institution commission on public school personnel …this second report of the commission on public...

IDOCUMENT RESUME

ED 076 501 SP 006 261

TITLE Teacher Tenure. The Second Report of the Commissionon Public School Personnel Policies in Ohio.

INSTITUTION Commission on Public School Personnel Policies inOhio, Cleveland.

PUB DATE Sep 71NOTE 37p.AVAILABLE FROM Commission on Public School Personnel Policies in

Ohio, 736 National City Bank Building, Cleveland,Ohio 44114 ($0.75 single copy)

EDRS PRICE MF-$0.65 HC-$3.29DESCRIPTORS *Contracts; *Job Tenure; Teacher Characteristics;

*Teacher Dismissal; *Teacher Employment; TeachRetirement; Teacher Welfare; Teaching Quality;*Tenure

IDENTIFIERS Ohio

ABSTRACTThis second report of the Commission on Public School

Personnel Policies in Ohio is concerned with teacher tenure in thestate of Ohio and need for changes in the tenure law. The basicpositions of the commission are that teachers should be protectedagainst arbitrary and unwarranted action by their employers but thatprofessional incompetence cannot be tolerated for any reasons. Tenureshould not be viewed as guaranteed life employment, according to thecommission; it has been viewed as such because little effort has beenmade to terminate continuing contracts for cause. This commissionreport stresses the need for physical and mental health in teachers,certified by examinations, and the possible need for changes in ateacher's continuing status (presently, continuing status ends at age70, but a survey of superintendents indicated performance decline forteachers of advanced age). This report suggests possible mandatoryretirement at 65, with the option for valuable teachers to remain ona part-time basis. This report also supports Ohio law that does notrequire that teachers with limited contracts be given reasons fordismissal. Appendixes include sections on certificate and contractsof Ohio public school teachers and on tenure in other states.(Related document is SP 006 262.) (JA)

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TEACHER TENURE

The Second Report of the

COMMISSION ON PUBLIC SCHOOL

PERSONNEL POLICIES IN OHIO

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Copyrightt, Greater Cleveland Ansooktted Foundation 1971

COMMISSION ON PUBLIC SCHOOLPERSONNEL POLICIES IN OHIO

Stephen Stranahan, Chairman, Toledo

Donald E. Sardine, Akron

Walter E. Beckjord, Cincinnati

Mrs. 011e Bildsten, Chillicothe

Judge Lloyd 0. Brown, Cleveland

Mrs. Jarret C. Chavous, Jr., Columbus

Hiram E. Cotton, Jr., Steubenville

James H. Culver, Warren

Mrs. R.D. Jessee, Lima

Mrs. Richard D. Levin, Dayton

Burton Preston, Mansfield

Carlton E. Spitzer, Columbus

Milton J. Taylor, Lancaster

John W. Thatcher, Portsmouth

Michael M. Tymkiw, Parma

John H. Weeks, Lakewood

SUPPORTING FOUNDATIONS

The Louis D. Beaumont Foundation

The Cleveland Foundation

The Columbus Foundation

Greater Cleveland Associated Foundation

The George Gund Foundation

Hamilton Community Foundation

Charles F. Kettering Foundation

Nationwide Foundation

Richland County Foundation

STAFF

Laurence T. Mayher, DirectorRichard A. Boyd, Warren Public SchoolsWilliam A. Harrison, Jr., Ohio State UniversityJayne F. Miller; Mentor Public SchoolsAlan D. Gross, Research Assistant

Roald F. Campbell, Ohio State University, Consultant

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Preface

This is the second report of the Commission on Public SchoolPersonnel Policies in Ohio to the people of Ohio. Its aim is tobring about a better understanding of teacher tenure and to setforth constructive steps that can be taken to improve the systemof tenure. In particular the Commission hopes that the reportwill dispel the common idea that tenure means guaranteed life-time employment.

The Commission's first report, "Organizing for Learning,"presented a plan for improving student learning by better use ofteaching staff.

The nine Ohio private and community foundations that ap-pointed and funded the Commission have a long history of con-cern for public school education and a fundamental Le lief thatresults of the educational process depend in great part on thebasic competence, training, and utilization of the teaching staff.They established this statewide commission of laymen for thepurpose of determining ways or achieving optimum quality anduse of staff and enlarging the attractiveness of teaching as acareer.

Much research on public school personnel policies hasbeen done by competent professional people. Many constructiveideas for change are in the minds of teachers and administrators.The Commission's role is one of synthesis of the research, ex-perience, and judgment of qualified people; clarification of is-sues; and advocacy of indicated courses of action. It hopes toprovide guidance and motivation to a publi'. deeply concernedabout the effectiveness of its public schools.

