I will protect your pensions. Nothing about your pension is going to change when I am governor. - Chris Christie, "An Open Letter to the Teachers of NJ" October, 2009

Saturday, October 25, 2014

@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 MascioDavid ZaunerLisa 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.
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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.


Unknown said...

The Polanco story sounds like a case of a teacher attempting to use dark, edgy humor to deal with a heavy topic... to sort of joke your way out of a tense situation.... while getting a chuckle from the suicide kid.

Using humor this way is not choice I would make, but it's not the "smoking gun" tenure horror story the TIME author makes it out to be (As as JJ points out, the only such story included in the article)

To make a full judgment on this, I'd have to know more context: the general atmosphere of the room, the teacher's prior relationship and rapport with the students, etc.

At the very least, the administrator could have used progressive discipline, and merely given Polanco guidance which, if the teacher promised to follow---and carried through on that promise---should have ended the matter.

This is reminiscent of a scene in STAND AND DELIVER where the teacher Jaime Escalante teases different kids about some idiosyncratic trait a particular student possesses. He mixes humor with the calculus lessons.

In particular, he teases one prize math student---a female---for dressing too sexy, or acting too sexy or whatever... thinking that, like in the past, she was okay with this and could laugh at herself.

After the class leaves, she tells him privately that she doesn't like this anymore, and could he please stop. Instantly guilt-ridden, Escalante apologizes and promises to stop.

But no... not in the Brave New Campbell Brown era... there's no room for nuance or context. Teachers are always guilty and never proven innocent.

Teacher Mom said...

Here's another one to add to the list of teachers wrongfully fired. http://www.abc15.com/news/region-northeast-valley/fountain-hills/fountain-hills-school-board-fires-longtime-elementary-teacher-pam-aister

susan said...

There are a lot of us who were illegally fired by school districts and forced into destitution. School districts can and do fire teachers all the time and for the stupidest of reasons because they game the legal system to their benefit. They don't care about the proper use of taxpayer funds, and their legal teams tell administrators you can do whatever you want, force the teacher to sue, settle, and sign a gag order so the district can target others. Or starve the teacher to sign a severance agreement prior to any hearing while they give up their rights to sue, possible unemployment compensation, and force them to sign a gag order in exchange for a "good reference" which doesn't guarantee that teacher will EVER work in the field again (almost all school district applications ask if you resigned in lieu of dismissal, which means if you check off "yes," your application is tossed into the garbage can along with those who have been forced to resign, "dismissed," or "non-renewed," since all are firings). Administrative law is a cruel sham in virtually every school district in the country with the possible exception of NYC. School districts treat it, teacher contracts, and civil law like toilet paper. They do it because they can. Meanwhile, principals and other administrators are nearly impossible to fire and continue their careers on the backs of teachers they have ruined.

You actually have to have gone through this sham administrative "law" process to truly understand the truth teachers have NO real rights at all. All kinds of things occur in those hearings that would get lawyers disbarred and administrators thrown in prison if they occurred in criminal or civil proceedings.

Giuseppe said...

Be very careful what you post on Facebook. From nj.com:
A township teacher lost her tenured position and recently had her teaching license suspended after making inappropriate comments about a student's name on Facebook, according to the state's licensing agency for teachers.

Giuseppe said...

Another teacher hero at yet another school shooting. From crooksandliars.com:
"That's right. An unarmed, petite, first-year teacher stopped the shooter, but that won't stop conservatives from calling teachers thugs. Remember this the next time someone around you says teachers are overpaid thugs. She put her young life at risk to save those students."
Sadly, it's not just conservatives bashing teachers, it's also so called liberals like Duncan CT governor Malloy, NY governor Cuomo and some so called liberals in show biz.

Giuseppe said...

In the age of nonstop 24/7 teacher bashing, in the age of the war on public school teachers, it's unquestioned given "wisdom" that our schools are failing and that the main cause is those bad, ineffective evil teachers. The Rheeformers contend that we can fire our way to success. So tenure, seniority and LIFO must be obliterated along with teacher unions, bargaining rights and teacher pensions. And yet the states that have effectively eliminated tenure, seniority, bargaining rights and unions are much lower performing than NJ. NJ is always in the top tier of states as regards educational performance. The right to work states have much lower ranked schools than NJ, CT and MA.

Straight Talk said...

Love your writing...
Just wanted you to know who I am,
http://www.opednews.com/author/author40790.htmland hope you will read my articles "Bamboozle Them," and Magic Elixirs.

I experienced the war on teachers when I was a the top of a successful career, NY S Educator of Excellence, and chosen by Harvard, as the cohort for the National Standards Research by Pew.

Simply put: a principal can say anything, slander any teacher if the union looks the other way. Over a hundred thousand Americans who happened to be teachers were victimized... out they went... and just like a hospital would fail if the practitioners were removed, the schools failed.

It is so simple, http://www.speakingasateacher.com/SPEAKING_AS_A_TEACHER/No_Constitutional_Rights-_A_hidden_scandal_of_National_Proportion.html
The media did the dirty work 20 years ago, just as they are doing it now... those bad teachers... but here is the truth... every word of it. i wrote this years ago, but a 'mere' teacher like me, as no voice...silenced by Time inc and all those who sing the song of Duncan, and the billionaires who want to end public education and the road to opportunity Broad/Koch/Wlaton/Murdoch/Gates