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Hansen, Kenneth; Ellena, William J.Teacher Tenure "Ain't" the Problem.American Association of School Administrators,Washington, D.C.7331p.American Association of School Administrators, 1801North Moore Street, Arlington, Virginia 22209 (StockNo. 021-00366, $2.00, Quantity Discounts)

MF-$0.65 HC Not Available from EDRS.*Collective Negotiation; *Contracts; Due Process;Evaluation Methods; State Laws; *Teacher Dismissal;Teacher Employment; *Teacher Evaluation; TeacherWelfare; *Tenure

ABSTRACTThe concept of "tenure," with all its clumsy and

confusing burden of historic and current misinterpretation, willprobably soon disappear. However, what tenure laws intended, and havefailed to do, will almost surely be preserved in other forms ofadministrative procedure. To be effective, adMinistrative proceduresmust be (1) clear and detailed, (2) set forth in written personnelpolicies, (3) validated by sound administrative and evaluativepractices, (4) ratified in negotiated agreements, and (5) fullyconsistent with just constitutional requirements. The search for suchimaginative and realistic alternatives to statutory teacher tenurewill involve long and detailed planning, intensive preparation,marked alteration of slipshod administrative practices, and a realcommitment on the part of teachers, administrators, the public, andlegislative bodies. A 29-item selected bibliography is provided.(Author)

U S DEPARTMENT OF HEALTH.EDUCATION & WELFAREC\I OFFICE OF EDUCATION

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Copyright 1973

American Association of SchoolAdministrators

1801 N. Moore StreetArlington, Virginia 22209

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TABLE OF CONTENTS

ACKNOWLEDGMENTS

FOREWORD

1. Reasonable Job Security 7

2. Tenure: The Bright Hope 9

3. Tenure:. The Gloomy Reality 10Professional Disillusionment 12Inept Administration 13 11.

Encouragement of Sloppy Evaluative Practices ____ 13Negative Reactions from Legislators 14Incompatibility with Contemporary

Educational Concepts _ .... _ ___ _ _ 15:11,1

4. Sorting Out the Values: What to Keep,What to Discard 16

What Should We Discard 17What Shall We Keep 17

t

5. Realistic Directions: Alternatives and CombinableOptionsFormal, Detailed, Specific Personnel Policies _ 17Position Descriptions in Broad Performance

Terms 19Evaluation Procedures Keyed to Performance

Expectancies 20Renewable Contracts Keyed to Fair Evaluation _ 23;mpeccable Due Process 23Incorporation of Administrative Procedures

in Negotiated Agreements 26

Summary 28Selected Bibliography _ _ ______ _ ____________ _ 29

ACKNOWLEDGMENTS

This is indeed a timely report, coming at a point in historywhen seemingly everything is being reexamined. TeacherTenure Ain't the Problem realistically comes to grips withthe emotionally-laden issue of teacher tenure. While theAmerican Association of School Administrators assumesfull responsibility for any errors of fact or interpretation, itgratefully thanks Kenneth Hansen, professor of education,Washington State University, Pullman, and William J. Ellena,deputy executive secretary, AASA, Arlington, Virginia, whogave generously of their time and energy in its preparation. /

FOREWORD

Until recently it was considered inappropriate to ques-tion the wisdom of tenure for teachers. Within the profession,tenureguaranteeing that teachers cannot be fired exceptfor cause, and only after due process has been accordedwas widely regarded as a bulwark of academic freedom.Even non-educators agreed that teachers needed protectionfrom arbitrary dismissal for invalid reasons.

These attitudes are changing. There is a trend acrossthe nation to abolish or at least modify tenure laws eventhough more than forty states have such statutes. Manyargue that the conditions necessitating the establishmentof tenure laws no longer exist. Still others say that tenurelaws in many states have become a shelter for incompetentteachers and administrators, poor evaluation procedures,or both.

It is time for AASA, and the profession as a whole, toface the fact that extant conditions within the profession arenot in the best interests of education. At the same time, theAssociation must recognize that competent educators mustbe protected by written personnel policies from unfair em-ployment practices.

A careful perusal of the tenure statutes coupled withyears of firing-line experience leads me to several conclu-sions. For example:

1. There are many misconceptions about what tenureis and what it does for the employee.

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2. Industry provides us with viable alternatives to statu-tory tenure. At a time when boards of education arethinking about replacing statutory tenure with em-ployment contracts, industry is moving toward re-placing the employment contract with agreementsconcerning termination allowances.

3. There is a significant trend to abolish or at leastmodify extant tenure laws. Most administrators pre-fer to see tenure reformed rather than abolished.

4. Competent educators must be protected by writtenpersonnel policies. It should not be easy to terminatean employee.

5. The courts clearly uphold a board's right to dismissstaff for good or just cause.

6. Boards must not act on grounds that are violativeof the Constitution. Due process must be provided.

7. Tenure laws become a haven for incompetence onlywhen coupled with poor management by school ad-ministrators. If personnel evaluation is to be mademore meaningful, if documentation is to be compre-hensive, and if due process is to be accorded, thenthe role of administrationparticularly at the build-ing levelmust change. Further, more administra-torsnot fewerwill be needed to perform thisall-important task.

Teacher Tenure Ain't the Problem is a thoughtful anal-ysis written in a forthright manner. It should be read care-fully by every member of AASA. It should be discussed anddebated with your colleagues. Then each of us should ask,"In my district, are teachers protected more by incompetentor inadequate management than by tenure laws?"