The Commission represents a wide range of points of viewand came together with no political intent regarding legislativecourses of action. Its aim is to Ice- generally and objectivelyat ways of improving public school education within the scope of

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its particular interest in personnel policies.The Commission expresses its appreciation to the many

teachers, administrators, and authorities on school law and ad-ministration who have generously provided constructive counselto the Commission and to Hester Bensinger, President, OhioAssociation of Classroom Teachers; Stayner F. Brighton, Execu-tive Secretary, Ohio Education Association; Martin W. Essex,Superintendent of Public Instruction, Department of Education;Willard E. Fox, Executive Director, Ohio School Boards Associa-tion; Murl E. Huffman, Teacher, West Carrollton High School,and former President, O.E.A.; Raymond D. Kikta, President,Ohio Federation of Teachers, and Teacher, Wilbur Wright JuniorHigh School, Cleveland; and Paul A. Miller, President, BuckeyeAssociation of School Administrators and Superintendent, Cin-cinnati, for their help in reviewing findings and conclusions ofthe Commission.

Stephen StranahanChairman

TABLE OF CONTENTS

I. BASIC POSITIONS 1

II. PROTECTION OF TEACHERS AND STUDENTS 2

III. WHAT IS TENURE? 5

IV. HEARING PROCEDURE 8

V. PROFESSIONAL COMPETENCE AND TENURE 11

VI. PHYSICAL AND MENTAL HEALTH OF TEACHERS 13

VII. LENGTH OF TENURE 15

VIII. COLLECTIVE NEGOTIATIONS 18

IX. PERFORMANCE OF ADMINISTRATORS 19

SUPPLEMENT:, Non-Renewal of Limited Contracts 20

APPENDIX: Certificates and Contracts of OhioPublic School Teachers 22

Tenure in Other States 26

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I BASIC POSITIONS

There is much public and professional confusion aboutwhat Ohio Law calls "the continuing service status ofteachers," commonly referred to as "tenure." There isalso wide consensus that the present system is not work-ing to the best advantage of either students or teachers inOhio. It is time to put the problem in proper perspective,clear up the confusion, and make whatever changes will bein the best interests of public school education in Ohio. Ifthis is done, Ohio will be a leader, because there is littlesatisfaction with the workings of tenure throughout thecountry.

Findings and conclusions of this report are based upon asurvey of all school superintendents in Ohio; depth interviews withschool supezintendents, principals, and personnel directors inforty districts throughout the State; conversations with schoolteachers, school board members, authorities on educational ad-ministration, attorneys, and physicians; analysis of the laws ofOhio and comparable states; and review of court decisions andpertinent literature.

The Commission on Public School Personnel Policies inOhio takes five basic positions regarding the continuingservice status of teachers:

1. Teachers should be protected against arbitrary andunwarranted action by their employers.

2. Professional incompetence cannot be tolerated forany reason.

3. Tenure should not be viewed by teachers or admin-istrators as guaranteed lifetime employment.

4. Major changes are needed in the tenure law.5. School management should improve its adminis-

tration of tenure.

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II PROTECTION OF TEACHERSAND STUDENTS

The Commission believes that the State should protect allteachers against arbitrary and unwarranted action by theirboards of education. They should be particularly protectedagainst unfair action to terminate employment resulting fromundue pressure of parents, the poor judgment of supervisors,discussion of controversial issues in their classes, and their per-sonal political acti,-- s. They should work in an atmospherethat encourages constructive criticism and suggestions forchange and innovation.

Teachers should feel secure in terms of intellectual freedomand should be challenged by the opportunity to play a key rolein shaping educational policy. In return, they should demonstrateability to work constructively with their school organizationsand communities.

The Commission views teaching as an awesome social re-sponsibility that calls for unremitting effort to achieve optimumlearning relationships between teachers and students. There isno place for incompetent teachers in public school education.

The Commission believes that the large majority of teachersin Ohio are comnetent, dedicated to their calling, and anxiousto meet the changing needs of our society. On the other hand,these teachers know better than anyone else that out of 100,000teachers there always have been and will be the few who shouldnot be teaching, and that the number is too great to be toleratedas "something to be expected." Even a small number looms largewhen multiplied by the number of children who suffer. Teachersalso know that aside from the effect on students, poor teachersare doing a disservice to themselves and the profession of teach-ing.

Refusal to put up with incompetent teachers despite miti-gating circumstances is not unreasonable in light of the respon-sibility of a teacher. It is unreasonable for teachers who shouldr ot be teaching to insist upon being allowed to teach. It is un-reasonable if sympathetic bystanders or groups of teachers press

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for the continued employment of these teachers.Any person entering the occupation of teaching should do so

with full knowledge of the standards that must be met duringeach year of employment. There can be tio lowering of stan-dards of mental, physical, and emotional health, and instruction-al competence. Furthermore, there are very few opportunitiesin a school system for "grounding" a :eacher, taking him awayfrom his basic job of teaching and finding something else forhim to do.

The welfare of children must always be considered ahead ofthe financial or psychological needs of the teacher for a job. Fur-thermore, hard decisions may have to be made that place thepresent needs of children ahead of past years of loyal teacherservice. The major consideration in continuing the employmentof a teacher should be the teacher's present ability to teach. Thisapproach is essential to the status of the teaching profession aswell as the welfare of students.

Teachers should not be permitted to teach when physicaland mental difficulties seriously impair their energy, alertness,and self-control. Teachers also should not be permitted to teachin a district when they consistently fail to meet that district'sminimum standards of teaching performance for reasons otherthan physical and mental health. They should be expected togrow with their peers and stay abreast of changes in needs ofstudents, learning materials, and teaching methods.

