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January 30, 1999

The Dance of the Lemons

Why is the quality of teachers so low? Just try getting rid of a bad one. Hoover media fellow Peter Schweizer explains.


National Education Association president Bob Chase, undaunted by the news that more than half of Massachusetts teachers had failed their competency tests, characterizes the problem of bad teachers as a matter of “a few bad apples.” But when America’s children returned to the classroom last fall, many of them were instructed by teachers who are not only incompetent but sometimes actively dangerous. And the teachers’ unions make removing them nearly impossible. In recent years, the unions have gone to bat for felons and for teachers who have had sexual relations with their students, as well as for teachers who demonstrably could not teach. For the unions, apparently no apple is so bad that it need be tossed from the barrel.

HOW THE SYSTEM PROTECTS PROBLEM TEACHERS

The process of getting rid of problem teachers, especially those with tenure, can be so arduous and expensive that many school districts don’t even bother anymore. “Getting rid of a problem teacher can make the O. J. trial look like a cakewalk,” says Mary Jo McGrath, an attorney in Santa Barbara, California, who helps administrators deal with bad teachers. “For a principal, it can seem a lot easier to hang on to the deadwood. Teachers are more protected than any other class of employees, with all the procedural rights that can drag a civil case out for years.”

Illustration by Taylor Jones

“Legally, the union doesn’t need to take every case we make against a teacher,” explains Stephen M. Robinson, a former teacher who is now an attorney representing six school districts in Rhode Island. “But they do. They’ll defend even the worst offenders.”

Michael Levin, an attorney for several suburban Philadelphia school districts, says, “I’ve been in this business for twenty-five years. Nothing surprises me any more. I just had my first cannibalism case.”

Much of the problem stems from the tenure system, which means that after three or four years it is virtually impossible in most states for a teacher to get fired. “Tenure was originally designed to protect the best teachers from wrongful termination,” says the reform-minded Frank Brogan, Florida’s first Republican education commissioner. “Today it protects the worst teachers from rightful termination.” And teachers can expect their unions almost always to back them up, no matter what they have done. As Kathleen Winter, copresident of the Scituate Teachers Association in Rhode Island, admitted to the Providence Journal-Bulletin, “Teachers pay substantial amounts of money to the union. If I’m paying $450 a year [in dues], if I get into a jam, I want something for my money.”


The problem teacher gets quietly passed along to someone else. Administrators call it “the dance of the lemons.”


In 1994 a teacher in Florida was in just such a jam. Florida Department of Education (FDOE) investigators were alerted by local officials that a student had been coaxed by a teacher into a sexual relationship, including oral and anal sex. When confronted with the evidence, the teacher resigned. But he insisted on keeping his teacher’s license so that he could work in a classroom somewhere else. “Naturally, we didn’t think it was a good idea to have this guy near kids,” the investigator who handled the case says. So the FDOE pushed to have his license permanently revoked. But the local NEA affiliate supported the teacher. An administrative law court finally ruled that he should lose his certification permanently, but it took more than two years and tens of thousands of dollars in legal and administrative costs to reach that point.

In 1996 school administrators in San Francisco discovered that a teacher was placing her six-year-old students in a trash can, closing the lid, and kicking the can. She was finally suspended when a fellow teacher overheard her threatening to cut off a child’s private parts with a pair of scissors. Thanks to heavy resistance from the local affiliate of the NEA, pursuing her dismissal cost the district more than $100,000, and the woman later got a teaching job elsewhere.

Michael Levin, the attorney for the Philadelphia schools, says these cases are typical: “The teacher fights you and doesn’t just walk away,” he told me. “The union will back them.” A recent study by the New York State School Boards Association found that the average termination in the Empire State took 319 days and cost $112,000. If the teacher appeals the decision, the cost is likely to top $300,000. In Illinois the average contested dismissal case takes three years and costs at least $70,000—more if the teacher appeals. Given the cost in time and money, few teachers actually get terminated. In the entire state of New York only 219 termination cases were brought in the 1996–1997 school year.

