Lawyers Journal

The truth about teacher 'tenure' laws

In recent years, attacks have been mounting on so-called teacher tenure laws across the nation. The most high-profile challenge is Vergara v. California, in which a Los Angeles Superior Court judge struck down multiple provisions of the California Education Code, including its teacher tenure provisions.¹ A similar lawsuit Wright v. State of New York was filed almost immediately in New York. Elsewhere, state legislatures have sought to repeal teacher tenure rights,² substantially reduce tenure protections,³ extend the time required to acquire tenure, define performance criteria necessary for tenure, and amend dismissal procedures for tenured teachers. The purpose of this article is not to debate the merits of Vergara, which is on appeal, but to address widespread misconceptions that have been used to support legal, legislative and media attacks on tenure.

The term "tenure" does not appear in Massachusetts education law or in the laws of most other states; instead, states use terminology such as "fair dismissal," "professional status" or "continuing contract." In Massachusetts, a teacher is considered an "at-will" employee until successfully completing three consecutive years in the same public school district, at which point "professional teacher status" (PTS) is attained.⁴ During the "at-will" (i.e., probationary) period, the school employer has virtually unfettered discretion whether to renew the teacher's employment.

Despite widespread belief, acquiring tenure is not as simple as remaining employed for a predetermined number of years. Massachusetts laws and regulations impose stringent requirements ensuring that only qualified teachers earn this status. First, teachers must be licensed by the state. Licensure requirements include holding a bachelor's degree and passing a subject matter test appropriate to the teaching license sought for a preliminary license; further completing an educator preparation program to advance to an initial license; and finally, completing a teacher mentoring and induction program as well as additional coursework to advance to a professional license.⁵

Second, state law imposes a rigorous evaluation system for teachers.⁶ In 2011, the Massachusetts Department of Elementary and Secondary Education (DESE) amended its evaluation regulations in order to "promote student learning, growth and achievement by providing educators with feedback for improvement, enhanced opportunities for professional growth, and clear structures for accountability."⁷ The regulations establish standards and indicators of teaching effectiveness and require multiple assessments during the evaluation cycle, plus a four-tier system in which the teacher is rated exemplary, proficient, needs improvement or unsatisfactory.⁸ Therefore, before earning PTS, each teacher will have met strict licensing requirements and have been evaluated under a rigorous system for three years, during which the school district has broad discretion to end the teacher's employment.

It is a myth that earning tenure guarantees a job for life. It is equally untrue that it is impossible to dismiss a tenured teacher. Acquiring tenure simply means that a teacher is no longer "at-will" or probationary but has earned substantive and procedural rights related to dismissal. Substantively, a Massachusetts school district may dismiss a teacher with PTS for "inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards developed pursuant to section thirty-eight of this chapter or other just cause."⁹ That is, a school district must have a legitimate reason for dismissal that is based on one or more of these wide-ranging reasons.

In addition, tenure provides for dismissal procedures. At minimum, such dismissal procedures must satisfy constitutional due process requirements. In Cleveland Board of Education v. Loudermill, the Supreme Court held that government employees who hold a property interest in their jobs cannot be deprived of that property interest without due process.¹⁰ First, there needs to be "an initial check against mistaken decisions."¹¹ This may be as simple as providing notice of the reasons for dismissal and the opportunity to respond, thereby meeting the government's interest in being able to quickly remove an unsatisfactory employee.¹² The informality of the predetermination procedure, however, rests in part on having post-determination procedures through which a more careful review and a full remedy can be obtained.¹³

Since the 1993 Education Reform Act, Massachusetts law has satisfied Loudermill with a streamlined PTS dismissal process.¹⁴ Prior to dismissal, a school district must issue a notice of intent to dismiss explaining the grounds for dismissal and providing an opportunity to present related information within 10 days. If the district thereafter decides to dismiss, the teacher can petition for arbitral review within 30 days, and the arbitrator's decision must issue within 30 days of the hearing.¹⁵ Once dismissed, a teacher has no practical reason to prolong an appeal.¹⁶ Both income and benefits are gone, and the ability to obtain alternate employment is greatly impaired by the teacher's own employment record and possibly licensure record.¹⁷

