Value Competition

The Value of Going Big

Sometimes having two big issues to deal with can lead to healthier outcomes than dealing with just one. The classic example I learned about from reading one of my intellectual heroes, Seymour Martin Lipset, involves Switzerland, which is divided by language and also by religion. Fortunately, those cleavages cut across one another rather than reinforce one another, since many German-speakers are Catholic and many others are Protestant, with the same being true of French speakers. The result is that Switzerland with its two major cross-cutting cleavages is less polarized than societies with one dominant cleavage, such as Belgium with its French-Flemish language cleavage or Nigeria with its Muslim North-Christian South religious divide.

This came home to me in thinking about what I believe are the two most emotionally powerful--if not necessarily the most important--educational issues in my community: academic placement and labor relations between the Board and the teacher's union. The first is a prominent issue in the school board election I'm now running in. The second is not, and I've previously thought that it should stay out of the limelight. But I'm rethinking that position now, guided by the idea that addressing two big hairy issues together can sometimes be healthier and more effective than dealing with just one.

I believe the labor relations issue and the academic placement issue in my school system are good examples of cross-cutting cleavages, in that for many of us one's position on one issue does not readily predict one's position on the other. Accordingly, I'm hopeful that thinking of them together may lead to some unfreezing of polarized positions that is hard to accomplish when considering either issue by itself.

On both issues, I think the way forward is through a more flexible, choice-oriented system that recognizes different values and the limitations of a "one best way" approach. On academic placement going forward, I believe in parents/students in our high school having a choice between a largely deleveled option and an leveled option like the current system, but with effective choice of levels within that system. On labor relations, my thoughts are more tentative--and the issue is much more sensitive for any individual such as myself to express an opinion on, given labor law, the role of the Board on which I serve as management, and the need for all of us to listen rather than to be rooted in our preconceptions--but I am attracted to the idea of a choice system in which teachers in public school districts could opt for something like the current public school standard arrangement or for a different arrangement or arrangements, including one or more arrangements with different hours from the conventional school day and school year.

If the academic placement and labor relations issues are discussed in isolation, I believe the intensity of the emotions on both sides makes it all too easy to view a choice-based approach as simply a way of supporting one side or another in the intense debates on that particular issue. If they are thought about together, my sense is that it is easier to consider a choice-based framework on its merits. More generally, it may make it possible to have a thawing of iced-in, defensive attitudes that can all too readily rule us when a single charged issue is considered in isolation.

 

 

Kahan and Our Town: Thoughts on Making Science Wars Gentler

As one who for whatever reasons gets very bothered by what comes across to me as poor science driven by ideology I'm a big fan of Dan Kahan, whose work--though hardly without its own ideological overtones--strikes as a really excellent effort to (among other things) sympathetically explore motivated reasoning by both conservatives and liberals, as explored in this Chris Mooney post on a recent Kahan study on climate change.

What follow are a few brief Kahan-inspired thoughts on making "science wars" over the use and misuse of scientific analysis less hostile and more constructive.  The context is my own community, in which I've run for the school board in 2006, and will be running again in 2012.  In both cycles, science-related conflicts have been one feature of the local landscape.  One purpose of the reflections is to reflect on my emotions and what has inflamed them and calmed them, with the hope that doing so may be useful at least for myself as I prepare to enter the electoral lists again.

The first thought is directed at those of us who find themselves/ourselves agitated by what they/we perceive as biased, flawed use of science by the other side: If at all possible, do your own independent, separate analysis on the same or a different issue, rather than simply criticizing the other side.  Having done so, you are much less likely, I think, to be locked into a defensive, "the other side is grossly misusing science" mindset.

A story as to how that can work from my past experience: There was an issue in 2005-2006 over the effectiveness of the school district's efforts to detect and remove non-resident students.  I was unhappy about claims that a responsible analysis of data would show there was not a problem of any real magnitude.  In classic "science warrior" fashion, I couched my objection as itself grounded in science: I didn't necessarily believe there was a big problem, but I strongly objected to what I perceived as misuse of science to show there was not one.  What made me less agitated was the following: A town official who wanted to pass an anti-fraud ordinance persuaded me to do my own study suggesting there could be a substantial number of non-resident students in the system.  Through feeling qualms at the leaps, the uncertainties, and the arguable unfairness of my own study, I became less agitated and righteous in my feelings.  Even as I campaigned against him, I found myself respecting the incumbent board member who had carried out the analysis that had originally driven me around the bend.

The second thought is for those of us whose scientific analysis is being emotionally criticized by some for defects and for failing to respect proper boundaries between facts and values: Whether or not the critics come up with their own alternative analyses as suggested above, consider doing your/our own alternative study, either publicly or for oneself and one's team.  Such a study could be highly useful for oneself or members of one's team to the extent we/they are too full of righteous passion tied up in defensiveness about being criticized by the other side. 

