Column on School Employment at Will

School Employment at Will

Tibor R. Machan

Arnold Schwarzenegger and his supporters have managed to get several
items on the November 8 California ballot, including the proposal to
extend the trial period for government primary and secondary education
teachers to five years rather than the current two before they receive
tenure. Well, actually, they do not receive ?tenure? in the sense of full
job security but after two years they can only be let go by meeting
various ?due process? requirements?e.g., showing they are incompetent or
have broken some laws.

Ordinary employment situations rarely involve tenure, even in this
restricted fashion. If you hire someone to mow your lawn, clean your home,
handle your tax returns, or flip hamburgers at your fast food restaurant,
you can simply discontinue the relationship if you want to. You need not
demonstrate good reasons for this, although you may get some resistance if
you don?t?complaints, a bad reputation as an employer, etc. Or you can
negotiate an employment agreement that spells out the conditions under
which you may be let go, even conditions under which you may leave. It all
depends on what the contract says.

The policy of tenure, to which a great many government educational
institutions?as well as quite a few private ones that need to follow suit
so as to be able to compete?involves getting substantial job security
after a probationary period. The tenure at universities and colleges
usually amounts to job security provided the entire institution is
experiencing an economic down turn. (In state universities and colleges,
of course, this is usually met with raising taxes, thus meeting the
economic pressure, although even that can come to an end eventually.) Only
if one commits a crime or grossly misbehaves will tenure provide no
protection of one?s teaching position. But it usually takes seven years to
achieve tenure.

The traditional argument for tenure, especially at state higher education
institutions, had been that it will protect professors with controversial
ideas from arbitrary treatment from the administration. At elementary and
high schools this traditional justification is virtually completely moot.
Here the reasoning tends to be that given the low pay of teachers, they
will at least receive job security and thus have a pretty good reason to
carry on properly, even excel, at their profession.

Problem is that there?s an imbalance involved in teachers receiving
tenure, even of the moderate sort that guarantees due process when and if
they are to be dismissed. Think about it for a moment?why must the school
provide due process when a teacher is let go but the teacher who wants to
leave can do so at will? If, in other words, schools are forced by law to
show cause for letting a teacher go, why isn?t a teacher required, by law,
to show cause for wanting to leave?

When I recently posed this question to some who support the existing
tenure system of California?s public elementary and high schools, the
question wasn?t even understood. Yet it is plain?if one side in the
employment relationship must show cause for discontinuing that
relationship, surely it is only fair that the other side should do so as
well. Otherwise we have a case of blatant unjust discrimination!

Of course, how the employment relationship should be structured should
actually be left to the agreement that employees and employers reach among
themselves. That is how adult men and women should comport themselves in a
free society. If, then, teachers can negotiate a tenure-like contract, as
well as being able to leave anytime they wish, so be it. If not, so be it
again.

You may think, well the bargaining situation is quite uneven. School
administrators have a lot more clout than teachers, so teachers cannot be
expected to negotiate a favorable employment agreement. But this is
completely wrong.

The institutional clout of school administrators is matched virtually
fully by the clout of school teachers?by means of their unions. These
unions enjoy even more clout than in justice they should have, given that
governments have rules that mandate from employers the very conditions
that should be left up to the bargaining process to settle. For example,
many unions are authorized, in law, to bargain for employees who are
non-members. Non-members of many unions, especially public service unions,
are required to pay dues. (This varies some from state to state!)

There is also the injustice that governments have largely eliminated the
choice educational customers have, the choice that customers of
department, grocery, or shoe stores take for granted. They are, instead,
virtual monopolies. So their unions have even more clout than those in the
private sector where if a firm is struck, customers can shop at another
firm. (Indeed, the whole notion of public service unionization is an
anomaly in a free society.)

Alas, in our day certain people have come to take their special, unjust
privileges for granted, so much so that even to bring up the issue of this
injustice strikes them as bizarre. But that is no excuse for intelligent
citizens to let the matter pass.