Teacher Tenure

Abstract

Academic tenure differs in scope for teachers employed in public K–12 schools and teachers at colleges and universities. Among K–12 teachers, tenure prevents schools from dismissing teachers without cause or due process. In higher education, tenure is meant to ensure professors' academic freedom. Over the years, discussion has begun to focus on the possibility of tenure reform. Advocates of reform argue that tenure makes it too difficult and costly to dismiss underperforming K–12 teachers; among college professors, it is alleged that, in reality, tenure does not allow professors academic freedom and that tenure evaluations discriminate against women and minorities.

Overview

Tenure is a guarantee that a teacher will not be parted from a job without at least due process. At a casual glance it appears to be a simple topic, yet it is actually quite complex. Tenure rules are different for teachers in public K–12 systems and those who are professors teaching in the higher education system. However, both tenure systems are grounded in rights protected under the 1st and 14th amendments of the Bill of Rights. The 1st amendment asserts the right to free speech and the 14th amendment creates the rules of due process that protect a teacher/professor within academia.

In order to understand tenure in public K–12 schools and institutions of higher education, how it is attained, protections it provides, and impacts it may have on institutional structures must be explored.

Tenure in the Public Schools System. For a public school teacher in the American K–12 system, tenure can be fairly defined as the right to due process (Jordan, 2005) and is most usually attained in the third year of teaching. Tenure reviews generally consist of an assessment of a teacher's effectiveness based on:

• A personal assessment of performance;
• Results of a supervisory classroom observation; and
• Comments provided by parents of children from the teacher's classroom.

In many states, classroom test scores have begun to be factored into the review equation (Bernstein, 2006). Once the assessments are complete, the teacher is given a formal performance review and taken off of probationary status. At that point, contracts move from an annual renewal to one encompassing a period of time (typically up to five years). Tenure does not confer a guarantee of lifetime employment or even a choice of schools in which the teacher will work (Christie, 1997).

A tenured teacher cannot be released from an employment contract without cause and without due process. This means a teacher must have done something that violated the rules and policies of the school system (cause) and must be afforded certain protections, steps, and appeals in the firing process (due process). Typically, a teacher must have been formally notified that there is a problem and given help to fix the problem: these efforts at remediation must be well documented. Performance reviews must be balanced, listing instances of sub-par performance as well as instances of satisfactory performance. The teacher must be allowed a hearing that is fair and timely; allowing the teacher a chance to challenge charges and allegations of poor performance. Academic freedom is not really a component of the K–12 mission because there are not requirements to generate new knowledge in the form of research (Desmond, 2003).

There is a lot of controversy regarding the impact tenure has on the public school system. Some educators believe the tenure system does not allow a fair evaluation of a teacher, especially if classroom test performance is to be factored into the equation. Others believe the tenure system, coupled with a strong teacher's union, makes it virtually impossible to dismiss a teacher who is underperforming. Criticisms of the systems for granting tenure has led some school systems to reform rather than abolish the way teachers are evaluated for tenure: for instance, for the 2011–12 school year, New York City introduced a framework for evaluation of teachers, to be used citywide, focusing on three areas: impact on student learning, instructional practice, and professional contributions. Within each category, a teacher is graded on a four-point scale (ineffective, developing, effective, and highly effective). The framework also includes guidelines for the type of evidence that may be used in the tenure evaluation, including student achievement, classroom observation, annual reviews, and feedback from students, parents, and colleagues.

Teachers in the majority of districts in North Carolina became increasingly frustrated after a 2013 budget measure determined that tenure in the state would be phased out by 2018, to be replaced by limited contracts. By the following year, attempts were made to remedy the imminent loss of tenure by instituting a pay mandate requiring districts to offer one quarter of their teachers four-year contracts with a pay raise. However, by that time some counties had begun to sue the state to overturn the law, and in 2015, the North Carolina Court of Appeals ruled the law unconstitutional. In 2014, a landmark case in California, Vergara v. California, deemed five provisions of the California Education Code to be unconstitutional; the ruling will ostensibly make it easier to dismiss or deny tenure to underperforming teachers. In this case, the defendants had specifically argued that the tenure statutes had disproportionately negative impacts on poor and minority students. The outcome of this case directly sparked lawsuits in the state of New York, which argued that the state's statutes valued career length over job performance in consideration for tenure.