Paul B. SalmonExecutive Secretary, AASA

le

Reasonable Job Security

Affording teachers some statutory guarantee of reason-able job security seems a decent enough aim for a freesociety which depends for much of its strength on a free andopen education system. So long as a teacher doesn't volun-tarily do something demonstrably culpable, shouldn't he beassured that his job is not in constant jeopardy from arbitraryand malicious pressures? Tenure laws seem to provide anobvious answer to this question; more than 40 states havesuch statutes, and many of the other states have someoptional or restricted application of the tenure principleembodied into law. Some states attempt to achieve the sameends by requiring school boards to issue continuing con-tracts which must be honored unless certain specific condi-tions prevail; elsewhere, other kinds of annual or long-termcontracts effectively grant long-term tenure to teachersbeyond the probationary period.

TABLE I'TYPE OF STATE TENURE OR CONTRACT

PROVISIONS IN EFFECT1. STATES WITH TENURE LAWS

Statewide without exceptionAlabama Iowa New MexicoAlaska Kentucky North CarolinaArizona Louisiana North DakotaArkansas Maine OhioColorado Maryland OklahomaConnecticut a Massachusetts PennsylvaniaDelaware Michigan Rhode IslandDistrict of Columbia Minnesota South DakotaFlorida " Missouri TennesseeHawaii Montana VirginiaIdaho Nevada WashingtonIllinois New Hampshire West VirginiaIndiana New Jersey Wyoming

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TABLE I ' (continued)

Less than statewideexceptions noted

California: Optional in districts with average daily at-tendance under 250 pupils.

New York: Certain rural districts not covered.Texas: Law is permissive; all districts have the

option of coming under the tenure provisions.

In certain places only

Georgia: De Kalb, Fulton, and Richmond CountiesKansas: Kansas City, Topeka, and Wichita.Nebraska. Lincoln and OmahaOregon: Districts with average daily attendance of

4,500 or more, and districts where tenurewas in effect on August 24, 1965

Wisconsin: County and city of Milwaukee

2. STATES WITH CONTINUING CONTRACTLAW OF SPRING NOTIFICATION TYPE

Less than statewideexceptions are tenure areas listed above

Kansas OregonNebraska Wisconsin

3. ANNUAL OR LONG-TERM CONTRACTSGeorgia (except for three tenure areas) Utah C

Mississippi Vermont cSouth Carolina

a Special local tenure laws govern certain cities." Special local tenure laws govern certain counties.e Statutes silent on permissible length of contract term.I National Education Association, Research Division. Teacher Tenure andContracts, Research Report 1971-R3. Washington, D.C.:' The Association1971. p. 7.

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Tenure: The Bright Hope

Tenure laws were originally designed to insulate teach-ers from the twin evils characterizing much public employ-ment practice in the late nineteenth and early twentiethcenturiesbossism and the accompanying spoils system.Like early civil service reform, tenure statutes were intendedto formalize the ground rules for those public servants whosepositions were often endangered or demeaned by beingsubject to the arbitrary and selfish whims of political chiefs."Bosses" commonly looked upon jobs as something to beawarded to the faithfulspoils of war in a continuing politicalskirmish, favors to be granted or withdrawn for any reasonor for no reason at all.

Advocates believed that teacher tenure, a statutoryguarantee of fair employment practices, would make possiblethe employment and retention of a cadre of professionaleducation workers free from unwarranted personal andpolitical pressurefree to teach without fear of job insecuritycaused by arbitrary and capricious actions of employingadministrators or boards of education.

Even more important to society, teacher tenure statuteswould provide essentialalbeit indirectprotection forlearners. Tenure would protect students' freedom to learnfrom teachers secure enough in their own positions thatthey could devote their full attention to the pursuit of truth,without looking fearfully over their shoulders to see whetherthey were getting the daily approval of the boss and thepublic. Tenure would protect the right of students and teach-ers to pursue and examine even currently unpopular ordistasteful ideas.

Thus, tenure laws, in protecting the teacher's freedomto teach and the learner's freedom to learn. also would affordthe climate of academic freedom essential to a free anddeveloping society. That was the idea, but somethinga lotnf thingswent wrong. So wrong, in fact, that the profes-sion's exasperated search for new alternatives to tenure wasexpressed directly in the 1972 AASA Resolution which gaverise to this document:

... we urge the AASA to initiate a comprehensive studyof existing tenure statutes and practices to the end that

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imaginative and realistic alternatives can be recom-mended to the membership. We urge the Executive Com-mittee to issue a status report to the membership nolater than February 1973.

Tenure: The Gloomy RealityThe concept of teacher tenure today is under severe

attack. There is a clearly discernible trend across the nationto abolish or at least modify tenure laws. Many argue that theconditions which originally necessitated the establishment oftenure laws no longer exist. The editors of Education Sum-mary have predicted that tenure laws will shortly "go downthe drain." What has happened to the bright promise ofteacher tenure?

The gloomy reality is that tenure laws have operated sounsatisfactorily, often protecting weak teachers and incom-petent administrators, that supporters of the concept oftenure are becoming very scarce.

Popular Disenchantment. In a recent opinion poll ofadministrators, conducted by Nation's Schools, 2 a largemajority of the respondents-71 percentreported increas-ing public dissatisfaction with teacher tenure.

TABLE II

How Administrators Voted in theNATION'S SCHOOL Poll:

L Have you noticed increasing public dissatisfaction in yourdistrict with teacher tenure?

23% a lot 48% a little 12% none17% do not have tenure

2. Do you favor teacher tenure as now set up?18% Yes 82% No

3. If not, do you believe tenure should be abolished orreformed?

14% abolished 86% reformed

2 "Tenure Reform Can't Come Soon Endugh for School Men." (OpinionPoll Survey). Nation's Schools. Vol. 89, No. 6, June 1972.

