ERIC Identifier: ED282352
Publication Date: 1986-00-00
Author: Scott, James
Source: ERIC Clearinghouse on
Educational Management Eugene OR.
Teacher Tenure. ERIC Digest, Number Nineteen.
Is tenure an outmoded concept that stands in the way of sound
educational policy? Or is tenure an essential means of protecting teachers from
arbitrary and capricious actions on the part of administrators and school
boards? Although their opinions may differ, it is essential that all the parties
involved -- parents, teachers, administrators, and school boards -- gain a clear
understanding of what tenure does and does not do. They may then use that
understanding to ensure that competent teachers enjoy academic freedom while
administrators preserve the flexibility they need to develop and maintain
quality educational systems.
WHAT IS TENURE?
Tenure is a form of job security for teachers who have successfully completed
a probationary period. Its primary purpose is to protect competent teachers from
arbitrary nonrenewal of contract for reasons unrelated to the educational
process -- personal beliefs, personality conflicts with administrators or school
board members, and the like.
WHAT PROTECTION DOES TENURE OFFER THE PUBLIC SCHOOL TEACHER?
The type and amount of protection vary from state to state and -- depending
on agreements with teachers' unions -- may even vary from school district to
school district. In general, a tenured teacher is entitled to due process when
he or she is threatened with dismissal or nonrenewal of contract for cause: that
is, for failure to maintain some clearly defined standard that serves an
In such cases, due process usually requires that the school board hold a
hearing at which the administration presents its arguments in favor of
dismissing the teacher or not renewing the teacher's contract, and the teacher
is allowed to present his or her side. As in a criminal court, the teacher is
presumed innocent until proven guilty: the administration must prove that the
teacher has failed to measure up to some clearly defined standard; the teacher
need not prove that he or she has measured up to it.
It is not impossible to terminate the employment of a tenured teacher, but
the process is a difficult and cumbersome one. Consequently, many parents arrive
at the conclusion that administrators would rather retain incompetent teachers
than go through the time and effort involved in a dismissal hearing.
WHAT ARE THE RIGHTS OF A PROBATIONARY TEACHER?
When deciding whether to renew the contract of a probationary teacher (a
teacher who does not yet have tenure), a school board's powers are almost
unlimited. In most such instances, the situation of the probationary teacher up
for renewal is virtually the reverse of the situation of the tenured teacher.
The burden of proof is on the teacher to establish that the board is acting in
an arbitrary or capricious manner, has failed to live up to its side of a
contract, or has violated the teacher's constitutional rights. In addition, the
courts have traditionally been extremely reluctant to intervene when a school
board has chosen not to renew the contract of a probationary teacher.
In at least some instances, the courts have ruled that a school board need
not retain a probationary teacher even when it is established that the teacher
is doing an adequate job. In such instances, the courts have ruled that if a
school board believes it can replace an adequate probationary teacher with a
better one, it is at liberty to do so.
Despite the wide latitude given to school boards, it is only common sense
that the board make sure its actions do not conflict with any agreement between
the board and the teachers' union.
HOW MUCH LEEWAY DO SCHOOL BOARDS HAVE WHEN LAYING OFF FACULTY BECAUSE OF
DECLINING ENROLLMENTS OR FINANCIAL CUTBACKS?
School boards have much more leeway when deciding whom to lay off because of
financial exigencies than they have when deciding whether to renew the contract
of a tenured teacher. The exact amount of leeway, however, is determined in
large part by agreements between the school board and the teachers' union.
Generally speaking, tenured faculty have preference over probationary
faculty, but such preference is seldom absolute. If a tenured faculty member and
a probationary faculty member teach exactly the same subjects, then the tenured
faculty member must usually be given preference. However, if there is a surplus
of teachers in one discipline and a scarcity in another, a tenured faculty
member in the one might be let go and a probationary faculty member in the other
might be retained.
The school board is usually required to make a good faith effort to find an
alternative position for a tenured teacher whose position is eliminated. But the
school board does not necessarily need to bump a probationary teacher to make
room for a tenured teacher with the credentials to hold the latter's position.
If the school board has sound reason to believe that the probationary teacher is
better qualified to hold the position, the school board is probably on safe
ground in retaining the probationary teacher and not renewing the contract of
the tenured teacher.
It should be emphasized that a considerable amount of conflict and
misunderstanding can be avoided if the school board, administrators, and
teachers work together to develop a reasonable plan for dealing with reductions
in force before such reductions become necessary.
WHAT ARE THE KEY ELEMENTS OF A SOUND TENURE POLICY?
Whatever its alleged drawbacks, tenure has been integral to the public school
system for many years and is likely to remain so for many more. To operate an
effective school system while remaining within the spirit of tenure agreements,
school boards and administrators are advised to do the following:
1. Establish clearly defined standards for probationary teachers and monitor
those teachers carefully. If the teachers fail to maintain those standards and
remediation does not work, the teachers in question should be released before
they acquire tenure.
2. If a tenured teacher fails to maintain the necessary standards, and
remediation does not work, then administrators should scrupulously follow due
process in presenting their case before the school board. This includes
carefully documenting any charges brought against the teacher.
3. When a school district is faced with reductions in force due to financial
problems or declining enrollment, the school board, administrators, and teachers
should work together to devise a means of dealing with the problem that is fair
to everybody -- administrators, teachers, and especially students.
FOR MORE INFORMATION
Beckham, Joseph. "Critical Elements of the Employment Relationship." In LEGAL
ISSUES IN PUBLIC SCHOOL EMPLOYMENT. Bloomington, IN: Phi Delta Kappa, 1983. ED
Bickel, Robert D. "Termination of Faculty: Current Legal Developments." NOLPE
SCHOOL LAW JOURNAL 11 (1983): 1-30.
Burke, Ralph M., Jr. "Don't Be a Slave to Seniority When Developing RIF
Procedures." AMERICAL SCHOOL BOARD JOURNAL 170 (July 1983): 20-21, 38.
"Facets: Tenure Law vs. Merit Pay." ENGLISH JOURNAL 73 (January 1984): 20-23.
Gross, James A. PUBLIC POLICY AND THE ARBITRATION OF TENURE DECISIONS. FINAL
REPORT. Ithaca, NY: School of Industrial and Labor Relations, Cornell
University, September 1981. ED 208 568.
MacDonald, W. Bruce. "What Your Board Should Do When Administrators Ask for a
Hearing to Dismiss a Tenured Teacher." AMERICAN SCHOOL BOARD JOURNAL 170 (May
Phay, Robert L. "Teacher Renewal: What Constitutes Arbitrary and Capricious
Action?" SCHOOL LAW BULLETIN 15 (July 1984): 1, 10-17.