Three to Life - The Myths of Teacher Tenure “Reform”

JUNE 5, 2013 NOTE TO THOSE WHO FIND THIS PAGE: I HAVE NOTED ON MY TRAFFIC LOG THAT THIS PAGE CONTINUES TO GET A LOT OF HITS FROM SEARCH ENGINES, BASED ON SEARCHES FOR “ALABAMA TEACHER TENURE LAW.” I AM FLATTERED BY THE CONTINUED ATTENTION. YOU SHOULD KNOW THAT SB301 PASSED ON MAY 26, 2011, AND SOME, BUT PERHAPS NOT ALL, OF THE PROVISIONS OF SB310 DISCUSSED IN THIS POST ARE NOW LAW. YOU SHOULD CONSULT AN ATTORNEY OR, IF YOU ARE AN AEA MEMBER, YOUR UNISERV DIRECTOR FOR ADVICE ON THE LAW AS IT PASSED. THANKS!

One of the more closely watched bills at this stage of the 2010 Regular Session of the Alabama Legislature has been SB310, a Republican proposal to “reform” the teacher* tenure law in Alabama. The list of the bill’s sponsors reads like a Who’s Who of the hard-core GOP political apparatus: Senators Pittman, Dial, Waggoner, Marsh, Taylor, Beason, Williams, Blackwell and Whatley. The bill’s main sponsor, Sen. Trip Pittman of Baldwin County, has been quoted as saying the object of his bill is “making it easier for school boards to get rid of the bad ones [teachers].” (Please note how the linked story from The Birmingham News contains a couple of short “balance” quotes from AEA Executive Director Paul Hubbert, and devotes many column-inches to quotes and “horror stories” from the bill’s proponents. Nice balance, Si.) The Mobile Press-Register has fallen in line with the Business Council line on the bill.

Don’t believe that hogwash. This bill, pure and simple, has two objectives: (1) punishing teachers who, through AEA, supported Democratic legislative candidates in 2010, and provided support for Gov. Robert Bentley in the 2010 Republican Primary over Business Council insider Bradley Byrne; and (2) intimidating teachers from such political activity in the future.

Before getting into the specifics of the bill, let’s take a thumbnail view of the tenure rights of a classroom teacher under current Alabama law. (Slightly different standards and procedures apply to principals and other supervisors.) First off, a school board may non-renew a teacher’s contract before the end of their third year on the job for good cause, bad cause, or no cause at all. After that time, a teacher is considered tenured, or in the awkward language drafted by a lawyer, has “attained continuing service status.”

Let’s suppose that a tenured teacher is accused of having shown up at school on a couple of occasions under the influence of alcohol. The teacher denies this. Let’s assume for the sake of argument that the teacher was in fact as sauced as Otis Campbell on the days in question. Whether the superintendent and board of education propose to terminate the teacher, or suspend him for more than seven days, the procedures are roughly the same.

First, the board must give written notice to the teacher, setting forth the proposed discipline and the general grounds for it. A tenured teacher may only be fired for “incompetency, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner, justifiable decrease in the number of teaching positions or other good and just cause.” The teacher may then insist on meeting with the board before it votes, and that hearing must be held between 20 and 30 days of the notice. If the board votes to fire or suspend the teacher, the teacher may ask for a hearing before a neutral arbitrator. If the teacher and the board can’t agree on an arbitrator, one is appointed by the Federal Mediation and Conciliation Service, a federal labor agency. That arbitrator (called a “hearing officer” in the statute) must hold a hearing between 30 and 60 days after his or her appointment. The arbitrator may uphold the firing, may reverse it and order the teacher reinstated, or may impose a lesser sanction such as a suspension or reprimand. (Such a reprimand could be considered if the teacher ever screws up again, and an attempt is made to fire him.) Either party may ask the Court of Civil Appeals to review the arbitrator’s ruling, which may only be reversed if that Court finds the arbitrator’s ruling “arbitrary and capricious.” Suspensions of less than 7 days, or of transfers to another school in the same system, are subject to a similar procedure, except that the arbitrator’s ruling may not be appealed, and is final. A teacher’s contract is not “canceled,” i.e., he is not fired, until the hearing officer issues his or her opinion, and he must continue to be paid. This safeguards the innocent teacher from being starved into accepting a lesser punishment, transfer, or abandoning a meritorious fight for his job. Except for the substitution of a prompt hearing with an arbitrator for a hearing with the former State Tenure Commission, this is basically the law as it has existed since 1939.

