The Case Against Tenure 

How job protection for K-12 educators penalizes students.

The California Teachers Association has proven once again that it's one of the state's most powerful political forces. Last month the union faced three proposals that sought to curb the influence of teachers. One would have tightened Governor Arnold Schwarzenegger's control over education funding, one would have curtailed the use of union dues to influence state politics, and one would have weakened teacher tenure. But when the election was over, all three had been trounced, and the governor's popularity had reached an all-time low.

As part of a coalition that beat back the governor's reform agenda, the teachers' union pulled out its big guns. It mobilized its huge membership like never before, and tapped into the millions of dollars it collects in dues each year from 300,000 teachers. Top union officials were so emboldened by their victory that they demanded an apology from Schwarzenegger. The governor hasn't delivered one, but the union's shock-and-awe campaign clearly left him weakened.

But even against the backdrop of the union's great victory, the election revealed substantial voter discontent with public-employee unions and teachers in particular. Proposition 74, the governor's tenure-reform initiative, garnered almost 45 percent of the vote and came in second among his proposals behind the other one aimed primarily at teachers -- the attack on union dues.

Schwarzenegger has since proclaimed that the thrashing he received at the ballot box was a repudiation of his special election and not his ideas. He said Californians simply want him to work harder with the Legislature to fix the state's problems. But the Republican governor is no longer talking about reforming union dues. He is, however, still committed to tenure reform, according to spokesman Rob Stutzman.

If Schwarzenegger is serious, he faces a monumental uphill battle. Democrats are hardly inclined to pick a fight with a union they've long relied upon for endorsements and campaign cash. And the governor himself is so wounded that he just selected a high-profile Democrat, Susan Kennedy, as his new chief of staff, which was widely seen as an attempt to resurrect his centrist image and distance himself from the union's portrayal of him as a radical. So at least for the moment, tenure reform looks all but dead.

That's too bad, because the governor's plan to reform California's archaic and burdensome tenure rules was far from being too radical. It wasn't radical enough.

Proposition 74 deserved to be defeated, but not for the reasons advanced by the teachers' union. It merely nibbled at the edges of reform. It sought to increase from two years to five the time it takes for a teacher to obtain tenure. While that would have given principals more time to evaluate new teachers, it did nothing about the burned-out ones who already have tenure. Haven't all of us had to endure at least one awful teacher in our lives?

A genuine tenure-reform initiative would have addressed such seemingly off-limits issues. But California teachers have achieved an almost untouchable status over the years. In the world of the California Teachers Association, public-school teachers are saints in the classroom. What politician -- or journalist, for that matter -- wants to be portrayed as being anti-teacher? From there, it's just a short walk to being labeled anti-child and anti-education.

As with all successful rhetoric, at least part of this is true. Who among us is willing to go into the roughest neighborhoods of Richmond, Oakland, or Concord every day to help needy kids for a salary of $40,000 a year? Untold numbers of teachers are doing their best to educate California's schoolchildren. But it's also true that California students consistently rank among the poorest performers nationwide. And some of our teachers aren't quite so virtuous. Yet even if they've done something truly heinous, it's next to impossible to get rid of them. That's bad news for kids.

Teacher tenure evolved in the first half of the 20th century as a way for university professors to protect their academic freedom. Tenure helped ensure that professors could conduct research or teach from controversial texts without fear of being fired. Lawmakers extended similar rights to elementary, junior, and high-school teachers in the 1930s, reasoning that they also deserved protection, especially from reactionary school boards.

The California Teachers Association says tenure's longevity is proof of its importance in public education. But in truth, it's a remnant of a bygone era. Rightly or wrongly, the paradigm of measurement and testing now reigns supreme in education. Curricula for reading, math, and language arts are highly structured and uniform. Teachers have already surrendered their academic freedom to state and federal education officials.

Nonetheless, more than 300,000 K-12 teachers in California not only have tenure, but obtained it far more easily than they would have if they were college professors. A study at Stanford University in the 1980s showed that 36 percent of college professors survived the rigorous five-to-seven-year tenure track. By contrast, most K-12 teachers have little trouble enduring California's two-year probation period.

The truth is, tenure for public-school teachers is an over-the-top perk. There is no good reason to give them greater job protections than virtually any other employees in the public or private sectors. It not only keeps school districts from holding workers to the same standards expected of everyone else, but it's much too costly for an educational system so chronically short on funds.

Legal experts say school districts must spend vast sums of money just to attempt to fire a teacher. As a result, the vast majority of districts never do it.

And there's a dirty little secret about California's K-12 tenure rules: School districts don't even have the authority to fire teachers.

Each year, the California Commission on Teacher Credentialing revokes an average of 179 teaching credentials. But none of these revocations are based on classroom performance; most are for teachers convicted in court of a crime. And many of those involve teachers no longer working in the profession, said commission attorney Janet Vining.

