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By Brian Palmer


No one from the Obama administration is scheduled to speak at the conventions of the two largest teacher unions this summer. Obama and Education Secretary Arne Duncan have angered the unions by pushing to make it easier for school districts to fire ineffective teachers. When did it get so hard to fire a teacher?

In 1909. Until the early 20th century, teachers had few protections. According to anecdote, they were fired for flunking the children of powerful parents, holding unpopular views, or simply getting old. Politicians sometimes replaced teachers as part of the infamous spoils system.

The National Education Association began pushing for tenure in 1887, as a means of ensuring that employment decisions were based on merit rather than politics. Tenure also protected minority teachers in an era of weak civil rights law. But even then, school administrators worried that such a system might destroy "the important incentive to effort which makes retention in service depend upon usefulness and ability."

New Jersey went ahead and passed the first tenure law for experienced public school teachers in 1909, followed by Montana in 1913, Massachusetts in 1914, and New York in 1917. (America's most famous fired teacher, John Scopes, wasn't protected by tenure. In 1925, Tennessee hadn't yet adopted the system. Scopes was too green to have tenure, anyway. He was in his first year when he started teaching evolution.) Today, every state has some form of tenure.

The original tenure laws gave teachers the right to an attorney and a hearing before the school board, when they faced pay cuts or termination. During the middle part of the century, teacher unions fought successfully in most states to bring independent arbitrators into the process. Despite all the arguing over No Child Left Behind, the process of firing a teacher has changed very little since that time.

Teachers' protections are a matter of state law and collective bargaining agreements, and nothing in federal law has changed them. President Barack Obama's education initiative recommends that certain failing schools fire all of their teachers in a process called "turnaround," but fired teachers would probably still be entitled to full-blown hearings. (The threat of turnaround does seem to be a powerful bargaining chip for administrators, though.) If a teacher takes full advantage of his procedural protections, it can take several years and hundreds of thousands of dollars to fire a teacher today, despite the quick time frames established in state statutes.

Like John Scopes, most teachers are fired for misconduct rather than simple incompetence. The New York City School District, which employs more than 80,000 teachers, terminated 25 tenured teachers during the 2008-09 school year. Just two of the firings were based solely on incompetence. Less than one-half of the districts surveyed in one study reported dismissing a teacher for poor performance in the previous five years.

Some principals should blame themselves for their problems. Among schools that maintain binary evaluation systems - rating a teacher as either satisfactory or unsatisfactory - more than 99 percent of teachers receive the positive rating. Surveys have suggested that principals give good reviews to bad employees in the hope that they will find another job and leave voluntarily. It's harder for the teacher to find another job with bad reviews. The phenomenon has been called "The Dance of the Lemons."

There may be some changes on the horizon. New York and Colorado recently reached agreements with their teacher unions to incorporate student test scores into evaluations. If a teacher receives two negative evaluations in a row, there would be a presumption of ineffectiveness that could lead to expedited termination. It's not clear, however, that the new system will significantly change the process.