There are several reasons why incompetent teachers arefound in today's classrooms. Mistakes may have been made intheir initial employment. There may have been changes in theirmental, physical, and emotional health during their careers.Some teachers may have been unable to adjust to changes inthe type and needs of students to be taught and have failed tokeep up with new ways of teaching. Many teachers have faced upto their own problems and have either been able to solve themor have resigned their teaching positions. Unfortunately, someteachers fail to understand their problems and others are unwill-ing to admit them.

Every effort should be made to prevent incompetent peoplefrom entering teaching or staying in teaching beyond a reason-able probationary period. This is primarily the responsibility of

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teacher training institutions, employment officers, and super-visors of beginning teachers. The fact remains, however, thatmistakes undoubtedly will be made in employing some teachersand other teachers will lose their professional competence over aperiod of years. This calls for sound procedures for assessing thecapability of teachers and for terminating the employment ofany teacher found incompetent regardless of certification oryears of service.

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III WHAT IS TENURE?

Many people believe that teachers are given a "lifetime con-tract" when they are granted "tenure." Some say this is unduefavoritism to one group of people not shown to others. There isno evidence, however, that lawmakers intended to protect teach-ers with lifetime contracts. It is important to understand firstwhat the law is and then to determine why it has achieved re-sults other than those intended.

The following is a description of what is called "the con-tinuing service status of teachers" in the Ohio Revised Code. Itis described in more detail in the Appendix.

A teacher may be given a continuing contract which givesthe teacher continuing service status after acquiring aprofessional or a permanent Ohio teacher's certificateand serving a three-year probationary period in a district.The professional certificate requires a bachelor's degreeplus eighteen additional semester hours of credit and thepermanent certificate requires a master's degree. When ateacher is eligible for tenure, he must either be given acontinuing contract or refused any contract with the ex-ception that he may be given one more limited contractfor one or two years provided reasons are given directedtoward the teacher's professional improvement.

Termination of the Continuing Contract

When termination of a continuing contract is contem-plated, the school board is required to notify the teacherin writing of its intended action with full specification ofgrounds for such consideration. The grounds set forth inthe statute are "gross inefficiency or immorality; willfuland persistent violations of reasonable regulations of theboard of education; or for other good and just cause."

The tead er has 10 days in which to request a hearingbefore the board. If no request is made, the board mayproceed with formal action to terminate the contract. Ifthe teacher does desire a hearing, the board is requiredto set a time for the hearing within 30 days after the

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teacher makes the written request.

No hearing can be held during the summer without theconsent of the teacher. The hearing is to be private un-less the teacher wants a public hearing. The hearing is tobe conductcd by a majority of the board members andconfined to the grounds given for termination. The boardis required to provide for a complete stenographic recordof the proceedings. The board may suspend a teacherpending final action to terminate his contract.

While the hearing is to be an administrative proceeding,rules of courtroom fair play are expected to be followed.Both parties may be present at the hearing and be repre-sented by counsel. They may require witnesses to beunder oath, cross-examine witnesses, and require theirpresence by subpoena.

Decision by the Board

After the hearing, the board by a majority vote, mayorder termination. If the decision of the board is againsttermination of the continuing contract, the charges andthe record of the hearing are to be destroyed, and if theteacher has been suspended, he is to be paid his full sal-ary for the period of his suspension.

Appeal from Hearing

Any teacher whose contract has been terminated mayappeal to the Court of Common Pleas in the county inwhich the school is located within thirty days of theschool board's decision. The Court's action must be limit-ed to a judicial review of the proceedings of the schoolboard, i.e., to make certain that the proceedings beforethe board were legally regular and not arbitrary, oppres-sive, unreasonable, or fraudulent. In other words, theCommon Pleas Court may reverse an order of termina-tion where it finds that the order is not supported by oris against the weight of evidence The point being thatthe General Assembly did not intend the Court to beginthe hearing procedure all over again.

Either the board or the teacher has the right to makefurther appeal.

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What Gives Tenure the Appearanceof Guaranteed Lifetime Employment?

The answer is that little effort has been made to terminate con-tinuing contracts for cause. Four hundred and thirty-eight, orabout 70 percent of all superintendents in Ohio, responded to aCommission survey on tenure. Of these, 93 percent reported thatthere have been no board hearings regarding termination ofteachers on continuing contracts in their districts in the last fiveyears. Furthermore, 74 percent of the superintendents reportedthat no teachers on continuing contracts have resigned at the re-quest of the distict in the last five years. Against this record ofinaction, a representative group of superintendents interviewedin depth by the Commission staff stated that they have teachersin their employ who are patently incompetent for reasons ofphysical, mental, and emotional difficulties, attitudes towardchildren, or lack of teaching ability.

Few cases of termination of continuing contracts have beenappealed to the courts in Ohio. During the history of the tenurelaw dating back to 1941, there have been only seven reporteddecisions of the Court of Common Pleas, and only three since1960.

