The attacks on tenure are part of a vision of public administration a movement generally known as New Public Management that was an outgrowth of the best seller Reinventing Government (1992) and the Clinton administration’s National Performance Review.
New Public Management arose out of a concern with government failures, a belief in efficacy and efficiency of markets, a belief in economic rationality and a push away from large, centralized government agencies toward devolution and privatization. (Public Administration Review, July/August 2014, Volume 74, Number 4, p. 446.)
For the New Public Management advocates public education represents all that is wrong with government. It is inefficient, insulated from market forces and bureaucracies so large that change is impossible; government agencies as well as education must be devolved into smaller and smaller units and, where possible, compete with the private sector.
Charter schools challenge the mindless, faceless bureaucracy, networks, in theory devolve the decision-making process, and teacher and school assessment systems bring accountability at the local level.
The New Public Management adherents see tenure as part of the problem – protecting inadequate employees and impeding efforts to improve outcomes.
Tenure is a complex and misunderstood concept.
At the college/university level tenure has its roots in the guilds of the middle ages. Craftsman began as an apprentice and worked their way to journeyman to master with the approval of their peers. The granting of tenure, by peers, other staff members in your discipline, is an acknowledgement of your scholarly achievements: peer-reviewed articles in professional journals, books, grants and other honors are evaluated by colleagues who grant tenure.
College teachers who are unionized, in New York State the staffs at the City and State Universities, work under the terms and conditions of collective bargaining agreements that were impacted by U.S. 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 response of colleges/universities has been to reduce the number of tenure-track positions and increase the number of contingency and/or adjunct positions. At the July, 2014 AFT Convention delegates approved a resolution, Ending the Exploitation of and the Reliance on a Contingent Academic Labor System in Higher Education. Increasingly government is measuring college outcomes, New York State is creating a public dashboard: graduation rates, employment of graduates, success of graduates at their work sites, etc.
In public schools tenure, which had its beginnings in the 1880s Civil Service reform movement, removing hiring and firing from the whims of employers and the patronage spoils system. Tenure simply moves an employee from a probationary at-will employee to an employee entitled to a due process hearing before dismissal. Although the probationary period varies most states grant tenure after three years of satisfactory service. In New York City management reviews the record of the candidate for tenure – supervisory observation reports, student performance on state tests and a portfolio of artifacts – the superintendent can deny extent or grant tenure.
Charges against a tenured teacher are heard by a mutually-agreed-upon arbitrator, if the reason for the charges are misconduct (conducting unbecoming a teacher, attendance, etc.,) the charges are reviewed pursuant to section 3020a of State Education law (see procedures here ), if the charges allege incompetence the charges fall under the new section 3012c of State Education law (See State Education memorandum here).
In New York City the process take less than six months due to changes negotiated in the collective bargaining agreement – cases in the remainder of the state take substantially longer.
In California teachers served an eighteen month probationary period, virtually everyone was granted tenure and it took years and years to dismiss a teacher. As a result the bureaucracy protects teachers regardless of their competency.
The New Public Management devotees see tenure as part of a dysfunctional system protecting employees regardless their competence.
The economic catastrophe of 2008 cast doubt on the emphasis on privatization and outcome-oriented measures of governing and scholars are beginning to explore a different view of the role of government.
Theorists see “citizens move beyond their roles as voters, clients, constituents, customers, or poll responders to becoming problem-solvers, co-creators, and governors actively engaged in producing what is valued by the public and good for the public, capture[ing] the importance of work in general for the creation of public value, and the special role of labor unions have often played in its creation”
This new movement, which by some is called “public value governance”
In the new approach, government agencies can be a convener, catalyst and collaborator – sometimes steering, sometimes rowing, sometimes partnering and sometimes staying out of the way. In addition, the way government’s key objectives are set changes. In traditional public administration, elected officials set goals and implementation is up to public servants overseen by elected officials and senior administrators. In New Public Management elected officials still set goals. Managers then manage inputs and outputs in a way that ensures economy and responsiveness to customers. In contrast in the new approach both elected officials and public managers are charged with creating public value so that what the public most cares about is addressed effectively and what is good for the public is pursued.
.. in the emerging approach the full range of democratic and constitutional values is relevant … This often means helping build cross-sector collaborations and engaging citizens to achieve mutually agreed objective … in the emerging approach government delivers dialogue and catalyzes and responds to active citizenship in pursuit of what the public value and what is good for the public.(ibid., p. 448).
As unions and community organizations and the public continue to push back, unions engage themselves using pension fund dollars to build housing and infrastructure, unions work with a range of government agencies to revive the deepest poverty, Mc Dowell County West Virginia is an example.
The misguided MBAs and public policy mandarins who have driven the education policy for the last decade may be in process of being derailed. Perhaps public value governance, a return to the de Tocqueville’s view of America might be emerging.