It’s designed to keep bad teachers in classrooms
Katharine Stevens | New York Daily News
The two recently filed New York lawsuits claiming that teacher tenure laws violate children’s constitutional right to a “sound basic education” are finally dragging the long-obscure section 3020-a of the state’s education law into the spotlight.
This attention is badly overdue because that section has played a crucial and underrecognized role in the quality of New York’s teacher workforce for decades.
Written into state law in 1970, entitled “Disciplinary procedures and penalties,” 3020-a specifies that tenured teachers can be terminated only after just cause for dismissal has been established through particular state-run hearing procedures.
Reformers argue that the law shields the jobs of chronically ineffective and even dangerous teachers. Opponents of the recent lawsuits, on the other hand, maintain that it simply provides teachers with due process prior to termination, protecting competent teachers from arbitrary firings, nepotism and vindictive principals.
This time, anyway, it turns out that the reformers are correct. I recently completed an in-depth study of a decade of decisions filed at the completion of due process hearings for New York City teachers, and found that well over half the teachers who — after months or even years of hearings — were found guilty by state-appointed hearing officers of seriously inadequate teaching and gross misconduct were, in fact, returned to the classroom.
What’s important to understand is why.
My analysis shows that the most serious problem with 3020-a is not its due process function, but a mandate for “progressive discipline” reinforced in the last amendment made to the statute in 1994.
The current system requires that “penalties” be allocated to teachers with gradually increasing severity over many years, shifting the law’s emphasis from its original purpose of providing fair due process to the overriding goal of teacher rehabilitation, which now dominates proceedings.
This means that the law keeps chronically inadequate teachers in the classroom by design.
First, proof of extensive school attempts to rehabilitate a failing teacher is a precondition for even filing charges against that teacher in the first place. So the law compels school administrators to knowingly leave ineffective teachers in the classroom for years while trying to rehabilitate them.
Second, teachers who, through extensive due process proceedings, are determined by the state itself to be chronically ineffective, abusive or excessively absent are regularly returned to classrooms in hopes that they may eventually improve.
In one case, for example, the hearing officer found that the school district had “clearly demonstrated by a preponderance of the evidence,” presented over 22 full days of hearings, that for three consecutive years the teacher was “guilty of incompetence more often than not.” He returned her to the classroom anyway, writing: “I believe that with appropriate remediation, (she) may be rehabilitated to the point of competence.”
In other words, incompetent teaching is not grounds for dismissal under 3020-a. Termination necessitates proof that a teacher is grossly ineffective and “incorrigible,” without “a probability or even a hope of rehabilitation,” as one hearing officer put it.
The teacher rehabilitation mandate has critical implications for the two lawsuits challenging state tenure laws.
In its 1995 decision in CFE vs. State of New York, New York’s highest court ruled that the state Constitution entitles children to “minimally adequate teaching,” as essential to a sound basic education.
Yet the current law requires that teachers who fail to teach at a minimally adequate level remain in the classroom for years, depriving thousands of students of a sound education while using them as guinea pigs in protracted teacher rehabilitation experiments.
Teachers are legally entitled to due process to protect them from unfair dismissal and unjustifiable accusations of inadequate performance. But the current system goes far beyond that, prioritizing the attempt to improve failing teachers at the expense of ensuring adequate teaching for children.
Clearly, children’s constitutional rights are being violated — not by the teachers union, as often suggested, but by the laws of New York. Despite repeated recommendations for reform of 3020-a, however, the state Legislature has failed to act, wasting millions of taxpayer dollars and harming tens of thousands of the state’s most vulnerable children every year.
It remains to be seen how New York’s judges will decide the growing number of lawsuits attempting to protect children from bad state laws.
If New York’s lawmakers started doing their job, however, maybe we wouldn’t even have to find out.
Stevens received a Ph.D. in education policy from Columbia University in 2013. She was formerly director of Teachers for Tomorrow, a program that prepares teachers to work in low-performing New York City schools.