Fixing Teacher Tenure Without a Pass-Fail Grade

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People protest in Miami in April 2010 after the state senate passed a bill that would end teacher tenure

Education eyes were on Washington this week to see what President Obama would say about schools in his State of the Union address. But just as in 2010, if you really want to follow the action on education reform, it's better to look toward the states. All the new governors (29), education chiefs (18 new ones elected or appointed since November) and legislators (nearly 1,600) mean things are more fluid in the states, where teacher tenure is becoming a major flash point. Florida and New Jersey are considering pretty much ending tenure altogether. And while those states may be ground zero for tenure battles, Idaho, Illinois, Indiana, Ohio and Pennsylvania are also considering significant changes.

Quick primer: When people refer to tenure for public-school teachers, what they're really talking about is a set of rules and regulations outlining due process for teachers accused of misconduct or poor performance. The elaborate rules often make it nearly impossible to fire a teacher. Joel Klein, who recently stepped down as New York City schools chancellor, has pointed out that death-penalty cases can be resolved faster than teacher-misconduct cases. In some places, the due-process rules are part of collective-bargaining agreements, and in others they're state law. In either case, there is a consensus among education reformers and some teachers'-union leaders that the rules need to be changed and the process streamlined. The contentious debate tends to be about how to modify what constitutes due process — as negotiators did in a landmark teachers' contract in the District of Columbia in 2009 — rather than get rid of it altogether.

But before every teacher reading this column starts shaking his or her head, it's worth noting that most teachers are not incompetent or dangerous and that, as a group, they have been unfairly maligned in recent coverage of the tenure issue. But with more than 3.2 million teachers in the U.S., even a small percentage of lousy ones adds up to a lot of students' being shortchanged — or worse. Today there are simply too few teaching licenses being revoked, unless you somehow believe that there are far fewer incompetent teachers than there are incompetent lawyers or doctors who are being removed from their professions. The reality is that because it is far easier to encourage teachers to move to another school or district instead of trying to formally remove them from yours, sometimes people who are not only not good at teaching but actually dangerous to children bounce from one school to the next.

That phenomenon highlights a second problem with current practices. Whatever process is in place will be meaningless absent a culture that values excellence and differentiates among teaching performances. A 2009 report by the New Teacher Project looked at teacher evaluation across the country and found that less than 1% of teachers were rated unsatisfactory. Given the dismal performance of many schools, such ratings defy common sense. I mention this study because too often the blame is placed on teachers' unions for protecting bad teachers. But ineffective administrators are a big part of the problem too.

Tenure rules are hard to change for a few reasons. For starters, teachers are understandably concerned that absent today's rules, they won't be treated fairly by administrators. On one level, their fears are overblown because a variety of federal and state laws protect workers from unfair and discriminatory practices. But neither are teachers' concerns groundless, since public education is not exactly a hotbed of great management. Moreover, union leaders are elected, so it's in their interest to resist changes that risk their members' job security. And truth be told, these fights are a great way to fire up membership.

All of the above helps explain why recent efforts to reform tenure have been so disappointing. Klein of New York City tried to address that district's cumbersome due-process rules by giving principals more lawyers to help them navigate the system. That's a solution only the American Bar Association might view as a good one.

Another less-than-satisfying attempt at tenure reform: on Jan. 21, at the request of the American Federation of Teachers (AFT), Kenneth Feinberg — the highly regarded attorney who handled the settlements after the Sept. 11 attacks and the massacre at Virginia Tech — released a plan to expedite dismissals in cases of misconduct. Unfortunately, while his proposal adds some specificity to the vague standards for what constitutes misconduct, it does little to streamline the process, which can often take years to resolve cases.

So does this mean we're basically stuck with the status quo?

No. The horror stories of multiyear dismissal processes — even when teachers' conduct is clearly inappropriate — as well as the growing awareness that today's measures are weak are fueling an appetite for change. There are two options being debated. One is to make achieving tenure a high bar so that it signifies not just the amount of time served but a performance standard that comes with monetary and other recognition. (When a Public Agenda survey in 2003 asked teachers if tenure was a sign of hard work and performance, 58% said it was not.) Several states that won federal Race to the Top grants last year include elements of this idea.

A more politically popular option is the model that Florida and a few other states are considering: doing away with tenure altogether and giving teachers contracts similar to those of most other workers, i.e., employment agreements that don't come with what essentially serves as a lifetime job guarantee.

But both of these approaches reinforce an underlying problem in that they basically treat all teachers alike. Why not look to empower teachers and administrators by giving them the ability to negotiate more flexible contracts? Let districts act more like professional sports franchises so they can protect and incentivize the talent they most want to hold on to. Contracts could offer more than monetary incentives. Excellent teachers could be protected from layoffs, for example, or given enhanced professional development experiences. Most of us are not professional athletes, but you see the same approach in a variety of workplaces all the time.

Despite the AFT's dalliance with Feinberg, the teachers' unions are still pretty much digging in their heels on the tenure issue. That's too bad. A backlash has been building for some time now, and things are going to change one way or another. With creative leadership, ending tenure as we know it could lead to something much better for teachers — and for their students.

Andrew J. Rotherham, who writes the blog Eduwonk, is a co-founder and partner at Bellwether Education, a nonprofit working to improve educational outcomes for low-income students. School of Thought, his education column for, appears every Thursday.