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4. If you favor reform, what changes would you like to see?29% extension of probationary period to five or more years54% renewal of tenure perhaps every five years13% use of outside referees for contract termination

hearings4% other

5. Approximately wnat percentage of your teachers mightyou consider terminating if they were not protected bytenure?25% less than 1% 45% 1-5% 21% 5-10%

7% 10-15% 2% 15-20%

The public, ordinary citizens with children in school and/orpaying taxes to support the school, seem generally to feelperhaps without realizing how tenure actually operates orwhat degree of effective protection it really does affordthattenure guarantees that weak teachers can continue to per-form ineffectively. With incompetent teachers thus protected,the public believes (with some accuracy), ineffective orunsatisfying educational programs are almost ensured.

Evidence is mounting that the general public does be-lieve that the schools are often either ineffective or at bestunsatisfactory in providing for the learning needs of childrenand the educational aims of contemporary society. It is notdifficult to see why the public then makes a direct connectionbetween teacher tenure and poor education: If we could j-stget rid of the poor teachers protected by tenure, educationalprograms would improve. The negative feeling of the generalpublic is exacerbated by their frustration over the rising costsof education.

Particularly the hard-pressed homeowner, viewing hisescalating property tax and knowing both that much of it goesto support schools and that 80 percent of that portion is de-voted largely to teacher salaries, vents some of his exaspera-tion by calling for the dismissal of teachers that "everybodyknows" are not getting the job done. It is especially gallingthat ne has to pay what he considers very heavy taxes tosupport teachers who appear to be locked into their positions,often with built-in automatic pay raises, when there existsgrave suspicion that these teachers are simply not effective.

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This negative popular reaction is especially strong in atime of alleged oversupply of teachers (though it is question-able whether the current imbalance represents an oversupplyof teachers or an underavailability of funds to support suffi-cient teaching positions), It seems to the average citizen thatnow is the time to get rid of the poor teachers and hire betterones from this vast reservoir of new and available graduatesof up-to-date teacher education programs. But you can't dothis, the citizen is likely to reflect gloomily, because yousimply can't get rid of those tenured teachers!

Professional Disillusionment. It is not just the public thatis raising questions about the advisability of continuing Ines-r n'i teacher tenure practices. The Nation's Schools poll, asTable II (above) reveals, indicated that 82 percent of theresponding administrators replied negatively to the question,"Do you favor teacher tenure as now set up?" In response toa further question, however ("If not, do you believe tenureshould be abolished or reformed?"), only 14 percent of theresponding administrators wanted it abolished outright.

The respondents to this inquiry were, it should be em-phasized, administrators and not classroom teachers, so theresults cannot be said to be fairly representative of what theeducation profession as a whole believes. Since administra-tors rarely have tenure in their administrative posts, eventhough they may technically retain a tenured teaching posi-tion when they accept that post, they probably view thetenure question with a much more jaundiced eye than doteachers in the classroom. No comparable data can beadduced that would suggest that the organizations represent-ing classroom teachers, at national, state, or local levels,would respond as negatively to questions about teachertenure as did the administrators. Yet evidence is mountingthat teachers themselves do not like tenure as it now exists.Most tenured teachers probably feel that they individuallydeserve the protection they have: but many of them arepainfully aware that any attempt to improve teaching condi-tions, to secure increased salaries, and often even to changeeducational practices is hampered or hamstrung because ahard core of incompetent or at least unmovable tenuredteachers diminishes the regard in which teachers are gen-erally held, That is, those teachers who do hide behind the

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protection of tenure either to shelter their own incompetentbehavior or to resist educational change are detrimental tothe progress of the teaching profession and of educationas a whole.

Inept Administration. It has been frequently argued thattenure protects not so much weak teachers as weak admin-istrators. Unfortunately, this charge is far from baseless. If ademonstrably poor teacher is kept on the staff simply becauseof his holding a tenured position, the administrator is as muchcr more to blame than the teacher. It is unfortunate but truethat there is a substantial number of administrators whosimply do not have the professional courage, or do not wantto take the trolible, or do not know how, to document chargesthat would lead to the justified dismissal of the poor teacher.In such cases, it is very true that tenure laws protect andpreserve weak and inept administrative practices, not justweak and inept teachers.

There is another side to the coin. Very often the problemis not inept administration but rather an inadequate numberof administrators to do the job. This has occurred in greatpart because, mistakenly, school boards and superintend-ents, in too many instances have negotiated away theirmiddle management. Clearly, if both good instruction anddue process are to be guaranteed then there must be asufficient number of courageous administrators.

Encouragement of Sloppy Evaluative Practices. Weak-nesses in both the concept and the application of teachertenure laws have been made more glaring by careless ornonexistent evaluation of teacher performance. This laxityhas occurred for at least two reasons. First, out of indolence,fear, or lack of imagination, we in the profession of educationhave failed to develop and utilize adequate measures ofteacher performance based on objective statements of whatis expected of the teachers. Therefore, lacking or not usingthese adequate measures, it has been easy to allow incom-petent teacherswho, it must be emphasized, represent onlya small percentage of the total teaching professiontoremain secure and undisturbed in tenured positions. Inaddition, many administrators have been discouraged fromattempting to evaluate and apply the evaluative results todecisions about retention of teachers after the probationary

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period because of a feeling of futility. Even if you had definiteevidence of inadequate or even shockingly inferior perform-ance, you just couldn't get rid of the tenured teacher anywayunless he had committed some overt act of malfeasance orimmorality. So, why bother with evaluation?

