@TIME Gets Tenure Wrong, Part I: It Is NOT Hard To Fire a Teacher

Peter Greene points out that TIME's cover this week, announcing a lengthy piece about teacher tenure, is worse than the actual story. I don't disagree; however, the piece is still deeply flawed. So flawed, in fact, that it's going to take a few posts to break it all down.

Let's start with this:

But what began as a popular idea [tenure] has become increasingly controversial as countless stories of schools and districts being unable to fire bad teachers have populated the news. In a story that hit headlines in 2009, the L.A. Unified School District was legally barred from firing a teacher who had told an eighth-grade student who had recently tried to slit his own wrists to "carve deeper next time."

So here's the first problem: if these stories are "countless," why didn't Haley Sweetland Edwards, author of this story, include at least a few more? This is the only example in the entire four-page spread of how hard it allegedly is to fire a teacher with tenure. I have little doubt that if this were a Common Core-aligned test, Edwards would only get partial credit, at best, for presenting evidence to back up her claim.

Second: for every anecdote that Edwards might present about how hard it is to fire a teacher, I could counter with a story about a good teacher who was either saved by tenure, or lost a job because he didn't have tenure. There's Mike Mignone of Belleville, NJ, a hero to teachers and taxpayers in his town whose job was saved only because he had the right to a tenure hearing. There's Augustin Morales of Holyoke, MA, who stood up to his administration to stop a poorly conceived program to publicly post student test scores and was subsequently fired.

Not enough stories to stack up to Edward's "countless" example? How about Kelly Mascio, David Zauner, Lisa Capece, and Sarah Wysocki? How about the teachers in Elizabeth, NJ? How about the teachers in Newark, victims of a jihad against senior educators, especially teachers of color who are far more likely to be assigned to the most difficult schools? How about teachers like Ron Mayfield who are wrongly accused of abuse?

I won't argue there haven't been cases of teachers who should have been fired but couldn't be because of legal technicalities. But if Edwards is going to say these cases are "countless," she has to do better than this. And if she's going to write a balanced piece, she has an obligation to report on the times tenure has served the interests of both good teachers and taxpayers.

Third: let's take a look at Edwards's sole example. This case was popularized in a LA Times 2009 series on teachers and tenure (a series which, unlike Edwards's, included a story of a teacher being falsely accused by students of incompetence). I obviously don't know all the particulars, but the charges against the teacher certainly seem to warrant firing:

The eighth-grade boy held out his wrists for teacher Carlos Polanco to see.

He had just explained to Polanco and his history classmates at Virgil Middle School in Koreatown why he had been absent: He had been in the hospital after an attempt at suicide.

Polanco looked at the cuts and said they "were weak," according to witness accounts in documents filed with the state. "Carve deeper next time," he was said to have told the boy.

"Look," Polanco allegedly said, "you can't even kill yourself."

The boy's classmates joined in, with one advising how to cut a main artery, according to the witnesses.

"See," Polanco was quoted as saying, "even he knows how to commit suicide better than you."

The Los Angeles school board, citing Polanco's poor judgment, voted to fire him.

But Polanco, who contended that he had been misunderstood, kept his job. A little-known review commission overruled the board, saying that although the teacher had made the statements, he had meant no harm.

That's sounds like a serious argument against tenure hearings -- until you read down a bit more:

Districts complain that in review hearings, where lawyers go head to head, the testimony of student witnesses is often discounted because their memories have faded, they are scared or reluctant to talk about traumatic events, or they can't withstand intensive cross-examination.

But it is not uncommon for districts to sabotage themselves with technical missteps. In Polanco's case, for example, L.A. Unified administrators began firing proceedings before giving him the required 45 days' "notice of unprofessional conduct" -- one factor in the commission's decision to overturn his firing. [emphasis mine]

"One factor"? Try the factor. To its credit, the Times includes a link to the actual decision in this case, which makes quite clear the fault lies with an administration that didn't follow the law:

2A. It is our unanimous conclusion that the Commission has no jurisdiction to consider whether Respondent’s conduct established in this case was unprofessional pursuant to Education Code section 44932, subdivision (a)(1),3 because the notice required by that section was not given to Respondent before the District began the process of his dismissal.

2B. The Education Code requires that an employing district must first provide written notice of unprofessional conduct to a teacher before beginning the process of dismissing a teacher for that reason. (Ed. Code, § 44938, subd (a).) 

Specifically, section 44938, subdivision (a), provides, in part: 

The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom a charge is filed, written notice of the unprofessional conduct, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds of the charge ....
Giving written notice pursuant to section 44938 is therefore a jurisdictional prerequisite to proceeding with any charges mentioned in that provision. (Crowl v. Commission on Professional Competence (1990) 225 Cal.App.3d 334, 348).

2C. In this case, the District did not provide Respondent with the written notice of unprofessional conduct required by section 44938. During the hearing, the District did not contend that any particular document constituted such a notice. District’s counsel simply stated that the District did not concede that such a notice had not been given. None of the various documents given to Respondent by the District in evidence constitutes the notice required by section 44938. [emphasis mine]

In other words: the district was supposed to give written notice to Polanco that he was going to be dismissed for unprofessional conduct, but they didn't. I'm certainly sympathetic to the idea that the tenure process can and should be improved. But giving an employee written notice is not, by any stretch, an undue burden. And if Polanco's supervisors were so inept that they couldn't even follow this basic provision of the law, it calls into question their ability to properly supervise him.

So Edwards's one example of how allegedly hard it is to fire a teacher is really weak; it's actually an example of how tenure law is not the problem. Again, I think there is a serious argument to be made for reforming the tenure process, particularly in California. But Edwards has not made a case that it's overly difficult to fire an incompetent teacher. And she chooses not to address the central question in the tenure debate:

If you give administrators the right to fire teachers at will, what will you do to the current pool of workers willing to teach? More on this in a bit.

Too bad TIME didn't ask Ted Rall to design their cover.