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Answer Sheet: The Basic Rights Teachers Don't Have

A few months ago, researchers released a report that looked at the teaching profession over some 50 years and found that it is at its lowest point since 1970 — a conclusion that one could easily assume just by looking at today’s headlines.

Teachers are still underpaid, grossly in some places. Teachers are under threat of legal action in some states if they discuss with students the truth about race and institutional racism in the United States. Teachers are blamed for school closures during the coronavirus pandemic, accused of being groomers by ultra right-wing politicians, expected to spend their own money on basic classroom supplies and denied the respect other professions receive.

The report, titled “The Rise and Fall of the Teaching Profession: Prestige, Interest, Preparation, and Satisfaction over the Last Half Century” and written by researchers at Brown University and the University of Albany, concluded that the profession is in trouble and “should be cause for serious national concern.”

They looked at factors including “education funding, teacher pay, outside opportunities, unionism, barriers to entry, working conditions, accountability, autonomy, and school shootings” between 1970 and 2022, and wrote:

Across every single indicator we measure, our findings show that the overall well-being of the teaching profession today is at or near historically low levels. Perceptions of teacher prestige have fallen between 20% and 47% in the last decade to be at or near the lowest levels recorded over the last half century. Interest in the teaching profession among high school seniors and college freshman has fallen 50% since the 1990s, and 38% since 2010, reaching the lowest level in the last 50 years. The number of new entrants into the profession has fallen by roughly one third over the last decade, and the proportion of college graduates that go into teaching is at a 50-year low. Teachers’ job satisfaction is also at the lowest level in five decades, with the percent of teachers who feel the stress of their job is worth it dropping from 81% to 42% in the last 15 years. Although recent attention has focused on how the pandemic has made teachers’ work substantially more challenging, most of these declines occurred steadily throughout the last decade suggesting they are a function of larger, long-standing structural issues with the profession.

There is a related issue that is contributing to teachers’ low morale: their lack of rights as educators. Joshua Weishart, a law professor at the West Virginia University College of Law, looks at this in the following post. Weishart focuses his research on education rights. This commentary is based on research and analysis explored by Weishart in “The Right to Teach,” recently published in the University of California Davis Law Review.


By Joshua Weishart

Depleted and demoralized. America’s public school teachers are in dire straits. The law should provide some solace, protect their freedom to educate, their right to teach at least. It does not.

Teachers, in fact, have fewer settled legal protections in this new year than just a decade ago, thanks to successful campaigns in states to destabilize their rights. It is no coincidence that a nationwide retraction of teacher rights has coincided with the denigration of the teaching profession, which is part of a wider attack on public education.

The trouble quite simply is that the law does not protect teachers as educators.

To be sure, legal protections exist for teachers as public employees, but the prevailing sense that the two most invoked, tenure and collective bargaining, adequately protects teachers warps reality.

It has become an article of faith among critics, for instance, that tenure makes it impossible to fire “bad teachers,” a tired trope that still gets play in media and popular culture. No matter that public school teachers are fired at roughly the same rate as comparable private-sector employees.

But if schools are retaining ineffective teachers, it has less to do with the law of due process than the law of supply and demand — a decades-long exponential loss in the supply of qualified teachers is most to blame.

Considering that nearly half of new teachers leave the profession within five years and in most states it takes at least three years to earn tenure, eliminating or weakening tenure due process protections hardly seems justified, much less a priority.

And yet, in the past decade, four states — Florida, Idaho, Kansas, North Carolina — “functionally eliminated” or phased out tenure entirely. Attacks on tenure have not been confined to red states either; constitutional challenges to tenure have been mounted in California, Minnesota, New Jersey, and New York.

For all the fuss, tenure offers no protection to future teachers against state repeals or modifications of tenure writ large. Nor does tenure guarantee a teacher’s salary or exempt teachers from layoff policies, changes to their duties, reassignments, and transfers.

Much ado is made of teacher unions and collective bargaining rights as well. But unlike private sector employees, public school teachers have no federal rights to collective bargaining or to strike. Any such protections are matters of state law, subject to change. And seven states — Georgia, Indiana, North Carolina, South Carolina, Texas, Virginia, Wisconsin — have made sweeping changes curtailing or outright prohibiting teacher collective bargaining.

Most states have gained leverage over teachers without directly restricting their labor rights. Prodded by federal accountability policy, states mandated that flawed teacher evaluations based on test scores be used in decisions to hire, tenure, compensate, and fire teachers, all while excluding issues relating to their use from the bargaining table.

Also excluded: the voice of teachers on quintessential education topics like curriculum, student assessment, and remediation. Teachers are nevertheless frequently blamed for reform failures on these very issues. To the extent teachers enjoy any influence over education policy, it is because of their political strength, not their labor rights. And it is because of their perceived political strength that many states exclude topics from collective bargaining for teachers that are otherwise mandatory or permitted for private sector workers.

