In the wake of the new agreement (not fully implemented in our school district yet) it has become apparent that we have lost a major part of one of our few remaining job protections. Back in the early part of her UFT presidency, I once asked Randi Weingarten, in a union training session, whether there was any issue that she could foresee recommending to the membership that we strike. Without hesitation she howled, “Tenure! After all,” she argued, “what is more central to our job protection?”
While the protections afforded by teacher tenure have been modified over the Weingarten negotiated contracts and we have argued vociferously against those changes, they have not fundamentally changed tenure as has these Mulgrew negotiated concessions have.
Tenure, plain and simple, is the right to a due process hearing consistent with our long history of jurisprudence before a teacher (or other tenured civil servant) can be disciplined or terminated. A tenured teacher, after all, has demonstrated their competence by obtaining tenure (a three year process) and otherwise performing satisfactorily. The law provides that should the DOE believe the teacher is incompetent it must prove (has the burden of proof and the burden of going forward) that the teacher is incompetent. The teacher has the right not to testify and no finding can be made against the teacher for asserting this right. As in most of our legal tradition the burdens never shift or change.
While the specific language has not been published, based on Mulgrew’s own statements, the New York Times coverage of the agreement and press releases from all involved it is clear that the new agreement changes tenure in some very fundamental ways.
First the shift. Many legal scholars have commented on the absurd difficulty of proving a negative. How does one prove they are competent? Can you do this without testifying? What evidence could you show? Could you ask the arbitrator to observe your lesson?
The real problem in the shift of the burdens is the fact that when the validator (that term is part of the “anti-tenure new-speak” explained below) determines the teacher is incompetent the onus on the teacher will strip the hearing of any sense of due process. Just where the Mayor wants it.
Hey, Randi, are you recommending strike?
Anti-tenure new speak
The new agreement has brought at least 3 terms we have not seen before. The terms are subtle but reflect how the language has changed to support this radical loss of teacher protection.
Validator- a supposed neutral person hired to observe the alleged incompetent teacher who will have an 80 to 100 teacher caseload to determine if the principal’s ineffective rating is supported. A validator validates, meaning they operated under the assumption that the charged teacher is ineffective. In New Haven, where this concept was borrowed, validators evaluated both highly effective and ineffective teachers to determine evaluative characteristics. When a principal shoves a teacher in the most difficult classes or programs a teacher in a difficult way, will this be taken into account. How about teachers who are “not team players” another one of my favorite evaluative phrases. With up to 100 cases and three observations a year per teacher the “validator” clearly will not be in a position for remediation, a current teacher right under the tenure law.
Ineffective – The current tenure law speaks of incompetence and does not mention ineffectiveness. While the shift is subtle it does expose a major shift in teacher evaluation. The measurement of ineffectiveness has already been put out there as based on test scores. Will test scores be admissible in an incompetency hearing? Currently they are not.
The 13% - While not directly relevant to tenure (I couldn’t resist commenting on this) the new agreement proposes that initial ineffective ratings be reviewed by the Union and 13% of these ratings, believed by the Union to be motivated by other than incompetency, be referred to an “independent body” who, unlike the DOE’s kangaroo court, has the power to reverse the rating. The number is based, according to published reports, on the number of reversals of unsatisfactory ratings pre-Bloomberg. While I concede that labor-management agreements often lack logical explanation this one is a beaut. The Union, under this procedure, is put in a total conflict of interest. While grievance arbitration has always been somewhat discretionary by the Union, never before has such decisions have such a strong impact on a member’s job. Under the pre-Bloomberg 13% teachers, at least, had a due process hearing to look forward. What are we looking at now?