COMMENTARY: Teacher tenure changes

By David Blanchard With the beginning of every school year comes inevitable anticipation, anxiety, and uncertainty. As this particular school year begins, teachers and administrators also face a brave new world and some of the same "jitters" more commonly associated with the returning students than their teachers. On July 19, 2011, the governor of Michigan, Rick Snyder, signed into law a four-bill package of legislation that has fundamentally altered the system of tenure rights for teachers in the state. Under the new law, it is both harder to qualify for tenured status and easier to be fired or stripped of tenure rights once obtained. The rights associated with teacher tenure have also been significantly reduced. The legislative package pushed by Gov. Snyder included a variety of sweeping reforms to usher in this new reality. Teachers will now have to serve in a probationary period for five years, rather than four, in order to secure tenure and must be deemed "effective" or better on their three most recent year-end performance reviews. Previously, tenured teachers would be evaluated just once every three years, but the new law mandates annual year-end performance reviews. These new reviews will base teachers' effectiveness ratings on measures of "student growth." The law also states that tenured teachers who are evaluated as "ineffective" on two consecutive year-end reviews must have their tenure rights stripped and must serve an additional probationary period. If a tenured teacher is rated as "minimally effective" in consecutive years, then the school board will have discretion to strip away tenure rights. Once back on the additional probationary period, a teacher who fails to receive a rating of "effective" or better on two consecutive year-end evaluations is required to be terminated. What the new law lacks is any detailed direction for administrators in conducting these new evaluations. As the school year begins, teachers lack a clear rubric explaining how they will be judged. Administrators with limited resources and some without any recent classroom experience are scrambling to develop performance criteria (for themselves and for teachers) without guidance from Gov. Snyder, the legislature, or even the Michigan Department of Education. Each district is left to "reinvent" it for themselves. Under the old law, teachers on continuing tenure could be fired or demoted only for "reasonable and just cause," but now the state simply has to prove that its action was not "arbitrary and capricious." In making personnel decisions, school boards are allowed to take length of service and tenured status into account only as possible tiebreakers in the event that two teachers are otherwise completely equal. Seniority had previously been the primary basis on which many Michigan school districts made their staffing choices, providing a clear rule, but one that has been subject to political attack for years. On one hand, a seniority system provides job security and stability that many argue is necessary to attract highly qualified young people to the profession. On the other, it pushed performance measures on the back burner and allegedly created a system of entitlement. Under Michigan's new teacher tenure law, the determining factor in personnel decisions will now be the "effectiveness rating" of teachers as determined by year-end performance reviews. The new legislation also goes on to dramatically weaken teachers' collective bargaining rights. There are six areas that have been removed from the collective bargaining process: (1) placement of teachers; (2) personnel decisions when conducting a reduction in force, a recall or when hiring; (3) performance evaluation systems; (4) the discharge or discipline of employees; (5) the format or number of classroom observations conducted during performance evaluations; and (6) the method of performance-based compensation. The tenure package's four bills--now known respectively as Public Acts 100, 101, 102, and 103 of 2011--took effect immediately. However, a council charged with establishing the guidelines for grading teacher performance will have until April 2012 to put recommendations together. Those recommendations will then come back to the Michigan Legislature for final approval. If the process moves swiftly, even advocates for the tenure reforms admit that the criteria for the new year-end evaluations could be in place by the fall of 2012 at best. At the end of this school year, administrators may be left without guidance for the inevitable layoffs that will occur as school budgets are stripped or just placed in budgetary limbo. We know seniority cannot be a significant criteria. Unions will be without powers to challenge layoffs. Administrators will have no choice but to make up performance criteria without direction from the state. And it will be left for individual teachers and their lawyers to sort out what, if anything motivated their performance evaluation, selection for layoff or other discipline. ---------------- David Blanchard Nacht is a principal with Roumel, Salvatore, Blanchard, and Walker PC in Ann Arbor. Published: Fri, Sep 16, 2011