New York’s Outdated Tenure Laws

If the courts finally allow ‘Wright v. New York’ to move ahead, the plaintiffs have a strong chance to prevail—and to usher in legal changes that have already benefited students in other states.

Nine New York families leading the charge against the state’s laws on teacher tenure, dismissal, and quality-blind layoffs—which they have alleged violate their children’s constitutional right to a “sound basic education”—are awaiting word from the Second Department on whether their case can proceed to discovery. Teachers’ unions, who have long resisted changes to these laws, have used motion after motion to slow the case to a crawl since it was filed in 2014. But if the courts finally allow Wright v. New York to move ahead, the plaintiffs have a strong chance to prevail—and to usher in legal changes that have already benefited students in other states.

Decades of research have shown that a teacher’s job performance has a huge and lasting impact on students’ lives. Just one year with a highly effective teacher makes students more likely to attend college, avoid becoming teenage parents, earn a higher salary throughout their lives, and save for retirement. One year with a low-performing teacher, on the other hand, can deal students an academic setback from which they never recover. In other words, students can’t possibly get a sound basic education without effective teachers.

Unfortunately, New York’s laws ensure that many students every year will be assigned to ineffective teachers. While the overwhelming majority of New York’s teachers are talented and dedicated, thousands each year earn “ineffective” or “developing” ratings even under an inflated evaluation system. Yet because of laws that essentially grant teachers permanent employment regardless of how well or poorly they do their jobs, these low-performing teachers remain in the classroom year after year. State records show that just one teacher in the entire state was dismissed for poor performance between 2010 and 2015.

The reality is that once teachers in New York earn tenure, it’s nearly impossible to replace them—even those with a documented record of poor performance. Simply trying to dismiss a single ineffective teacher can take years and cost taxpayers hundreds of thousands of dollars. Even teachers found guilty of egregious misconduct—missing entire months of the school year, or verbally and physically abusing their students—are routinely returned to the classroom by arbitrators based on settled legal precedent.

And when layoffs become necessary, state law bars schools from taking job performance into account—effectively forcing them to fire some of their best teachers to protect low-performing teachers with greater seniority. In short, the question isn’t whether New York’s tenure, dismissal, and layoff laws are hurting students by subjecting them to ineffective teachers; it’s how many thousands of students they’re hurting each day.

There’s every reason to believe the plaintiffs in Wright could prove this at trial, because it’s already been proven in another high-profile case that challenged very similar laws. The plaintiffs in Vergara v. California, which challenged similar laws in their state, painstakingly showed that the state’s tenure laws were denying students a fair shot at the education they deserve. In a 2014 trial court ruling overturning the laws, the judge in that case wrote that the mountain of evidence offered by the plaintiffs “shocks the conscience.” Although the decision was ultimately overturned over questions about whether students disadvantaged by California’s tenure and dismissal laws are a protected class, its findings about the harmful effects of those laws remain unchallenged to this day.

While the plaintiffs in Wright have a strong case, it’s worth noting that New York’s lawmakers can and should fix the laws at issue regardless of whether a court order forces their hand. Other states across the country have shown that a few common-sense changes to tenure, dismissal, and layoff laws can create better educational opportunities for students without lower interest in the teaching profession, higher turnover among effective teachers, or any of the other side effects many critics fear. Lawmakers should focus on three basic changes:

• Be more selective about who earns tenure. Right now, most teachers in New York earn tenure automatically after four years in the classroom, regardless of how well they actually teach. This just isn’t enough time for schools to make an informed choice about which teachers are likely to be successful in the classroom over the long run. Other states have made the tryout period for new teachers longer, and tied to building a consistent track record of success in the classroom. In Tennessee, for example, the probationary period is five years, and teachers must earn a rating of at least “above expectations” during the last two years to earn tenure. In Colorado, the probationary period lasts as long as it takes for a teacher to earn “effective” or “highly effective” evaluation ratings in three consecutive years. And in both states, tenured teachers who earn consistently lower evaluation ratings can revert to probationary status.
• Create a reasonable process for replacing a tenured teacher. Teachers deserve due process. But most people don’t hear “due process” and picture a months-long trial that returns teachers to the classroom even when it’s clear they’ve harmed children. This is due process on steroids, and goes far beyond what employees in almost any other profession receive. A more reasonable standard would limit the scope of hearings to whether school officials violated the disciplinary process, with the overriding factor in the decision being the best interests of students. Hearings shouldn’t be used to dole out second chances to demonstrably ineffective or abusive teachers. And the entire process should take no more than 90 days. Both Florida and Oklahoma have made ineffectiveness based on evaluation ratings legal grounds for dismissal, and have dramatically streamlined the dismissal process in those cases.
• Make job performance the primary factor in layoff decisions. No one ever wants teachers to be laid off. But laying off strong performers makes a bad situation much worse for students. When schools have to eliminate teaching positions, they should use a transparent set of criteria that protects teachers with track records of success in the classroom. Ineffective teachers should be laid off first, and highly effective teachers should be laid off last—regardless of how many years they’ve been on the job. Both Florida and Colorado have modified their laws to make classroom performance the primary factor in any teacher layoff decisions, with seniority considered only as a secondary factor.

In the states where these changes have been implemented, they have not eliminated tenure or reasonable job protections for teachers. They have simply prevented laws from shielding teachers who shouldn’t be in the classroom. Crucially, these reforms haven’t resulted in declining interest in the teaching profession, higher turnover among effective teachers, or other negative side effects some critics feared.

In many cases, the exact opposite has happened. States generally saw increases in their number of certified teachers in the years after changing their tenure, dismissal, or layoff laws. In Shelby County Schools, the largest school district in Tennessee, the number of annual teacher applicants doubled, on average, in the first five years following tenure reform. Teachers in the district also feel better supported now than they did before tenure reform was enacted, according to surveys.

The results are even more compelling when school systems make improvements to all three policies at issue in Wright—as the District of Columbia Public Schools did in a 2010 renegotiation of the collective bargaining agreement with its teachers’ union. Studies have shown that those changes enabled the district to replace its low-performing teachers with better ones, who helped students gain at least four additional months of learning in reading and math. Those studies also found no evidence that the changes lowered the retention rates of highly effective teachers, and showed that they helped teachers across the district improve.

At its core, however, fixing broken tenure laws in New York and across the country is not a policy problem. It’s a problem of political will. History suggests that even armed with clear solutions on this issue, lawmakers are too captive to special interest groups to take action. The real power of cases like Vergara and Wright lies in raising the costs of that inaction. They force political leaders to defend the indefensible and face up to uncomfortable truths in broad daylight.

In New York, those truths are clear: A significant number of teachers are not up to the job. These grossly ineffective teachers are derailing their students’ academic futures. Low-income students and students of color are more likely than others to be assigned to one of these teachers. And all of this is happening because of state laws that make it practically impossible for schools to replace the relatively few teachers who shouldn’t be there.

The families who brought Wright v. New York deserve a chance to expose the consequences of the state’s current tenure laws through discovery and a trial. And whether because of their conscience or a court order, New York’s leaders should create fairer laws that make students’ educational rights the top priority.

Daniel Weisberg is TNTP’s chief executive officer, where he oversees the executive team and all aspects of the organization’s operations, strategy and growth.

Reprinted with permission from the New York Law Journal © 2018 ALM Media Properties, LLC. All rights reserved.

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