Negative Reactions from Legislators. Members of statelegislatures, charged quite directly under most state consti-tutions with general overseeing of the state educationalsystem, are often more perceptive than we realize in reflect-ing public moods. The public mood of disenchantment withand even violent opposition to teacher tenure is reflected inmany actions being taken or proposed at the state legislativelevel. For example:

The Colorado legislature has considered a bill that woulddeny tenure to those who had not already achievedtenured status by July 1, 1971.Illinois has come up with the "swap" theory, which callsfor the repeal of tenure laws if legislation is enactedproviding for collective bargaining or professional nego-tiations.Pennsylvania would also replace tenure with the grantof bargaining powera neat quid pro quo.Connecticut would substitute for tenure a 3- to 5-yearbasic contract, and extend the probationary period.California would establish annual teacher evaluationprograms using standard procedures (in fact, much ofthis idea has already been incorporated in the so-calledStull bill).New Jersey legislative action would replace tenure withan extended contractual agreement of 3 to 5 years.The New York legislature has instituted a 5-year proba-tionary period within which the board has unlimited rightto terminate employees without giving any reasons oraffording any hearing (however it is possible that lawssuch as this will be declared unconstitutional since cer-tain federal district court decisions have declared thatpublic employees must be provided due process in termi-nation of even probationary employment).Even cities are getting into the act: a recent San Fran-cisco charger amendment eliminated tenure for all ad- ,

ministrators and provided for their reassignment asteachers with tenured status.This attempt at corrective legislationlegislation de-

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signed directly to correct abuses in present tenure laws ortheir administration by means of legislative fiathas beenaccompanied by other more indirect attacks on the tenureproblem.

Mandated statewide teacher evaluations, such as theStull bill in California (referred to above) and recent legisla-tion in Virginia and other states would make the retentionof a teaching position or the promotion of a teacher subjectto objective measurement of student progress.

Many states have proposed or are enacting legislationwhich withdraws or modifies significantly the statutory au-thority of state education agencies and/or teacher educationinstitutions to grant the virtually permanent certificationwhich undergirds the tenure concept. Legislators are sug-gesting that certification be based solely on performanceby the teacher as measured either by some specified stand-ards, or by the performance of the student, which is assumedto reflect the teacher's skill and the quality of instruction.In some proposals, certification as a more or less permanentlicense to teach simply will be abolished. In any case, with-out a certificate to teach, tenure would become a meaning-less protection in job security.

Incompatibility with Contemporary Educational Con-cepts. The very word "tenure" is something of an anach-ronism in modern education, implying (as its Latin rootsuggests) the "holding onto" some defined objectin thiscase, a teaching job.

With the contemporary emphasis on change in educa-tion and society, it does not seem quite appropriate that ateacher tenaciously cling to his jobhe ought to be grow-ing, changing, developing professionally, not just hangingon for dear life. "Tenure" is not actually incompatible withinservice growth, but its emphasis is static, rather thandynamic.

The job the teacher holds, too, must change. No posi-tion stays the same while education advances, technological-innovations are utilized, new instructional strategies areemployed, and teaching tasks are continuously sorted outinto new kinds of work assignments as differentiated staffingpatterns become common educational practice.

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Tenurelet's face itjust sounds stuffy and stultifying!The gloomy reality about tenure today is that it has very

few friends or supporters except among some teacher orga-nizations. Admittedly, it has some allies. Courageous teach-ers who engage in innovative activities, but are employed byconservative districts, need and deserve reasonable protec-tion. Nonetheless, it is being questioned throughout the land.Those both in and out of the teaching profession who raisethe questions are now in such positions of strength as tomake it appear extremely dubious that teacher tenure as wehave known it in the past decade will continue to surviveunless both the concept and the administration of tenure aresharply modified and substantially improved. Change intenure laws seems inevitable. Again, it is important toremember that most members of The administrative team andpresumably most teachersand perhaps even many of thegeneral publicdo not want simply to abolish tenure. Theywould like to see it refashioned so that its inherent valuesmay be preserved and its serious faults eliminated.

Sorting Out the Values:What to Keep, What to Discard?

To make a rational determination of what kinds of revo-lutionary or evolutionary reform would best preserve themajor values of the tenure concept, while most quickly andeffectively removing its serious limitations, it is essential toclarify the basic notion of tenure. Members of the teachingprofession as well as the general public often have only hazynotions about what tenure is and how much "protection" itreally affords.

For example, statutory tenure does not preclUde thetermination of a tenured employee. The term "permanenttenure"an unfortunate one at bestshould not be con-strued literally; it probably should not even be used, butreplaced with some phrase like "appointment without specifictime limitation." A tenured teacher can invariably be re-moved, under existing statutes, for "cause"; the problemis that the causes have been too narrowly defined, and theirinterpretation has often been very poorly delineated. Atenured teacher does not have either a vested right to a job

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h.

or a contract underwritten by the state; tenure statutes aresimply legislative acts that reflect current legislative policy,a policy which is not binding in a contractual sense norbinding over future legislatures. In a phrase, legislatures givea policy status to tenure; they can likewise alter that policyand take tenure away. Tenure is not a fixed and immutableprinciple of common law.

What Should We Discard? First to be discarded shouldbe confused perceptions of tenure as some kind of absoluteguarantee affording unyielding protection to any teacher.Most states provide for the termination of tenured personnelfound guilty of gross immorality, insubordination or incom-petence. We should discard, therefore, the concept of anabsolute statutory guarantee to the teacher's job. I here isno basis for believing that anyone has an inherent "right"to hold any job whatsoever. Once we have discarded thatmisleading concept, we can go on with improvement oftenure statutes and their application and administration.

What Shall We Keep? The essential rationale for tenurelaws, from their very earliest inception through their almostuniversal application in all states, was that teachers needprotection from arbitrary, capricious, or malicious dismissal.We do not want to make it easy to fire teachers. Protectionfrom dismissal for reasons not related to job performance isnot only fair for teachers, but essential for a society that putshigh priority both on democratic processes and on a freeand open educational system. But protection from arbitrarydismissal is neither essential nor fair to anybody unless theteacher is doing his job effectively. Merely to protect teach-ers because it seems the democratic thing to do is not thereal aim: the real aim is the improvement of instruction forchildren. If we want to keep tenure, that, above all, must beour constant purpose. Within these parameters, constructiveand realistic alternatives and options, to be used singly andin combination, can be offered.

