Can Teachers Be Fired?
Back to School Edition
Halloween candy and Christmas decorations are on sale at Costco, which can only mean one thing: school is back in session! In honor of the new vice presidential candidate Tim Walz, public school teacher, union member, and Minnesota governor, I thought I would address a common misconception about public sector employees: that they can’t be fired.
I know this is a myth because a huge part of my practice is public sector disciplinary cases where public sector employees are being dismissed. Still, there is a myth that teachers (and police) are untouchable when it comes to misconduct. A cornerstone view of the school choice movement is that school districts can’t get rid of bad teachers; it drives a lot of policy decision-making that it should not. Teachers, and other public sector workers, can be disciplined for misconduct in their jobs, as long as their employer follows their collective bargaining agreement (and/or state law).
And that’s the trick: following the CBA. In my experience, not as an arbitrator, but as a public school parent, it’s very hard for schools to follow the CBA on disciplinary procedures for a couple of reasons. First, principals do not have the time, human resources experience, or administrative support to do progressive discipline. My kids went to a school with 2000 kids. One principal told me that she spent more time “making sure no one gets pregnant on my watch” than tracking absent teachers. Another principal, post-pandemic, was dealing with threats of school shootings. Whether Ms. So-and-So had used a bad word in a class of 17-year-olds didn’t make the front page. The safety of students and staff is paramount to these administrators.
That leads to the second reason it is hard for school administrators to discipline teachers: they are very nice people. Especially without the resources to do proper performance management, they want to give teachers the benefit of the doubt and not discipline them. They went into education to help kids, not fire teachers.
There are other structural reasons. On top of “just cause” discipline, a central tenet of academic freedom is tenure, even when there is no CBA. Tenure ensures that teachers can support the free flow of ideas without fear of reprisal. It allows the classroom to be a laboratory of exploration and candor for the students. That kind of academic freedom is undermined by policies that inhibit sharing truth and challenging ideas, such as book bans and prohibitions on teaching history. Most states have codified protections for teachers so that they can and should encourage students to explore new ideas without fear of an angry parent ending their career.
Another structural factor is the United States Constitution. Teachers and other public sector employees have constitutional protection for free speech (First Amendment) and a property interest in their job (Fourteenth Amendment). That property interest means that public sector employees cannot be deprived of their jobs without due process. Even non-union public sector employees are entitled to notice of the reason for their discipline and “a hearing,” which is an opportunity to respond to the allegations against them. A hearing does not mean that an employee is entitled to reinstatement if they can rebut the charges against them - they can still be fired - but it does mean that they have a chance to persuade their employer that the decision is wrong or that a lower level of discipline is warranted.
Just because there are protections in place, does not mean that poor performance or inappropriate conduct cannot be addressed. It requires resources from a school district or school board to train principals and have supportive personnel policies and staff. It also requires a union that is willing to support its members in understanding the difference between academic freedom and inappropriate behavior, and between appropriate leave usage and abusive attendance practices. Unions can gather community support for their contract negotiations when they are seen, during the contract, as supporting the district in appropriate disciplinary practices.
Teachers are no different from other employees. They can be disciplined in accordance with their contract, state law, and the Constitution. If a particular community has a “bad apple,” it’s incumbent on the district, the union, principals, and parents to identify the policies and procedures for discipline.
If you like this newsletter, please share it with your colleagues, and let me know what other topics you are interested in having me address.