“In all lines of academic investigation it is of the utmost importance that the investigator should be absolutely free to follow the indications of truth wherever they may lead. Whatever may be the limitations which trammel inquiry elsewhere we believe the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.” (1894)
At the university level the concept of tenure is strongly embedded and supported by major US Supreme Court decisions.
Two landmark U.S. Supreme Court cases changed tenure in 1972: (i) Board of Regents of State Colleges v. Roth, 408 US 564; and (ii) Perry v. Sindermann, 408 US 593. These two cases held that a professor’s claim to entitlement must be more than a subjective expectancy of continued employment. Rather, there must be a contractual relationship or a reference in a contract to a specific tenure policy or agreement.
Further, the court held that a tenured professor who is discharged from a public college has been deprived of a property interest, and so due process applies, requiring certain procedural safeguards (the right to personally appear in a hearing, the right to examine evidence and respond to accusations, the right to have advisory counsel.
The process of granting tenure varies among colleges. Usually the tenured members of a department recommend the granting of tenure based upon published research conducted by the department member seeking tenure. Once tenure is granted it is difficult to remove – it would require serious breaches of college rules or regulations and a due process procedure, removal is uncommon. At the college level tenure is a guarantee of lifetime employment (at least to the age of mandatory retirement).
The intent of tenure at the college level is best expressed as,
… to allow original ideas to be more likely to arise, by giving scholars the intellectual autonomy to investigate the problems and solutions about which they are most passionate, and to report their honest conclusions.
While the term tenure applies to K-12 public school teachers it has a significantly different meaning, it simply guarantees a just cause due process procedure before dismissal and peers are rarely involved. Tenure, as it is used in the public school sphere is not a guarantee of lifetime employment.
Due process teacher dismissal rules vary from state to state. In New York State teachers serve a probationary period and achieve tenure after three years upon recommendation of the superintendent.
Once a teacher is granted tenure, a school district can dismiss the teacher only for just cause based on general reasons recognized under the Education Law. Some examples of these reasons are:
- Conduct unbecoming a teacher
- Physical or mental disability
- Neglect of duty
- Failure to maintain certification
- Immoral character
As in all discharge/discipline cases the burden is on the charging party, the school district, to establish by preponderance of evidence the guilt of the charged party, i.e., the teacher.
The hearing officer can take into consideration,
…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.
The statute lists the penalties that may be assessed by the hearing officer,
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.
In addition, in New York City the local union has negotiated distinct time limits to expedite the process.
In all cases, 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.
The expedited time limits have eliminated the rubber rooms and the backlog.
For cases where charges were filed on or after September 1, 2010, the statutory timelines are being met and there is no backlog. There have been 128 cases filed and completed. Thirty-one cases have gone to hearing and decision. These cases have averaged 93 days. The remaining 97 cases have been settled and have averaged 33 days from charge to settlement (as of 5/1/11)
If the process is so clearly explained in the law and if the process is expedited with reasonable time limits, if there is no backlog, why are so few teachers subject to charges?
You have to ask the Mayor and the Chancellor.
I spoke with principals who had successfully brought charges against teachers.
“I consulted with the Department attorney, I offered the teacher assistance and support, I recommended Peer Intervention Plus, I suggested the UFT Member Assistance Program, I arranged visits to other classrooms, additional coaching time, I kept the UFT Chapter Leader in the loop and I documented all meetings and assistance offered.”
Other principals complained, “It’s too time consuming.” Is it better to live with a teacher that a principal feels should not be teaching than to do your job?
In an infamous example the Department refused to assign a teacher back to a classroom for ten years and claimed it’s because the teacher committed an egregious act that they could not prove. In reality the Department felt the million dollars in salary more than paid for the publicity and the flailing of the union by constantly dragging out the same case.
It’s not the rules my friends, it’s the rulers, and, perhaps it’s the rulers that should be changed.