The sole authority to fire teachers for matters actually related to their on-the-job performance is vested in an outside panel whose membership constantly changes. When a district brings disciplinary charges against a tenured teacher, that teacher has the right to demand a hearing in front of a panel known as the Commission on Professional Competence. Despite its fancy name, this is no true "commission." The teacher facing termination gets to choose one member of the panel, while the school district picks the second; both must be tenured teachers. The final member and chairperson is an administrative law judge.

If a school district is truly serious about firing a teacher, the case almost always makes it to this panel. After all, there is no incentive for the teacher not to demand the hearing, since all costs, including attorneys' fees, must be paid by the district regardless of the outcome. And if the teacher does not like the hearing's final result -- or any of the predecision rulings made by the administrative law judge -- he or she can appeal to a court of law.

The cost of these rules is substantial. "California's system for firing teachers is fundamentally broken," said Michael E. Smith, partner of the Fresno-based law firm Lozano Smith, which represents about a third of California's roughly one thousand school districts. "To fire a teacher, it costs you $100,000, so the case has to be strong enough to spend all of that money." Smith said those costs escalate further if the teacher appeals the case beyond the hearing stage.

Not surprisingly, it's extremely rare for cash-strapped school districts to even try to fire tenured teachers. It's hard to say how rare because the Commission on Professional Competence has no staff, and doesn't collect data on how many teachers it votes to fire. Neither does the state Department of Education, nor any other agency. The closest statewide data comes from the California Office of Administrative Hearings, which provides the administrative law judges. According to agency spokesman Matt Bender, just 23 tenure hearings were scheduled in the entire 2003-04 school year, the last for which data was available. Of course, it's absurd to argue that only 23 California teachers are bad enough to warrant termination in any given year.

Union officials say more teachers could be fired if more principals took the time to document poor performance. This is a valid argument: Most principals are themselves former teachers with little or no training in how to deal with bad instructors. Yet it's also safe to say that even the most adept managers find the tenure regulations unwieldy. And that's not even taking into account the numerous discipline rules embedded in the typical teachers' union contract.

So what do districts do? One common tactic is to buy out bad teachers in lucrative settlements that cost their district less than a tenure hearing. Another is to transfer bad teachers from school to school in the hope that they will finally get the message and quit. Schwarzenegger and other critics of tenure have called this "the dance of the lemons."

Even if a school district has what seems to be a very strong case, that doesn't mean the state's tenure rules will allow that teacher to be fired.

A little-known case from a tiny school district in the Central Valley provides a stark example of just how ridiculous California's tenure laws can be.

The case involves the fruitless attempts by Merced County's Atwater Elementary School District to terminate a teacher accused by five of his former students of molesting them. During the Atwater district's odyssey through the state's tenure rules, officials learned that even though the teacher was arrested, charged by prosecutors with six counts of felony child molestation, and ordered to stand trial by a superior court judge, they still could not fire him.

These eye-opening lessons were handed out in the case of Albert G. Truitt Jr., a longtime teacher and track coach at Thomas Olaeta Elementary School in Atwater. The case began in December 2001, when one of the coach's former students told Atwater officials that Truitt had molested him. As required by law, school officials immediately notified police, who promptly opened an investigation. Truitt, however, remained on the job, and few people were aware of the allegation against him.

After four months, police told school officials that they had yet to gather enough evidence to arrest Truitt, who proclaimed his innocence. So the frustrated officials conducted their own investigation, and soon discovered four other students with similar allegations. The boys said that between 1992 and 1998, Truitt repeatedly fondled their penises and buttocks and peppered them with unwanted kisses at his home and on field trips. So on May 23, 2002, the district informed Truitt -- per tenure rules -- that it planned to bring termination proceedings against him in thirty days.

Before the tenure hearing could begin, Truitt's union attorneys filed motions to throw out most of the allegations, citing a provision that prohibits the use of allegations against a teacher if those charges are more than four years old. An administrative law judge agreed, effectively ruling that Truitt could not be fired.

Stunned district officials appealed the case, and a Superior Court judge overturned the earlier ruling and reinstated the tenure hearing. But before it got under way, the California Teachers Association appealed the case to the Fifth District Court of Appeals in Fresno.

In February 2003, Atwater police finally put together a case against Truitt and arrested him on one count of felony child molestation. The district attorney added five more counts the following July. After a preliminary hearing, a judge concluded there was sufficient evidence to order Truitt to stand trial. He faced up to fifteen years in prison.

But those developments meant nothing to the appellate court. It ruled against the district and once again dismissed Truitt's termination hearing. The court held that tenure rules clearly state that "no decision relating to the dismissal ... of any employee shall be made on charges or evidence of any nature relating to the matters occurring more than four years prior to the filing of the notice."

