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Lesson 3.10

Tenure and Seniority:
Teacher Tenure - Good? Evil?

Why is it so hard to dismiss teachers for cause?

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The first two years for California teachers are make-or-break.

For their first two years, new teachers in California can be dismissed at will. After two years of employment, however, teachers in most districts enjoy strong due process protections commonly referred to as tenure. As a practical matter, districts need to make a decision in about 18 months whether to employ a teacher as a permanent member of the faculty.

California's tenure policy is unusually quick. Most US states require three years and evidence of competence.

As described in Lesson 3.2, demand for teachers is cyclical. When the stock market rises and budgets increase, California experiences teacher shortages. In those conditions school districts can find it hard to be picky about teacher candidates. They hire while they can.

Whenever hard times hit the stock market, by contrast, California's budget falls. Budget pressure leads to a flurry of springtime pink slips, the common name for a required notice sent to teachers when their position cannot be guaranteed. Seniority is usually the key element for determining the pecking order, at minimum as a tie-breaker.

Reforms that affect tenure usually seek to delay it, or make it conditional on evidence of good work. There have been multiple attempts. Other reforms seek to reduce the role of seniority as a factor in layoffs or forced placements, or to streamline the steps involved in dismissing teachers.

Dismissals for cause are rare

Teacher unions protect their members from dismissal, partly through due process requirements.

Teacher dismissals for cause are quite rare in California, even in cases of egregious misconduct. Because the process of firing a teacher is difficult, time consuming, and uncertain, principals sometimes use a more expedient solution: they make a deal. If a poorly-performing teacher agrees to move to another school, the principal agrees to give her or him a satisfactory rating. This practice, known as the dance of the lemons, is colorfully derided in Davis Guggenheim’s 2010 film Waiting for Superman.

In a layoff, who gets fired?

Last hired, first fired.

Districts, in negotiation with their unions and within the constraints of employment law, set their own policies for what happens when layoffs are likely or unavoidable. Each year, by March 15, districts issue pink slips (layoff notices) to certificated employees (mostly teachers) that need to consider their alternatives. In 2022, the legislature extended this requirement beyond teachers to include classified employees, which means that a legal process is required to lay off just about anyone who works in public education.

In most districts, the teachers most recently hired are the first let go, regardless of what they teach or how amazing they are. But it doesn't have to be that way. Within the bounds of employment law, districts have leeway; for example, some districts can make a case that special education teachers are protected.

Seniority-based layoff policies are also known as last-hired-first-fired or last-in-first-out (LIFO) policies.

3-10-1-churn

Education Trust West explained the impact of seniority-based employment rules coherently in its report Victims of the Churn. The report criticizes "bumping" rights with particular vigor (see graphic).

California's larged teachers union, CTA, has taken the position that seniority is the least unfair option, protecting teachers from dismissal for "arbitrary, unfair or unjustifiable reasons." The union rejects the term tenure for seniority preferences in layoffs.

The use of seniority as a factor in teacher dismissal came sharply into question in the lean budget year of 2010. Focusing on data in Los Angeles Unified, the ACLU argued that seniority-based provisions had a disparate impact on students in poverty in low-performing schools. After four years of negotiations, the case was settled and 37 schools received additional funds for teacher training.

Some advocates had hoped for a broader set of changes. In 2012, a series of lawsuits (Vergara, Robles-Wong and CQE) sought to broadly strike down tenure and seniority practices in California state law. The suits attracted a great deal of interest, but ultimatelyfailed to bring about change. A three-judge panel didn't dispute that "deplorable staffing decisions being made by some local administrators… have a deleterious impact on poor and minority students in California’s public schools", but concluded that laws regarding tenure and seniority did not "inevitably" cause this impact.

Inevitable harm might be impossible to prove, but that's essentially the standard that the court applied to itself in deciding the case. "The court is without power to strike down the challenged statutes. The court’s job is merely to determine whether the statutes are constitutional, not if they are 'a good idea'.”

In practice, the court kicked the can to the legislature, or future courts, to address the unequal damage caused by layoff policies. The underlying policies that allow the "deplorable staffing decisions" remain in place.

Updated September 2018
December 2021
September 2022

Quiz

When a California school district's budget shrinks, which teachers are typically LEAST safe from being laid off?