The issue I have in mind: There is a current "science wars" stir in my town related to data analyses of test scores before and after a partial deleveling in one middle school grade and to a study of college readiness that used grades and level placements as indicators of readiness.  The study strongly bothered people concerned about the "correlation does not equal causation" point that putting students in higher levels (or deleveling), much less giving them higher grades, is not shown to be good policy by the data. 

I feel myself to be responsible for the controversial studies as an incumbent board member.  I think there is a good case that all of us who, whatever the nuances of our feelings, were not deeply bothered by the work as it was generated internally and then presented publicly--for me, for my board colleagues, and our district administration--not to say it is the responsibility of the other side that was greatly agitated by the work to come up with their own analyses.   Rather, I believe those of us on the inside should strongly consider doing our own independent studies.   That would not necessarily be a corporate project--board member A may feel differently from board member B, who in turn feels differently from administration--which leads to its own tricky problems.  But it does make sense, I believe, for those of us who are insiders to reflect as individuals or with others by coming up with our own alternative analyses of what we did originally.

A final optimistic thought on the science wars writ large and writ small: For all the unpleasantness of the politically-charged passions that may arise, lucky is the country and the town in which people's energies are channeled into doing science and questioning it.   I've spoken with a church friend about her experience on a school board in a nearby community in which value-laden science wars are absent and the everyday reality is one of patronage and perks.  Compared to what she experiences as a board member, I feel extremely lucky to be in a community where civic-minded people with strong moral and political values and a strong commitment to scientific analysis--people like the board member I described running against in 2006, the administrators who did the college readiness and effects of deleveling studies, and a community member who criticized those studies and who is now joining me in my 2012 run for the board--are a major part of the scene.  

One may hope for a more forgiving, gentler way to discuss the ties that bind science, ethics, and politics.   One may also be very grateful to the other side for its passions, its skills, and for being different from oneself and in doing so making oneself better.  

 

 

 

Make-Buy, Formal-Informal, and Dictated-Negotiated

Above are three dimensions that apply to purchaser-supplier relations and that can be applied to public policy arguments.

Some applications to public schools and specifically to labor reform possibilities for a school district:

a) Example of Buy-Formal-Negotiated: Contract with an outside provider—say a retooled version of Chris Whittle’s Edison Project--for all or a part of a district’s teaching staff (formal because of need for contract specs; negotiated because a local district will not be able to impose terms on a serious outside provider like Whittle);

b) Example of Buy-Formal-Dictated: Contract with an outside provider in which either the district or the provider can impose terms on the other;

c) Example of Buy-Informal-Dictated: After state law changes to allow doing this, enter into one-year informal contracts with individual teachers with pay dictated by district;

d) Example of Buy-Informal-Negotiated: After  state law changes to allow doing this, enter into one-year informal contracts with individual teachers; at least with good teachers, district accepts teachers negotiating for better pay on their own, or through individual as opposed to union reps;

e) Example of Make-Formal-Dictated: State and/or district power to impose detailed specs on productivity standards that teachers must meet to be retained;

f) Example of Make-Formal-Negotiated: Give union sweeteners to induce them to accept a new contract with detailed specs on productivity standards that teachers must meet;

g) Example of Make-Informal-Negotiated: Keep lockstep pay, tenure, etc., but pitch the many rules of the existing union contract in favor of a much shorter new contract;

h) Example of Make-Informal-Dictated: Eliminate lockstep pay, tenure, etc. along with the many rules of the existing labor contract in favor of a much shorter informal contract with terms imposed by the district.

The ed reform mainstream as reflected in the Department of Education’s Race to the Top and in current state legislative proposals or enactments in Trenton, Denver, and elsewhere is tilted pretty heavily toward Make-Formal-Dictated (with an admixture of Make-Formal-Negotiated to the extent the unions have a seat at the table).  I believe mandating  box e) is a substantial error for reformers.  I suspect that a), b), c), d), and h) are all worth experimenting with as well as e) in order to see what kind of new labor system for public school teachers works best. 

Egoist's and Altruist's Dilemmas in Teaching

1.  Egoist's Dilemma Version 1: If only I and other teachers could cooperate to create a caring, creative student-centered learning environment!  But no matter what the others do, I do better to focus narrowly on teaching to the test, which enhances my own position relative to other teachers under the accountability-obsessed system we live in. 

2.  Egoist's Dilemma Version 2: If only I and other teachers could cooperate to create a genuinely high-effort, high-performance environment in our schools that puts students rather than us first!  But no matter what the others do, I do better to take advantage of lock-step pay and tenure to take it easy and indulge myself.

