Tenure, Free Speech, and Academic Freedom: An Overview
Created by FindLaw's team of legal writers and editors | Last reviewed June 20, 2016
Tenure is a status granted to teachers that protects them from dismissal except for reason of incompetence, gross misconduct, or financial necessity. Tenure is intended to protect educators' freedom to pursue their interests without being hindered by public perceptions or opinions about their activities. A tenured teacher can't be dismissed without a lengthy administrative process involving evaluations, hearings, and appeals. The system is intentionally slow-moving and complicated in order to prevent school boards and parents from firing a teacher for personal or political reasons.
Tenure is increasingly the subject of criticism as concerns about underperforming teachers have risen to the forefront of the country's discussion about the quality of education in American schools. This same period has been one of increasing economic difficulty for school districts and costly firing procedures have also been disfavored for purely economic reasons.
The History of Tenure
In the late 1800s and early 1900s, states such as Massachusetts and New Jersey began passing legislation that granted fair-dismissal rights to college professors. These rights were later extended to elementary and high school students. The requirements were typically more stringent for college professors, who might need to maintain employment with their school for a long time or have a record of publication or research in order to be granted these protections, which came to be referred to as tenure.
Prior to the creation of these protections schools often controlled many aspects of teachers' lives and behaviors extending far beyond their classroom activities. The laws were intended to provide greater personal and intellectual freedom to educators. States passed tenure rules with different terms and protections over the years. However, as educational reform has come to the forefront of the national dialogue about education; bills attempting to eliminate or undermine tenure protections have become increasingly popular.
Arguments Against Tenure Reform
Advocates for tenure often base their support for the system on notions of free speech and academic freedom. Teachers, they say, are placed in the center of conflicts between students and other community groups by the nature of their position, and without tenure there would be less job stability and a reduction in the free speech and academic freedom afforded teachers.
These concerns are particularly meaningful since tensions regarding the teaching of evolution and other topics have become highly political. Finally, those who defend tenure point out that tenure's protections prevent political, indiscriminate, and unjustified terminations, not terminations of teachers who simply do a bad job.
Arguments for Tenure Reform
Opponents of tenure argue that the education system is full of ineffective teachers who can't be fired. These arguments typically weigh the academic freedom of teachers against the damage to vulnerable students. The students, they say, are more harmed by the bad teachers protected by tenure than they are helped by the free speech and academic freedom afforded the tenured teachers. Opponents of tenure typically call for systems that would evaluate teachers and condition their employment or pay on their performance and the academic achievement of their students.
Approaches to Tenure Reform
States have taken different approaches to tenure reform. Some states have made attempts to reduce the cost of removing underperforming teachers while maintaining the aspects of tenure that protect free speech and promote academic freedom. Other states have simply removed the availability of tenure or tenure-like protections.
The most significant tenure reform actions that have taken place recently were class-action lawsuits filed on the behalf of students in California and New York seeking to abolish teacher tenure in their respective states. The California lawsuit resulted in a court ruling that California's tenure system was unconstitutional because it deprived low income and minority students of their right to an equal education. This decision has not yet taken effect while on appeal, but if upheld could pose a serious challenge to tenure programs across the nation. The New York lawsuit is ongoing, but has a similar basis.
In addition to these lawsuits, Louisiana passed legislation that made it harder for teachers to get tenure and modified the appeals process for terminations. New Jersey also passed legislation making it harder to get tenure and eliminating the "last in, first out" policy that required firings be based on seniority rather than merit.
Speaking with an Attorney
If you are concerned about your state's tenure laws, an experienced education attorney can help you learn about your state's tenure system, inform you about any court cases or proposed laws that you can involve yourself in, or help you structure a legal claim relating to tenure.
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