The Case Against Tenure 

How job protection for K-12 educators penalizes students.

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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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