There is a harsh, judgmental edge to both versions of the egoist's dilemma.  Their policy prescriptions are very different, but both stories share a strongly critical attitude toward the egoistic preferences that pull teachers away from altruistic concern for students.  Accordingly, their competing messages of moral reformation and systemic reform are apt to be attended by a high level of acrimony.   One sees that acrimony in current debates in education, with Version 1 advocates like the National Education Association viewing the other side as crushing the altruism that is the lifeblood of teaching with a corporate model of incentives and Version 2 advocates like Michelle Rhee viewing the other side as similarly crushing altruism with a low-effort unionist work culture.

Now, two versions of the altruist's dilemma:

1.  Altruist's Dilemma Version 1: If only I and other teachers could move away from our group-think ethos of performance, testing, and accountability to chart our own individual paths to create a caring, creative student-centered learning environment!  But no matter what the others do, I feel better if I stay with the comfort of the accountability ethos and the testing-centered classroom.

2.  Altruist's Dilemma Version 2: If only I and other teachers could move away from our group-think ethos of equality and security to chart our own individual paths to create a high-effort, high-performance environment in our schools that puts students rather than us first!  But no matter what the others do, I feel better if I stay with the comfort of the security-oriented, equality-oriented ethos and classroom.

Instead of denouncing the accountability-oriented system and greedy selfishness as Version 1 of the Egoist's Dilemma did, Version 1 of the Altruist's Dilemma is a gentler internal criticism of the profession and oneself for being locked into a culture of accountability that individual teachers identify with even while recognizing its flawed nature.   The same applies to Version 2 of the Altruist's Dilemma, which criticizes group-serving norms of equality and security that are powerful in the individual consciousnesses of teachers even as they doubt their value. 

If education reformers decide to take the Altruist's Dilemma seriously, it would imply a retooling of the reform message.  Instead of (or in addition to) a "don't slack!" plus "reform the incentives so slacking is no longer maximizing" message, the message would be "question your attachment to equality and security" plus "reform the culture of equality and security."  

An analogous point applies to the NEA if it took up the Altruist's Dilemma to advance its position.  Instead of (or in addition to) "don't be greedy!" plus "reform the incentives so greed is not maximizing," the message would become "question your attachment to the measurement of individual performance" plus "reform the culture of measurement." 

Why Drew Faust is like Louis B. Mayer: Hollywood Then and Harvard Now

On the face of it, Harvard's president Drew Gilpin Faust, a Civil War historian and Bancroft Prize winner and Pulitzer Prize finalist, is hugely different from Louis B. Mayer, the cigar-chomping, tough-talking old-time MGM mogul.

Look more closely, though, and a key resemblance between the two emerges.

Mayer in the 1940s operated a centralized studio system that was wonderful for MGM but much less wonderful for movie stars and directors, who worked for relatively low, standardized contract salaries, as well as for outside investors, who had to go through the studios to connect with directors and stars.

A similarly advantageous system for the institution as opposed to its top talent applies at Harvard and other major American universities today.  The academic equivalents of Angelina Jolie and Steven Spielberg do not earn a great deal more than their non-star colleagues, and outside money is welcome only in distinctly minor roles like getting a donor's name on a building.

In the university that Faust leads and in the broader American university system, the power, the glory, and not least the money--for Harvard's endowment of $27.6 billion as of mid-2010, reduced though it is from its peak of its few years ago, is hardly inconsiderable--redound to the institution, not to its top talent.

The story of Hollywood since the days of Mayer is the story of talent revolting and earning its market rewards.  Stars, directors, and producers get together on a project basis, with a much reduced, though still significant, role for studios.

A similar path is entirely possible for American higher education.  If America's leading researchers, most charismatic teachers, and best academic entrepreneurs get together with investors from venture capital firms and elsewhere to market academic programs on a project basis, the power, the glory, and the money left for Harvard and its peers will not be what they are under the current institution-dominated system.

Should the rest of us care about whether Harvard and other universities keep their top talent from getting market returns for their services? 

For what it's worth, my sense is that an American university system in which Harvard, Yale, and Princeton occupy the same positions at the top in 2010 as they did in 1910 is overly ossified. 

Hollywood under Mayer's studio system made plenty of good movies and some great ones, but the new system with talent rather than the studios in charge has done just as well or better.  I'm optimistic that just as much or more truth, virtue, and beauty will be created if academic talent revolts and creates a more competitive American higher education system that takes some of the power, glory, and money away from Harvard and its peers. 

My guess is that President Faust would not share my relative optimism about a potential talent revolt.  That's fair enough.  Harvard for all its flaws has substantial virtues--which I appreciate as a graduate of Harvard College and Harvard Law School--and she would be performing her role as one would expect if she casts herself and the great university she heads as defenders of the forces of reason and civilization against those with a lesser commitment to these values. 

But whether Drew Faust sees Harvard as exemplary or as an ossified institution in need of profound change, or perhaps as a mixture of both, she should be thinking about how the very long and apparently secure dominance of American higher education that her school and its peers have enjoyed might soon come to an end. 