Although Atwater officials appealed the case to the state Supreme Court, they feared they would never be allowed to fire Truitt -- who by then had been put on leave pending a resolution of the case. One option was to wait for him to be convicted of molestation, which would result in the loss of his teaching credential. But that was no slam-dunk. Child-molestation cases can be tough to win, especially if they're based on old allegations without physical evidence. In this case, it would be the word of young boys who had waited four to ten years to come forward against that of a well-liked teacher who was backed by one of the most powerful unions in California.

With the prospect of children having to testify in open court, school officials signed off on a plea-bargain agreement between the district attorney and Truitt's attorneys. The teacher pleaded no contest, was convicted of a misdemeanor battery charge, and agreed to five years' probation. In exchange, he resigned from the district and voluntarily surrendered his teaching credential. "This broke my heart," he wrote in July 2004 to the court.

The plea deal kept Truitt out of the classroom and away from children every day. But if he was guilty, justice had not been served. A child molester may have gone free because tenure rules made it virtually impossible for his employer to keep him away from potential victims.

After suffering a stroke, Truitt died in May of this year at the age of 54. The school district is pressing its case nonetheless, supported by the California School Boards Association and several other major school districts. Atwater is arguing that even though Truitt is dead, key questions remain unresolved. "The essence of this case is to protect the safety of schoolchildren," said attorney Smith, who represents the district. "When you don't know about the misconduct, then why should you be prevented from acting on the misconduct when it comes to your attention?"

Atwater is asking the high court to liberally interpret the tenure rules to mean that the four-year clock should not begin ticking until the district learns of the allegations. "It contravenes public policy that the employment rights of one individual would be elevated above the rights of schoolchildren," attorneys for LA Unified said in a letter to the court in support of Atwater.

Union attorney John Kohn maintains to this day that Truitt was innocent. Attorney Thomas Driscoll, who represented Truitt since the original tenure hearing and is still being paid by the teachers' union, said the district attorney's office must have settled the case because there were "problems with it." Mendocino County District Attorney Gordon Spencer did not return two phone calls seeking comment on why he accepted the plea bargain.

As for the Supreme Court case, Kohn and Driscoll argue that it should be the job of police and prosecutors -- not school districts -- to investigate criminal allegations against teachers and prosecute them if necessary. "I'm glad that the California Supreme Court took this case, because we want to defend this case," Driscoll said.

But there is more at stake in Truitt than the rights of teachers versus the safety of schoolchildren. Cash-strapped school districts, like most public agencies, are concerned about the costs of getting sued. They want a definitive ruling because school districts forbidden by law from firing a suspected child molester can nonetheless be sued for millions of dollars in civil court -- where the standard of proof is less -- by the victims of such a teacher.

A bad teacher can set students back an entire year or spoil them on education altogether.

Adam Taylor never imagined that he would voluntarily surrender the gold standard of job protections. As a longtime union member, Taylor bought into the notion that teacher tenure was an essential ingredient of good public schools. Without it, teachers would be vulnerable to the whims of backward-thinking school boards and ruthless administrators. Innocent schoolchildren would suffer.

But after several frustrating years watching low-income minority kids fail while their teachers got raises anyway, Taylor grew dissatisfied with tenure. He came to understand that when kids get stuck with an awful teacher, very little can be done. "I've worked with teachers where you would smell alcohol on their breath during the school day and parents would express their concerns, and nothing would come of it," he said, shaking his head.

Taylor completed his break with tenure earlier this year. As part of an experiment designed to refocus the emphasis of public education upon students, Taylor and a group of fellow instructors at one of Oakland's worst schools, E. Morris Cox Elementary, decided to sign away their tenure rights. "It was an easy choice," recalled the tall African-American fifth-grade teacher. "In my opinion, tenure is to protect those who aren't doing their jobs."

At the time, the elementary school was one of thirteen Oakland schools being penalized under No Child Left Behind, the federal law that requires schools receiving antipoverty funds to make "adequate yearly progress" on test scores. Because Cox and the other schools failed to show enough improvement for six consecutive years, they had four choices under the law: to become a charter school, to be taken over by a private management firm, have most of the teachers and principal replaced, or undergo a moderate restructuring plan.

Randolph Ward, the state administrator in charge of Oakland schools, concluded that a moderate restructuring for Cox and seven other schools was inappropriate because they had performed so poorly for so long. So he and his staff came up with an innovative plan to turn the eight campuses into hybrid charter schools. They would be run by Oakland schools personnel, honor most of the teachers' union contracts, and use standard Oakland curricula. However, Ward and his staff demanded that the teachers work longer hours and give up their tenure rights. Kevin Wooldridge, the former Oakland Unified executive director in charge of the new charters, explained that administrators believed the failing schools would not improve unless they were free to get rid of the bad teachers.

