Bad apples

The main tenets of the free market workplace are pretty basic. Do a good job and you will be rewarded with pay increases, promotions or whatever form of acknowledgment your industry practices. Do a lousy job and chances are good that you will be replaced with someone who hopefully will do better.

Yet such simple scenarios aren’t the case in public education, where bad teachers can continue teaching our children for years after complaints arise, protected by tenure, unions and an expensive, arduous process of firing teachers.

New teachers can be fired easily, even at an administrator’s whim. Then, after usually two years, teachers achieve tenure, which is designed to ensure academic freedom and protect teachers from administrators’ whims. But that also makes firing bad tenured teachers a difficult task.

During a time when public education reform is near the top of our political agenda—with almost daily calls for greater teacher and student accountability—the process of firing bad teachers remains a complex minefield that defies simple solutions.

Financial decision
Some say the main culprit is money. The usually overwhelming cost factor involved in getting rid of a tenured teacher can make the decision to fire or retain a bad teacher as much about finances as classroom competency.

That’s especially true in small districts, which have a fraction of the resources at their disposal of their larger cousins. Regardless of how bad or incompetent a teacher is, there can still be a great motivation to let teachers stay on the job rather than risk the financial hit of a failed attempt at removal.

“If a case to dismiss a teacher runs its full course, it can cost the district upwards of $50,000 to $60,000 in lawyers’ fees alone,” said Diana Halpenny, general counsel for the San Juan Unified School District, one of the largest in Sacramento County. “When you add up the additional peripheral costs, such as paperwork, court reporters and the rest, it can easy be doubled. That is a killer for a small district that may only have a $500,000 total budget for the year.”

That’s also figuring the school district wins the case outright. Should they lose, they then also get to pay all the related costs for the teacher and the defense team. That’s a pretty risky roll of the dice. It also means that the district will need to appeal its case in court. Losing can’t be an option with this much at stake.

Yet others disagree that financial concerns keep bad teachers in the classroom.

“I can honestly say that I have never had cost be the deciding factor in whether or not I recommend to move forward with a termination case,” said Sacramento City Unified School District general counsel Martin Fine.

Sacramento City Teachers Association president Tom Rogers also denies money is such an important factor in teacher dismissals.

“There is certainly a cost factor for everyone involved in teacher dismissals, including for us,” Rogers said. “But no matter what, we always support keeping only the best teachers on the job.”

Actually, unions often find themselves in the role of protecting bad teachers. And that, say critics, is part of the problem.

Defending teachers
For some, the goat in this process is the union that defends teachers in these cases. Entities such as the California Teachers Association (CTA) and the Sacramento City Teachers Association (SCTA) are obligated to defend their constituents zealously, no matter what—and for the most part they do.

Teachers’ union dues entitle them to a defense against being fired, period. Much like a public defender forced to represent some heinous criminal, unions must take the side of even bad teachers. Yet that doesn’t mean union representatives don’t try to convince some obvious cases that it would be better to move on to a new job rather than wage a lengthy battle to remain in teaching.

“Most union attorneys know if their client should go,” acknowledged Halpenny. “And I do believe there are times when they will do all they can to convince their client to do so.”

Beverly Tucker, chief counsel for the 270,000-member CTA, doesn’t necessarily disagree, but she said that it is always up to the teacher involved as to whether or not he or she wants to pursue a hearing.

“My experience is that if a district does all it is supposed to do, if it provides all the proper documentation and related proof, then it is likely that teacher will end the process through resignation. But it is always up to the teacher to make that decision,” Tucker said.

Tucker also noted that most of the cases that do head to hearings are a result of a serious dispute between parties as to the validity of the facts of the case.

SCTA’s Rogers feels the decision of whether a teacher is doing a good job is still heavily weighted in favor of the districts, particularly in the teacher’s early years.

“The district has two years of being able to fire a teacher with no possible objection on that teacher’s part,” he said. “Now, once a teacher has passed through that probationary period and achieved permanency, he or she has a right to their due process.”

