WASHINGTON – Even before a judge's scathing ruling against California's teacher tenure policies, the once-sacred protections that make it harder to fire teachers already had been weakened in many states — and even removed altogether in some places.
Florida, for example, put all teachers hired after 2011 on an annual teaching contract, which essentially did away with tenure protections.
Kansas and North Carolina also are seeking to eliminate tenure or phase it out. The nonpartisan Education Commission of the States, which highlighted the changes in a recent report, says 16 states — up from 10 in 2011 — now require the results of teacher evaluations be used in determining whether to grant tenure.
Not all changes have stuck, and few are without a political fight.
Teacher tenure protections were established in the 20th century to protect teachers from arbitrary or discriminatory firings based on factors such as gender, nationality or political beliefs. They spell out rules under which teachers may be dismissed after they pass a probationary period. But critics say the tenure protections make it too difficult to fire ineffective teachers.
The debate over teacher tenure comes as many states, propelled by Obama administration-led incentives, develop more meaningful teacher evaluation systems that seek to provide a more accurate picture of student learning under a teacher. Using such systems, the Education Commission of the States says seven states make teachers return to probationary status if they are rated "ineffective," meaning they have no assurances their contracts will be renewed at the end of the school year.
"A good number of states have effectively done away with tenure through their new evaluation systems that include measurements of student achievement," said Michelle Exstrom, education program director at the National Conference of State Legislatures.
On Tuesday, Superior Court Judge Rolf Treu in Los Angeles sided with nine students who sued to overturn California statutes governing teacher hiring and firing, saying they served no compelling purpose and had led to an unfair, nonsensical system that drove excellent new teachers from the classroom too soon and kept incompetent senior ones. The practices harm students in a way that "shocks the conscience" and have "a disproportionate burden on poor and minority students," the judge wrote.
While the ruling affects just California, proponents of rolling back tenure protections say the landscape is ripe for change. They predict the judge's ruling will spur a flood of new legislative action and more lawsuits. They say that too often all K-12 teachers have do is show up for work for a set period of time to earn tenure protection.
That's the case in 31 states, according to the National Council on Teacher Quality. Sandi Jacobs, a vice president from the organization who testified in the California case on behalf of the plaintiffs, said tenure protections for teachers aren't necessarily a bad thing, but obtaining tenure status should be meaningful and the due process should be reasonable. Jacobs said California is one of a small number of states that requires seniority to be used in making lay-off decisions.
"Nationally, I think we're going to see a real ripple effect because it's a wake-up call to policymakers that policies that aren't in the best interest of students can be challenged in court," Jacobs said.
Randi Weingarten, president of the American Federation of Teachers union, said taking away due process rights ultimately hurts low-income schools because teachers won't want to take a risk to teach in such schools without strong labor protections.
Due process allows good teachers to "take risks on behalf of their kids," Weingarten said.
Dennis Van Roekel, president of the National Education Association, which also represents teachers, says the tenure fight is a distraction that takes away from other important education issues. He said school districts perhaps need to focus on hiring practices.
"I think there ought to be a good system to dismiss incompetent bad teachers in every system. It ought to be fair to the employer and employee, and it ought to be cost-effective, but that should be used very rarely," Van Roekel said. "Because if you have a system where that number is high, there's something wrong with your recruitment and hiring."
In states where teacher tenures have been rolled back, Van Roekel said teachers have reacted negatively because "they are afraid and they fear bad things will happen to good people."
Robert Pianta, dean of the Curry School of Education at the University of Virginia, said that in California and elsewhere more is known about who is a good teacher in this age of annual testing of students and more robust teacher evaluations. He said he believes that's spurred the California lawsuit and other movement on the issue. He predicts more states will move toward longer probationary periods to grant tenure and more renewable contracts.
But even as state lawmakers debate the issue, not all are moving forward with change.
Alaska legislators punted on the issue in the state's most recent session, which ended in April after debate over whether to extend from three years to five years the time it takes to reach tenure status. Much of the pushback came from rural lawmakers concerned it would be difficult to recruit and keep teachers.
In Idaho, lawmakers passed legislation in 2011 that would essentially end teacher tenure. It was later repealed in a public referendum.