December 2012 Issue
November 20, 2012

What tenure really means

Author: Wendy Star | Associate Counsel
Source: NYSUT United

Although most states provide some form of tenure to public school teachers and other school employees such as guidance counselors and school psychologists, it has come under increasing attack throughout the country. In New York, tenure protections have existed since 1917, but even here tenure is not immune to attack. To critics, tenure gives bad teachers jobs for life. But this claim is based on a misunderstanding of what tenure really is.

Q: What is tenure?

A: Under New York law, tenure means that after successfully completing three years of probationary service, a teacher cannot be fired or disciplined except for just cause established in a due process hearing. The purpose of tenure is to protect teachers from arbitrary firings, and to ensure that our schools are staffed based on merit, not on supervisory whim.

Q: What is just cause?

A: The board of education must have a legitimate basis to seek discipline — a basis it can support with proof at a due process hearing. Just cause can generally include proof of professional incompetence, physical or mental incapacity, on- or off-duty misconduct or lack of certification.

Q: What is due process?

A: Tenure creates a constitutionally protected property interest in continued employment. Like other property rights, this right is not absolute, but it is protected from arbitrary taking by the constitutional guarantee of due process. This means teachers are entitled to a procedurally fair hearing before being disciplined or discharged.

Procedural fairness includes written notice of the charges, and the right to see the evidence, to confront witnesses and to present a defense before an impartial arbitrator.

At the hearing's conclusion, the arbitrator can impose discipline only upon a finding, supported by a preponderance of the evidence, that there is just cause. In New York, tenured educators' right to due process is outlined in Education Law §3020-a.

Q: Does this mean teachers cannot be fired once they receive tenure?

A: Of course not. Rather, the board of education must be able to prove it has a legitimate reason to discipline or dismiss the accused teacher.

Q: Is tenure really the cause of the problems with the education system?

A: Protecting teachers from arbitrary discipline is not an impediment to sound education. Notably, it is not only teachers who have tenure protections. In New York, most civil servants enjoy the equivalent of tenure under Civil Service Law §75, and many private sector and public sector employees, including those in higher education, have tenure or just cause protections under collective bargaining agreements.

Q: As a society, should we not want employers to have a legitimate reason for disciplining or firing employees, including teachers, who have invested years of their lives serving their schools and students?

A: Case law from across the country shows that without tenure, teachers are subject to dismissal for the flimsiest of reasons, including nepotism, political beliefs, or willingness to speak out about conditions at their school.

In fact, this was the reality for teachers before the tenure laws were strengthened to mandate that the ultimate determination to discipline or fire a teacher be made by a neutral party after a hearing, not unilaterally by the board of education.

Imagine a public school teacher who has worked for more than 25 years. A new principal or superintendent wants to hire her own people. Without tenure, this teacher could be terminated on a whim, for any reason or no reason at all. In an instant, 25 years of service and all the knowledge and experience that comes with it, would be erased.

Q: But doesn't the process take too long?

A: Tenure hearings do take time, as do most important and weighty procedures. When a professional is accused of misconduct or incompetence, there must be a fair opportunity to answer the accusations and sometimes this takes time. As the Supreme Court has cautioned, the Constitution, and particularly the Due Process Clause, " ... recognizes higher values than speed and efficiency."

Clearly, we should continue to make the 3020-a process as efficient as possible, without sacrificing teachers' due process rights, which protect teachers as well as the schools and students they serve.

Tenured teachers, and all NYSUT members who have similar protection under the Civil Service Law or a collective bargaining agreement, are entitled to free legal representation provided by NYSUT's Office of General Counsel, whenever they face disciplinary charges.

This representation ensures that an accused member has the best possible defense, and a full opportunity to be heard.