Realistic Directions:Alternatives and Combinable Options

1. Formal, Detailed, Specific Personnel PoliciesA great many teachers who have no fear of evaluation

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itself, teachers who are competent and secure in the knowl-edge of their own competency, are very fearful that they willbe dismissed, demoted, or denied promotion for somethingthat is not clearly explained. That is, they fear that no matterhow well they teachand they are perfectly willing to becontinuously and fairly evaluated on their competencysomething expected or not expected of them will be usedas reason for a negative personnel action affecting them.

Therefore, it is essential as a basis of any good admin-istrative management policy in education that the writtenpersonnel policies be as specific and clear as possible.Of course, initial development of these policies must notbe undertaken as a unilateral administrative actionad-ministratively sponsored and administratively conducted andadministratively approved. Policies must be developed incollaboration between the management team and the teach-ers. They should be equably and appropriately applicableboth to administrators and to those not holding administrativepositionsthat is, there should not be one set of policies foradministrators and another for teachers except where thesedistinctions are essential to and inherent in the different jobroles and position descriptions.

Even though they are collaboratively developed, suchpolicies will of course be subject to constant revision, par-ticularly through the process of negotiated contractual agree-mentsprofessional negotiations. But this does not excusethe administrator and his staff from the responsibility forsetting up and using the machinery to get personnel policiesclearly formulated in writing. If teachersand administra-torsknow what is expected of them with regard to anybehavior which may result in a personnel action, favorableor unfavorable, a great deal of inherent insecurity is dispelled.Personnel policies should include formal, written, board-adopted statements of the entire personnel-action sequence:initial creation and description of jobs; the recruitment andselection process, including detailed statements of what isexpected and required (and agreed to) regarding teacherperformance and evaluation; and clear delineation of groundsfor either positive or negative personnel actionfrom promo-tion to dismissal.

The preceding sentences do not attempt to summarize

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every detail of personnel administration procedure; theysimply illustrate that anything that affects the individual inhis work relationship with the educational institution, theschool, should be spelled out in detail and adopted as formalboard policy. Once these policies are formally established(even though they should be continuously negotiated andchanged to keep them current), no teacher need fear thatsomething will be done to him because of his lack of knowl-edge of what is expected of him. Furthermore, no teacherwill have cause for insecure feelings about how decisionsare made, or what happens to whom under what conditions.These are fears that are very real, and for very real reasons,to many teachers. These are fears that cause them to seekthe blanket protection of statutory tenure. When the fearsare allayed, tenure statutes become relatively meaninglessadditional protection.

2. Position Descriptions in Broad PerformanceTermsIt is a simple, but by no means simplistic, basic premise

of personnel administration that if you can't describe aposition, you can't evaluate its performance. Writing precisedescriptions of teaching and other educational positions inperformance terms seems to be a lostor at best a neg-lectedart. We are likely to settle for a brief paragraphoreven a phrase that says that the teacher is expected to teachthe sixth grade, or to teach social studies, or to instruct inindustrial arts. With no more description than thatwith noclear indication of what specific performance is expected,what level of performance is considered satisfactory, and onwhat bases and by whom the evaluation of that level ofperformance will be madeit becomes virtually impossibleto say whether the teacher is doing a good job.

It is not suggested that each position description hasto be in fully technical "behavioral objective" terminology.That is why the heading of this section calls for positiondescriptions in broad performance terms. It is essential,however, that the holder of the position know what he isexpected to do, how well he is expected to do it, and howhe will be judged on his accomplishments. Those essentialscannot be overlooked or ignored.

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This does not mean that some administrator or groupof administrators will actually write each position descrip-tion. Preferably, position descriptions should be developedby a joint committee of teachers and administrative person-nel at the building level, on-site where the job is actuallybeing done. They will have to be refined and ratified atcentral office level. Finally, they should be officially adoptedby the school board as a matter of board policy, but theyshould originate with those who are actually charged withgetting the instructional job done.

Once such position descriptions are available, meaning-ful evaluation can proceed.

3. Evaluation Procedures Keyed to PerformanceExpectanciesMost professionally mature and sensitive teachers do

not really want a guarantee of employment regardless ofperformance. They simply want an assurance that the posi-tion they hold will not suddenly be taken away or down-gradednor will their opportunities for professional andsalary advancement be denied or diminishedbecause theydo something their administrative superior considers wrongor they fail to live up to some performance standard thathas not been explained and accepted. If, however, the per-formance expectancies have been set forth in a clear posi-tion description, the teacher can expect to be evaluatedaccording to these per; ormance standards.

Teachers generally do not fear evaluation itself; whatthey fear, and quite legitimately, is that the evaluation will notbe fair or appropriate. Once a basis for evaluation is estab-lished in the performance expectancies set forth, their fear orinsecurity will be allayed by clarification of the proceduresfor evaluation. Although this brief document is not intendedas a full treatise on teacher evaluation, certain commonlyaccepted principles of evaluation can appropriately be setforth here.

First of all, any evaluation of performance (whether thatof teacher or administrator) should be based on mutuallyunderstood and accepted and objectively observable stand-ards of behavior. The recognition of this point has been given

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wide publicity by AASA in the model contract which it has de-veloped for use between school boards and superintendents.

The observed behavior of the teacher can be measuredboth directlyin terms of his own performanceand indi-rectlyin terms of student performance. But since studentperformance, particularly, is itself multifaceted, no attemptshould be made to shortcut its measurement by the use ofsimplistic standardized measures of academic achievementlimited to the cognitive domain. An attempt to measurewhether a teacher is competent simply by the scores of stu-dents on standardized tests is obviously inadequate. Suchscores may be used as part of the measure of teacher effec-tiveness, but only when specific conditions have been notedand taken into account. Measurement of teacher behavior isalways situational and conditionalit depends on what typeof school and what abilities of students are involved.