If she has time to spare for new historical research, I have a suggestion: She should read up on Louis Mayer and his vanished era and reflect carefully on its implications for her job and for Harvard and its future.

 

 

 

 

 

 

Management and Law Comparative Paper--Outline

What follows is an outline of a paper that would review and revisit the themes of Barley and Kunda (1992) and Eastman and Bailey (1998); the idea would be to submit it for the AoM conference this summer in Montreal and then revise it for journal publication:

a) Intro--paper theme--a new look at the historical, cyclical, materialist classification of management scholarship by B & K and the different historical classification of management and legal scholarship by E & B, which is non-cyclical and idealist;

b) Predicting the recent past--does B & K's approach or E & B's work better to explain trends in management scholarship and education since the 1990s when B & K and E & B wrote?  How about trends in legal education?

c)  The basic dichotomy between utilitarianism and deontology; the prevalence of the former in management and of the latter in law;

d) Utilitarian-Benthamite and deontological-Kantian approaches to mediating the fact-value antinomy;

e) How management with its predominantly utilitarian mediation surfaces methodological "rationality of means" value competition and represses substantive "rationality of ends" value competition; how law with its predominantly deontological mediation surfaces substantive value competition and represses methodological value competition;

f) The greater salience of business ethics as a field relative to legal ethics; why the utilitarian mediation of management leads to the rise of business ethics and why the deontological mediation of law leaves legal ethics as a backwater;

g) The growth of a methodological split in the legal academy with the rise of law and economics; management in that respect as pointing the way for law;

h) Relevance of the analysis for management education;

i) Conclusion.

Administrative Tenure

This blog is about the analysis of values, including left and right values, and is not intended to be a forum for the expression of my own or other people's left and right values.  Accordingly, I'm a bit reluctant to include the following post, which consists of my testimony in Trenton last Thursday against tenure for principals, assistant superintendents, and other public school administrators.  The post does hook into the one I did a little while ago on how both parties have supporters (unions for the the Democrats, religious exclusivists for the Republicans) who are useful for the party and arguably the polity in enhancing voice for lower status people, but are also detrimental in policy terms.  Also, this post and my general interest in the administrative tenure issue could be regarded as an outgrowth or application of the value competition program--of course, the causality might actually run the other way, with my experiences with the school board, the Community Coalition on Race, etc. driving the program.

Since I find the left-of-center case for job security for bosses much more elusive than the left-of-center case for security for lower-ranking, lower-status workers, I think the administrative tenure issue is one on which liberals and Democrats as well as conservatives and Republicans may see a need for reform.  I'll be working with other South Orange-Maplewood school board members to push this issue forward--it'll be interesting to see what if any success we have. 

Why New Jersey Should End Administrative Tenure

[remarks prepared for General Assembly Education Committee hearing 12-3-09]

Wayne Eastman

South Orange-Maplewood Board of Education

430 Meeker Street

South Orange, NJ 07079    

weastman@business.rutgers.edu 

(973) 353-1001     

Good afternoon.  I’m Wayne Eastman, a member of the South Orange-Maplewood Board of Education, elected in 2006 and re-elected in 2009.  My background, briefly: I’m a professor in the Supply Chain Management and Marketing Sciences Department at Rutgers Business School-Newark and New Brunswick who was formerly a practicing lawyer in New York and New Jersey and who teaches business law and business ethics.  As acting director in 2007 of the Prudential Business Ethics Center at Rutgers, I organized a Rutgers Ethics Initiative on ethics in New Jersey government that led to a report covering pay-to-play, dual office-holding, and other matters.   Today I am speaking on behalf of the South Orange-Maplewood Board of Education in one respect, in that we have agreed as a body that administrative tenure as it now exists in New Jersey public schools should not be continued, and have established a Lobbying Committee to advance that position and other positions we hold collectively.  On the specifics of what I’m saying, though, I note that the words and arguments I’m using are my own rather than a collective position of the Board.

I want to begin by expressing my appreciation to Assemblyman Cryan.  I and three other members of the South Orange-Maplewood Board of Education—our President, Mark Gleason, the chair of our Lobbying Committee, Rowland Bennett, and another member of that committee, Beth Daugherty, along with our lawyer, Jessica deKoninck--had an excellent meeting back in mid-October in which the four of us on the Board expressed our opposition to administrative tenure.  The Asemblyman expressed strong interest in the topic and told us he would hold a hearing in the form of a round-table discussion in the lame-duck session.   A few weeks later, though, the Governor’s race turned out rather differently from what Assemblyman Cryan said he expected.  I would not have blamed the Assemblyman or anyone else if he had regarded his October statement to us as having an implicit contingency clause that his favored candidate for Governor win, given the understandable depth of his commitment to that candidate.  But Assemblyman Cryan went ahead with this hearing, and for that I strongly thank him.  I also want to express optimism about what I think this hearing can lead to.  Much as some issues--such as teacher tenure—are difficult or impossible to get a consensus on across partisan and ideological lines as of December 2009, I believe that the issue of ending administrative tenure while at the same time providing reasonable protection for current and new educational administrators is one that a Democratic legislature and a Republican governor can come together on right now.  The people of New Jersey need to see that their newly-elected leaders can work together to advance accountability and effectiveness in public education.  There is no better issue for that than administrative tenure, and I regard Assemblyman Cryan’s decision to proceed with this hearing as a highly hopeful sign that we can move forward together on this issue in New Jersey soon. 

