been missed if you just read Eric's article. Facing a higher barrier, boards don't take some cases to the point of a hearing; many others get settled out, so that the teacher's poor performance is not in a public record and he or she can go on to teach somewhere else (and perhaps continue to underperform.) Ver Ploeg's article suggests that arbitration rights for teachers was a union priority in the 1980s, and they got them in 1991. It would be interesting to look at evidence of teacher dismissals for cause by year since, say 1980, to see what effect it had. I don't see that data out there, but I didn't look too hard.

But I actually have one more, relatively important point, that Eric misses. The law says that ALL school teachers shall be hired with this kind of tenure provision. Why couldn't we do something different? What if I offered a teacher a five-year, nonrenewable contract? Or a three year, renewable contract? Why are all the contracts in public schools the same? My political science professor would have taught me to ask at this point "cui bono?" Boards? Unions? I would like a teacher, or a school board member, or EdMinn, or someone, to explain to me how it is that schoolchildren benefit from tenure. Maybe Eric would take a stab at it.