Teacher evaluation should be on a scheduled and con-tinual basis, not engaged in haphazardly through casualdrop-in visits by the supervisor or off-the-cuff conversationsin the hall.

Evaluation should suggest specific improvements neededand ways to accomplish them. Scaled judgments of perform-ance without suggestions for needed improvements and formeans of accomplishing them do not constitute a system thatis calculated actually to improve instruction. An evaluationof teacher performance used solely to judge whether a cer-tain personnel action should be taken does not contributesubstantially to improving the educational process.

If improvements in teaching performance are needed (asthey almost always will be), a good evaluative system setsforth a time schedule that will allow these improvements tobe made before negative judgments of a final nature areentered into the teacher's record. Time to improve, as wellas knowledge of what improvements are needed, is an essen-tial part of equitable and useful evaluation.

The judgments must be made by more than one person.Ideally, although such judgments must finally be reviewedby some single administrator, the data on which the finalreview is made should be drawn from the combined inputof both peers and superiors. Some teachers will resent hav-ing their peers sit in on judgment of their performance, or

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will be reluctant about undertaking this responsibility them-selves. But if the elements of protection afforded by tenureare to be preserved, even though formal tenure laws mayindeed be on the way out, this is a professional and personalsacrifice that teachers will probably be willing to make.Peers, of course, should evaluate only in areas where theyhave first-hand information.

Finally, in a fair evaluative procedure, no extraneousdemands should be summarily imposed. What has been de-cided upon at any stage in the development of evaluativeprocedures should not be overruled by some sudden admin-istrative decision that another condition should be imposed.Only those items and elements which contribute directly tothe instructional effectiveness of the teacher should be partof the evaluative judgment. It is oossible, of course, that anegotiated agreement could bring into play other factors ofpersonal behavior or comm ity performance or acceptableprofessional activitybut none of these should be suddenlythrown at the teacher as an element of failicle in his perform-ance unless they have been clearly specified in advance aspart of the evaluative process.

We are not yet skillful enough in applying the processesof teacher evaluation to make the assumption that any sys-tem now known will work perfectly. There will be mistakesand misunderstandings and maladministration. But there arenow availableif we will use them wiselyavenues throughthe processes of professional negotiation and simple con-sultation that will maintain opportunities to rectify the errorsand make positive improvement in the evaluative procedurethrough periodic renegotiation and refinement.

Obviously, evaluation of the kind envisioned in the pre-ceding paragraphs is not something that can be done by anoverworked principal or a harried vice-principal or a depart-mental chairman with only a modicum of released time forsuch activities. Although the evaluation will involve coopera-tive work between members of the administrative team andteachers in the building, the net result will be to place moreburden on the administrators especially. This means that ifwe use evaluations based on performance competenciesclearly set forth in good job descriptions, we are not goingto simplify and streamline the administrative process or

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reduce the number of administrators needed. Good use ofteacher evaluation will require more, not fewer, administra-tors. It will move much of the decision making to the buildinglevel, away from the central office; it will take more time andpersonnel; but it will result in direct monetary savings if wecan free ourselves of the burden of the incompetent teacherand improve the general level of instructional performance.

4. Renewable Contracts Keyed to Fair EvaluationStatutory tenure, which has become for most teachers

merely an assurance of reasonable job security, would losemuch of its desirability in their eyes if renewable contractswere made an essential part of employment conditions. Per-formance evaluations as described above could be used asa basis for renewing the contracts on an annual basis (orone or two years in advance, possibly even three). In thatcase, most teachers might not even really want the automaticand statutory guarantee that the job would be there as longas need for the job existed and fiscal resources were avail-able. Again, the type of model contract that AASA hasproposed for delineating the employment relationship be-tween superintendents and their boards could serve as auseful basis for the development of a similar model forteacher contracts.

When we speak of a model, this does not suggest thatthere be one standard, fixed contract for all teachers every-where. Models serve only as substantive generalizations ofwhat might ideally be accomplished. The actual form andformat, the actual details of the contract, even the wordingand timing, are items most appropriately determined at thelocal district level. To develop a model contract is not toimpose an authoritarian or monolithic system of teacheremployment practices.

5. Impeccable Due ProcessA system of position descriptions developed ,under good

written personnel policies and evaluated according to per-formance expectancies clearly set forth cannot guarantee fairtreatment of teachers unless the means by which theseadministrative procedures are used are carefully designedand managed to see that proper procedures are followed

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to ensure fairness. Due process has long been a fundamen-tal principle of English common law and basic to the legalprocedures in and under American democracy, but we ineducation sometimes react as though it had just been dis-covered and imposed on the educational establishment.Actually, due process has always been required in theory,but it has taken some rather severe jolts from court decisionsto make us realize that due process is not something that isapplicable everywhere except in school. Court decisionsinvolving both student and teacher rights have simply reaf-firmed and reinforced what has always been true: that anyindividual threatened with a substantive penalty or punish-ment must be afforded due process.

It is possible to describe due process in extremely de-tailed and complex ways; in light of the enormous complexityof some 9f the legal principles and judicial interpretations incurrent case law, it is tempting to include as many details aspossible. For our purposes here, however, we may use avery simple description of the elements of due process whichare absolutely essential to fair teacher personnel practices.

The elements are these: a) specific written chargescapable of verification must be presented; b) there must bea hearing with counsel if desired; c) there must be assurancethat no new charges will be introduced at the hearing; d)there must be provision for appeal.