Now, on to the substance of my remarks.  I have three main points to make.  First, based on my on-the-ground experience as a school board member for four years, I believe that administrative tenure is not a minor or abstract issue.  Rather, I believe it is a very serious obstacle to accountability and effectiveness in public education.  Second, administrative tenure is fundamentally contrary to the logic of having administrators be accountable to a school district’s top manager, the school superintendent. Finally, the tide of reform in the states and nationally is running against administrative tenure.  In the remainder of my written statement I will expand on these three points.  In the last part, I will then respond to three concerns about the abolition of administrative tenure and explain how abolition can be done in a way that is fair to current and new administrators.  At the end, I include a few links that may be helpful. 

I.  Administrative Tenure Is a Big Problem

Based on my experience on the South Orange-Maplewood Board of Education, administrative tenure is a central obstacle to a superintendent running a school district sensibly, not a minor or peripheral issue.  What I’m going to say in this section is somewhat cryptic, given that both our able board attorney and my own background as a lawyer counsel me to avoid unnecessary references to pending or potential litigation or to individuals.   In making these remarks, I also want to stress that I regard my district’s administrators, past and present, as a highly skilled and dedicated group.

Now, the blunt part of what I have to say.  Many hours of board discussion and many thousands of dollars have been wasted in our district because of administrative tenure and litigation it spawned.  Without administrative tenure, it is possible that litigation would have occurred anyway, given that government employees have—and in my view should have—due process rights.  But without administrative tenure, any such litigation would have merely been a nuisance suit, rather than the significant drain on time and money that we have actually experienced.

In my experience, the requirement that a superintendent and a board make a decision within a limited number of years—frequently less than three because of shorter clocks for administrators with certain kinds of previous experience--on whether someone should have what amounts to a lifetime job as a high-level manager like a principal or assistant superintendent is a terrible one.  Even when nothing goes dramatically wrong, tenure plays a central, deforming role in high-level personnel decisions. I have found myself supporting tenure for principals where I thought that there was very limited evidence on progress in student achievement and building a strong school culture.  Even in cases where I thought there was good evidence of progress, I have never felt confident in what amounts to tying the hands of future superintendents.  The problem goes beyond the length of the tenure clock.  What the superintendent and the board know about a candidate is necessarily time-bound.  To ask a superintendent and a board to proscribe the judgment of all future superintendents and boards by granting tenure to an administrator is to ask them to engage in a fool’s mission.

On the other side of the ledger, I have also found myself troubled by my support for denying administrative tenure.  Absent tenure for administrators, superintendents and boards would be more willing to renew third year candidates who should not be given tenure, but who might prove to be very good if renewed for a year or another contractual period of time.  I’m not claiming that the main reason to end administrative tenure is to avoid firing administrators—but I do believe that some firings of third year administrators that now occur can and should be avoided by ending administrative tenure.

II.  Imagine if Christie (or Corzine) Couldn’t Change His Cabinet…

    As a result of an earlier reform, superintendents in New Jersey no longer gain tenure.  But all other administrators do, including the principals responsible for buildings and the central administrators who work closely with the superintendent.  Let me speak bluntly again.  For important administrators like assistant superintendents and principals not to be accountable to the superintendent they report to is absurd, judging not only by the standards of the business world but also by the standards that apply at the top of our state and federal government.  Anyone who proposed that the top staff who implement the vision of a CEO or the cabinet of a Governor or a President should have iron-clad job security would be considered completely out of bounds—but that is in fact the system we have in New Jersey public education. 

    At this point, I want to address the comparison between K-12 education in New Jersey and higher education, the sector in which I work at Rutgers.  There are major parallels between the two sectors.  As one who has tenure myself as a professor and whose wife is a tenured English teacher in a New Jersey high school, I feel those parallels keenly, all the more so because I am also an educational administrator myself as vice chair of my department.  Unlike my faculty position, my administrative position has no job security.  I have a one-year contract and otherwise serve at the pleasure of my chair and my Dean, as do other faculty and non-faculty administrators at Rutgers, who likewise are covered by contracts of differing lengths.  In other words, higher education in New Jersey already has the situation that should apply as well to K-12 education.