The failure to take action against incompetent teachers re-sults from weaknesses in provisions of the present law governingthe continuing service status of teachers and from laxity in theadministration of teacher employment. In effect, the law servesa purpose for which it does not seem intended, and inaction byadministrators has enhanced the lifetime aspect of the continu-ing contract.

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IV HEARING PROCEDURE

The greatest weakness in the law governing the continuing ser-vice status of teachers seems to be the procedure it stipulatesfor hearing cases of teachers who have been notified of intent toterminate their continuing contracts. This procedure is unfair toteachers and 'takes unreasonable demands on the time and ca-pability of boards of education.

Under the law, a board of education notifies a teacher of itsintent to terminate the teacher's contract. Because the act of no-tification of intent to terminate has serious consequences in it-self, it calls for careful investigation by the board before a deci-sion is reached. The board, having met this obligation for thor-ough investigation before notification of the teacher, is then in adifficult position to reverse its decision.

It is not only unfair for the board to be the jury weighingthe merit of its own decisions, but it is highly questionable thatit should also serve as judge and prosecutor. Few board mem-bers are qualified by training to carry out the role of judge incomplex legal procedures. If they err in the mechanics of con-ducting the hearing, their final decisions may be overruled bythe courts solely on procedural grounds.

The lawyer representing the board in a termination hearingmay also counsel the board on the conduct of the hearing. Underthis arrangement, it is possible that he could both object toactions of the teacher's lawyer and advise the board on how torule on his objections.

The most compelling reason expressed by many superinten-dents for not acting to terminate continuing contracts of teachersis their unwillingness to subject their boards to the heavy de-'mands on their time that a hearing may make. Board membersreceive no salary for their work and most of them have full-time outside jobs. A board hearing of a case of termination caneasily be prolonged to take over 30 hours which is considerablybeyond the amount of extra time any board member should beasked to give.

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The Commission recommends:1. That the hearing now provided by law be held

by three referees instead of the board. One ref-eree would be selected by the teacher, one by theboard, and the third by the first two. In the eventthey are unable to agree on the third party, hewould be chosen as specified by statute. Thismight provide for the selection to be made by theChief Justice of the Court of Common Pleas inthe county of the school district or by the StateSuperintendent.

2. That the use of referees be mandatory.3. That referees be appropriately compensated by

boards of education for their time as well as re-imbursed for their expenses.

4. That boards of education be prohibited from re-hearing the case and securing additional testi-mony.

Superintendents surveyed are about equally divided in theiropinion on the use of referees to hear cases of teachers whosecontinuing contracts may be terminated. Depth interviews in thefield, however, brought out the fact that since many of themhave had no experience with hearings, they had little under-standing of the complexity of the legal hearing procedure or thepotential amount of time that can be taken up by a persistentdefendant:

Three referees are recommended rather than one in the be-lief that this will provide for valuable exchange of opinion andsharing of judgment.

The use of referees should be mandatory for three reasons.First, if the principle of using referees is sound, it should be re-quired for all districts. In the second place, some boards may bereluctant to ask for referees for fear of public criticism. Lastly,a teacher requesting referees may prejudice his later standingwith the board with respect to future work opportunities by hav-ing indicated a lack of confidence in the board.

A strong argument can be made for requiring that the deci-

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sion of the referees be binding upon the board of education.There is much objection in principle, however, to this erosion ofthe authority of a board which is the representative body of thecommunity. On the other hand, a rehearing by the board wouldtend to defeat the purpose of using referees.

The Commission has concluded that until experience withthe use of referees is gained and a different course seems desir-able, boards of education should retain the power of final deci-sion regarding the termination of continuing contracts. As apractical matter, it seems doubtful that a board would overrulea decision of referees that was favorable to a teacher. Suchaction could greatly heighten community divisiveness which isincipient in most cases of teacher termination.

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V PROFESSIONAL COMPETENCEAND TENURE

Gross inefficiency is one of the statutory reasons for terminatingcontinuing contracts. It has been interpreted by the courts asembracing considerations of professional competence. However,there are questions today in some legal circles as to whethergross inefficiency is educationally substantive or relates only topersonal behavior. It would be helpful to include explicitly theconsideration of professional competence in the reasons for ter-mination of a continuing contract. There is obviously no justifi-cation for granting a contract which is to be continuous as longas personal conduct is tolerable regardless of failure to meetreasonable standards of professional competence. Furthermore,even if inefficiency is understood to include teaching incompe-tence, the word "gross" is subject to wide interpretation.

There are many difficulties in assessing the total results of ateacher's performance. For example, some results may not evenbe accurately appraised for several years after the teacher's ex-posure to individual students. It should be possible, however,to establish minimum standards of professional competence.These would include: knowledge of developing information insubject fields; knowledge of developing methods of teaching;ability to convey new knowledge and apply new methods; under-standing of the changing needs of students for information andguidance; adaptability to different types of students; construc-tive faculty relationships.

The establishment of minimum standards for the State andfor each district is a step that teachers and their organizationsshould welcome and support. The work at State level can bestbe done by a task force of teachers, administrators, and author-ities in the field of education under the direction of the StateDepartment of Education. The great need for maintaining ac-ceptable levels of competence makes it imperative that a con-structive effort be undertaken at both levels.