Tenure in the Higher Education System. The concept of tenure was established in higher education by the American Association of University Professors in 1915. It was meant to ensure academic freedom (i.e., "the freedom to teach, conduct research, and perform other duties without fear of job loss or censure" [Williams & Ceci, 2007]) and to shore up the practice of faculty governance (Bok, 1982). Higher education in America is predicated on three pillars: Academic Freedom, Tenure, and Faculty Governance. Professors need the ability to push students to examine their personal beliefs, making them hold the beliefs more strongly or adjust their beliefs to accommodate new knowledge without the fear of being fired for creating these challenges. Education is meant to be a free exchange of ideas resulting in robust debate and potential disagreement within a nurturing environment (Desmond, 2003).

The meaning of tenure in the higher education arena is a bit different from that of the public school system. First, the freedom to conduct research is added to the notion of the freedom to teach. Second, the career-long commitment is a permanent, life-long commitment to the professor for as long as the professor chooses to teach or conduct research. Third, the time it takes to become tenured is long (typically seven years or longer) and is predicated on an apprenticeship model in which the professor is promoted through the ranks from Assistant Professor, to Associate Professor, to Professor via a series of scheduled performance reviews (Desmond, 2003).

Procedurally, a professor on the tenure-track receives yearly reviews with extensive, formal reviews in at least the third and seventh years (and, most usually, the fifth year). The formal reviews include external reviewers and are critical junctures in which the faculty member may receive a one-year notice of intent to dismiss (AAUP, 1940; Hofstadter & Metzger, 1956). If the faculty member is retained, the formal reviews explicate what needs to be done to obtain a positive review during the next formal review period. The seventh year review is the actual opportunity to become a fully tenured professor. The assistant professor presents the review committee with a file containing evidence of exemplary research, teaching, and service activities. The file wends its way through a carefully prescribed review process with a yes or no decision rendered at each step. The university president makes the final decision (based on the entire review process) and is the only one who can grant tenure (Desmond, 2003).

According to the American Association of University Professors, "The primary purpose of tenure is to add knowledge to the common good and not to further the interest of either the individual professor or the institution as a whole. The common good depends upon the free search for truth and its free exposition" (1940, p. 1). Tenure works to protect academic freedoms that allow professors to speak to controversial matters, pursue and research politically unpopular topics, and report unethical practices of their peers (Williams & Ceci, 2007). Tenured professors have earned the right to test new ideas, many of which will fail. Their tenure status allows them the protection needed to risk failure minus the threat of punishment (Desmond, 2003). Additionally, tenure is credited with helping to attract talented faculty members, raise graduation rates, and protect the speech and writings of contrarians (Bowen, 2007).

However, tenure does impose some restraints on an institution's ability to manage effectively. Administration often struggles to manage annual budgets that are based on available state funding and student enrollment rates while disregarding the expenses incurred in retaining commitments to tenured professors. This can create potential financial burdens during years of fiscal stress (Honan & Teferra, 2001). Also, tenured professors who are viewed as incompetent or negligent are still entitled to their jobs and there are no built-in incentives to motivate exceptional performance once tenure has been attained (Desmond, 2003).