I see significant arguments for as well as against the faculty tenure that I and my wife have.  But I see no good reason for administrators whose job is to be accountable to a chair or a Dean or a superintendent to have tenure that makes it next to impossible for that chair or Dean or superintendent to remove them.  Whatever the ultimate merits of teacher or professor tenure, there is a serious case for it that there simply is not for educational administrators, who need to be accountable to the superintendent or dean who hires and evaluates them.

III.  The Trend is Against Administrative Tenure

Administrative tenure as it exists in New Jersey has been a minority position for a long time.  A 1983 survey by the National Association of Secondary School Principals found that only seventeen states had full-scale principal tenure, with the remainder having lesser protection or no principal tenure at all.  Since then, there has been a definite trend toward eliminating administrative tenure.  The best information I have been able to locate on the current situation comes from a document from the National Conference of State Legislatures, the relevant parts of which I have included in the sources section at the end of this statement, and which suggests that New Jersey is one of a small number of states with full-scale administrative tenure.  We may even have the dubious distinction of being the state with the most iron-clad system of administrative tenure, given that New York, which the NCSL document highlights as being similar to New Jersey, has a more limited mandate than we do, in that it does not include assistant superintendents and has been limited further in New York City. 

We should eliminate administrative tenure because it is the right thing to do, not just because we’re worried that Arne Duncan’s next speech or the latest federal regulations for Race to the Top eligibility will include administrative tenure here along with laws in California and New York prohibiting the use of student performance data in teacher tenure decisions as examples of reactionary, unjustifiable state laws.  But that concern about being out of step is another good reason for us to move away from administrative tenure in New Jersey.

IV.  But What About…?

    There are a number of concerns that can be raised about the elimination of administrative tenure.  In this section, I give responses to what I believe are the three biggest legitimate concerns and suggest ways in which the elimination of tenure can be accomplished in a way that is fair to current and new administrators.

Q. Isn’t it unfair to take away tenure from administrators who have already gained it?

A. Given the equity issue raised by the question, it makes sense for the elimination of tenure to be prospective rather than retroactive, which is to my knowledge the path followed in states that have eliminated tenure for administrators.  (Also, I would recommend that a provision be added to the legislation to make it clear that is is lawful for districts to offer a package in which a current administrator can voluntarily agree to forgo his or her tenure rights.  Further, it would be reasonable to include a provision stating that nothing in the legislation shall be construed to deny the right of an administrator under state public employment law and the state and federal constitutions as interpreted by the courts to due process in connection with a termination of employment.)

Q.    Isn’t it unduly harsh to fire an administrator who is not up to par as an administrator but was a perfectly good teacher before becoming an administrator?

A. Opinions on this may differ, since one can reasonably say that a teacher who chooses to become an administrator should simply accept the additional risk, just as a teacher does in giving up tenure when moving from one district to another.  In the interest of reaching agreement on legislation and given my own Rutgers experience, I personally believe it would be fine to have an teacher turned administrator retain tenure that he or she possesses in a given district as a teacher.

Q.    Aren’t the problems with corruption and politicization in some New Jersey school districts a good reason to retain administrative tenure?

A.   The overall answer to the question is no.  The reality that some school districts in New Jersey have past and present difficulties with corruption, poor personnel management, and failure to focus on student learning is not a good reason to hold back progress in the large majority of districts that are run professionally.  Instead, a better approach would be to recognize that problems exist in certain districts and to deal with that specific issue.  One reasonable way to do that would be a provision that requires school districts below a certain administratively determined level of performance on the state’s QSAC accountability monitoring to have their terminations of administrators with more than three years experience reviewed by the State Department of Education. 

V.  Conclusion

    The fact that the elected school board of South Orange and Maplewood, two of the deepest blue suburbs in New Jersey, supports the elimination of administrative tenure as we do is significant.  On some issues, my towns aren’t a bellwether.  But on the issue of administrative tenure, we are a very important indicator.  If we are against it, what part of New Jersey is for it?  Republican suburbs or rural areas in Morris County, Sussex County, Monmouth County, and Ocean County?  I think not.  I believe school boards and voters in those solidly Republican areas are with us in rock-ribbed Democratic South Orange-Maplewood in supporting change.  To the extent there are special issues in certain school districts, especially in our cities, they can be dealt with through enhanced state monitoring for these districts, as I’ve suggested.  Across party lines, let’s move forward in New Jersey to join the strong national majority of states and the strong national trend by eliminating administrative tenure and enhancing accountability in our schools.