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The Commission recommends:1. That failure to meet minimum standards of

teaching competence established by the employ-ing school district after the teacher has been ad-vised and given a reasonable period of time tomake required improvements be included in thereasons for terminating a teacher's continuingcontract.

2. That the State Department of Education developminimum standards generally understood andagreed to by teachers and school boards as aguide for all districts.

3. That each district establish its own standardsbased upon the expectations of its communityand its accepted styles of teaching as well asthose of the State.

Minimum standards of any district would obviously be basedupon an assessment of the current performance of most of itsteachers as the norm below which teaching is unacceptable.With benchmarks of demonstrable local performance, it shouldbe possible to find means of clearly identifying those few teach-ers who fall below minimum standards.

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VI PHYSICAL AND MENTAL HEALTHOF TEACHERS

A board of education may retire a teacher for reasons of per-manent physical and mental disability. Teachers so retired re-ceive benefits from the State Teachers' Reirement Sys-tem.

Administrators have cited senility and emotional instabilityas difficulties frequently experienced by teachers and have in-dicated their inability to deal effectively with these problems.The Commission believes that a forthright position should betaken in acting on cases of senility. When deterioration ofmental faculties is indicated by such things as loss of memoryand irrationality, appropriate steps should be taken to deter-mine the true condition by physical and psychiatric examina-tion, and if there is serious damage, a case should be made forpermanent disability retirement.

Emotional conduct detrimental to students can be docu-mented in terms of its effect on students. This is an administra-tive judgment that can be made without psychiatric examina-tion, although such examination would be helpful. In thesecases, administrative action could be taken to terminate the tea-cher for reasons of professional incompetence.

The Revised Code provides that without request of a teach-er, a board may grant a leave of absence to any teacher be-cause of mental or physical disability and provides for theteacher to have a hearing on such unrequested leave of ab-sence. The leave may be renewed by the board as circumstan-ces warrant. A medical examination would be required to con-firm mental or physical disability.

The Commission believes that adequate exerciseof the right of boards of education to grant leaves ofabsence will do much to alleviate the problem of harm-ful emotional conduct. It can be of real benefit to teachers andprovide them the opportunity to be reemployed, if they are ableto regain their health.

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Boards of education have no power of law to require medicalexaminations except for the protection of the health of the com-munity. It seems reasonable that when administrators can docu-ment instances of behavior detrimental to students that couldbe caused by physical or mental deficiencies, teachers on bothcontinuing and limited contracts should be required to have ex-aminations by appropriate medical doctors. School physiciansshould have access to the results of all examinations and makerecommendations for retirement and leaves of absence basedupon their review and consultation with the examining phy-sician.

It may be argued that the requirement for an examinationand subsequent disclosure of its results is an unacceptable inva-sion of privacy. This objection would aid in focusing attentionon the "unprivate" nature of public school teaching.

The Commission recommends:1. That teachers be required to have special exam-

inations by medical doctors when requested todo so by the school superintendent with reasonsgiven for the request. These doctors would be se-lected by teachers from a list provided by theboard of education.

2. That the board of education pay for the specialmedical examinations it requests.

3. That refusal to be examined or to make resultsof requested examinations available to theschool board be considered a "willful and per-sistent violation of reasonable regulations of theboard of education."

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VII LENGTH OF TENURE

Probationary Period BeforeGranting Continuing Contracts

Teachers with the required certification may now becomeeligible for continuing contracts after three years of teach-ing in a district. Those already on continuing contractswho transfer may be required to teach for two years intheir new district before being eligible for its continuingcontract.

Fifty-six percent of superintendents surveyed replied that theprobationary period should be more than three years. Of these,42 percent recommended five years. In addition, 84 superinten-dents or 19 percent replied by saying "no tenure."

Much of the response to this question in the survey appearsto be based on strong feelings against any form of tenure anda desire to put off the "evil day" as long as possible. However,many superintendents stated during depth interviews that de-cisions regarding the potential of all new teachers should bemade as early as possible, preferably during the first year, infairness to both teachers and students. They also emphasized thepoint that as time goes on it becomes increasingly difficult toexplain to a teacher and his friends in the community why hemay not be given a continuing contract when he has been al-lowed to teach for an extended period.

There are some districts where inadequate attention is paidto the beginning teacher. Other districts have carefully plannedcheck points and reviews during early months of employmentto help teachers overcome difficulties, measure response toguidance, and evaluate basic aptitudes for a teaching career. TheCommission urges that this important aspect of maintaining ahigh level of teaching quality be given top priority in all districts.

Sixty percent of the superintendents would like more than twoyears to appraise the teacher who has received a continuingcontract in another district before being employed by theirs, 40percent recommending three years. In this case, 18 percent re-plied "no tenure."

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It is understandable why many superintendents would feelsafer if they had a longer period of time to make their determin-ations regarding continuing contracts. However, the Commissionbelieves that a teacher who has a total of three years, and insome cases five years, of teaching experience should be entitledto a decisive judgment regarding his capability. Furthermore,the Commission believes that the general quality of teacherswill be improved by requiring an early decision to avoid the in-ertia and pressure for retention that develops over a longer per-iod. For these reasons the Commission recommends no changein the length of the probationary period as presently prescribedby law.