Tenure - or PTS - is therefore simply due process, a system of substantive and procedural fairness that legislatures build into dismissal processes. Why should teachers be able to earn such protections once they have successfully completed a three-year probationary period?¹⁸ Because it is in the public's interest. A probationary period gives a district ample discretion in selecting its staff and then tenure provides "stability, certainty and permanency of employment on the part of those who had shown by educational attainment and by probationary trial their fitness for the teaching profession."¹⁹ Public education benefits when "the part that malice, political or partisan trends, or caprice might play" in personnel decisions is minimized and such decisions instead are based on merit.²⁰

Moreover, strengthened job security protects "the integrity and freedom of the educational process," and "a stable workforce fosters better educational opportunities."²¹ Teacher turnover has been shown to have a harmful effect on student achievement.²² And recent research shows that a typical teacher becomes more effective in terms of student achievement and more productive with experience; indeed, productivity in particular shows continued gains for about 12 years before leveling off at a higher plateau than at the start of the teaching career.²³ Additionally, teacher experience has been shown to have a positive impact on students' "noncognitive capabilities," benefitting their economic and social outcomes along with their education. A teacher's level of experience affects students' absences, classroom behavior, time spent on homework and time spent reading.²⁴

Furthermore, due process protections ensure that during difficult fiscal times, districts do not terminate or lay off their experienced (that is, higher paid) teachers in favor of less experienced (that is, less expensive) teachers. It also allows experienced teachers to advocate for their students and good educational practices as well as provide some protection against interference - whether by parents or administrators - in their professional judgment. Due process, in other words, doesn't protect bad teachers; it protects all teachers from arbitrary and capricious dismissal decisions.

Massachusetts teachers must pass rigorous requirements over three years to earn PTS. In doing so, they make a commitment to the students and the communities in which they teach. In return, the school districts make a commitment to them that they will be afforded due process rights. With this system in place, Massachusetts students outperform their peers across the nation.25 Any system can have outliers, like cases that seem to languish for long periods of time, and media coverage of the rare teacher accused of shocking misconduct that may incline some to rush to judgment that the "tenure" system is to blame. But as the saying goes, bad facts make bad law. Massachusetts should ignore the siren call of "reform" to fix that which is not broken.   