So, if our hypothetical teacher actually did have a pint of Mr. Boston Vodka for breakfast, he will be fired in fairly short order, but not without an adequate opportunity to establish his innocence. He also has the right to prove to the arbitrator that he is in fact the best teacher in the system, the alcohol problem is the result of a recent family problem, that he’s getting help for it, and that both he and his students would be better off if he were given a lighter sanction. I guess the sponsors of the bill would rather replace this unfortunate chap with a rookie. Or someone who wouldn’t dare support a Democrat.

According to the Alabama Association of School Boards, which is pushing SB310, since the arbitrators replaced the Tenure Commission, they have heard 145 termination cases. The school boards have won 83 (57%) of those outright; the teacher was fired. Teachers have been reinstated without sanctions in only 20 cases (13%), and in 42 cases (29%); the arbitrator has imposed a lesser sanction on the teacher. It sounds like there is a real need for the current safeguards for a number of teachers, but that boards of education are well able to get rid of the true bad apples.

SB310 makes some draconian changes to the law that has worked well since 1939. Among these are:

• Probably the worst aspect of SB310 is that it radically amends the procedure for a teacher to obtain neutral review of his or her dismissal. Instead of a speedy hearing before a neutral arbitrator, the teacher would be forced to file an action in the local circuit court, where it would go on the docket behind every other earlier case. Chief Justice Sue Bell Cobb recently ordered drastic reductions in court operations in response to budget shortfalls. In this environment, those reviews would take months - or more likely, years. Years during which, under SB310, the teacher would not be getting paid. And the circuit judge would not have the discretion an arbitrator has under the current law to impose a lesser sanction. The judge would have to work from a typed transcript of the board’s “hearing,” and could not observe the demeanor of witnesses, as they would in any other case, to assess the credibility of the witnesses. (Under current law, the hearing officer observes both the teacher and the witnesses against him at a live hearing.) Finally, the judge could only reverse the board on “an express finding by the court that the decision was arbitrary and capricious, a manifest abuse of discretion, or the product of a material violation of the procedural rights of the employee.”
• In addition to the current limited grounds for firing, SB310 provides that a teacher could be fired for “a consistent or pervasive record of inadequate student achievement or performance under the employee’s supervision.” In other words, a first-rate career educator could be fired if her students perform poorly on tests, even if that’s because she’s teaching in an overcrowded, under-equipped school in a socioeconomic disaster zone, where students have never done well on standardized tests. The board doesn’t have to fire her, mind you, but if she dares support the wrong candidate in the next election, those scores are grounds for termination.
• SB310 would eliminate all independent review of a suspension of a teacher for less than 45 days. No arbitrator, no independent hearing, no nothing. In case you don’t grasp the full import of this measure, consider that teachers are usually paid over twelve months for nine or so months’ work. A non-reviewable 44-day suspension would result in the loss of nearly a quarter of the teacher’s annual salary. If I were a superintendent wanting to settle a personal score, a 44-day suspension might work better than a termination that might be reversed on review.
• The bill likewise removes all transfers to another school from the current review process. This may not sound like an issue to many non-teachers, but I have at least 15 teachers in my immediate extended family, and you can rest assured transfers have historically been used for retaliatory purposes. Transfers are often not benign. Suppose that I were a teacher at Orange Beach Elementary School in Baldwin County, and I had even bought a home near there after gaining tenure. If I dare support the opponent of an incumbent school board member, she can arrange to have me transferred to Vaughn Elementary School in Stockton which, according to Google Maps, is 63 miles and 1 hour 39 minutes from Orange Beach Elementary. In an era of $4.00 a gallon gas (those are stop-and-go, not freeway, miles), that’s not a hassle, it’s an economic hardship.

As I noted starting out, this is all being done in the name of academic standards. SB310 is even called “The Students First Act of 2011.” This proposal, and others like it, have occasionally garnered support from fuzzy-headed otherwise-progressive Democrats who also insist that charter schools wouldn’t re-segregate Alabama education. A news flash for them: educational employment in Alabama is already knee-deep in Big-P Politics. SB310’s virtual abolition of tenure would give incumbent local board members and elected superintendents a green light to fully politicize the hiring processes in their systems. (Which might have the unintended political effect of entrenching Democratic machine control in places like the Black Belt, where boards are solidly Democratic.) It also greases the rails for those local board members who need to transfer or fire a qualified, experienced teacher to make room for their niece or nephew who just got out of college and needs a teaching job in the home county. There’s nothing “Students First” about that.