Duration of Continuing Contracts

The continuing service status of teachers now ends at age 70,after which they may still be employed.

Superintendents were asked, "In your experience, have therebeen serious instances where overall performance of teachershas suffered by reason of advanced age?" Three-hundred andforty-eight, or 79 percent, replied "yes."

Two alternatives to the present length of continuing con-tracts have been considered by the Commission. One is the sub-stitution of limited contracts for continuing contracts at an ageearlier than 70. The other is a mandatory retirement age of per-haps 65.

Reducing the length of the continuing contract and per-mitting the subsequent granting of limited contracts would pri-marily have the effect of ending the teacher's right to explana-tion of reasons and to a hearing upon termination of employ-ment. In some cases, the prevention of a hearing could be in thebest psychological interest of the teacher at the end of a long ca-reer and would be the most humane action. It would, however,be a difficult ruling to justify in terms of individual rights.

In view of the mental and physical demands of teaching andthe concern of many superintendents regarding the capability ofteachers in the upper age brackets, mandatory retirement at age65 might be desirable. It would, however, mean the loss of many

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teachers whose competence, experience, and leadership qualitiesare highly valued.

One way of avoiding the complete loss of highly competentteachers through early retirement would be to employ them ona part-time basis. It is now possible for a teacher to resign hiscontinuing contract and accept regular part-time employmenton a limited contract. This arrangement could be permitted atthe full discretion of boards of education in the case of teacherswho reached a new mandatory retirement age. This would en-able schools to continue to benefit from the ability and peer in-fluence of exceptional teachers and could be of physical benefitto the teacher.

Although there is much to be said for an earlier retirementage, the Commission believes that a change of this magnitudeshould not be undertaken until the results of improved admin-istration of teacher employment have been assessed.

If the physical, mental, and instructional capabilities ofteachers are carefully appraised and documented; if thelaw effectively provides for termination of contracts forreasons of professional incompetence; if hearing proce-dures are workable; if administrators carry out their re-sponsibility for appropriate action to remove incompetentteachers and to retire or grant leaves of absence to teach-ers with physical and mental disabilities, the capacity tomaintain a reasonably high level of teacher quality willbe greatly increased. Above all, full understanding on thepart of teachers and administrators that continuing con-tracts are not intended to be "lifetime contracts" is essen-tial to the successful administration of tenure.

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VIII COLLECTIVE NEGOTIATIONS

Ohio presently has no statute covering the negotiation of agree-ments between boards of education and teacher organizationsthrough collective negotiations. Many districts, however, havenegotiated such agreements.

Opinions have been expressed that if school districts followcollective negotiation procedures, there will be no need for alaw governing the employment arrangemente of teachers andboards of education. The Commission has concluded that sucha law is needed in any event for the following reasons:

If a certain number of years of probation are desirable be-fore the granting of continuing contracts, this period should beuniform throughout the State. The length of time should not bean item in the bargaining process.

If one hearing procedure seems to be the most useful, theState Should be the body so to decide and require. In so doingthe State can be mindful of the need for protecting teachers aswell as for avoiding the establishment of precedents that maycause difficulty for future boards.

Reasons for termination of teacher contracts should be thesame throughout the State and not subject to local negotiations.

The State should retain the power to fix the retirementdate of teachers consistent with provisions of the State Teach-ers' Retirement System and on the basis of statewide assessmentof the best interests of all school districts.

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IX PERFORMANCE OF ADMINISTRATORS

Many superintendents freely acknowledge that some principalsand their assistants are reluctant to recommend the termina-tion of teaching contracts because of personal criticism thatmay be leveled at them by the teacher and his sympathizersin the course of the teacher's defense. Their fear of such criticismmay be lessened by holding hearings before referees ratherthan boards of education. The important point remains, however,that any administrator is derelict in carrying out a fundamentalmanagement responsibility when he refuses to take the personalconsequences of affirmative action to improve the quality ofhis staff. No one should enter or be allowed to stay in admin-istration who is unwilling or unable to accept this greatestsingle responsibility of school management.

It is also frequently stated that even in cases where teachersare patently incompetent for reasons of personal deficiencies,appraisals of their difficulties have not been sufficiently docu-mented to provide adequate evidence of cause for dismissal.There may have been failure to adequately witness and recordexhibition of gross inefficiency. In some cases, necessary physi-cal and psychiatric examinations may not have been suggested.Such laxity in administrative practice should not be tolerated.

The misconception that a continuing contract is a life-time contract has generally been reinforced by adminis-trative inaction. At the same time, it has been easy to shiftthe blame for inaction to something called tenure.

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SUPPLEMENT

Non-Renewal of Limited Contracts

Ohio law does not require that reasons be given to a teacheras to why a limited contract will not be renewed. There is alsono legal provision for a hearing in the case of non-renewal oflimited contracts although some districts have negotiated pro-visions for hearings in their contracts with teachergroups.

Some superintendents believe that they should not be re-quired to document reasons why a teacher is not being re-em-ployed because of the necessarily subjective nature of apprais-als and the amount of controversy that may result.

