Nobody Deserves Tenure

Nobody deserves tenure, with the possible exception of federal judges. University professors don’t deserve tenure; civil servants don’t deserve tenure; police and firefighters don’t deserve tenure; school teachers don’t deserve tenure. With the solitary exception noted above—and you might be able to talk me out of that one, too—nobody has a right to lifetime employment unrelated either to their on-the-job performance or to their employer’s continuing need for the skills and attributes of that particular person.

Tenure didn’t come down from Mt. Sinai or over on the Mayflower. Though people occasionally refer to its origins in medieval universities, on these shores, at least, it’s a twentieth-century creation. The American Association of University Professors (AAUP) began pushing for it around 1915, but tenuring professors didn’t become the norm on U.S. campuses until after World War II (when the presumption of a 7-year decision timeframe also gained traction) and it wasn’t truly formalized until the 1970’s when a couple of Supreme Court decisions made formalization unavoidable.

In some states, public-school teachers began to gain forms of job protection that resembled tenure as early as the 1920s, but these largely went into abeyance during the Great Depression and were not formally reinstated until states—pressed hard by teacher unions—enacted “tenure laws” between World War II and about 1980.

The original rationale for tenure at the university-level, articulately set forth by the AAUP, was to safeguard academic freedom by ensuring that professors wouldn’t lose their jobs because they wrote or said something that somebody didn’t like—including, on occasion, donors who paid for their endowed chairs. This justification gained plausibility during the post-war “Red Scare” and McCarthy era.

The corresponding rationale for school teachers was that they might lose their jobs for arbitrary and capricious reasons, such as not doing personal favors for the principals or irking some influential parents or board members. The civil-service version of tenure had more to do with establishing a “merit” system and keeping politics and patronage at bay in government employment. As for federal judges, lifetime tenure is enshrined in Article III of the Constitution. Hamilton termed it “an excellent barrier to the despotism of the prince.”

Speaking of the Constitution, however, various job protections for all manner of public employees, including most teachers and professors, can also be found in that document. Check out the clauses protecting individuals from actions by government (at first federal, then also state) that would “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The “due process” concept has authentically ancient roots—a version of it appears in Magna Carta—and has developed dozens of statutory and courtroom precedents, protections, and procedures to safeguard individuals from arbitrary dismissal from their jobs.

Adding “tenure” on top of that is a bit like wearing both a belt and suspenders.

As for the alleged kinship between K-12 and higher-ed tenure, two points are noteworthy. First, on college campuses, it typically takes about seven years to “win” tenure—and by no means does everyone get it then. University faculties and administrators go through elaborate procedures to determine which instructors will be “awarded” tenure. It is in no sense a right. In public education, however, it’s pretty nearly automatic and usually comes after just two or three years of employment.

Second, the proportion of “tenure track” positions in higher education has been steadily declining. NCES data show that, across a post-secondary teaching-faculty universe of 1.3 million individuals in 2009, fewer than one in four were tenured and about two-thirds weren’t even employed in tenure-track positions.

In public education, on the other hand, essentially everyone with a teaching certificate is automatically a candidate for tenure as soon as he or she is hired by a school system. (Only if these instructors are really dreadful in the classroom or change their minds as to their career do they—maybe—not make it to the second- or third-consecutive contract that typically yields tenure.)

Federal judges aside, public-school teachers now appear to be the most heavily tenured segment of the U.S. workforce.

Which gives rise to all manner of problems, of which the most conspicuous and offensive, though maybe not the gravest, is the difficulty of dismissing that relatively tiny fraction of classroom instructors who are truly incompetent—and the cost, both in dollars and in pupil achievement, of keeping them on the payroll. (If they’re in class, the kids suffer. If they’re in “rubber rooms” or other non-teaching duties, the taxpayers suffer, along with the reputation of the teaching profession.)

Tenure brings other troubles, too. Because it is nested within a set of HR practices and protections that include seniority-based job placements and reductions in force, tenure contributes to principals’ inability to determine who teaches in their schools and superintendents’ inability to let the least qualified or least needed (or most expensive) teachers go during a time of cutbacks. Because tenure—job security in general—is a valuable employment benefit that substitutes in part for salary, it tends to hold down teacher pay, which in turn affects who does and doesn’t seek to enter this line of work and who does and doesn’t stay there. Because tenure pretty much guarantees one a job regardless of performance, it reduces teachers’ incentive to see that their pupils really learn—and their incentive to cooperate in sundry reforms that might be good for their schools and their students.

No wonder a bunch of folks, including the new crop of GOP governors, want to eliminate or radically overhaul teacher tenure.

And so they should. To repeat, it didn’t come down from Mount Sinai—and there are plenty of other ways to safeguard public employees from wrongful dismissal besides guaranteeing them lifetime jobs.

-Chester E. Finn, Jr

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