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Tenures After (Vergara), Part 1

Uploaded: Jul 10, 2014
Hello again – I needed a break from all things bloggery, and am much refreshed.

Since I penned my latest ode to the A's, little seems to have changed in their regard. The team thrives, and our Billy continues to confound analysts who think of Moneyball as an outlying historical event, rather than the process of always being a step ahead. It's fun to read the serial confusions of those for whom the sun rises and sets on well-appointed pinstripes or sawx. I've heard it claimed, by much better stat geeks than I, that the local team has actually underperformed its statistically likely wins to-date: in other words, they've not been lucky (Rajai was lucky). Here's hoping our boys can sustain their play well into the autumn tournament.

BUT, other things-of-note Have been happening in the past month-or-so, including the LA trial court decision to overturn teacher tenure in California -- about which there was much local celebration. I want to look at that issue over several editions of the RC: first and below, what is this thing called "tenure," anyway, and why all the specific fuss over it? Next, we'll look at the court decision itself, and then what it may mean for the real issue: improving K-12 education in our corner of the world. Finally, I am hoping to coax a guest appearance from a veteran educator who has taught from Brooklyn through N'Awlins to Guatemala, as well as deep in the cold heart of Texas. She's my daughter, and she has managed to pick-up a few ideas (as well as a law degree) along her way, about what ails the system. Stay tuned!

So, what is "tenure," and how is it different from the job security enjoyed by others in the public and private sectors?

A dictionary definition reads "status granted to an employee, usually after a probationary period, indicating that the position or employment is permanent." Now, "permanent" itself is a term that was weaned-out of the HR lexicon late last century, as workers' status generally devolved from Human Capital Asset down to disposable Overhead Expense. Anything in the private sector that connoted longevity or entitlement to a position was jettisoned in favor of the neutral term "regular-hire" status.

Indeed, most non-government workers are denominated as "at-will" employees, meaning that the arrangement of exchanging labor for money may be terminated at any time, by either Party – for a good reason, or for no reason at all – just not for any of a limited class of bad reasons (e.g., some forms of status-based discrimination, or an act against public policy, some other kinds of retaliation against conduct, breach of an implied contract term, or, in CA anyway, breach of an 'implied covenant of good faith and fair dealing' which is narrower than it sounds).

As such, and focusing here on 'firings' -- terminations related to poor performance or misconduct -- 'at-will' status gives employers very broad discretion to divest themselves of individual employees. They needn't even justify the action, much less have grounds related to performance. It's a major management gotcha, and an assist to American competitiveness. That said, it comes at a considerable cost in terms of employees' personal and financial insecurity, as many factors unrelated to actual performance may precipitate unemployment in a potentially hostile economy. It is also true, of course, that some workers 'game' the system – the EEOC, for example, reports that employee claims of wrongful employer conduct tend to spike on the down-side of the business cycle.

In light of the vagaries of at-will status, the prospect of better job security has traditionally attracted private sector workers to unions. Typical collective bargaining agreements cover most terms and conditions of employment, including discipline and dismissal. Management prerogatives regarding firings are limited by provisions that establish employment policies and processes as parts of the bargained-for agreement between labor and management. These may generally be described as limited to "for cause" situations, and 'cause' may be formally disputed. There is a loss of flexibility and management discretion, as union-represented workers have some insulation against potentially arbitrary termination.

In the public sector generally, employees have still greater job security based on several lines of defense. Where government acts as an employer, general constitutional protections like Due Process and Equal Protection apply specifically to govern the employment relationship. 'Permanent' enjoy what are known as Skelly Rights, named for the US Supreme Court case that established them. These require notice to the employee, listing of the reasons for the dismissal, an opportunity to be heard on the subject, and some appeal right.

In addition, federal, state and local civil service statutes first enacted in the 1870s to overcome patronage systems (in which newly elected leaders would sack all their workers in favor of hiring their cronies and other supporters) also prescribe separate protective procedures for performance and misconduct-based terminations. In CA, the State Personnel Board oversees the process, and provides significant for-cause-type protection to employees, even during their probationary periods – which may be a year or less. Public sector union processes, similar to their private counterparts above, also contribute further job security, and more than half of California's government workers are unionized.

Turning specifically to the education sector, tenure protections were originally enacted in the early 1900s – for different reasons at different levels. In the college realm, tenure allows profs (and no, I don't get any as an Adjunct) to undertake research, or espouse positions, that would subject them to demagogic job pressure in its absence. It helps ensure academic freedom to pursue great questions – wherever they may lead.

At the K-12 level, by contrast, the great questions may be fewer and demagogic pressures may be less (albeit what parent hasn't longed to fire at least one of Billy's teachers along the way?), but teachers (largely women at the time) were once subject to dismissal for marrying or having children. Tenure insulated them from those issues, as well as interference in the curriculum decisions.

In California, the challenged K-12 tenure rights are found in the Education Code: the so-called Permanent Employment Law and the Dismissals Law. The former authorizes school districts to grant permanent employee status to teachers after a probationary period of two years, or less as a practical calendar matter. Thereafter they may only be dismissed for any of eleven species of misconduct, including unsatisfactory performance. The process is long, arduous and expensive. Probationary teachers may also be dismissed for unsatisfactory performance, with some procedural rights-of- review of that decision. Union representation and assistance are, of course, available.

// Note that I am hopeful that all the above is reasonably accurate and on-point. There is a tremendous amount of over-heated rhetoric available on-line, so it's tough for the merely curious to find the straight scoop. Fire away in the comments. //

Now, given all of that, I'm not sure why this 'tenure' brand of job security is such a hot-button issue. Clearly, teachers enjoy rights that are dramatically better than that of 'at-will' private sector employees, and significantly better than private sector unions can provide. That said, the provisions that relate to educators vs. other public sector employees appear to be only marginally different.

Is it that much better, readers? If so, how -- and if not, how do we account for the extreme contrast between the public perception of teacher rights vis-à-vis other public employees? Is it the ongoing contact, with our kids -- our most important relations? Do you think educators are much better compensated than other government workers? In your view, is K-12 incompetence rampant, as compared with police, fire or the DMV?

Do you think CA education as a system is so bad that it's easy to decide that any change is an improvement? Or is this about envy, or the suspicion that everyone works best when they must constantly perform in fear for their jobs ("The beatings will continue until morale improves"?)

I'm interested in your thoughts.
Next: the Vergara decision, itself.
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