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
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
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.
- 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).
- 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.
- 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.
- 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.
- 603 CMR 7.09; see also
- G.L. c. 71, § 38.
- 603 CMR 35.00.
- 603 CMR 35.03, 35.06, 35.08.
- 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
- 470 U.S. 532, 540 (1985). See also Bd. of Regents of State
Coll. v. Roth, 408 U.S. 564, 576 (1972).
- Loudermill, 470 U.S. at 545.
- See id. at 545-46.
- See Mathews v. Eldridge, 424 U.S. 319, 331
- 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.
- G.L. c. 71, § 42.
- 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,
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.
- 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.
- 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.
- McSherry v. City of St. Paul, 277 N.W. 541, 544 (Minn.
- 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
- 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").
- 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).
- See id. at 19-23.
- See (Nat'l Assessment of Educational Progress Report