Employment Contracts and Tenure

breach of contract What occurs

when one side fails to perform as agreed in a contract.

tenure Permanence of position granted to educators after a probationary period, which prevents their dismissal except for legally specified causes and through formalized dueprocess procedures.

continuing contract An employment

contract that is automatically renewed from year to year without need for the teacher’s signature. also must pass competency tests for continued employment. States where minority candidate passing rates are considerably lower than those for nonminorities have faced several lawsuits charging that specific tests discriminate against minority applicants. To answer such a lawsuit, employers must be able to specify the characteristics a test measures, establish that these characteristics are necessary in carrying out the job, and demonstrate that the test correlates with the work behavior in question.

Most lawsuits charging that teacher tests are discriminatory have either failed or been withdrawn because the available data did not demonstrate a clear pattern of discrimination nor an intent to discriminate. On the other hand, several challenges have succeeded, and worries about possible legal challenges, particularly from minority candidates, have occasionally led states to keep passing scores low. For example, concerns regarding a legal challenge alleging discrimination in part led the Massachusetts State Board of Education to substantially reduce the minimum score required to pass a proposed certification test in that state.4

9-2b employment contracts and tenure

In choosing which teachers to hire, local school boards must comply with laws that prohibit discrimination with respect to age, sex, race, religion, or national origin. Upon appointment, the teacher receives a written contract to sign. The contract may specify that the teacher must adhere to school board policies and regulations. If the school district has negotiated with a teacher organization, the provisions of that agreement apply as well.

Contracts are binding on both parties. When one side fails to perform as agreed— called a breach of contract—the contract is broken. In such instances, the party that breached the contract may be sued for damages. Some states permit a teacher’s certificate to be revoked if the teacher breaches the contract. If a school district breaks a contract, teachers may be awarded payments for damages or be reinstated to their former positions.

Every state also has some type of tenure law. Tenure protects teachers from dismissal without cause. Each state defines “cause”; the usual reasons include incompetency, immorality, insubordination, and unprofessional conduct. In addition, as explained in the next section, the school district must follow due process if it wants to dismiss a tenured teacher. From its inception, the notion of tenure has been controversial. Arguments for and against tenure are presented in this chapter’s Taking Issue box.

Once granted tenure, rather than sign an annual contract, many teachers are employed under a continuing contract. The term means that their reemployment for the next year is guaranteed unless school officials give notice by a specific date that the contract will not be renewed.

Most states have a probationary period before teachers achieve tenure. Moreover, many tenured teachers who change districts lose their tenure and must serve another period of probation. The probationary period often consists of three years of consecutive, satisfactory service, but some states have been considering whether to establish shorter periods, at the end of which new teachers can be quickly removed from their positions, or longer periods before teachers can attain tenure.

Probationary contracts in some states allow the teacher to be discharged at the end of the contract term for any reason and without explanation—no due process is required, unless the teacher can demonstrate that his or her dismissal involves a constitutionally guaranteed liberty or property interest. (See the next section for information on the meaning of due process.) In other states, probationary teachers have

4Mark Walsh, “Appeals Court Upholds N.Y.C. Liability Over Teacher Test,” Education Week (February 5, 2014).