How Due Process Protects Teachers and Students

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Teacher tenure rights, first established more than a century ago, are under unprecedented attack. Tenure—which was enacted to protect students’ education and those who provide it—is under assault from coast to coast, in state legislatures, in state courtrooms, and in the media.In June 2014, in the case of Vergara v. California, a state court judge struck down teacher tenure and seniority laws as a violation of the state’s constitution.* Former CNN and NBC journalist Campbell Brown has championed a copycat case,Wright v. New York, challenging the Empire State’s tenure law (which was consolidated with another New York case challenging tenure, Davids v. New York). Similar cases are reportedly in the works in several other states.1

Meanwhile, with incentives from the federal Race to the Top program, 18 states have recently weakened tenure laws, and Florida and North Carolina sought to eliminate tenure entirely.2 According to the Education Commission of the States, in order to give greater weight to so-called performance metrics, 10 states prohibited using tenure or seniority as a primary factor in layoff decisions in 2014, up from five in 2012.3

Leading media outlets have joined in the drumbeat against tenure. A 2010 Newsweek cover story suggested that “the key to saving American education” is: “We must fire bad teachers.”4 In 2014, the cover of Time magazine showed a judge’s mallet crushing an apple. The headline, referencing the Vergara case, read, “Rotten Apples: It’s Nearly Impossible to Fire a Bad Teacher; Some Tech Millionaires May Have Found a Way to Change That.”5

Amidst this sea of negative publicity for educators, journalist Dana Goldstein wrote that “the ineffective tenured teacher has emerged as a feared character,” like “crack babies or welfare queens” from earlier eras.6 Labor attorney Thomas Geoghegan quipped that the “bad teacher” meme is so strong that one can imagine a young Marlon Brando, altering his famous line from On the Waterfront to say: “I … I could have been a contender—but I got that old Miss Grundy in the fourth grade!”7

Of course, conservatives have long attacked policies such as tenure that constrain the ability of managers to fire whomever they want, but the latest assaults on tenure have invoked liberal egalitarian ideals. In the Vergara case, Judge Rolf Treu, a Republican appointee, claimed that the case, funded by a Silicon Valley millionaire, was about championing the rights of poor and minority students. Treu made a big show of comparing his decision weakening teacher tenure rights to the landmark cases of Brown v. Board of Education (which promoted school desegregation) and Serrano v. Priest (which required equity in education spending).8 Treu used a serious and pressing problem—that low-income students often have the weakest and least experienced teachers—not as an argument for addressing segregation or inadequate financial resources but instead as the rationale for weakening tenure rights.

Curiously, Secretary of Education Arne Duncan endorsed the decision, as did leading liberal lawyers like Laurence Tribe and David Boies. Broad Foundation President Bruce Reed, a former staffer to Vice President Joe Biden, suggested that the ruling was “another big victory” for students of color, in the tradition of Brown.9 (Other liberals had a more sober response. Erwin Chemerinsky, a constitutional law scholar and dean of the University of California, Irvine, School of Law, for example, has criticized Treu’s reasoning, arguing that attacking tenure will do little to improve school quality.10)

All the attention to tenure—especially from progressives—raises an important question: What is it exactly? The legal definition is simple: tenure provides those teachers who have demonstrated competence after a probationary period with due process rights before being fired. It is not, as critics contend, a guaranteed job for life. As I explain in this article, historically, tenure laws developed to protect teachers from favoritism and nepotism and to ensure that students received an education subject to neither political whims nor arbitrary administrative decisions. Tenure protections are still necessary today, especially given the current fixation on high-stakes testing and the linking of students’ test scores to teacher evaluations. I believe that rather than doing away with tenure, dismissal procedures could be mended to strike the right balance between providing fairness to good teachers and facilitating the removal of incompetent ones. I also believe there are innovative ways to connect low-income students with great teachers. Yet, it continues to amaze me that with all the problems in education, we are so fixated on the issue of teacher tenure. What is really going on?

– See more at: http://www.aft.org/ae/summer2015/kahlenberg#sthash.ovmn8vUc.dpuf

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