A good many other precautions that are calculated toafford a more Complete application of due process shouldperhaps be noted. Many of them, however, depend a greatdeal on the circumstances cf a given instance. It is not rea-sonable, for example, to specify that all hearings should beconducted under full court-type conditions (although totaltranscripts taken and available to both sides of the disputeoften are valuable); that everyone contributing to the sub-stance of the hearing must be treated as a witness to bechallenged and cross-examined; and so forth. Perhaps theeasiest way to get around the problem of how much detailtherc should be in a description or application of due processis to suggest that procedural due process essentially requiresthe elements set forth above; substantive due process meansessentially that the substance of what is done is itself reason-able, rational, and fair. For example, procedural due process

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A.

might not technically require giving a teacher whose profes-sional status is threatened by an action the time and chanceto make improvements before the action is taken; it is, how-ever, certainly a part of substantive due process to afford theteacher this opportunity. Moreover, if what we are reallyinterested in is not hanging something on the teacher butimproving instruction, it simply makes good sense to givethe teacher a chance to know what is expected of him or herand how those expectations have not been met and to givefurther opportunity for the necessary improvements to bemade.

It is quite possible that teachers have clung tenaciouslyto the concept of tenure, even with all of its limitations, morebecause they were afraid of not being accorded due processthan for any other reason. It is true that due process ineducation is a relatively new concept, that we had implicitlyassumed that both teachers and students could be treatedrather cavalierly as long as such treatment met administrativeneeds or even administrative whims. There is good reasonto believe, however, that had there been a well-establishedpolicy and procedure for use of due process half a centuryago, the need for tenure laws would never have emerged.

Due process, it must be reiterated, follows certain legalprecepts and embraces certain legal safeguards, but essen-tially it is a humanistic commitment rather than an adherenceto legalistic principles. Once we in education are committedto the concept of due process, it becomes imperative that itbe applied at all times, to all persons who might be affectedadversely by administrative decisions. When we recognizethis necessity, the old distinction between probationary andnonprobationary teachers is likely to disappearno oneshould be treated cavalierly or unfairly just because he isnew to the game. Any proposal that tenure be replaced bylonger probationary periods then seems merely a self-servingsuggestion on the part of administrators who want more timeto dismiss a teacher without giving any good reasons or hav-ing to explain anything to anybody. If we accept totally theconcept of due process, then even new teachers should beafforded the same guarantees of fair and responsible treat-ment as those who have completed the statutory probation-ary period.

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6. incorporatiOn of Administrative Procedures inNegotiated AgreementsProfessional negotiations have opened up channels of

communications. They have provided a forum for morecandid discussion of problems between teachers, administra-tors, and employing boards, moving the decision-makingprocess more nearly down to the areas where the action isthe classroom. They have thus given those affected by deci-sions more of a voice in making them, yet it is quite generallyagreed that the whole movement so far has been disappoint-ing educationally. Professional negotiations, unfortunately,have not yet done very much to improve instruction andlearning.

Perhaps there is a good chance now that professionalnegotiations can be very directly applied to the problems ofevaluation of teachers in terms of specific expected perform-ance. It is possible for these expectations to be translatedand incorporated into negotiated contracts which will servefar better to protect the teacher interest, the public interest,and the interests of the educational program than has reli-ance on the protection thought to be afforded by statutorytenure.

This will happen, however, only if negotiation is con-ducted on a quid pro quo basis. If negotiation is to havereal meaning, it must be a give-and-take process. Teacherswill have to give up certain protections they have assumedwere inevitably theirs, and administrators and boards willhave to give up certain prerogatives that they have assumedwere likewise inevitable and unarguable

Even more-simply stated, if we art) to find somethingbetter than tenure to protect the interests of all of the con-cerned parties, we are going to have to offer assurao.:.as toteachers that they will have a significant voice in determiningthe conditions of their employmeni, including the groundrules and procedures for taking all personnel actions thataffect them. By the same token, if the teachers are goingto have this kind of opportunity and protection, they mustassume their responsibilities for entering fully into the proc-ess of defining and describing performance expected andparticipating in the fair evaluation of that performance.

In brief, the protection of the employment rights of26

teachers and the protection of the right of the public to haveineffective teachers removed through due process oughtto be attained through negotiated agreements translated intoemployment contracts, rather than provided by legislativestatutes which confer tenure. Nevertheless, appropriate leg-islation is still neededlegislation which will enable theconduct of effective professional negotiations. States whichhave no negotiation legislation or only piecemeal or ineffec-tive leoislation covering the complicated negotiations proc-ess wou be well advised to make the legislative enablingprovisions, necessary for the kind of negotiations that couldhelp replace antiquated and obsolescent tenure laws.

THIS OR THIS

Present Realities

Inflexible tenure laws

"Client" discontent

Professional disillusionment

Inept Administration

Incompatibility with contem-porary educational concepts

Creative Alternative

Written personnel policies

Position descriptions

Performance expectancy

Renewable contracts

Impeccable due process

v Negotiated agreements

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SummaryThe concept of "tenure," with all of its clumsy and

confusing burden of historic and current misinterpretation,with all of its flagrant misuse to protect the guilty and ineffec-tive along with the teacher needing protection, with all of itsfrightful maladministration which satisfies nobodytenureas we have known it will probably disappear before long.The forces opposed to teacher tenure as a statutory basisfor teacher employment are doubtless too strong to bedenied.

But what tenure laws intendedand have failedto dowill almost surely, if we will it and plan for it, be preservedin other forms of administrative procedure. Clear and de-tailed administrative procedures

set forth in written personnel policies,validated by sound administrative and evaluativepractices,

ratified in negotiated agreements,

fully consistent with just constitutional requirementswill continue to afford needed protection for teachers andadministrators, for learners, and for the public interest.

This can happen only if it is made to happen. The searchfor imaginative and realistic alternatives to statutory teachertenure is not one which can be entered into lightly or con-ducted half-heartedly. It is a real search, a quest that willinvolve long and detailed planning, intensive preparation,marked alteration of slipshod administrative practices, anda real Commitment on the part of teachers, of administrators,of the public, and of legislative bodies to make it a produc-tive enterprise.

