The American Enterprise Institute Tenure Report: Half-Truths, Mistruths and Outright Lies: The Campaign to Destroy Tenure is Ugly.

The American Enterprise Institute is a right wing “think tank,” with funding ties to the Koch Brothers and others in the anti-union, anti-public education sector. AEI conducts what I call “advocacy research,” what they call research simply supports their political positions. (Read more at Right Wing Watch here)

AEI released a report on teacher tenure in New York State, not surprisingly just in time for the anti-tenure lawsuit, you can follow the case – Wright v New York here and the specifics of the claims within the suit here.

The AEI “research” tracks teachers charged under the section 3020a of the New York State Education Law between 1997 and 2007. The purported research conveniently fails to include the sweeping changes in the law in 2012.

Tenured educators have the right to retain their positions and may only be terminated if there is “just cause” pursuant to Education Law §3020. The rules specifying the process for terminating a tenured educator are set forth in Education Law §3020-a. This process was significantly modified effective April 1, 2012, by Chapter 57 of the Laws of 2012.

The authors of the report simply roll back the clock to 2007 and ignore the sweeping changes to the law since 2007. The Annual Professional Performance Review (APPR) governs the assessment of teacher performance in New York State. Within the law and regulations each school district negotiated a plan with the collective bargaining agent, the union. If a teacher receives an “ineffective” rating for two consecutive years, and, the school district complied with the requirement of an assistance plan in year two, the school district can prefer charges and seek the dismissal of the teacher.

The law states,

If a teacher receives an ineffective rating for a school year in
which the teacher is in year two status and the independent validator
agrees, the district may bring a proceeding pursuant to sections three
thousand twenty and three thousand twenty-a of this article based on a
pattern of ineffective teaching or performance. In such proceeding, the
charges shall allege that the employing board has developed and
substantially implemented a teacher improvement plan in accordance with
subdivision four of this section for the employee following the
evaluation made for the year in which the employee was in year one
status and was rated ineffective. The pattern of ineffective teaching or
performance shall give rise to a rebuttable presumption of incompetence
and if the presumption is not successfully rebutted, the finding, absent
extraordinary circumstances, shall be just cause for removal

AEI claims,

The fundamental purpose of § 3020-a hearings is not to determine whether a school’s charge of inadequate performance is justified, but rather to determine whether there is any possibility that an inadequately performing teacher can be rehabilitated.

The AEI claim is blatantly incorrect. The new law, section 3012c, is ignored by AEI, the language, “a rebuttable presumption of incompetence,” places the burden on the teacher.

Yes, if a tenured teacher receives an ineffective rating the school district must provide assistance to the teacher in year two, a perfectly reasonable requirement,


Incompetent teaching in and of itself is not grounds for dismissal under § 3020.

The law states that two ineffective ratings are “a rebuttable presumption of incompetence,” and, if the teacher cannot rebut the ineffective rating the hearing officer can assess discipline; if a teacher has had many years of effective service the hearing officer may fine or suspend a teacher and require retraining, or, dismiss the teacher. Each case has a separate fact pattern. Incompetent teaching is grounds for dismissal, although the hearing officer has a range of options.

Proof that there is no possibility of rehabilitating a teacher is a necessary condition for dismissal.

Rehabilitating the teacher is an option that the hearing officer may consider; but does not have to consider. Once again, each case is determined on the merits of the case.

The law is clear: the employer must make efforts to assist the teacher in “correcting the behavior that resulted in charges being brought …” Hearing officers have wide discretion: penalties range from a reprimand to a fine, a suspension to discharge. In addition the hearing officer may require specific types of retraining in addition to the penalties described.

the hearing shall be conducted before and by a single hearing
officer in an expedited hearing, which shall commence within seven days
after the pre-hearing conference and shall be completed within sixty
days after the pre-hearing conference.
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.

The fundamental purpose of § 3020-a hearings is to determine whether a school’s charge of inadequate performance is justified, and, further to determine whether there is any possibility that an inadequately performing teacher can be rehabilitated.

Charges fall into three categories: incompetence, now governed by section 3012c, misconduct on the job and misconduct away from the job. Serious felonies result in suspension without pay and discharge without a hearing if the teacher is convicted or pleads guilty. Typical misconduct in schools is accusations of corporal punishment, excessive absence and insubordination; a typical punishment is a fine.

Misconduct outside of school: DWI, minor drug arrest, shop lifting, public intoxication, etc., are punished by a fine and/or a suspension.

The AEI report is simply a hatchet job, a crude attempt to discredit a law prior to the first judicial hearing, if you lie loud enough and long enough the public, and, the judiciary may believe you.

Schools have wide discretion in hiring; teachers serve three year under probation, with the ability to extend probation for a fourth year, and, forty percent of teachers leave voluntarily within five years.

The lowest achieving schools have the least experienced teachers, the poor have little or no legal representation, hospitals in poor neighborhoods are understaffed and the doctors come from the lowest rated medical schools.

How do we discharge incompetent lawyers or doctors? We don’t.

The AEI report is disgraceful; poorly done, filled with half-truths, and exactly what we can expect from the amoral right.

It is sad that anyone believes that the path to highly effective schools is firing incompetent teachers. We all know there is a pool of highly effective teachers just waiting to fill their classrooms.

What is amazing is that so many smart people actually believe this canard.

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