When big-dollar attorney Dan Weisberg left his private-sector position in 2003 to join the New York City school system, the district was having a hard time getting principals to provide honest assessments of low-performing teachers. Each negative piece of feedback was subject to a three-step grievance and arbitration process and, as Weisberg explains, "The final two steps were a big deal, because [principals] had to leave their building and go downtown, which could take hours. Principals complained about it and used it as an excuse for why they couldn't document poor performance when they saw it."
When Weisberg's team asked the principals why they couldn't attend the hearings by phone, he notes, "The answer we first got was, 'No, we can't do it. We've never done it that way. And we said, 'Where is that in the contract? Where is that in some policy?' And the answer was nowhere. So we just did it. It was a small thing, but it showed principals that we cared, that we understood this was very burdensome and we were trying to make their lives easier. ... It had a concrete impact in encouraging principals to take action to document poor performance."
When it comes to reforming American education, today's would-be-reformers get it half right. They correctly argue that statutes, rules, regulations, and contracts make it hard for school and school-system leaders to drive improvement and, well, lead. They are wrong, however, to ignore a second truth: school officials have far more freedom to transform, reimagine, and invigorate teaching, learning, and schooling than is widely believed.
It's true that prescriptive union contracts and procurement processes, rules and regulations like the federal "supplement not supplant" provision, state laws, board policies, and the like hinder school officials in all kinds of ways, making it difficult to repair a fence, hire talented staff, or schedule grade-level team meetings. But it has become increasingly clear that much of what administrators say they can't do, think they can't do, or just don't do is in fact entirely possible. Contracts, rules, regulations, statutes, and policies present real problems, but smart leaders can frequently find ways to bust them--with enough persistence, knowledge, or ingenuity.
The problem is not just the very real statutory, regulatory, and contractual barriers, but the "culture of can't," in which even surmountable impediments or ankle-high obstacles are treated as absolute prohibitions. This mind-set threatens to undermine the success of hard-won reforms and can make policy impediments appear more severe than they truly are.
The Bogeymen of Leadership
We often hear from principals about all the things they'd like to do but that are impossible due to circumstances beyond their control. Perhaps the most commonly cited sources of frustration are, first, teachers' contracts and, second, state and federal policies that tie the principals' hands when it comes to teacher assignment, compensation, hiring, professional development, instructional time, and much else.
Yet a closer look raises some questions about these common complaints. For example, in a 2008 analysis of the collective bargaining agreements (CBAs) of the 50 largest U.S. school districts, Coby Loup and I found that although one-third were highly restrictive, the majority included much room to maneuver. Lehigh University professor of education and law Perry Zirkel notes that the perception that it's nearly impossible to let go of low-performing, tenured teachers arises from "the substitute of lore for law. The lore is that it is difficult, if not impossible, to win a performance-based termination of a tenured teacher. The reality is quite different." In his study of court decisions on teacher terminations for competency, Zirkel found that "defendant districts prevailed over plaintiff teachers by better than a 3-to-1 ratio. …