What is Tenure? A Just Cause Discipline Standard, or, a Protection for Inept Teachers? and Why Isn’t It Working?

What’s the difference between tenure and love? Tenure is forever….

In March President Obama, before the Hispanic Chamber of Commerce challenged states and school districts,
“We need to make sure our students have the teacher they need to be successful. That means states and school districts taking steps to move bad teachers out of the classroom. Let me be clear: if a teacher is given a chance but still does not improve, there is no excuse for that person to continue teaching. I reject a system that rewards failure and protects a person from its consequences. The stakes are too high,” Obama said.
And, at an April Town Hall meeting, he engaged an experienced teacher, again, on the issue of bad teachers,
And it can’t be impossible to move out bad teachers, because that brings — that makes everybody depressed in a school, if there are some folks — and it makes it harder for the teachers who are inheriting these kids the next year for doing their job.
We constantly hear the rant that teacher unions and their contracts prevent principals and schools from removing the “bad teachers.”
What do contracts and laws say about teacher dismissal?
What is referred to as tenure in New York State is a “just cause” standard for dismissal. In school districts and states that work under collective bargaining agreements the procedures are embedded in contract and law and require a hearing before an arbitrator. “Just cause” is simply defined as fairness, “Two principles that are central to just cause are employed by all arbitrators, due process and progressive discipline.” (See Norman Brand, Editor, Discipline and Discharge in Arbitration, 1998, BNA Books)
Section 3020  and 3020a of the NYS Education Law establishes the procedures,
    § 3020. Discipline of  teachers. 1. No person enjoying the benefits of
  tenure shall be disciplined or  removed  during  a  term  of  employment
  except for just cause and in accordance with the procedures specified in
  section  three  thousand  twenty-a of this article or in accordance with
  alternate disciplinary procedures contained in a  collective  bargaining
  agreement  covering  his  or her terms and conditions of employment
The current NYC teacher contract contains a number of provisions to expedite the process. “Time and Attendance” cases have a speedy procedure. Teachers who are arrested for specific serious felonies may be suspended without pay pending the adjudication of their case, if found “not guilty” back pay is provided.
All dismissals cases must be completed within a time frame specified in the contract,
… as delineated in Education Law §3020-a the final hearing shall be completed no later than 60 days from the pre-hearing conference and the written decision must be rendered within 30 days from the final hearing date.
Well, you might say, the time frames are expedited but it’s impossible to fire someone due to the limited charges that can be brought against teacher.
The By Laws of the Board of Education, in Section 105.2* provide
Charges may be preferred against any member  … for
(a) Unauthorized absence from duty or excessive lateness;
(b) Neglect of duty;
(c) Conduct unbecoming his position, or conduct prejudicial to the good order, efficiency or discipline of the service;
(d) Incompetent or inefficient service;
(e) (section dealing the incurring of indebtedness while subject to a judgement shall be deemed conduct unbecoming … see (c) above)
(f) Violation of the Bylaws, rules or regulations of the Board of Education; or
(g) Any substantial cause that renders the member unfit to perform his obligations to the service
(* not online … my pale green frayed copy is dated, June 30, 1964)
There have been many, many hundreds of cases over the years, and they have been well studied.
If the reasons for bringing charges allow wide discretion on the part of management the problem must be that the arbitrator is limited in the penalties he may employ.
 The written decision shall include the hearing officer’s findings
  of  fact  on  each  charge,  his  or her conclusions with regard to each
  charge based on said findings and shall  state  what  penalty  or  other
  action, if any, shall be taken by the employing board. At the request of
  the employee, in determining what,
if any, penalty or other action shall
  be  imposed,  the hearing officer shall consider the extent to which the
  employing board made efforts towards  correcting  the  behavior  of  the
  employee  which  resulted  in  charges  being brought under this section
  through  means  including  but  not  limited   to:   remediation,   peer
  intervention  or  an  employee  assistance  plan
. In those cases where a
  penalty is imposed, such penalty may be a  written  reprimand,  a  fine,
  suspension for a fixed time without pay, or dismissal. In addition to or
  in  lieu  of the aforementioned penalties,
the hearing officer, where he
  or she deems appropriate, may impose upon the employee  remedial  action
  including  but  not  limited  to  leaves of absence with or without pay,
  continuing education and/or study, a requirement that the employee  seek
  counseling or medical treatment or that the employee engage in any other
  remedial or combination of remedial actions.
Doesn’t the law seem to include all those complaints that Obama threw in the face of teacher unions? In New York State, over the years, the UFT contract and the law has evolved to balance the rights of teachers with the obligation of schools and school districts to provide an appropriate education for children.
Why then, you may ask, are hundreds of teachers sitting in Teacher Reassignment Centers, aka, “rubber rooms,” for months, and sometimes for years?
The Department argues it is short of staff, investigators and lawyers. Wouldn’t it be less expensive to hire the staff in lieu of paying full salaries to teachers who are awaiting Department actions?
The problem is clearly not the contract or the law.
Could it be possible that we are talking about politics? (Captain Renault: I’m shocked, shocked to find that gambling is going on in here!)
Is the Department wasting tens of millions of dollars in order to use the “rubber room” catastrophe as a bargaining chip in future contract negotiations, or, as a piece of the Education Equality Project agenda, and, as part of their fight to retain mayoral control?
Is Bloomberg/Klein opposition to unionized charter schools “just cause” dismissal clauses (see LA Green Dot contract Teacher Evaluation System provision) because of the “fairness” of these provisions?
I was meeting with a group of teachers in an elementary school, one teacher introduced herself as the “gifted teacher,” I responded, “No, you are the teacher of gifted children, your giftedness is a matter for discussion.”
Teachers have an obligation to grow, to increase their skills as they gain experience. I’ve heard too many teachers say, “I’m experienced, I know what I’m doing, why can’t the principal leave me alone.” Experience alone does not define competence or success. School leaders have an obligation to be in classrooms, and, I believe teachers should be in colleagues’ classrooms. School must become learning organizations for the professionals as well as for children.
And yes, in spite of help and assistance, that by statute should be offered by the rating officer, some employees are terminated. Unions have a duty of “fair representation,”  and defends members. As I used to remind my superintendent, the union doesn’t hire teachers, he does, and unions don’t select their clients.
In a mature labor-management relationship, that is sorely lacking in New York City, unions can defend members and at the same time members can be involved in the hiring process as well as peer review, working closely with management on a collaborative basis.
We want the best teachers for children, we realize that incompetent teachers should be dismissed, within a “just cause” standard environment, what we don’t need is “using” children and teachers to achieve crass, self aggrandizing ideological goals.

One response to “What is Tenure? A Just Cause Discipline Standard, or, a Protection for Inept Teachers? and Why Isn’t It Working?

  1. Pingback: Remainders: Queens teachers cheer their principal’s resignation | GothamSchools

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