1. Vergara v. California, 2014 WL 6478415 (Cal.Super.) (holding that the California Education Code's provisions on teacher tenure, dismissal and layoff violate the state's constitution because they disproportionately affect poor and minority students) (order stayed pending appeal).
2. Kansas, North Carolina, Ohio and Idaho repealed their respective teacher tenure laws entirely. The Ohio and Idaho repeals were overturned in 2012 by voter referendum; the Kansas and North Carolina repeals are being challenged in the courts. Florida and Indiana eliminated tenure for teachers hired after a certain date in 2011. Fla. Sta. ch. 1012.335(1)(A); Ind. Code 20-28-6-8.
3. Michigan now protects tenured teachers only against "arbitrary and capricious" discharge. Mich. Comp. Laws 38.101. Louisiana grants tenure, although under very strict circumstances, and tenure is lost if a teacher receives a single evaluation labeling him or her "ineffective." La. Rev. Stat. Ann. 17:442 (2012). Tennessee extended the probationary period to five years and now revokes tenure automatically if a teacher receives two consecutive annual evaluations of "poor." Tenn. Code Ann. 49-5-503.
4. G.L. c. 71, § 41. PTS is not automatically portable between school districts. If a probationary teacher leaves a district before acquiring PTS, the clock starts over and the teacher must teach three consecutive years in the new school district to attain PTS again. A superintendent has discretion to award PTS to a teacher after one year in the district or based on PTS acquisition elsewhere, but such discretion is rarely exercised.
5. 603 CMR 7.09; see also www.doe.mass.edu/Educators/e_license.html?section=k12.
6. G.L. c. 71, § 38.
7. 603 CMR 35.00.
8. 603 CMR 35.03, 35.06, 35.08.
9. G.L. c. 71, § 42. "Just cause" as it appears in G.L. c. 71, § 42 does not have the same meaning that it does in traditional labor law. "Just cause" traditionally refers to a standard of review applied by arbitrators in determining whether an employer has established the basis for the dismissal and that dismissal is warranted. However, the Supreme Judicial Court recently held that "just cause" pursuant to G.L. c. 71, § 42 refers to a statutory basis for dismissing a teacher such as insubordination or incapacity; it does not connote the arbitral standard of review. See Zagaeski v. Sch. Comm. of Lexington, 469 Mass. 104, 116-17 (2014).
10. 470 U.S. 532, 540 (1985). See also Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 576 (1972).
11. Loudermill, 470 U.S. at 545.
12. See id. at 545-46.
13. See Mathews v. Eldridge, 424 U.S. 319, 331 (1976).
14. The pre-dismissal procedure previously included a full-blown evidentiary hearing before the school committee and the post-dismissal appeal procedure involved de novo review in superior court. The process could be time-consuming and costly. In order to "depoliticize and streamline" the teacher dismissal process, the Legislature in 1993 amended the teacher dismissal procedures as set forth above. See Zagaeski, 469 Mass. at 113.
15. G.L. c. 71, § 42.
16. Massachusetts stands in contrast to New York City in terms of procedures, which provide for arbitral review prior to a final determination to dismiss. This led to teachers in NYC languishing in paid status (but not teaching) in what was referred to as the "rubber room" while waiting - sometimes for years - for a hearing. See Jennifer Medina, "Last Day of 'Rubber Rooms' for Teachers," The New York Times, June 28, 2010; Agreement between city of New York and United Federation of Teachers, www.uft.org/files/attachments/temporary-reassignment-centers-agreement-april-2010.pdf. There has never been such a system in Massachusetts. The only pre-dismissal right in the state is to a meeting with the decision-maker; a dismissed teacher is off the payroll pending appeal of the final decision.
17. See Loudermill, 470 U.S. at 543. Additionally, a school administrator who has dismissed a teacher for certain enumerated grounds (e.g., gross misconduct or negligence in professional duties, willful violation of DESE regulations, dismissal for just cause), must report the dismissal and supporting reasons to DESE. See 603 CMR 7.15(8). DESE may initiate its own investigation, the outcome of which could affect a teacher's continued licensure and thus ability to teach. See id.
18. The probationary period in Massachusetts sets it apart from the system at issue in California. California has a two-year probationary period, which the judge found was actually only about 18 months, given the timing in which decisions had to be made. Massachusetts' probationary period is truly three years as notice that a teacher's contract is not being renewed has to be made by June 15, almost the end of the school year. G.L. c. 71, § 41.
19. Id.
20. McSherry v. City of St. Paul, 277 N.W. 541, 544 (Minn. 1938).
21. N. Georgeann Roye, Note, "High Hopes Hamstrung: How the 'Trial De Novo' for Termination of Tenured Teachers' Contracts Undermines School Reform in Oklahoma," 62 Okla. L. Rev. 527, 553 (Spring 2010), quoting 78 C.J.S. Schools and School Districts § 334 (2008).
22. Matthew Ronfeldt, Hamilton Lankford, Susanna Loeb & James Wyckoff, "How Teacher Turnover Harms Student Achievement" 17 (Nat'l Bureau of Econ. Research, Working Paper No. 17176, 2011) ("turnover has a harmful effect on student achievement, even after controlling for different indicators of teacher quality, especially in lower-performing schools.") See also U.S. Dept' of Educ. Office for Civil Rights "Dear Colleague" letter at 4 (Oct. 1, 2014) (expressing concern that schools with the most at-risk students do not have the same access to strong teachers; i.e., those who are "qualified, experienced and accomplished").
23. Helen F. Ladd & Lucy C. Sorensen, "Returns to Teacher Experience: Student Achievement and Motivation in Middle School" 14-15 (Nat'l Ctr. for Analysis of Longitudinal Data in Educ. Research, Working Paper No. 112, March 2014).
24. See id. at 19-23.
25. See (Nat'l Assessment of Educational Progress Report 2013 (www.doe.mass.edu/mcas/naep/results/2013ReadingMath.pdf).