And the monetary costs go beyond administrative and legal expenses. In many states, contracts negotiated by teachers’ unions mean that bad teachers continue to get paid during the dismissal process, no matter how gross the offense. James Plosia, an attorney for the Northern Highlands Regional School District in New Jersey, says, “It’ll usually take eighteen months or two years before you finally complete the case. So on top of legal bills and administrative costs, you’re paying them more than a year’s worth of salary.” That applies even if they are serving time in jail.


Getting rid of teachers who have committed crimes is difficult. Getting rid of teachers who are simply incompetent is nearly impossible.


Consider the case of Carolyn White. A fourth-grade teacher at the nationally acclaimed Watchung Elementary School in suburban New Jersey, the forty-eight-year-old had logged twenty-seven years in the classroom. She was kind to her students, but she would disappear from the classroom for long periods. Her homework assignments were confusing, and due dates changed at a whim. Her written comments to students were indecipherable. In May 1996 a five-year-old student accidentally discovered cocaine in White’s lipstick case. Eventually she was arrested for drug possession. The district superintendent suspended her almost immediately, but she continued to receive her $56,000 salary throughout the monthslong criminal hearings. It was part of her teachers’ union contract.

PASSING THE TRASH

Often, as a way to save time and money, an administrator will cut a deal with the union in which he agrees to give a bad teacher a satisfactory rating in return for union help in transferring the teacher to another district. The problem teacher gets quietly passed along to someone else. Administrators call it “the dance of the lemons” or “passing the trash.” Howard Fuller, the superintendent of Milwaukee public schools from 1991 to 1995, explains: “Administrators found they needed to trade bad teachers because it’s easier than getting rid of them. We had one teacher who put a student’s head down the toilet. He simply got moved to another school.”

Robert C. Devaney is another case in point. In November 1981 Devaney abruptly resigned as a special education teacher at North Providence High School in Rhode Island after a student complained that he had made sexual overtures. But Devaney got good references and began teaching elsewhere, skipping from job to job as his sexual misconduct caught up to him—but always leaving with a good reference. Finally in May 1996 Devaney was in jail, sentenced to serve twenty years for sexually assaulting a special education student and making sexually explicit videotapes and photographs of two other students.

Never once did Devaney’s references mention any of his misconduct. In each case administrators found it easier to “pass the trash” than to fight the local union for his termination. At the sentencing hearing, Superior Court judge Maureen McKenna Goldberg said, “The employment background of this defendant who was shuffled from one school department to another, from one bureaucrat to the next, is a crime in itself.”

Administrators’ great fear is getting on the wrong side of the unions. Stephen Robinson explains: “I have to make sure I cross all my t’s and dot all my i’s with the teachers’ union when handling a case because they’re going to come after me. The union takes a very aggressive stance when it knows a teacher is in the crosshairs. There will be a very aggressive union rep at prehearings, at postevaluation meetings. The rep walks into the administrator’s office and questions the administrator’s right to do A, B, or C. It takes a very strong-willed administrator to fight through that.”

TENURE REWARDS INCOMPETENCE

Getting rid of teachers who have committed crimes can be expensive, but it happens. What is nearly impossible is getting rid of a teacher who is simply incompetent. School district officials in Saint Louis had to work for three years to get rid of an algebra teacher who passed out As to students who would bring her Big Gulps and Snickers bars. In suburban Chicago, a school district had to fight the union the entire way, spending $70,000 in the process, in order to dismiss a math teacher who couldn’t answer basic algebra questions. But these cases are the exception, James Plosia says: “Even though it is possible to remove an incompetent teacher, the process that you have to follow means you win the battle, but lose the war.”

