When big-dollar attorney Dan Weisberg left his private-sector position in 2003 to join the New York City school system, the district was having a hard time getting principals to provide honest assessments of low-performing teachers. Each negative piece of feedback was subject to a three-step grievance and arbitration process and, as Weisberg explains, “The final two steps were a big deal, because [principals] had to leave their building and go downtown, which could take hours. Principals complained about it and used it as an excuse for why they couldn’t document poor performance when they saw it.”
When Weisberg’s team asked the principals why they couldn’t attend the hearings by phone, he notes, “The answer we first got was, ‘No, we can’t do it. We’ve never done it that way.’ And we said, ‘Where is that in the contract? Where is that in some policy?’ And the answer was nowhere. So we just did it. It was a small thing, but it showed principals that we cared, that we understood this was very burdensome and we were trying to make their lives easier…. It had a concrete impact in encouraging principals to take action to document poor performance.”
When it comes to reforming American education, today’s would-be-reformers get it half right. They correctly argue that statutes, rules, regulations, and contracts make it hard for school and school-system leaders to drive improvement and, well, lead. They are wrong, however, to ignore a second truth: school officials have far more freedom to transform, reimagine, and invigorate teaching, learning, and schooling than is widely believed.
It’s true that prescriptive union contracts and procurement processes, rules and regulations like the federal “supplement not supplant” provision, state laws, board policies, and the like hinder school officials in all kinds of ways, making it difficult to repair a fence, hire talented staff, or schedule grade-level team meetings. But it has become increasingly clear that much of what administrators say they can’t do, think they can’t do, or just don’t do is in fact entirely possible. Contracts, rules, regulations, statutes, and policies present real problems, but smart leaders can frequently find ways to bust them—with enough persistence, knowledge, or ingenuity.
The problem is not just the very real statutory, regulatory, and contractual barriers, but the “culture of can’t,” in which even surmountable impediments or ankle-high obstacles are treated as absolute prohibitions. This mind-set threatens to undermine the success of hard-won reforms and can make policy impediments appear more severe than they truly are.
The Bogeymen of Leadership
We often hear from principals about all the things they’d like to do but that are impossible due to circumstances beyond their control. Perhaps the most commonly cited sources of frustration are, first, teachers’ contracts and, second, state and federal policies that tie the principals’ hands when it comes to teacher assignment, compensation, hiring, professional development, instructional time, and much else.
Yet a closer look raises some questions about these common complaints. For example, in a 2008 analysis of the collective bargaining agreements (CBAs) of the 50 largest U.S. school districts, Coby Loup and I found that although one-third were highly restrictive, the majority included much room to maneuver. Lehigh University professor of education and law Perry Zirkel notes that the perception that it’s nearly impossible to let go of low-performing, tenured teachers arises from “the substitute of lore for law. The lore is that it is difficult, if not impossible, to win a performance-based termination of a tenured teacher. The reality is quite different.” In his study of court decisions on teacher terminations for competency, Zirkel found that “defendant districts prevailed over plaintiff teachers by better than a 3-to-1 ratio.”
What of complaints about state and federal regulation? Columbia Teachers College professor Hank Levin recounts that when the California legislature allowed districts to apply for waivers if they could demonstrate that laws or rules were hampering school improvement, “Fewer than 100 [waivers] were made in the first year” in a state with more than 1,000 districts. More telling, notes Levin, “The vast majority of all requests for waivers were unnecessary” [emphasis added]. Nearly all the proposed measures were permissible under existing law. Either superintendents and boards mistakenly thought their hands were tied or, Levin added, they were using laws and regulations “as a scapegoat…to justify maintaining existing practices.”
Collective bargaining agreements and intrusive policies can present real headaches. But these are made far worse by the self-defeating mentality adopted by so many superintendents, school boards, and principals.
When Myth Becomes Mind-Set
Learned helplessness has become embedded in the field of educational leadership. Ariela Rozman, CEO of The New Teacher Project (TNTP), says she’s seen this often. “We went into [one troubled midwestern district] and expected to find that they had a really tough contract.” Instead, Rozman recalls, “We found a very, very limited, small contract that didn’t touch anything. And the reason they were doing a ton of forced placement was because that’s just the way the district operated. But the superintendent believed it was better to be out there lambasting the union rather than cleaning up his house internally.” Mitch Price, a legal analyst with the Center on Reinventing Public Education, noted in a 2009 study of teacher contracts that “a lot of these contractual issues are ‘smoke screens’ for those people who don’t want to do something.”
Even when school officials are given greater latitude, they often operate as though they’re still hemmed in. Take Indiana, where the legislature acted to limit the scope of collective bargaining in 2011. Despite the new law, dozens of districts left intact language that restricted flexibility, even though it was now in violation of state statute. Former Indiana superintendent of public instruction Tony Bennett says, “There were systems that put their contracts into compliance. Then there are those who went on with business as usual, just leaving the silly stuff in the contract. I think many of those see this as the path of least resistance. They don’t want to create an uncomfortable life for themselves in the communities in which they live.” Tennessee commissioner of education Kevin Huffman says he observed similar behavior when his state reduced the scope of collective bargaining. “Honestly, districts don’t know what to do differently,” Huffman notes.
The Experts Agree
The “culture of can’t” is unchallenged, if not encouraged, by the authorities on education leadership, who dismiss talk of levers, contracts, and legal strategy. A look at the relevant professional publications for the period from January 2009 to September 2012 illustrates the point. Over that span, Educational Administration Quarterly featured just one mention of general counsel or legal counsel, and just four mentions of the word attorney—and none of those involved using attorneys to address legal questions. Educational Management Administration & Leadership, in total, included just one mention of the terms attorney, general counsel, or legal counsel. Meanwhile, Improving Schools, Management in Education, and the Journal of Research on Leadership Education made no mention of any of those
Hundreds of education leadership programs and widely read tomes on education leadership not only treat contracts, regulations, and policies as unworthy of attention, but go so far as to denounce efforts to address these things as distractions.
Thelbert Drake and William Roe argue in The Principalship, for example, that “running a tight ship” is a “distortion of the goal of educating children.” On the question of what to do about ineffective teachers, Michael Fullan and Andy Hargreaves explain in What’s Worth Fighting For in Your School? that principals should “find something to value in all the school’s teachers. Even poor or mediocre teachers have good points that can present opportunities to give praise and raise self-esteem…. The worst thing to do is to write off apparently poor or mediocre teachers as dead wood, and seek easy administrative solutions in transfers or retirements…. Try doing the hard thing, the right thing, the ethical thing, and explore ways of bringing these teachers back instead.”
This is a profession in which close to 100 percent of administrators have been trained in educational leadership programs at schools of education and have learned that it’s wrongheaded to focus on managing operations or removing mediocre employees. even the bulk of the new leadership programs embrace a notion of “instructional leadership” that single-mindedly focuses on pedagogy, coaching, and curriculum while remaining largely uninterested in the policy and legal context within which schools operate