The question is whether achieving a state of permanency should allow the situation to move from one extreme to the other. In other words, is surviving a two-year probation enough in itself to earn the right to force cash-strapped districts to spend ridiculous amounts of money to remove a bad teacher from the job?

For Tucker, the answer is a resounding yes.

“The CTA’s position is that every permanent teacher has earned the right to due process,” she said. “We actually would like to see some sort of due process even for probationary teachers. In our mind there is no cost too high for justice.”

Due process
For teachers and school districts, justice can take time, lots of time. The process of removing teachers is a long and arduous one, filled with legal motions, hearings, and committee meetings.

“From start to finish,” Halpenny said, “it can take up to two years for a case to come to resolution. In reality, cost doesn’t begin to cover the hassle of a dismissal case.”

That hassle begins with deciding who is a bad teacher in the first place. The California Education Code requires that every school board adopt a standard of student achievement for each grade level and subject, but when those standards aren’t met, assessing how much blame lies with the teacher can be difficult.

“I really think administrators have progressed tremendously in their ability to evaluate issues such as unsatisfactory performance,” Fine said.

But why does it have to take so long to determine if someone is doing the job or not? For one, a teacher’s performance must be observed and evidence against him or her documented for a substantial amount of time before a decision to terminate can even get started.

Once a teacher is notified in writing of his or her unsatisfactory performance, no further action outside of observation can begin for 90 days. Also, with very few exceptions, school boards are not allowed to initiate termination cases between May 15 and September 15.

Once an order of dismissal has been filed there begins a maze of hearings and special panels to determine if the teacher stays or goes. This is often just like a trial, with all the usual delays, costs and headaches for both sides.

Regardless of the legal aspects of due process and union contracts, there is still the bottom line responsibility of giving our kids the best education possible. This is a responsibility most administrators and teachers take very seriously.

“I would say that 99.9 percent of our teachers are doing an incredible job,” states Mira Loma High School principal Ed Marquez. “Everyone wants the same thing—the very best teaching available. Teachers want to see their profession looked upon as an honorable one.”

Marquez also agrees that cost should never be a factor in getting rid of a bad teacher, no matter how small the district.

“I don’t view removing a bad teacher as a risk, I view it as a responsibility,” he states flatly.

Peer pressure
There is one new and potentially powerful alternative these days to dismissal. The Peer Assistance and Review (PAR) program is designed to help poor performing teachers to improve their skills.

PAR places struggling teachers with veteran teachers who can then aid them in all aspects of their performance, from establishing proper curriculum to handling their classrooms better. The peer teacher then provides written evaluations for both teacher and administrator to review.

“I think PAR is our best effort yet to improve teacher performance,” said Marquez. “I would emphasize again that this is a small problem, but for that minority of teaches who are having problems, the PAR program is the best potential yet to remedy their situation.”

The reviews are non-binding in their assessment, but they do provide a great way to not only improve struggling teachers who we would like to see stay on the job, but to also help encourage those who shouldn’t be there to seek another line of work on their own before they become a part of the dismissal process.

“Peer pressure is effective at all levels,” said Halpenny. “If a peer suggests a teacher should move on, it can be very powerful.”

While the program is still too new to have developed official statistics, SCTA’s Rogers feels strongly that teachers who are truly in the wrong line of work will recognize it after being in the PAR program.

“Nine out of ten (of those) teachers will recognize the profession is not for them,” he states.

It is easy to blame the unions for this process that seems to be so weighted toward keeping bad teachers on the job. But the real problem here isn’t lawyers, it’s the legislation currently in place.

“There was a perception at one time that district actions were clogging the court systems,” Halpenny said. “Subsequently, legislation was designed to reduce those actions and to take politics out of the decisions.”

But does perception always equal reality? Halpenny says there is an old legal phrase that applies here.

“Bad facts,” she said, “make bad laws.”

The irony is that laws put into place to provide freedom from politics influencing academics can help keep some teachers from facing the music. And while plans like the PAR could eventually help, for the foreseeable future, we will have to accept that removing a bad teacher is going to be a long and difficult process.