Not even failing to show up for class will cost a tenured teacher his job. In 1997 Wallace Bowers, an English teacher in Collinsville, Illinois, was fired from North Junior High School when he failed to come to school for six weeks. When he finally returned, Bowers said he wanted to keep his job, but Superintendent Thomas Fegley stood firm: “We don’t necessarily concur that somebody can quit coming to work for six weeks and get his job back.” So Bowers challenged the district, with the backing of the powerful Illinois Education Association, an affiliate of the NEA. In the end Judge Henry X. Dietch found in Bowers’s favor, not because of the merits of the case but because of the strange protections offered teachers under Illinois law. If a teacher’s conduct, whatever it might be, is “remediable,” a school board must offer a notice to remedy before firing the teacher. Bowers went back into the classroom and received full back pay.

Some states have adopted new policies to make it easier to dismiss incompetent teachers. In 1997 Frank Brogan, whose qualifications as Florida education commissioner include a stint as a fifth-grade public school teacher, championed a law that compresses the process for termination from two years to ninety days and institutes a ninety-seven-day probationary period for new teachers. During the 1997–1998 school year, 303 teachers either were let go or resigned during the new probationary period. But termination unfortunately does not guarantee that a teacher is out of the classroom. “We have actually gone through the process and revoked the teaching certificates of some individuals only to have them show up as a paraprofessional—a teacher’s assistant—in the same classroom the next day,” Brogan complains. “They get virtually the same pay and benefits.”

Now even some public school teachers are turning against the absurd system. Joe Nathan spent fourteen years as a public school teacher in Minnesota and served on the board of the Minnesota Parent-Teachers Association. His wife still teaches in a public school. Today, as head of the Center for School Change at the University of Minnesota’s Hubert Humphrey Institute, he has blunt words about the current system. “The tenure system is really adult welfare,” he told me. “It cheats kids of the most effective faculty, and keeps some of the worst teachers in place. It’s a system that puts the needs of adults first.”

That is certainly the case when it comes to hiring and firing on the basis of seniority, which prevails in almost every state. The result is often that ineffective teachers keep their jobs while hard-charging younger teachers are shown the door. On Thursday, May 28, 1998, Sarah Gustafson was inducted into the Florida Educator Hall of Fame by Commissioner Brogan, an acknowledgment of the Florida Teacher of the Year award she received in 1991. The next day, she was canned by the Brevard County School District. Her school was cutting back because of declining enrollment, and the former Teacher of the Year had less seniority than several colleagues with mediocre job appraisals.

There have been efforts around the country to change teacher tenure laws. At least four states—Oklahoma, Massachusetts, Colorado, and New Mexico—have eliminated tenure for new teachers. But the problem is more fundamental than that. Mary Jo McGrath, who is advising outgoing California governor Pete Wilson on tenure issues, thinks that, even if tenure is taken away, it probably won’t become significantly easier to can bad teachers. “Even if you change the procedure from tenure to something else, you still have harassment from the unions,” she told me. “As an administrator you want peace. You don’t want the union nipping at your heels.” Until the unions’ power is broken, the minor fixes will remain just that.

Meanwhile, what about the cannibalism case in Philadelphia? “The teacher was telling students and fellow teachers that she lured a young girl to a remote house where her father and a next-door neighbor killed the girl. She told one teacher that she ate part of the girl,” says Michael Levin. No body has been found, and so criminal charges were not filed. The teacher was fired, however—and because she was a substitute the union did not make a fuss. However, the school system, Levin notes, is now in court. “She’s suing us under the Americans with Disabilities Act on the grounds that she suffers from post-traumatic stress syndrome.”


Peter Schweizer is the William J. Casey Research Fellow at the Hoover Institution. A former consultant to NBC News, he also served as a member of the Ultraterrorism Study Group at the Sandia National Laboratory. He and his wife, Rochelle Schweizer, wrote The Bushes: Profile of a Dynasty, which theNew York Times called "the best" of the books on the Bush family. His other books include Do as I Say (Not as I Do): Profiles in Liberal Hypocrisy and Reagan's War: The Epic Story of His Forty-Year Struggle and Final Triumph over Communism.


Reprinted from National Review, August 17, 1998, from an article entitled “Firing Offenses.”

Available from the Hoover Press is What’s Gone Wrong in America’s Classrooms, Williamson M. Evers, editor. To order, call 800-935-2882.