VI.  Some sources:

1.   The National Association of Secondary School Principals (2000) and (1983): Although their material has some tilt toward the pro-tenure position (for instance, it repeats the frequently made but misleading claim that tenure simply guarantees a hearing and due process, which ignores the reality, clear in my experience as a board member, that it is in fact extremely difficult to remove a subpar tenured public school employee in New Jersey), it also includes an acknowledgement that many principals favor ending principal tenure, and has useful information on trends and the law:

http://www.principals.org/s_nassp/bin.asp?CID=680&DID=50140&DOC=FILE.PDF (2000)

http://www.eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini.jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED238149&ERICExtSearch_SearchType_0=no&accno=ED238149 (1983)

2.  Education Week: The title of this 1998 article--“Tenured Principals: An Endangered Species”--indicates its theme:

http://www.edweek.org/ew/articles/1998/03/04/25tenure.h17.html

3.  KPMG Peat Marwick report for North Carolina General Assembly: This 1992 report to the legislature advocates elimination of administrative tenure in North Carolina and notes various ways in which administrators without tenure can be protected from unfair discharge:

http://www.ncga.state.nc.us/GPAC/issue/e/GPACEDU071.pdf

4.  National Conference of State Legislatures document: This undated document, which appears to be a draft, contains information on state tenure laws, which is reproduced below:

 

 

 

7700 East First Place, Denver, Colorado, 80230, 303-364-7700

 

 

PRINCIPAL TENURE

 

 

States that grant tenure to principals:

New Jersey

NJSA 18A: 28-5

http://lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=478476&Depth=2&depth=2&expandheadings=on&headingswithhits=on&hitsperheading=on&infobase=statutes.nfo&record={7D76}&softpage=Doc_Frame_PG42

 

New York

Education Law § 3012 (1) (b) Tenure: certain school districts.

http://public.leginfo.state.ny.us/menugetf.cgi?COMMONQUERY=LAWS

 

Utah

Utah Code Title 53A, Chapter 8, Utah Orderly School Termination Procedures Act

http://le.utah.gov/~code/TITLE53A/53A08.htm

Tenure for school employees is provided by school district policies or an agreement with an employee association. The Utah Orderly School Termination Act specifies procedures for the termination of tenured employees who have worked a minimum of three years for their employer. Termination Act procedures apply to licensed principals. In Utah, a principal can be hired without having an administrative license, but the person is an at-will employee.

 

States with some protection for principals:

Hawaii - Principals are union employees and enjoy all of the civil service privileges due to their bargaining unit. 

 

Nebraska - Principals are under the same continuing contracts as teachers. Under the group of statutes that are labeled "Tenure" in the codified statutes, teachers and administrators (other than superintendents) are protected from termination after their first 3 years in a district by continuing contracts and may generally only be removed for just cause as defined in the statutes or as part of a reduction in force.

 

Nevada - The Nevada Revised Statutes (NRS) do not use the term "tenure" with regard to teacher and administrator employment.  Instead the terms "probationary" and "postprobationary" are used.  These are defined in NRS 391.311.  The following sections provide for employment of teachers and administrators. 

• NRS 391.3197 provides that a probationary employee is someone in his or her first 2 years of employment with the school district.  Receiving notice of employment for the third year entitles the individual to be a postprobationary employee. 
• NRS 391.3196 provides that postprobationary employees have an expectation of reemployment. 
• NRS 391.3197 provides that an administrator who has completed his or her probationary period and is promoted to the position of principal must serve an additional probationary year as a principal.  After that, he or she is a postprobationary employee in the position of principal.
• NRS 391.110 provides for the employment of superintendents.  An initial contract term may not exceed four years.  The term of any subsequent employment may be for any length of time. 
• NRS 391.312  lists grounds for suspension, demotion, dismissal and refusal to reemploy teachers and administrators.

http://www.leg.state.nv.us/NRS/NRS-391.html#NRS391Sec311

 

North Dakota - Principals are under continuing contracts, which includes due process.

http://www.legis.nd.gov/cencode/t151c15.pdf

 

West Virginia - Does not refer to it as "tenure", principals are awarded a  "continuing contract" under West Virginia Code §18A-2-2 after their  first three years of employment.  If you look at that code section,  although this statute refers to "teachers", §18A-1-1 says that   "professional educator" is synonymous with "teacher" and includes  "principals".  The statutes are not clear on the rights of probationary verses continuing contract employees. However, a legislative staff member, after looking at several grievance decisions and supreme  court cases, says that it appears that continuing contract employees are given more rights in terms of the reasons for which they can be dismissed, use  of seniority when a reduction in force occurs, and being placed on a  preferred recall list.  A probationary employee simply can be let go by not renewing his or her contract. 

 

Competing Values in Law

On the face of it, law is a domain of surfaced value competition in a way that management is not.  Managers may employ individualist or communitarian--or for that matter left or right--ideas, but a direct competition of the sides with advocates for both defies the norms of the management field.  On the other hand, surfaced competition with advocates for both sides is entirely mainstream within law.  Further, quite often the positions the two sides are advancing are individualist, communitarian, left, or right positions.  