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SELECTED BIBLIOGRAPHYON TENURE AND CONTRACTUAL STATUS OF

PUBLIC-SCHOOL TEACHERS ANDADMINISTRATORS

1. Alan, Evan. "Teacher Tenure: You May Not Be Able ToWipe It Out, But You Can Live Around It." AmericanSchool Board Journal 159: 37-43; November 1971.

2. Brown, Joan G. "Tenure and the Teacher." ClearingHouse 45: 355-60; February 1971.

3. Dru y, Robert L., and Ray, Kenneth C. Principles ofSchool Law. New York: Appleton-Century-Crofts, 1965."Tenure," p. 61-65.

4. Edwards, Newton. Courts and the Public Schools. Thirdedition. Chicago: University of Chicago Press, 1971."Teacher Tenure," p. 467-73.

5. Garber, Lee 0., and Reutter, E. Edmund, Jr. Yearbookof School Law, 1970. Danville, Ill.: Interstate Printers andPublishers, 1970. "Tenure," p. 228-41. (Annual publi-cation.)

6. Geis, Gilbert, and Huston, Robley. "Trends in the Dis-missal of Tenure Teachers." Yearbook of School Law,1962. Danville, Ill.: Interstate Printers and Publishers,1962. p. 199-209.

7. Hageny, William J. "The Principal and the Tenure Laws."Law and the School Principal. (Edited by Reynolds C.Seitz.) Legal Problems of Education Series, Vol. 3. Spon-sored by the National Organization on Legal Problems ofEducation. Cincinnati: W. H. Anderson Co., 1961. Chap-ter 12, p. 227-34.

8. Hummel, Charlton G. "A Right Only If Deserved." NEAJournal 49: 67-68; January 1960.

9. Jenson, Theodore J. "NEA and Teacher Welfare: Ten-ure." NEA Journal 44: 407-409; October 1955.

10. Lieberman, Myron. "Why Teachers Will Oppose TenureLaws." Saturday Review 55: 55-56; March 4, 1972.

11. National Education Association, Commission on Profes-sional Rights and Responsibilities. Fair Dismissal Stand-ards. Washington, D.C.: The Association, 1969. 16 p.(Single copy free)

12. National Education Association, Research Division. HighSpots in State School Legislation, January 1-August 31,1970. Research Report 1970-R10. Washington, D.C.:The Association, 1970. 87 p. $2. "Tenure and Con-tracts," p. 23-26. (Annual compilation)

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I

13. National Education Association, Research Division. "Pro-visions in Tenure Laws for Impartial Hearing Tribunals."NEA Research Bulletin 49: 20-22; March 1971.

14. National Education Association, Research Division."Statutory Hearing Rights of Nontenu re Teachers." NEAResearch Bulletin 49: 17-19; March 1971.

15. National Education Association, Research Division."Teacher and Due Process." NEA Research Bulletin48: 90-93; October 1970.

16. National Education AssociatiOn, Research Division. TheTeacher and the Law. Research Monograph 1959-M3.Washington, D.C.: the Association, 1959. "Contract andTenure Provisions," p. 30-45.

17. National Education Association, Research Division.Teacher Tenure and Contracts. Research Report 1971 -R3. Washington, D.C.: the Association, 1971. 93 p. $2.(Compilation of state-by-state summaries of tenureprovisions.)

18. National Education Association, Research Division. TheTeacher's Day in Court: Review of 1970. Research Re-port 1971-R-7. Washington, D.C.: the Association, 1971.79 p. $1.75. "Tenure," p. 23-48. (Annual compilation)

19. National Education Association, Research Division.Trends in Teacher Tenure Through Legislation and CourtDecision. Washington, D.C.: the Association, 1957. 55 p.(Out of print)

20. Nolte, M. Chester. Guide to School Law. West Nyack,N.Y.: Parker Publishing Co., 1969. "The Teacher's RightsUnder Tenure," p. 32-36.

21. Nolte, M. Chester, and Linn, John P. School Law forTeachers. Danville, Ill.: Interstate Printers and Publish-ers, 1963. "Tenure Laws and Continuing Contracts,"p. 112-29.

22. Peterson, LeRoy J.; Rossmiller, Richard A.; and Volz,Marlin M. Law and Public School Operation. New York:Harper and Row, 1969. Chapter 18, "Security of Employ-ment of Professional Staff," p. 528-56.

23. Remmlein, Madeline Kinter, and Ware, Martha L. SchoolLaw. Third edition. Danville, Ill.: Interstate Printers andPublishers, 1970. Chapter 2, "Contracts of Employmentand Tenure," p. 23-54.

24. Reutter, E. Edmund, Jr. and Hamilton, Robert R. Law ofPublic Education. Mineola, N.Y.: Foundation Press, 1970.Chapter 11, "Discharge and Retirement of Teachers,"p. 447-500.

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'4' 25. Seitz, Reynolds C. "Duration and Termination of Ten-ure." Law and the School Superintendent. Legal Prob-lems of Education Series, Vol. 1. Sponsored by theNational Organization on Legal Problems in Education.Cincinnati: W. H. Anderson Co., 1958. Chapter 4,p. 65-80.

26. Stover, William R. "What and Why of Tenure." NEAJournal 50: 47-48; March 1961.

27. Vacca, Richard S., and O'Brien, J. Stephen. "TeacherTenure: What Does It Mean?" Peabody Journal of Edu-cation 47: 280-85; March 1970.

28. Van Zwoll, James A. School Personnel Administration.New York: Appleton-Century-Crofts, 1964. Chapter 17,"Tenure and Job Stability," p. 300-316.

29. Ware, Martha L. "Tenure of Teachers." Encyclopediaof Educational Research. Fourth edition. New York:Macmillan Co., 1969. p. 1458-61.

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