As a practical matter, it seems that the administration willalways be under pressure to give reasons and, despite the lackof legal requirement, will be forced to do so by community con-cerns. It is not understandable to most people why reasons willnot be given. It also seems appropriate for the superintendent tohave an informal discussion of the case with the teacher.

There is much to be said against a requirement for formallegal hearings in the case of teachers whose limited contractsare not renewed. In particular, it seems that reversals of admin-istrative judgment in the case of beginning teachers would be asevere limitation on the authority of the superintendent whichwould relieve him of much responsiblity for the later perfor-mance of his staff. Furthermore, it would tend to increase thenumber of incompetent teachers who are re-employed becauseof administrators' concern about the time and effort that mightbe required for hearings. In addition, it could be a costly under-taking in terms of administrative time and legal counsel.

APPENDIX

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CERTIFICATES AND CONTRACTS OFOHIO PUBLIC SCHOOL TEACHERS

CERTIFICATION

Ohio law requires that all teachers who are employed in Ohio'spublic schools be certified by the State Board of Education.'

A teacher must apply for a certificate by "type and grade."There are twelve various "types" of certificates covering class-room teaching in kindergarten, elementary school, and by sub-ject in high school; administrative positions in elementary andhigh school; supervisory positions on the school district level;positions of superintendent and assistant superintendent; posi-tions in vocational instruction; and positions as educational ad-ministrative specialists.2

A grade of certificate is issued in each or any of the types.Since September 1935, four grades of certificates have been is-sued: provisional, professional, permanent, and temporary.3 Priorto 1935 the Ohio teacher held either a provisional or life certifi-cate.' There are still some life certificate holders who are teach-ing.'

Provisional Certificate

This certificate was held by more than 56 percent of certificatedpersonnel in Ohio employed at the beginning of the 1970-71school year." Requirements include, in most instances, gradua-tion from an approved two or four year college or university.Two year colleges primarily qualify teachers of vocational sub-jects. A specified pattern of courses in general and professionaleducation is to be a part of the required curriculum. The pro-visional certificate is issued for four years by the State Board ofEducation which may renew the certificate for a like period.?

Professional Certificate

Requirements for the professional certificate include a 27month successful teaching experience and completion ofan additional 18 semester hours in professional education

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and related disciplines.8 Twenty percent of certificated personnelin 1970-71 held this certificate." It is renewable once everyeight years)"

Permanent Certificate

The permanent certificate is valid without need of renew-al during the active life of the teacher)' A master's degreeor its equivalent and 45 months of teaching under a pro-fessional certificate are required.12 Thirteen percent of certifi-cated personnel employed in 1970-71 were holders of this cer-tificate.' '

Temporary Certificate

The temporary certificate is an annually renewable cer-tificate of substandard grade. It is issued by the StateBoard of Education only at the request of the district su-perintendent when there is a scarcity of teachers with oth-er certificates." Fewer than seven percent of certificated per-sonnel held this grade of certification in 1970-71)5

Life Certificate

The life certifit: ate was issued before 1935. It was similarto the permanent certificate, however, eligibility did notrequire advanced college courses. In general, a 50 to 100month period of successful teaching was all that was need-ed." The life certificate holders made up three percent of1970-71 certificated personnel.'

CONTRACTS

The limited and the continuing contract are the two typeswhich a local school board may enter into with a teacherin Ohio." The superintendent must nominate all teacherswho are to be employed for the first time in a district)"Teachers who are not nominated by the superintendentfor future contracts may be re-employed by a vote of theschool board.20

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Limited Contract

Teachers who hold a provisional or temporary certificateare eligible for a limited contract only.2' The term of thelimited contract may not exceed five years.22

If the board of education of any district fails to give writtennotice on or before April 30th of its intention not to re-employa teacher under a limited contract, the teacher is automaticallyre-employed for the succeeding school year.23

Continuing Contracts

Teachers who possess a professional, permanent, or lifecertificate and have taught for three out of the last fiveyears in the school system, are eligible for a continuingcontract.24 A teacher with a continuing contract in onedistrict who transfers to another may be required to teachfor two years in the new district before becoming eligiblefor its continuing contract. The continuing contract re-mains in effect until the teacher resigns, retires, is retired,or until the contract is terminated by formal dismissalproceedings. instituted by the school board. The board may re-tire a teacher for reasons of permanent physical and mentaldisability and at age 70.25

Teachers eligible for continuing contracts receive continuingcontracts if they are recommended for re-employment by thesuperintendent. The board of education may reject the recom-mendation by a 3/4 majoriti? -nte. The board may also vote tore-employ under a cos 2t- it..act by a 3/4 majority votefor a teacher who is lot) ,,omm,Laded for re-employment bythe superintendent. (;:. T'.C. d319.07 for special provision forlocal school districts.) The eligible teacher is automaticallygranted a continuing contract unless notified to the contrary bythe board prior to April 30.26

Additional Period of Probation

The superintendent ha, .ie option of recommending oneadditional limited COL Z.t, which may not exceed two

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years for the teacher who is eligible for a continuing con-tract. The superintendent must notify the teacher in writingof his intention with reasons directed toward the teach-er's professional improvement on or before April 30.

