Tenuous Tenure of Tenure

The Governor has proposed that school boards have up to five years (not three) to evaluate a teacher before granting tenure. This is good, but the Governor should be encouraged to take his reform at least two steps further as reflected in Senate Bill 624/House Bill 367.

After the Senate Education Committee voted last week in favor of a bill that would remove collective bargaining rights from the state’s teachers’ union, the tenure of teacher tenure is the next target on the list of education reforms to be considered. This time it is the Governor who is doing the “shooting.” The Governor’s idea is a good one, but has he gone far enough?

Tenure is a right granted to teachers in Tennessee’s public school system that allegedly protects them from wrongful termination (it can also protect them when they should be terminated) and accords them several opportunities to oppose any disciplinary action by a school board. During my 12 years in office I often heard school administrators lament the number of hurdles they had to jump through to dismiss a bad teacher.

Right now, under Tennessee law, school boards must grant tenure after three years or essentially “fire” the teacher by not granting them a contract for a fourth year.

The Governor has rightly noted that three years is hardly enough time in which to evaluate whether a teacher should be given a near lifetime guarantee of employment. Consequently he has proposed that school boards have up to five years to evaluate a teacher before granting tenure. This is good. In fact, legislation that our legislative arm, Family Action of Tennessee, has already gotten legislative sponsors to file, proposes a five-year evaluation period. You can read the bill (SB 624/HB 367) at this link.

As far as it goes, the Governor’s proposal is a good one, assuming that the abolition of tenure is not politically feasible, which might be the case. But we would encourage our Governor to take his reform at least two steps further as reflected in SB 624/HB 367. (There’s also been talk that the Governor might recommend that tenure have to be renewed every five years, which is a good idea but one not yet formally presented.)

First, with tenure being an act with such finality, it would be appropriate not to require a school board to make the dramatic and rather final decision to grant tenure or fire a teacher after just five years. That is why we have proposed allowing a school board to grant tenure at the end of the fifth year, but have up through the tenth year to make that decision.

Some might say this is not teacher-friendly, but actually it is. I know law firms and accounting firms have begun to recognize that someone may be a good lawyer but just not an equity level partner in the business. So many have created intermediate levels of professional employment. Thus it is now not always a choice between being unemployed or becoming an equity partner. Essentially young associates have more time to prove themselves and perhaps move up the ranks. And in the interim, the legal or accounting firm has a solid practitioner working for them.

And the same should be true with teachers, if we’re not going to abolish tenure altogether. A young teacher, thrown into a tough classroom, might really struggle the first couple of years. Current law would foster a school board letting the teacher go after that second year to avoid having to make the tenure decision at the end of year three. But over time, the person may grow as a teacher. It may be that they will hit their stride in year four or five, but should a school board have to make a decision based on one or two good years out of five? If they are uncertain, then the teacher is fired, maybe a teacher that will really prove to be good. So why not give that teacher another year or two or three to prove himself or herself?

Setting an upper limit of 10 years recognizes that a teacher shouldn’t be left hanging forever. If there’s going to be tenure, at some point the school board needs to fish or cut bait, as the saying goes.

But even this is not enough. Right now teachers who are disciplined or fired get three bites at the apple to reverse the decision. First they have the right to a full-blown trial in front of an impartial hearing examiner. If the teacher doesn’t like the result, he or she then has a right to appeal to the school board. And if the teacher doesn’t like the school board’s affirmation of the hearing examiner’s decision, he or she has a right to appeal to the Chancery Court. This is a time-consuming procedure that can keep a bad teacher in the classroom longer than is good for students. And it can be a costly procedure for supposedly cash-strapped school boards. Consequently administrators often find it easier just to reassign a teacher to another school or move that teacher into an administrative position, where they only waste taxpayers’ money, not a student’s mind.

So SB 624/HB 367 removes the third bite at the apple and stops the process with the school board. After all, we elect school boards to run our schools, and if they get in the habit of firing good teachers, voters can provide the school board members the opportunity to return to private life. It is not in the long-term best interest of principals and school boards to fire good teachers.

But elimination of this third bite at the apple—appeal to chancery court—doesn’t mean that if some law is violated that a teacher can’t sue. If, for instance, a school violates the state’s antidiscrimination law by letting a teacher go because of his or her race, then the teacher has a cause of action against the school independent of the tenure laws.

So, Governor, thanks for taking on tenure reform. For the sake of parents who want good teachers for their children and bad teachers removed as quickly as possible, we’re for you. We just hope you’ll consider taking your reform a little bit further.