Such talk was tantamount to treason to the Oakland teachers' union, and it sparked a fierce backlash. Union hard-liners portrayed Taylor and his colleagues as accomplices to a war on both public education and the union itself. But Taylor still considered himself a card-carrying union member even though he had become disgruntled with tenure. His college senior thesis had even focused on the supposed evils of charter schools and vouchers.

Unions generally dislike charter schools because they typically employ nonunion teachers. But even though that would not have been the case under Ward's plan, the Oakland Education Association launched a bare-knuckled fight and defeated the district's proposal at six of the schools. Earlier this year, union president Ben Visnick hailed the result as an important victory over charters. But the outcome for those schools was anything but positive. Under No Child Left Behind, all six had to be "reconstituted." Most of the principals and teachers were transferred from school to school in a giant game of musical chairs. It preserved teacher tenure, but it is unlikely to help student performance.

The union's rhetoric failed at Cox because the teachers there concluded that the needs of schoolchildren were an afterthought for the union. That's what bothered Taylor the most. "The union just wasn't talking about kids, and kids being successful," he said in explanation of why he voted for Cox to become a charter school. "All the union management wanted to talk about was protecting jobs."

Tenure reform was not on Governor Schwarzenegger's agenda when he began talking in January about overhauling the state's educational system. Instead, his administration focused on merit pay. There was even talk of "battle pay" for teachers in low-income schools. But over time, those ideas faded as tenure reform moved to the forefront.

But Proposition 74 was misguided from its inception. Merely increasing the time it takes for teachers to obtain tenure fails to address the biggest problem created by tenure -- burned-out veteran instructors.

The measure also was unfair to the dedicated, hard-working teachers with three or four years of experience. It would have established a system in which a principal could terminate those teachers for no reason while a 25-year veteran in the next classroom could be asleep on the job. Taylor said he voted against the measure for that very reason.

In fairness, Proposition 74 did attempt to tackle the burned-out-teacher problem. The measure included a provision that would have allowed principals to try to fire teachers who had two consecutive unsatisfactory performance reviews. But the provision didn't address the most cumbersome and costly aspect of tenure -- the three-member panel that adjudicates teacher firings.

If the governor remains serious about tenure reform, he should start ignoring consultants like those who worked on Proposition 74 and begin talking to people on the frontlines of the legal fight over bad teachers. School district attorney Smith believes the fairest and most effective reform of tenure rules, and the one most likely to survive legal scrutiny, would be to revise California law so that teachers receive exactly the same due-process rights as most other public employees. The three-member tenure hearings would be replaced with simple arbitration, a more efficient and less expensive process that typically places limits on discovery, such as pre-hearing witness depositions. Tenure hearings, by contrast, are courtroomlike trials that permit extensive pretrial discovery. "Teachers are hard-working people, they're the keys to our educational system, and they should have due-process rights," Smith said. "Arbitration would do that."

Other unions have championed arbitration for years. To them, it's far superior to spending exorbitant sums in court trying to defend employee rights. Teachers would thus suddenly have to explain why they deserve better.

The teachers' union may claim, as it did in the Proposition 74 campaign, that California cannot afford tenure reform at a time when the state will be facing a shortage of teachers in the next decade. The union argued that schools should be doing more to attract new teachers and not discourage them by curbing tenure. But that argument is not based on facts.

According to Patrick M. Shields, director of the Center for Education Policy at the Peninsula think tank SRI International, there are no studies that show that tenure plays an explicit role in luring teachers to the profession. Shields said teachers are no different from other public employees, who are attracted to public-service work "because it typically provides good benefits, which include a reasonable degree of job security and retirement."

Of course, tenure is far from being the only problem with public education in California. It's no secret that that the system is wildly underfunded. The union has rightly argued for years that there's no reason a rich state like California should consistently rank near the bottom nationwide in per-pupil spending -- particularly in a state with such high costs of living.

When the Legislature reconvenes after the holiday, the emboldened teachers' union may renew its call for more money. And even if it doesn't, Schwarzenegger should make the offer. He also must be willing to buck his Republican colleagues and raise taxes to pay for it. At some point, California has to admit it can't continue to shortchange public education and then decry the failure of its students.

Simply spending more money, however, is not enough. The governor should demand a compromise that includes teachers accepting arbitration in lieu of their archaic tenure rules. This carrot-and-stick approach will be tough; Schwarzenegger has squandered much of his popularity and influence. But he's not yet a lame duck, and he still has this in his favor: It's hypocritical for teachers to claim that they're pro-education and pro-kids when they're willing to spend millions of dollars protecting bad teachers.

Former Newspaper Guild officer Robert Gammon won a 2003 award honoring excellence in media coverage of public education from the California Teachers Association.


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