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.

 Tenure didn't come down from Mt. Sinai or over on the Mayflower.  

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.
Chester E. Finn, Jr. is a Distinguished Senior Fellow and President Emeritus of the Thomas B. Fordham Institute.