Teacher Tenure & Due Process Protections for Educators

By: National Education Association

Published: April 4, 2023

This resource originally appeared on NEA.org

Tenure status often provides the broadest protections for teachers at the K-12 level and for professors at the higher education level.

At the K-12 level, tenure laws prevent a school district from dismissing a tenured teacher without good reason.

These protections are not available to all educators—tenure is generally limited to teachers, and only teachers who have worked in the school district for a certain number of years are eligible. In addition, tenured teachers generally cannot transfer these protections to a new district if they change schools.

A few states, as detailed below, have largely eliminated tenure protections. The following describes how state tenure laws work.

Tenure Basics

State tenure laws reflect deliberate legislative judgments that new teachers need time and support to develop into great teachers.

As a consequence, tenure laws provide employers with broad authority to dismiss teachers during their first years of employment in a particular school district. Once teachers earn tenure, state tenure laws protect the investment that both the teacher and the school district have made in professional development by ensuring that tenured teachers cannot be fired for poor or arbitrary reasons.

To that end, state tenure laws provide tenured teachers with “due process,” meaning the right to know why they are being dismissed and the opportunity to challenge a dismissal that a teacher believes is unfounded.

Due process policies like tenure give good teachers the freedom they need to give students the best education possible.

They make sure that teachers can challenge the reasoning of poor administrative decisions and advocate on behalf of their students without fear of being fired for doing what is best for their students.

How Tenure Works

Almost all states offer some form of due process protections, but the details of those protections vary from state to state.

These state laws are commonly referred to as “tenure” laws, but a number of states use different terms such as “continuing contract,” “permanent,” “career,” or “post-probationary” employees to refer to teachers with such protections.

As of 2023, three states have effectively eliminated tenure for most teachers (Florida, North Carolina, and Wisconsin), and four other jurisdictions offer no tenure protections at all (Arkansas, District of Columbia, Kansas, and North Dakota).

A few other states have significantly reduced tenure protections by providing for performance-based reversion to probationary status for permanent or tenured teachers (for example, Indiana and Tennessee), by allowing school districts to place teachers on indefinite unpaid leave without cause or a hearing in a number of circumstances (Colorado), or by permitting school districts to waive compliance with tenure laws when the district converts to a charter system (Georgia).

In states that offer tenure, teachers are eligible for tenure after they have taught in the same district for a certain number of years, called a probationary period.

Most states require a probationary period of at least three years, and in ten states the required probationary period is four or more years.

In many states, tenure is granted if the lengthy probationary period is completed or the teacher’s contract is renewed for the next year following completion of the probationary period. But some states have additional requirements, often related to performance evaluations. The probationary period may also include mentorship by a more experienced teacher or a formal induction program designed to support new teachers as they begin their careers.

1 Summary information in this section is based on an NEA survey of tenure statutes in all states and D.C.
2 In March 2023, Arkansas repealed its Fair Dismissal Act, which provided due process protections to teachers. The repeal (Act 237) goes into effect in the summer of 2023 and eliminates “just and reasonable cause” protection for tenured teachers. Educators are still entitled to (1) notice of a recommendation for termination from the superintendent and (2) an opportunity for a hearing before the school board concerning the recommendation for termination. School districts cannot provide additional rights to employees.
3 Sch. Dist. No. 1 v. Masters, 413 P.3d 723 (Colo. 2018); Johnson v. Sch. Dist. No. 1, 413 P.3d 711 (Colo. 2018).
4 Day v. Floyd Cty. Bd. of Educ., 775 S.E.2d 622 (Ga. App. 2015). However, Fulton County Superior Court has ruled that the waiver provision is unconstitutional as applied to educators in the Fannin County School System who earned tenure protections before the system became a charter system. Barnes v. Bearden, No. 2018-cv-301254 (Feb. 1, 2023).
5 Some states offer a shorter probationary period for teachers transferring from other districts within the state.
6 E.g., Nev. Rev. Stat. Ann. § 391.820(6) (requiring “a designation of ‘highly effective’ or ‘effective’ on each of [the teacher’s] performance evaluations for 2 consecutive school years” in addition to probationary period and notice of reemployment).
7 E.g., N.J. Stat. Ann. § 18A:28-5(b) (requiring completion of a mentorship program during the initial year of employment as a prerequisite for tenure eligibility); S.C. Code Ann. § 59-26-40(B) (requiring that each school district provide probationary teachers with a formalized induction program developed in accordance with state regulations).

