Florida Gov. Charlie Crist recently vetoed legislation that would have eliminated tenure for newly hired teachers and substituted, in its stead, a merit pay system. It was the right decision, though perhaps it was for the votes and not the merits. But the perennial silver bullet for improving the public schools--abolishing teacher tenure--misses the mark, and the arguments for eliminating tenure all show a myopic lack of will at each level of the public education enterprise.
First, contrary to the prevailing perception, teacher tenure doesn't guarantee lifetime employment. Legally, teacher tenure is no more than procedural due process, which means that notice and a hearing are needed to ensure fundamental fairness and that a termination must be based on generally accepted reasons, such as incompetency, insubordination, and immorality. If this level of procedural and substantive protection for an individual teacher becomes top heavy, outweighing the interests of students and the rest of the institutional enterprise, the problem isn't tenure, but the lack of will among various players in the tenure process, including those who participate in making state law and in collective bargaining.
Second, the corollary concept that teacher tenure is so costly and complicated that districts can't fire bad teachers is also a self-perpetuating scapegoating process. In most jurisdictions, the scenario of mountainous documentation, multisession hearings, and unending appeals is the result of three, oddly allied tendencies:
1. Overzealous administrators who blindly follow the mantra of "document, document, document";
2. Attorneys on each side who have their own ingrained refrain of "billable hours"; and
3. Teachers union officials who need to show the value of collective protection against false charges even at the expense of protecting against true ones.
The third and related reason is the substitution of lore for law. The lore is that it is difficult, if not impossible, to win a performancebased termination of a tenured teacher. The reality is quite different. In a comprehensive canvass of court decisions on teacher evaluation for competency, I found that defendant districts prevailed over plaintiff teachers by better than a 3-to-1 ratio and that there was no significant difference between the outcomes for nontenured and tenured teachers. Decisions based on substantive grounds--such as whether the evidence sufficiently established incompetence or whether the district violated such federally protected rights as First Amendment expression or Title VII race or sex discrimination--were notably deferential to school districts. Even decisions based on procedural grounds--such as the state law or local policy for the frequency of teacher evaluation or records of the process--gave the benefit of the doubt to the school district, using such rationales as the "harmless error" doctrine. For procedures not prescribed in state law or local policy, such as a plan and period for remediation, courts typically ruled that their lack was not fatal to the district's case because "judges enforce, not make, the rules."
Inflated performance reviews
If there is a reason why it's difficult to fire a bad teacher, it doesn't have to do with tenure or the law, but with a sort of Lake Wobegon effect on administrators when evaluating teachers. …