One of the weak excuses given for this bill is that it’s “too hard to fire an incompetent teacher in Alabama, and we have to make it easier for the sake of educational standards.” It takes three years for a teacher to attain tenure under current law. Three years. Does anyone think it takes New England Patriots Coach Bill Belichick three seasons to decide if a player is good enough for his team? If a teacher is that substandard, three years is plenty of time to figure that out, and get rid of him.

The bill’s prospects are sadly good, in the current machine political atmosphere of Montgomery. A handful of Republicans like Sen. Cam Ward of Shelby County, and Reps. Blaine Galliher of Etowah County, Todd Greeson of DeKalb County, and Owen Drake of Jefferson County, seem to be vacillating on the bill because of its extreme reach. A veto by Gov. Bentley would not be surprising, given his political debts to AEA. Of course, a simple majority overrides a gubernatorial veto in Alabama, and the kleptocratic GOP leadership wants this bill badly. They have rebuffed Dr. Hubbert’s public offer to support any bill, in his words, “to expedite the hearings and have them quicker and more efficiently,” which would remove one of the major complaints of SB310’s sponsors. I, for one, would forgive any Democrat who reached out to these Republicans to encourage them to remain independent of the latter-day Boss Hoggs trying to impose their iron hands on the legislative process. This bill would also be a good opportunity for my readers to try out the site’s newest feature: a page with hyperlinks for e-mailing letters to the editor of most of the newspapers in the state.

Politicians have had it in for teachers since at least 399 B.C.E., when Anytus and Meletus, a couple of extremists in the Athenian Assembly, arranged for the execution of Socrates, whose teaching was not acceptable to the political powers that were. Opposing the contemporary version of this unibrow hatred of education is as good a cause as any to rally around in this session. And I wouldn’t be honest if I didn’t acknowledge my glee at the way GOP overreaching is turning teachers into Democratic activists at a pace Dr. Hubbert can only dream of achieving.

*Although I use the word “teacher” throughout this post, the tenure law also applies to a wide range of support personnel such as custodians, bus drivers, and cafeteria workers. I just figure you don’t want to read “and/or support personnel” 60 times.

What We’ve Got He-ah Is ... Failure to Communicate

No, the post’s title does not refer to the idyllic past to which the Alabama Republican Party wants to return the Department of Corrections, though I wouldn’t be surprised one bit if they would take it several steps in that direction if they could. Instead, I am thinking of another opportunity we Democrats have to move from our B Game to our A Game.

I am thinking rather of communications - and not the general concept of communications, which embraces everything from paid media to shoe-leather canvassing. I am thinking of “communications” in the sense it is usually used in the professional political world. In that sphere, the “communications” function is usually referring to the campaign’s or party’s point person for media relations. Of course, the state Party has for years had a communications director on board during election years, as have gubernatorial campaigns and other major campaigns. In both election and off years, the Party chairman and executive director have also undertaken part of this function, and the state Party has overall done a good job of it for some time.

Unfortunately, the state Party has to focus most of its attention on the major metropolitan dailies, the television news, the Associated Press, and to a lesser extent, the dailies in mid-sized cities like Anniston and Dothan. This leaves a big gap in an area where we Democrats have been getting our clock cleaned the last couple of cycles, and have to do a better job: smaller cities and rural counties outside the Black Belt. Across the Tennessee Valley, down the eastern and western borders of Alabama, and in a few pockets like Walker and Talladega Counties, these counties used to be part of our base. Now they are battlegrounds where we are barely holding our own. The immutable math of Alabama politics for the next decade looks a lot like this: we’re going to win the inner cities and the Black Belt. We’re going to lose in the white flight suburbs like Shelby, Baldwin, and Autauga Counties. If we’re going to regain legislative influence, and win statewide races, we have to regain ground in the mid-size and rural counties in the rest of the state. And a big part of that is going to be influencing the media atmosphere in those counties.

Now, I am not going to name names here. Or preach. But what I want to do is illustrate the sort of effort I have in mind. In trying to figure out how well local Parties have been getting the Democratic message into the news, I spent some time looking, with the help of Google and the search functions of several newspapers’ individual websites. I found a great article in The Demopolis Times, which ran during the 2008 Democratic National Convention.

The 2008 Democratic National Convention.

I don’t claim to have checked every non-metropolitan paper, and I won’t name the ones I did (as I am not finger pointing), but I was not able to find a story quoting a county Democratic chairperson in any non-metropolitan daily newspaper during the 2010 election cycle. (I spot-checked about 15 or 16 smaller dailies and larger weeklies.) Now, anyone is welcome to post a link in the comments, showing me one I missed - and I hope someone does. I want to recognize those local chairs who are doing a good job. But anything short of 100 links I somehow missed won’t change my conclusion: I should have found such a story in every paper I checked.