Dismissal of Teachers with Tenure

Once a teacher has tenure, they can be dismissed only for specific causes outlined in state law.

Common causes for dismissal are:

incompetency,
insubordination,
neglect of duty,
immorality,
violation of school board rules,
unprofessional conduct, and
reductions in the work force due to economic or enrollment conditions.

Some states also include conviction of a felony or other specific crimes within their list of causes justifying dismissal of a tenured teacher. And most states have a catch-all provision allowing dismissal for “any good or just cause.”

If a school wishes to dismiss a tenured teacher, it must first provide the teacher with notice of the reasons for dismissal and an opportunity for the teacher to request a hearing on the dismissal charges.

Depending on the state, a hearing can be conducted by the board of education, an independent hearing officer, an administrative law judge, or an arbitrator. In states where a hearing officer conducts the hearing, the board of education typically votes to either adopt or reject the recommendation of the hearing officer.

Each state has laws governing the time period within which a teacher must request a hearing, when the hearing must occur, and when a final decision must issue.

In most cases where the school board upholds a teacher’s dismissal, the teacher may choose to appeal that decision. Based on the state, the appeal may be before a state court, the state board of education, the state secretary or commissioner of education, the city superintendent, or an arbitrator. But a few states (Indiana and Oklahoma) provide no opportunity for appeal of a board of education dismissal decision.

Tenure in Higher Education

At the higher education level, tenure works in much the same way, although tenure is only available to a small percentage of professors after an extensive review process.

Institutions of higher education and courts generally interpret “just cause” more narrowly in this context, providing professors with greater leeway in their teaching and scholarship.

Because of these stronger protections and an increased political focus on how controversial issues are taught at all levels of education, tenure at the university level has faced renewed attacks across the country, most recently in South Carolina and Texas.

8 H.B. 4522, 124th Gen. Assemb. (S.C. 2021); Kate McGee, Lt. Gov. Dan Patrick proposes ending university tenure to combat critical race theory teachings, Texas Tribune (Feb. 18, 2022), https://www.texastribune.org/2022/02/18/dan-patrick-texas-tenure-critical-race-theory/.

Tenure Limitations

Tenure offers important protections to teachers, but school boards still have considerable leeway over dismissals.

In twenty-nine states, a teacher can be dismissed for “any good or just cause” in addition to the specific causes identified in the state statute. This vague wording gives school boards substantial discretion in dismissal decisions.

Other common causes give school boards discretion to determine whether conduct was immoral or unprofessional or whether school board policies were violated.

This discretion can be especially problematic in states without an independent hearing officer conducting the hearing or where the only review is by the school board—the same entity making the initial termination decision.

Tenure and Advocacy

Despite the limitations stated above, state tenure laws do help protect teachers’ professional judgments and advocacy on behalf of their students.

Tenure has protected teachers who teach controversial subjects, protect students from abuse, challenge improper actions by their school district, and act as whistleblowers. Tenure also protects teachers who are wrongly charged with misconduct for political reasons.

For example, tenure saved the job of a teacher who protected a student’s privacy after the student confided to the teacher that she was pregnant and had safety concerns if her parents learned of her condition.

In contrast, a non-tenured guidance counselor was fired for “spend[ing] too much time” fulfilling her mandatory reporter obligations by alerting appropriate authorities that some of her students had told her that they had been the victims of incest. Because the counselor did not have tenure, her discharge for making the reports was upheld despite her otherwise excellent evaluations.

Tenure also saved the job of a veteran math teacher who protested the elimination of a district math tutoring program and complained about district pressure to inflate grades.

Meanwhile, non-tenured teachers have had to go to court to challenge their discharges for reporting that students were not receiving the special educational services, equipment and resources required by law.

In one trial, educators testified that tenure made teachers feel more comfortable choosing to teach topics that they knew would be controversial—for example, teaching about the Muslim world to middle schoolers in the wake of 9/11 or discussing with colleagues how to prevent the bullying of LGBTQ+ students.

9 Leonard v. Converse Cty. Sch. Dist. No. 2, 788 P.2d 1119 (Wyo. 1990).
10 Rodriguez v. Int’l Leadership Charter Sch., No. 08 Civ. 1012(PAC), 2009 WL 860622 (S.D.N.Y. Mar. 30, 2009); Stahura Uhl v. Iroquois Cent. Sch. Dist., 836 F. Supp. 2d 132 (W.D.N.Y. 2011).