The Case Against Tenure 

How job protection for K-12 educators penalizes students.

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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.


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