When this additional probationary limited contract ends,the u-acher is automatically re-employed under a continuingcontract unless he receives notice from the school board that heis not to be re-employed on or before the 30th of April.27

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TENURE IN OTHER STATES

Forty states have some form of teacher tenure law. The follow-ing is a summary of key provisions of the law in 10 states gen-erally comparable to Ohio.28 The states included are: California,New York, Pennsylvania, Texas, Illinois, Michigan, New Jersey,Florida, Indiana, and Massachusetts.2"

Starting Point

Most states require that a teacher work in a school district forthree consecutive years before becoming eligible for tenure. In-diana is somewhat stricter as it requires five years of employ-ment with re-election to a sixth year before a teacher is eligiblefor tenure."'

Some states, as in Ohio, relax this period of probation forteachers who have tenure elsewhere in the state. Pennsylvania isthe only state, however, which permits a teacher to automati-cally retain his tenure status upon transfer to another district. :;'

End Point

Continuing contracts of teachers usually remain in effect untilretirement. The majority of states have set age 70 as the upperage limit for employment. Tenure ceases in California and Illi-nois at age 65 and at age 66 in Indiana. In California and Illi-nois, except Chicago, the teacher may be subsequently employedon an annual basis. Indiana has a similar provision)

Termination

All states have legislated means to terminate tenure protectionof teachers who have violated rules of a tenure contract."'

Causes

The grounds for termination, included in most state laws, arebroadly worded statements. In Michigan, the statement is simply"reasonable and just cause." California and New York list several

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specific reasons including incompetence and physical and mentaldisabilities.''

Illinois, California, and New Jersey require that a teacher benotified and given a reasonable period of time in which to reme-dy his faults, if those faults are generally thought to be correct-ible, Only if the deficiencies are then not corrected may a schoolboard proceed with official termination action.

Hearings

In most states, as in Ohio, the hearing, if it is requested, is con-ducted by the local board of education. Com. ;ttees selectedfrom teachers, administrators, and school board members con-duct initial hearings in New York and at the discretion of theschool board in Texas. The committee then reports to the localschool board which in turn makes ultimate determination of thecase."' In New Jersey the local school board forwards caseswhich it believes warrant dismissal to the State Commissionerof Education. The Commissioner may dismiss the charges or theCommissioner or a person appointed by him may conduct ahearing and decide action to be taken.

In California, termination action requires that the superiorcourt appoint referees to hear the case. The referees report backto the court where final judgment is made.

Decision

The two options available to all hearing bodies when they maketheir findings are to reinstate or dismiss the teachers. New York,Texas, and New Jersey have provided additional alternatives."?

In New York, a reprimand or suspension without pay may beconsidered. The Texas teacher may find that he has been re-turned to probationary status rather than being dismissed. Andin New Jersey, a reduction in pay may be judged to be sufficientpunishment for a tenure teacher.

Appeal

Appeal protection is available for teachers in all states but In-diana. Massachusetts and Pennsylvania permit a teacher the

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right to begin the whole contract termination proceedings overagain in a court of law. In some states, appeals are transmittedto a branch of the individual state's department of education,e.g., the State Commissioner of Education in New York andTexas, and the State Board of Education in New Jersey andFlorida.

Michigan has established a tenure commission to act as aboard of review for all appeals from local board decisions. Thecommission is composed of five members: two classroom teach-ers, one member of a school board of a city or grade-school dis-trict, one person who is not a school board member or a teacher,and one school superintendent.38

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Notes

1. Page's Ohio Revised Code Annotated (Cincinnati, 1960),Section 3319.30.

2. Page's, Section 3319.22.

3. Page's, Section 3319.22.

4. Page's Ohio General Code Annotated (Cincinnati, 1931),Section 7807-1.

5. "Elementary and Secondary Principals' Reports - Forms22 and 23," Ohio Department of Education (Columbus,Fall 1970). Figures include certificated administratorsand specialists.

6. "Principals' Reports."

7. Page's Revised Code, Section 3319.24.

8. "Ohio Department of Education Laws and Regulations forAdoption by the State Board of Education," Ohio Depart-ment of Education, (Columbus, 1970) Page 30 and Page44.




12. "Laws and Regulations," Page 30 and Page 44.


14. "Laws and Regulations," Page 30 and Page 44.


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16. Page's Ohio General Code, Section 7807-1.







2:3. Page's Revised Code, Section 3319.11.

24. Page's Revised Code, Sections 3319.11 and 3319.08.


26, Page's Revised Code, Section 3319.11.


28. "Teacher Tenure and Contracts" Research Report 1971 -R3 National Education Association, (Washington, 1971)

29. "U.S. Census Ranking of States by Population: 1960and 1970," U.S. Department of Census (Washington, 1970)

:30. "Teacher Tenure" and Page's Section 3319.11.

31. "Teacher Tenure" and Page's Section 3319.11.


:33. Burns Indiana Statutes Annotated and Page's Section3319.37.






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r

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Cleveland, Ohio 94119

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