Opinion: Undue Process: Firing Bad Teachers Shouldn’t Be This Hard

Now, imagine the law says that before you are allowed to fire a veteran chef, you must create a multi-year paper trail documenting his every mistake. You must observe him at the stove, multiple times, and you must let him know in advance when you’re coming. Even if you provide sufficient evidence under the law that he’s bad enough to merit firing, you must put him on a culinary improvement program first — and you must pay for it. Then you have to evaluate him again. You must advise him that he’s on the chopping block, and he’s free to challenge the process at every step of the way. Those challenges may include costly, protracted proceedings before the “Board of Quality Cookery” and in courts of law.

Of course, that’s not how it works in the restaurant business. But as absurd as this process appears, it has been the reality for most school principals for decades when it comes to dismissing ineffective teachers. Once a teacher earns tenure, state and local policy make it complicated and cumbersome to fire him, even if he is a poor educator.

Weren’t we supposed to have fixed this by now? Back in the glory days of 2009 and 2010, when Secretary of Education Arne Duncan was riding herd on billions of Race to the Top dollars, reformers were confident that lifelong employment would no longer be a guarantee for demonstrably poor teachers. It was a sound impulse, buoyed by promising reforms in Washington, D.C., Colorado and elsewhere.

Finally, many thought, the country was getting serious about differentiating between effective teachers and undeniably lousy ones as well as finding ways to expeditiously bid adieu to the latter. All for good reason: as the Hoover Institution’s Eric Hanushek and others argued so convincingly, achievement would rise, achievement gaps would narrow, lifetime income would increase, and economic growth would surge if only we had the courage to identify and then replace the bottom 5 or 10 percent.

So Duncan and his team not only incentivized states to embrace teacher-evaluation reform via Race to the Top, they also made it a precondition to states obtaining a waiver from No Child Left Behind.

What happened next? The expenditure of vast political capital, acrimonious battles with unions and their friends, and much fear and loathing on the part of teachers, including good ones — which had the unintended and damaging side effect of turning many educators against the Common Core and nearly nailing shut the coffin of testing and accountability.

How about the worst of the worst? Did all these efforts at least rid America’s classrooms of chronically ineffective teachers, the ones who do real damage to their charges year after year? Is it feasible to dismiss poorly performing veteran teachers without miles of red tape and years of administrative hurdles?

That was the question that motivated a new study from the Thomas B. Fordham Institute, “Undue Process: Why Bad Teachers in Twenty-Five Diverse Districts Rarely Get Fired.”

“Feasible” is the operative word. Unions invariably assert that any teacher can be dismissed so long as her district follows due process. And that’s certainly true, in theory. Due process is an important American value, enshrined in the Constitution’s Fifth and 14th Amendments. But when due process is construed in ways that carry enormous costs in time and money, it can, in practice, be nearly impossible for districts to actually fire bad teachers. We wanted to know to what degree that is the case in America today.

To answer this question, we scrutinized state and local policies to determine how they enable or constrain the dismissal of ineffective teachers. Once a district identifies an educator as ineffective, how direct or circuitous is the line to dismissal? How many barriers block the way? Is it reasonable due process for all concerned or due process run amuck? And how do different districts compare?

The findings from our colleagues Victoria McDougald and David Griffith are both revealing and disheartening, if unsurprising. On a 10-point scale — where 10 means it is relatively easy to dismiss an ineffective veteran teacher — not a single district made it to either nine or 10. Only one district, Miami, earned eight points, and just six districts scored six or seven points — a rating that means it’s feasible on paper to discharge a poor performer but not simple in practice. Most districts fared far worse: State and local policies make it difficult, if not impossible, to dismiss a bad veteran teacher. Those include four of the country’s five largest districts: New York City, Los Angeles, Chicago, and Clark County (Las Vegas), Nevada.

Sadly, dismal performance still does not easily lead to dismissal. For the most part, principals must navigate a tortuous maze of paperwork, regulations and directives. Teachers who receive years’ worth of ineffective ratings are given multiple chances for improvement and re-evaluation, and a single procedural violation by the administration starts the process over again.

But fixing tenure remains an extraordinarily steep hill to climb, especially in blue and purple states. Teachers unions will do everything in their power — investing incredible amounts of money in political contributions and lobbying — to protect the status quo, even if it means keeping the worst teachers. Where reformers can prevail, our hats are off to them.

But there’s another option: Give peace a chance. Don’t declare war. Instead, get school districts to commit to taking the tenure process seriously, rather than rubber-stamping every eligible teacher for approval. That’s what Joel Klein and his team did in New York City. Instead of waiting until teachers were already tenured (and thus essentially invulnerable to dismissal), they asked principals to make a case for each teacher who was up for tenure before granting it. Once the policy was fully implemented, the portion of teachers who were immediately approved for tenure dropped from 94 percent to 56 percent. Subsequent research found that many teachers not immediately granted tenure ended up leaving the district of their own volition, improving student achievement in the process.

Other districts could do likewise. Reformers could focus on fighting the winnable battle of getting superintendents to scrutinize tenure requests for junior teachers rather than automatically ratifying them. In other words, dismiss the bad teachers before they ever get tenure.

To be clear, we’d still love to give administrators the tools to efficiently fire the very worst teachers, regardless of whether they have many years of experience. But back to our restaurant analogy: Rather than waiting for a chef who has already failed multiple inspections to give customers food poisoning before you fire him, make it clear to new cooks when they sign on that they are on trial and that being retained depends on how good a job they do and how well fed the customers are. If they can’t cook well after a few years, that is unlikely ever to change.

Dara Zeehandelaar and Michael J. Petrilli are research director and president of the Thomas B. Fordham Institute.