Originally enacted to protect against potential evils in state and local employment systems, such as nepotism, arbitrary dismissal, and political favoritism, tenure has become a common expectation of teacher employment. State teacher tenure laws are not a job guarantee but rather protection against arbitrary or politically motivated maltreatment. But is tenure on the way out?
To gain tenure, teachers must complete a specified period of probationary employment, usually three years, during which they have no assurance they will receive additional annual contracts. Once tenure is granted, however, teachers are given that assurance. Typically, they can only be dismissed during the annual contract for cause, or they can be denied a new annual contract if the district is downsizing. A tenured teacher must receive notice, a statement of the proposed reason for dismissal, and a hearing (with an appeal route) before dismissal.
Starting in 2009, many states began to change their teacher tenure laws. In part, this was a response to economic circumstances — some legislatures thought this was a way to save money on public education. In addition, No Child Left Behind and the federal Race to the Top program required states to adapt their teacher evaluation and compensation plans, and some states used the opportunity to revamp their tenure system.
Many states — including Alaska, Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Louisiana, Michigan, Nevada, Oklahoma, Rhode Island, Tennessee, Washington, and Wyoming — now require districts to consider performance evaluations in granting tenure to teachers, as opposed to a system that only relies on a stated number of years of service. Some states — notably Florida, Indiana, North Carolina, and Kansas — have repealed teacher tenure outright. In Florida, for example, teachers hired after July 1, 2011, receive only annual contracts and may only receive an additional annual contract if they have received satisfactory performance review. (For a good summary of policies in all states, see Thomsen, 2014.)
The tenure changes in Indiana and North Carolina resulted in important litigation. In each case, the court looked at whether the repeal of the state tenure law unconstitutionally impacted teachers’ contract rights. The federal constitutional provision involved is the Impairment of Contracts Clause, which provides that “[n]o State shall . . . pass any . . . law impairing the Obligation of Contracts” (U.S. Const. art. 1 Section 10). Similar to the Due Process Clause, the Impairment of Contracts Clause is one of the few express limitations on state power in the U.S. Constitution.
In determining whether a state’s actions constitute an unconstitutional impairment of contracts, courts generally look to see 1) whether a contract actually exists, 2) whether the state’s actions negatively impact those contract rights, and 3) if contract rights have been impaired, whether that impairment can be justified in furtherance of an important state purpose. If the state purpose fails to outweigh the continuation of the individual’s contract rights, the state action is unconstitutional.
The teacher employment changes in Indiana came during a contentious 2011 legislative session in which legislators proposed bills to restrict teachers’ collective bargaining rights, change the evaluation system, and reduce tenure rights. Although hundreds of teachers protested, most of the bills were passed. Under the new laws, it would be easier for teachers to be dismissed or laid off, and tenured teachers were not immune. In part, the new law removed protection for tenured teachers during layoffs. Schools were now required to cancel contracts on the basis of performance rather than seniority (i.e., tenure). Contracts, even for those who had received tenure in the past, were affected.
Joseph Elliot, a veteran teacher of 19 years in the Madison Consolidated School District, was awarded tenure in 1998. In 2002, he was president of the local teachers’ union. In 2012, when Madison faced declining enrollment and a reduction in state funds, the district decided to lay off several teachers, including Elliot. However, the district retained six nontenured teachers in positions for which Elliott was certified to teach.
Elliot challenged his layoff through the federal courts, alleging that the new system violated the federal Impairment of Contracts Clause. In December 2017, the 7th Circuit Court of Appeals ruled in his favor, Elliott v. Board of School Trustees of Madison Consolidated Schools, 876 F. 3d 926 (7th Cir. 2017).
The court noted that the U.S. Supreme Court had long ago decided that the Indiana teacher tenure statute created contractual rights that are protected by the federal Impairment of Contracts Clause. In Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938), the U.S. Supreme Court held that tenured teachers could not lose their rights to a continuing contract through a repeal of the state’s tenure statute.
The 7th Circuit Court of Appeals said that since the state’s original 1927 law and until the 2012 change, “Indiana teachers . . . benefited from enforceable contractual rights when they became tenured. These contractual rights included job security rights in a layoff.” In addition, “Indiana itself created the binding obligation on which tenured teachers have relied for decades — and from which the state itself has benefitted.”
The 7th Circuit found the new statute violated the contract clause rights of previously tenured teachers. It held that the retroactive removal of the tenure system did not further the important state interest of improving education and instead was antithetical to the goal of developing and retaining a cadre of good public school teachers. The court noted that the state could make changes to the tenure system for new teachers as they came into the workforce, but it could not unilaterally revoke teachers’ contract rights retroactively.
In 2013, the North Carolina legislature repealed the Career Status Law (the state’s teacher tenure statute). After August 2013, according to the new statute, all teachers were to be placed on annual contracts. Beginning teachers no longer had a path to tenure, teachers who had not yet achieved tenure (probationary teachers) no longer had the opportunity to achieve tenure, and tenured teachers lost the protections they had gained through their tenured status.
The North Carolina Association of Educators filed suit, challenging the statute on both state and federal grounds. Their federal claim asserted that the new statute was a violation of the federal Impairment of Contracts Clause. In North Carolina Assoc. of Educators v. State of North Carolina, 368 N.C. 777, 786 S.E. 2d 255 (N.C. 2016), the North Carolina Supreme Court held that the repeal of tenure unjustly took away tenured teachers’ contract rights without cause, a hearing, or compensation. For teachers who were probationary, but not yet tenured, the court still found an unconstitutional impairment of their contract rights because these teachers had relied on the expectation of receiving tenure as a part of their decision making to remain as a teacher in a district. The court noted that current teachers “relied both on the promise of continued employment as a form of added compensation to supplement their lower salaries and on the benefits of career status when deciding to continue teaching in the public school systems.” New teachers hired after the statute, however, would be subject to the new terms that did not include a path to tenure.
Like in Indiana, the North Carolina legislative argument for removing tenure from all categories of teachers was to improve the public school system and to more easily remove “adequate but marginal” teachers from their positions. The court recognized that improving public education was an important state interest. However, it noted that there was clear testimony that tenure as implemented in North Carolina did not impede administrators from removing ineffective teachers. Further, the court pointed out evidence that was brought to the lower court indicating that tenure “was an important incentive in recruiting and retaining high quality teachers.”
Constitutional protections hold firm
Many states are changing the contract, evaluation, and collective bargaining rules for teachers. Changes to tenure rules are legally acceptable, as long as the state honors the rights granted to tenured teachers before the legislation changed. So it seems what was true in 1938 remains true in 2018: Retroactive repeal of teacher tenure is an unconstitutional impairment of contracts.
Thomsen, J. (2014). 50 state comparison: Teacher tenure/continuing contract policies. Denver, CO: Education Commission of the States. www.ecs.org/teacher-tenure-continuing-contract-policies
Citation: Underwood, J. (2018). The state of teacher tenure. Phi Delta Kappan, 99 (7), 76-77.