For its part, the Supreme Court has blessed state efforts to weaken teacher unions, most recently in its 2018 5-4 Janus v. AFSCME decision prohibiting their unions from distributing fees to nonunion members for the services the unions provided them through its exclusive collective bargaining. Janus overturned the 1977 decision in Abood v. Detroit Board of Education, a 40-year precedent which upheld such “fair share” fees provided they did not support the union’s political activities. Janus now instead incentivizes teachers to leave their unions altogether, sparing them of the cost of union membership while reaping all its benefits.

Early post-Janus reports indicate that this free rider problem has indeed escalated a decades-long decline in membership in several states while in others it remains a looming threat to the already-diminished bargaining power of teacher unions.

Broadly the law in its application reflects the view that teaching is just like any other job and thus teachers should be hired, fired, and mistreated at work like the rest of us. At least in the public sector, there is little unique or special about teacher rights — states can (and many do) grant other public employees similar collective bargaining rights as well as the equivalent of tenure through civil service laws that require due process before a good cause termination.

But what about the Supreme Court’s special regard for teachers’ First Amendment rights in the classroom, their academic freedom? Well, that is perhaps the greatest fallacy of all.

Teachers are not supposed to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet when the schoolhouse bells begin the school day, the court’s pronouncements ring hollow, with teachers retaining fewer protections than their students in some cases. Where the court has otherwise remained silent on such matters, most lower courts have filled that silence with decisions concluding that teachers have no First Amendment rights as educators in the classroom, effectively no academic freedoms.

Rather than wait with bated breath in the unlikely event that the Supreme Court reverses course or dare put faith in a divided, dysfunctional Congress, it is time to consider an alternative path toward protecting teachers as educators.

The first step in that direction begins with a modest yet somehow revolutionary recognition: Teachers’ rights are education rights and education rights are teachers’ rights too.

After all, education is fundamentally a relational process and practice between teacher and student. Research indeed overwhelmingly confirms the overriding importance of that relationship to the learning process and educational outcomes. State actions that unduly interfere with or denigrate this indispensable relationship therefore risk more than harming the interests of teachers; such infringements subvert the quality education guaranteed by state constitutions.

Advocates for teachers’ freedom to educate should set their sights there, on state law, just as reproductive freedom advocates have done since the Supreme Court last year overturned Roe v. Wade, which guaranteed a constitutional right to abortion. The former have a distinct advantage given a half century of decisions interpreting the state constitutional right to education.

Any corresponding right to teach must, at minimum, protect teachers’ discretion over their own teaching methods, that is, how they teach, how they build and maintain positive relationships and model democratic thinking, attitudes, and dispositions. If we wish to cultivate such freedoms in students, their teachers must also be free.

Teachers cannot experience freedom to educate themselves, however, in the face of unremitting punitive threats. Thus, a right to teach must also immunize teachers for poor student performance attributable to the state’s own systemic education failures (principally failures to fairly fund and integrate public schools) and for refusing to adopt teaching practices that violate a state’s constitutional duty to educate democratically (e.g., censorship, scripted curriculums, and the like).

A right to teach, in sum, must recognize that teachers are constitutional stakeholders in the democratic education project that serves the interests of students, of us all. To deny teachers the right to be heard about their own teaching, their students’ learning, and their relational importance to educating is an insult to an injury they should no longer be expected to endure.

Teachers have tolerated far too many indignities in the latest manufactured culture wars over pandemic health measures, fetishized parental rights, anti-racism censorship, LGBTQ book bans, teacher loyalty oaths, demands for cameras in the classroom to surveil against the supposed teaching of dangerous ideas even as we expect the same teachers, armed, to prevent mass shootings — all to fit a narrative of failing public schools to provoke the privatization of education. Meanwhile, the same forces attempt to undercut teachers by deprofessionalizing them, purportedly to address teacher shortages.

But surely given these escalating threats, the crisis is not “teacher shortage,” it is “teacher alienation.” If the best we can muster to the dismal plight of teachers is a knee-jerk “Pay them more,” we risk the unintended suggestion that “Everyone has a price.” That suggestion dehumanizes teachers and education itself.

So, in addition to paying teachers more (which we absolutely should), we need to respect teachers by holding their work in the highest regard. There are myriad ways we could do so, but none more fundamental than constitutionalizing their freedom to educate, their right to teach.

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The views expressed by the blogger are not necessarily those of NEPC.

Valerie Strauss

Valerie Strauss is the Washington Post education writer.

Joshua Weishart

Joshua Weishart is a professor of law at West Virginia University College of Law. His research centers on education law and policy with a particular focus on...