Tenure is often promoted as the only secure protection for academic freedom in teaching, research, and service. Tenure systems are most common in four-year public institutions, according to the 2015 Digest of Education Statistics published by the National Center for Education Statistics. In 2013–14, 74.6 percent of public four-year institutions had tenure systems, with the tenure system nearly universal (99.6 percent) in doctoral institutions; however, a tenure system was less common in two-year institutions (58.9 percent). Among not-for-profit four-year institutions, 61.8 percent had tenure systems, and among not-for-profit two-year institutions, 12.5 percent had tenure systems. Tenure systems were rare in for-profit institutions, with only 1.2 percent reporting having a tenure system.

Despite the presence of a tenure system in most four-year institutions, universities are increasingly hiring faculty members on an adjunct or contingent basis, so that they are not on the tenure track and, in many cases, are hired on a per-class or per-semester basis. According to the annual faculty salary report by the American Association of University Professors (AAUP), released in 2015, only 20.35 percent of instructional faculty are full-time tenured and tenure track (Barnshaw & Dunietz, 2015).

Further Insights

Questions have been raised as to whether tenure actually provides the claimed protections and rights in the changing academic environments in both the public K–12 and higher education systems.

Calls for Change to the K-12 Tenure System. There has been a movement to increase the time required for public school teachers to attain tenure (Bernstein, 2006; Jordan, 2005). Some arguments are grounded in concepts assuming most teachers are competent; some are grounded in concepts assuming bad teachers are able to use current tenure rules to usurp any efforts to remove them from their positions.

Politics have created a trend that requires teachers to be evaluated with an increased focus on student test scores. Some people believe it is unfair to the teacher and the community to place so much weight on test scores when the teacher has only two to three years of data available when the tenure review comes due. Therefore, many administrators and political leaders have suggested extending the probationary period to five or six years (Bernstein, 2006).

However, many other educational leaders wonder whether good teachers can be recruited and retained if they are required to navigate their school's bureaucracy devoid of procedural rights for the suggested five-year period (Jordan, 2005). As states move toward lengthening the time to tenure for public school teachers concerns regarding the ability of new teachers to implement new ideas and innovations into the education system have risen to the forefront (Jordan, 2005). Opponents of the movement contend the existing state laws already allow for the firing of teachers who show gross incompetence or misconduct. They posit that behind every bad teacher that has successfully resisted being fired is a cadre of bungling school administrators (Jordan, 2005).

Other leaders and community members are calling for change in the tenure system because of perceived negative impacts of the system. Some of these arguments outlined by Reeder (2005) are:

• Tenure, combined with a historical administrative reluctance to give substantive negative evaluations or to remediate underperforming teachers, detracts from meaningful accountability. In fact data from an investigative report of the Illinois school system indicate tenure has evolved into near total job protection that mocks the goal of accountability;
• Due Process procedures diminish a school board's ability to dismiss poor teachers; it is often left to the discretion of a hearing officer. This process can take years and cost over Due Process procedures diminish a school board's ability to dismiss poor teachers; it is often left to the discretion of a hearing officer. This process can take years and cost over $100,000 per incident.
• "It isn't tenure itself that makes it hard to fire a teacher. It is the vigorous defense provided by teacher unions" (Kerchner, as cited in Reeder, 2005). Teachers' unions often create additional procedural hurdles that work to leave underperforming teachers in place. The hurdles may include elaborate systems of evaluating every public school teacher in the state coupled with a remediation program to coach underperforming teachers. If all of the procedures are not scrupulously followed prior to a dismissal, the teacher may remain in place. Dismissed cases most often hinge on questions of whether forms were completed correctly rather than whether the teacher was actually doing a good job at teaching (Reeder, 2005).