We are going to have to do a better job of presenting our case on the front pages of these non-metropolitan newspapers if we are going to overcome the Republican bias of Fox News and the Newhouse papers in Birmingham, Mobile and Huntsville. Fortunately, this is something that doesn’t take a significant amount of money, and really doesn’t consume that much time. It doesn’t take a county Democratic chair that long to say “The Republican Legislature has shown its true colors by refusing to take the sales tax off food.” - and that makes a great quote on page one.

Our new state chairman, Judge Mark Kennedy, has begun one thing I like. He has started releasing statements on a more regular basis than any of his predecessors, on a wide range of current issues. Not every one makes the lead story in the news, but some do. Do I expect county chairs to call their local papers daily? No, at least not until fall of 2012. But we can make some hay during the legislative session, and begin to posture ourselves for 2012 and beyond.

There are a few points to keep in mind in raising the local-media profile of your county Democratic Party:

• Cultivate a regular contact. You don’t want to avoid anyone on the small staff of a local paper, but, as a local Democratic leader, you probably have a good idea who is the most sympathetic - or at least the least unfair - member of the staff. Your talking point has a much better shot at page one if it goes through such a writer.
• Take the initiative. This is probably the most important point of all. Media folks are like the rest of us; they never have enough time for everything. This is even truer as media outlets reduce their staffs in the wake of the Bush Recession. If you wait for them to call you for a quote, the Democratic message will be unread in your county. Call your contact at least once a week during the legislative session, and every day during the general election campaign. Even if you don’t have a point to push (and you should), they may have a political story they’re working on, and that would give you the perfect chance to work the Democratic position into the story. Be ready with something worth saying, and the Democratic message will be read in your county.
• Be confident. I know some people, even Party leaders, who don’t feel comfortable in the limelight. First and foremost, I promise you, no local Democratic chair is going to face a lectern like the one in this photo. Raising the Party’s media image is a matter of a phone chat, or talk over coffee, with a local reporter whom you already know well. If you absolutely, positively don’t feel comfortable doing this sort of thing, designate a vice chair or other person as your local communications director. Just keep in mind, at the local level, it is the chair the local media wants to quote.
• Coordinate the message for repetition. I am hoping that one of the things Judge Kennedy will be able to do is establish some sort of message tree - based on email or text - out of the Party office in Montgomery. Ideally, this would send out “today’s talking point” on one issue or another. Repetition increases the effect of any message. If a voter hears our Supreme Court nominee say something on WSFA or reads Judge Kennedy’s comment in The Montgomery Advertiser, then reads the same point made by a local chair when turning to The Alexander City Outlook or The Troy Messenger for their local news, it’s a lot more apt to stick.
• Tie in to the lead news story. This point is closely related to the previous one; it is likely that any coordinated effort will be closely linked to the lead story in that day’s news. But even in the absence of a lead from the state, a local leader should be alert for local opportunities. A perfect example is the story linked above from The Demopolis Times. If you look at it, you will note that it is essentially an Associated Press story, re-written by a local writer with a few localized quotes from Chairman Coplin. (If you closely read your local paper, you will see that is a common writer’s way of getting a long story with little work.) A story about the Democratic Convention that probably wouldn’t have made the local paper got in, because of what I suspect was good work by the Marengo County Party to make it happen.
• Don’t forget local radio. This is a tricky one. A lot of smaller cities now have local news/talk radio outlets, and some of them actually have fair Arbitron ratings. On the other hand, this is a medium that the loony right has claimed as its own, and the demographics of that listener base may make it unworthy of a big investment of time. The important thing to avoid is giving them the chance to say “the Democrats wouldn’t come on the air with us.” On the other hand, if the issue is one where that audience might be receptive - the GOP refusal to rescind the legislative pay raise they ran against comes to mind - it might be worth calling in, or making yourself available in the studio.

In his play The Critic, British poet and Member of Parliament Richard Brinsley Sheridan had one of his characters say, “The newspapers! Sir, they are the most villainous, licentious, abominable, infernal— Not that I ever read them! No, I make it a rule never to look into a newspaper.” As Democrats, we often feel this way about our local papers. A big part of putting our Party back in its historic position of leadership is doing our part to turn that image of the media around - or, more precisely, turning around our image in that media.