The key qualification to make about law and values is that what the competing sides advocate and what judges decide, if they are "speaking law" properly, is not Rawls or Nozick or MacIntyre or Burke but a version of ideology or ethics that is tailored to the distinctive legal task of blending and alternating between rules and standards.  John Hart Ely's wisecrack some decades ago about the Supreme Court voting 6-3 for Rawls over Nozick hits home as a criticism of the limits of politicized legal judgments not so much because law is apolitical or a ethical--it  most emphatically has very substantial political and ethical content--but because judges must speak properly in legal terms.  A brilliant libertarian or communitarian idea must remain tacit, or be translated into an appropriate rule, standard, or rule-standard. 

By comparison to judges, managers can draw from column A and column B without the constraint of having to justify their answer as the right answer over other possible answers.  Compared to law, a "right answer" discipline, management is a "move the ball forward" discipline.  A manager can draw on Bentham, Kant, Rawls, MacIntyre, Burke, and other ethicists and/or ideologues more freely in some respects than a judge can do.  Judges face greater consistency constraints than managers do; for a manager, honoring the grab-bag, local rationality over global rationality quality of management as a discipline constrains the manager from consistent commitment to one ethical or political perspective as the right answer but supports eclectic commitment to different perspectives that may in different circumstances help move the ball forward.

The Implicit Ethical Structures of Management and Legal Education

Why is business ethics more intellectually ambitious and more successful as a field than legal ethics?  A plausible materialist answer is that the professionalization of law has led to legal ethics becoming synonymous with a code of professional responsibility and to a concomitant diminution in intellectual ambition and disciplinary power.  But there is also a potential idealist explanation: The virtues and the flaws of management as an academic discipline map better onto major ethical schools than the virtues and flaws of legal education do.

Management education with its mix of calculative (finance, OM, etc.), cultural (OB, etc.), and mixed disciplines can be justified in eclectic utilitarian terms: To enhance their effectiveness as well as that of their firms and their society, managers should be able to draw on both utilitarian and non-utilitarian approaches.  From the eclectic utilitarian perspective, epitomized by Mill, effectiveness is often enhanced when utilitarianism is not directly relied upon; given that perspective, the central role of the calculation-culture dichotomy in management theory makes sense. 

Management education also can be usefully criticized in philosophical terms.  From a Kantian deontological perspective, there is a serious concern as to whether management forsakes moral seriousness and universality for an endless succession of morally relaxed utilitarian compromises.  From an Aristotelian virtue ethics perspective, there is a serious concern over whether the dominant split between calculation and culture in management loses sight of the manager as a whole person with a character in favor of viewing the manager as a device to achieve effective results.  From a communitarian utilitarian perspective a la Peter Singer, management education reinforces the failure to take into account remote but ethically pressing harms and benefits.  From an individualist perspective, management education oversocializes, cultivating organization men and women rather than free spirits.  Because critical stances as well as a justificatory stance on management education can be readily related to major ethical schools, business ethics courses have a reasonably straightforward logic.

By comparison, legal education with its emphasis on inculcating skills in blending and alternating between clear rules that avoid moral language and ambiguous standards that embrace moral language does not readily map onto Bentham, Kant, Aristotle, or other major ethicists.  First, because the utilitarian reason cultivated by law and economics is a subordinate kind of reason that dare not speak its name, there is no bright-line clash between utilitarianism and deontology in law the way that there is in management.  Next, because the legal curriculum is not as fragmented and dichotomizing as the management curriculum, virtue ethics has less critical bite in law than it does in management.  Finally, because legal education lacks the preoccupation management education has with the individual, firm, and social levels, individualist and communitarian critiques map less well onto law than to management.  For all that the structure of legal as well as management education has significant ethical content for the people who go through it, the structure does not accord as closely with major ethical theories in law as  it does in management.

The Analogy between Religion and Education

Is the economic analysis of religion creepy?   One can emulate Jeremy Bentham or Al Roth (the HBS professor who posts on repugnant markets http://kuznets.fas.harvard.edu/~aroth/alroth.html ) and stand up for consequentialism in its creepy as well as its mainstream manifestations.  Personally, though, I prefer trying to use analogies to reduce the sense of creepiness that extending economic analysis to new domains can engender.  

For an analysis of how unregulated religious markets can lead to market failures in the form of religions that fail to socialize their members effectively, I think the right analogy is to education.  In that sphere, as in the religious one, there's a generally accepted (and I believe correct) case that there are positive externalities of the activity that make certain public subsidies warranted.   In education, though, not even the most fervent supporter of vouchers argues for giving out the money without substantial quality control by the government.  Allowing that people feel differently about the direct provision of government dollars to education compared to the indirect provision of dollars to religion through property tax and income tax subsidies, there is a logical case for extending at least a measure of the quality control that people rightly expect in government-supported education to governmentt-supported religion.   Whether this argument gets people to change their minds on moving away from the highly hands-off stance the US now takes toward tax-supported religion or not, I believe it helps advance the case for doing so in a way that has less of a "creep-out" factor than a pure economic argument does.