Each of these circumstances may result in the retention of underperforming teachers. However, even successful firings are costly and time consuming if the teacher decides to fight the action. Take, for example, the firing of Cecil Roth in the state of Illinois. He was employed by the Geneseo School District for twenty years and received positive evaluations up until the last year, despite student recollections that he was the worst teacher in the Geneseo public schools (this is common according to attorneys who handle terminations for school districts). School district efforts to document his poor performance were crafted in highly diplomatic language devoid of descriptions of Mr. Roth's actual behaviors (e.g., "We have no evidence to suggest Mr. Roth has done anything to promote or contribute to a positive school climate and rather isolates himself from staff and students"). Five years after his firing was upheld in court, Mr. Roth continued to file frivolous motions and actions to sue his former employer. The school district retained an attorney to answer each of his filings and Mr. Roth was cited for contempt of court several times. One judge described Roth's efforts this way, "Roth is engaging in litigation terrorism. He is attempting to hijack the court system and use litigation before the court to advance his own personal agenda and call attention to himself and his cause…" (Reeder, 2005).

Trends in Higher Education: Inadequate Numbers of Tenured Faculty. Many colleges and universities appear to be trying to remain competitive by investing their money in the accoutrements that attract more students (e.g., new recreational facilities, renovated sports fields, updated dorms, etc.). This leaves less money to recruit tenured faculty and often results in the hiring of non-tenured faculty to conduct the bulk of the teaching. The quality of instruction may be diminished by the lack of experienced, tenured professors who are available to provide cohesiveness within the curriculum. Many of the non-tenured faculty members do not have the luxury of offices, professional development opportunities, or paid time for office hours. They are often absent from campus during non-teaching hours because they are busy teaching at other colleges or universities. Their students do not have the opportunity to informally contact the professor and engage in discourse as they seek to master scholarship and exercise their own freedom in inquiry. Faculty governance is also weakened when the majority of teachers are not tenured and, thus, ineligible to participate in campus governance (ARUP, 2003; Shih, 2003).

The question, then, becomes, "What good is tenure if no one is receiving it?"

Viewpoints

Do We Need Tenure Reform?. Tenure reform has been considered in higher education. Proponents of reform contend that tenure, coupled with the advancement structure, creates strong incentives for hard work during the first years of a professor's academic career and poor incentives forever after (Levitt, 2007). They also contend that the tenure process rarely protects scholars who are conducting politically unpopular research and classroom lectures (since, they contend, these activities rarely occur). However, it protects tenured scholars who underperform or produce low-quality work (Williams & Ceci, 2007). Additionally, research suggests that tenure is not liberating professors in their speech and research because the institutional structure provides a more powerful force in stymieing these freedoms for anyone who is not a full professor. Junior faculty competing for tenure are most likely to simply work to please the ruling senior faculty (Williams & Ceci, 2007).

Opponents of tenure reform are concerned with how academia would be restructured minus tenure rights. The absence of tenure would erode the other two pillars—faculty governance and academic freedom. How would universities and colleges successfully hire and recruit if senior faculty members (who are committed to faculty governance) could now fire each other? The academic structure functions as an organized anarchy (Baldridge, Curtis, Ecker, & Riley, 1977) wherein faculty governance functions would most likely evolve into a more hierarchical system with a boss. An established boss would most likely begin to chip away at academic freedom as internal and external pressures to avoid specific topics may be applied (Mankiw, 2007).

A less cited, though perhaps more persuasive argument than the one of faculty governance, is that tenure helps to preserve academic standards. At all but the few institutions with exceptionally large endowments, administrations are largely motivated to increase the number of students at the institution. This motivation, left unchecked, would result in ever-declining admissions requirements and ever-rising grade inflation. A faculty that is tenured and that does not share directly in the profits of the institution is motivated less by maintaining enrollment numbers than by maintaining its academic reputation among its peers. Thus, tenure protects academic rigor from competitive forces that would erode that rigor in favor of attracting and retaining greater numbers of students.

Tenure Needs to be Changed to Remove Privilege for Males. Historically white males have been in a privileged position when it comes to attaining tenure. This can be mostly attributed to the steady presence of upper-middle-class white men in the higher-education realm from its inception. The requirements of tenure were constructed and shaped by negotiations between these men and their employers, and men are reluctant to acknowledge that institutional structures provide them advantage (Marshall, 1998; Thornton, 2004). Women, people of color, and people from lower socioeconomic classes have only recently become an employed presence in higher-education institutions (Sadker & Sadker, 1984).