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Questions & Comments

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user avatar
Jeff Camp - Founder September 23, 2021 at 1:04 pm
What would happen if tenure protections for teachers were removed? New Orleans did so. An important study, When Tenure Ends examined the results.
user avatar
Susannah Baxendale January 14, 2019 at 11:31 am
While understanding that new teachers want job security, making 'tenure' decisions at the 18 month point is way too soon. At the university level, the tenure process is 5-6 years. This is not to say that all problems are eliminated by a longer period of probation, nor that a good professor or teacher remains one. Some argue that tenured professors and teachers feel they are immune to correction as far as teaching and that tenure leave the district or university with little or no recourse. I think that a longer probation period before granting tenure would provide more time for the district to evaluate the teacher before deciding to commit.
user avatar
Caryn January 15, 2019 at 9:23 am
Hi Susannah, thanks for your thoughtful insight. I thought you might be interested in this short essay by a California teacher who also sees great value in allowing teachers more time for professional development before earning tenure. https://edsource.org/2018/teachers-need-more-time-to-grow-professionally-before-earning-tenure/596740
user avatar
Jeff Camp - Founder April 5, 2017 at 7:11 pm
Current California teachers were surveyed for their opinions about tenure, evaluation, and other touchy subjects. The findings suggest that teachers may be more open to changes than many assume. For example, 65% thought three or more years should be required before granting tenure. Lots of other interesting findings, too.
user avatar
Jeff Camp January 11, 2017 at 4:39 pm
Which of America's largest school districts make it most difficult to dismiss teachers for cause? https://edexcellence.net/publications/undue-process?utm_source=Ed100
user avatar
Albert Stroberg May 1, 2016 at 6:44 pm
I see absolutely no reason for tenure in public schools. The idea is a left over from college professors who would be protected from reprisal for saying unpopular things- to "profess." That idea is totally vacant in today's public schools. If you're good you get a job, if you're not, find another place. Where else does this tenure thing happen? You keep a job by doing well.
user avatar
Jeff Camp - Founder April 14, 2016 at 11:50 pm
In April 2016 the Vergara decision was reversed on appeal. The plaintiffs promised a further appeal to the California Supreme Court. http://edsource.org/2016/california-appeals-court-overturns-vergara-ruling/562855
user avatar
germanb July 7, 2015 at 9:35 pm
The closing argument for the students in the Vergara case is powerful. Has the public begun to awake to the public school systems' inability to self regulate? Has the public school teacher union leadership dug their heels so deep it'll get buried as it refuses to reform? Why has the U.S. Supreme Court agreed to hear the Friedrichs v California Teachers Association case next term?
Marcellus McRae Presents Plaintiffs' Closing Arguments in Vergara v. California on Vimeo
http://vimeo.com/90273109
user avatar
Tara Massengill April 22, 2015 at 11:56 am
I just read "71 percent said layoff decisions should be based partly or entirely on classroom performance". What a joke! At least in my experience. My daughter has been in the SDUSD for 2 years (we're a military family), and both years her teachers have done just enough actual teaching to get by. Why? Because they had tenure. Last year, her teacher retired after the conclusion of the school year, but to be honest she probably should have retired several years before that, considering the lack of interest she showed in teaching. Her teacher this year is worse, but nowhere near retirement age. If teachers aren't going to TEACH, why did they become TEACHERS in the first place?
user avatar
Jeff Camp - Founder January 15, 2015 at 11:33 am
Change is in the air. In early 2015 TeachPlus released findings of a survey of TEACHER attitudes about teacher evaluation, tenure and seniority. Among the many important findings, these caught my eye particularly:
"71 percent said layoff decisions should be based partly or entirely on classroom performance; 24 percent supported basing layoff decisions almost entirely on seniority."
"15 percent said tenure in two years or less was appropriate"
http://edsource.org/2015/teacher-survey-change-tenure-layoff-laws
user avatar
Carol Kocivar - Ed100 October 25, 2014 at 1:39 pm
user avatar
Carol Kocivar - Ed100 June 10, 2014 at 12:20 pm
Update on Vergara v California:
On June 10,2014, the Superior Court of California in a tentative decision found the challenged statutes unconstitutional.
https://www.documentcloud.org/documents/1184998-vergara-tentativedecision061014.html
In a press statement, the California Teachers Association advises the decision will be appealed.
http://www.cta.org/en/Issues-and-Action/Ongoing-Issues/Vergara-Trial1.aspx
user avatar
David B. Cohen April 7, 2011 at 12:59 pm
I think you've managed to put the key issues out there pretty concisely. A couple things I'd add:
1. While we all use the word "tenure" it must be clarified that K-12 teachers do not have the same academic liberties that university professors enjoy with their "tenure." The main benefit of "permanent status" is the due process - that administrators must show cause for firing a teacher with that status.
2. There's no denying that a system strictly based on seniority in a district has flaws. I'm quite sympathetic to the view that the needs of a school should be considered, so that you don't keep destabilizing the same campuses over and over. However, I do not trust most of the people who talk about reforming the system because they seem more interested in firing teachers than fighting for adequate funding to avoid layoffs, or robust evaluation systems needed to measure quality (because test scores don't work).
3. Though it's not the stated focus of your post, I hope people recognize that you're pointing out systemic problems; it's not possible to lay the blame at any one doorstep, be it the union, administration, or district. The fixes for this problem will not come from "either/or" decisions, but rather a broad set of solutions aimed at every part of the problem: teacher training and professional development, union willingness to negotiate, improved training and ongoing support for principals, reformed governance and procedures especially for large districts, and most importantly, adequate funding for schools.
user avatar
Dominic Brewer April 12, 2011 at 12:10 pm
For interested readers, the research referenced above can be found in several academic sources or more generally an on line search will uncover documents that refer to the findings. A comprehensive review of research on teacher characteristics maybe be found in a chapter I coauthored with Icela Pelayo ("Teacher Quality in Education Production") in Economics of Education (edited by Dominic J. Brewer and Patrick J. McEwan; Elsevier, 2010). Multiple references to both the findings mentioned above (i.e. that teachers are the most important school related factor in student achievement, and teacher experience is important up to around 10 years) are cited in this piece).
©2003-2022 Jeff Camp
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