Despite the stronger presence of women (in particular) in academia for the past thirty years, tenure requirements have not appeared to evolve in ways which make the academy equitably accessible to men and women. Literature and research suggest advancement discriminations within the workplace are often subtle and based on the division of labor described in private sphere/public sphere theory and have worked to create double standards for advancement in academia (Hartsock, 1983; Thompson, 2007). Female professors who are working to attain tenure are often struggling to balance their desire for tenure with their desire to have children. Studies show that having a baby enhances a man's, and stymies a woman's, tenure opportunities (Armenti, 2004). At issue is whether the tenure process is a structural roadblock to increasing the percentage of women choosing to become professors (van Anders, 2004).

Additionally, female and minority faculty are quite likely to agree that tenure is an outmoded concept and an 'old boys' club.' Tenure evaluations are often conducted in secret sessions by committees that keep no minutes. Tenure committees often provide no details to the tenure candidate on the reasons why tenure was denied. Such secrecy makes it easy for one or a few faculty members to sabotage a tenure case for a tenure candidate they dislike.

Terms & Concepts

Academic Freedom: The freedom of faculty to teach (and conduct research in institutions of higher education) relative to one's subject area "without undue interference and fear from inside and outside institutions" (Honan & Toferra, 2001).

Academic Research: Ongoing research and related publication that must be conducted by all faculty in higher education, and upon which tenure decisions are made.

Cause: Sufficient reason (Webster's New World Dictionary, 2001)

De facto Tenure: To all intents and purposes the teacher is considered to have tenure although tenure has not been formally granted.

Due Process: The principle that the government must respect all of a person's legal rights when the government deprives a person of life, liberty, or property. This principle applies to teachers who are being deprived of employment in the public system.

Faculty Governance: The system whereby the faculty run the university or college.

Public Realm/Private Realm Theory: The theory describing how work in the private realm (i.e., most usually the unpaid work of women as volunteers and mothers) is not valued as equally as work in the private realm (i.e., the paid work of men and women in the workplace) (Hartsock, 1983).

Tenure: The employment commitment made between an institution and the teacher. Tenure confers rights to due process (Desmond, 2003). Tenure is said to preserve academic freedom for both the faculty members and the institution.

Bibliography

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Hofstadter, R., & Metzger, W. P. (1956). The development of academic freedom in the United States. New York, NY: Columbia University Press.

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Suggested Reading

Acker, S., & Armenti, C. (2004). Sleepless in academia. Gender and Education, 16, 3–24. Retrieved July 31, 2007 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=12917234&site=ehost-live

Caplan, P. (1993). Lifting a ton of feathers: A woman's guide to surviving in the academic world. Toronto: University of Toronto Press.

Herreid, C. F., Prud'homme-Généreux, A., Schiller, N. A., Herreid, K. F., & Wright, C. (2015). A peek behind the curtain of tenure and promotion. Journal of College Science Teaching, 45(1), 61–65. http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=109033800&site=ehost-live&scope=site

Hochschild, A. R., & Machung, A. (1990). The second shift. New York, NY: Quill Books.

Lawrence, J. H., Celis, S., & Ott, M. (2014). Is the tenure process fair? What faculty think. Journal of Higher Education, 85, 155–88. Retrieved October 16, 2014 from EBSCO online database, Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=94583662

Ross, C. G. (2015). Toward a new consensus for tenure in the twenty-first century. Academe, 101(3), 14–21. Retrieved January 4, 2016 from EBSCO Online Database Education Research Complete. http://search.ebscohost.com/login.aspx?direct=true&db=ehh&AN=102818030&site=ehost-live&scope=site

Valian, V. (1998). Why so slow? The advancement of women. Cambridge, MA: MIT Press.