COLUMN ONE : Teachers Who Fail and Keep Teaching : Administrators blame tenure’s flaws and districts’ reluctance to fire problem personnel. But instructors also cite poor management. Either way, the students suffer.

Juliet Ellery was the kind of teacher every student--and every parent--dreads.

After 20 years in the classroom, the El Cajon teacher’s best years seemed behind her. She hardly lectured any more. She gave baffling assignments. Not sure what to do? Tough. Got a question? Find the answer in the book. So, many students simply ignored her and spent her class period chatting, combing their hair, wandering around the room, according to court rulings.

To her students at Cajon Valley High School and their parents, it was clear that Ellery was failing. In public schools, though, failure almost never means losing your job, and that fact is at the heart of a growing national debate over tenure for teachers.

Frustrated that more than a decade of school reform rhetoric has not fixed the public schools, politicians in many states, including California, are laying part of the blame on bad teachers and seeking ways to link performance to employment.

Administrators complain that tenure’s procedural protections give teachers a virtual guarantee of lifetime employment. Teachers say principals use that argument to excuse slapdash, on-the-run performance evaluations that neither accurately depict their shortcomings nor help them improve.

Either way, writes Stanford University education professor Edwin M. Bridges in “The Incompetent Teacher,” teachers usually must reach a point of “performance collapse” before being in danger of dismissal. “That doesn’t give much weight to the interests of the child in receiving a quality education.”

In a rare but telling instance where a school system did act against a problem teacher, officials of the Grossmont Union High School District moved to fire Ellery in 1986, and wound up in a protracted legal battle that cost the district more than $300,000--and Ellery her teaching credential.

To this day, Ellery, 56, contends that she was victimized by overzealous parents and students who could not meet her high standards. And she says her case demonstrates that “tenure is not working in California” because school districts “can get rid of anybody they want.”

Principal Arthur Pegas said he did not relish the fight with the veteran English teacher. But, he said, she could not be ignored.

As early as 1981, angry parents began stomping into his office demanding transfers and other teachers grew weary of accepting her refugees. Later, frustrated students shouted obscenities at her and circulated signatures on petitions demanding her ouster.

Pegas said he spent four years documenting Ellery’s problems--and having her rebuff his suggestions for improvement--before the district decided to force her out.

Four years, and $312,000 in legal fees later, the ensuing litigation was settled. And four years after that, in 1994, Ellery’s license to teach in public schools was suspended for one year.

Administrators say the Ellery case shows that tenure--a 60-year-old set of laws protecting teachers from dismissal for arbitrary or political reasons--is absurdly out of whack, preserving employment rights at the expense of student learning.

Teacher dismissals for incompetence are extremely rare, in large part because districts will do almost anything to avoid the expense and exposure of litigation. If they lose, districts must cover a reinstated teacher’s legal expenses, which could add $70,000 or more to their own fees.

In five years, only 310 teachers out of a statewide force of 220,000 were fired or quit to avoid dismissal. Almost all of those cases involved misconduct or criminal behavior, rather than instructional missteps--such as failing to teach children to read or work out an algebraic equation--that are difficult to prove in court, in part because neither the state nor most districts have been able to define what makes a teacher inadequate.

So, unwanted teachers are transferred from school to school in a charade referred to as the “dance of the lemons” or the “turkey trot.” Or they are moved into non-teaching jobs or positions as long-term substitutes, assignments known derisively as “kennels.” Many districts try to force teachers to leave by making them miserable, assigning them bonehead classes, disruptive students and unworkable schedules.

Those maneuvers satisfy no one.

“The one thing teachers hate more than anything is a teacher who is not doing what they are supposed to be doing, because those kids end up in your classrooms,” said Helen Bernstein, president of the United Teachers-Los Angeles union.

In Los Angeles, an average of 10 to 15 teachers are forced to transfer to new schools each year, “so that everybody kind of shares the burden,” said Howard Friedman, an attorney who handles dismissal cases for the Los Angeles Unified School District. “That’s not something people want to acknowledge, but it is plainly built into every institution, public or private.”

Far more--perhaps hundreds--move on their own, under pressure from their principals, often responding to complaints by parents and other teachers.

Friedman said the district also is keeping watch on the performance of 20 to 25 others--out of its 30,000 classroom teachers--to see if they will improve. If they don’t, the district will try to persuade them to resign--a process known as “counseling out”--rather than endure a formal dismissal. In two years, the district has initiated only a handful of firings, but has gotten several dozen to leave in other ways.

Usually that means offering to pay teachers off--with consulting contracts, continued health benefits and even cash bonuses.

Those arrangements are “a hard and bitter pill to swallow, because it’s like rewarding someone for bad teaching,” said Diana Halpenny, an attorney for the San Juan Unified School District in Sacramento.

That district once paid a half-year’s salary to a veteran chemistry teacher with a reputation for answering students’ questions incorrectly, if he answered at all. The final straw came when a student’s sweater caught fire from a flame he had left burning after an experiment. Seeing what was happening, the teacher reportedly said: “If you can’t stand the heat, get out of the kitchen.”

If all else fails, some districts simply give up and look the other way, especially if a weak teacher can manage to keep students quiet and parents do not complain.

“The ones who can’t teach their way out of a paper bag but can keep discipline won’t be touched,” said Mary Jo McGrath, the attorney who represented the Grossmont Union High School District in its case against Ellery.

As part of a package of education reforms intended to make schools more results-oriented, Gov. Pete Wilson proposed this year replacing tenure with a renewable contract, which is how private schools hire and fire teachers.

So far, the powerful California Teachers Assn. has managed to block that and other efforts to reform or weaken tenure. But the issue is far from dead. And both sides are honing their arguments.

Teachers say it is unfair to target them for firing when students don’t succeed. “Teachers want principals to do their job,” said UTLA’s Bernstein. “Until we start holding principals accountable for what’s going on in classrooms, how can we hold teachers accountable?”

Indeed, most teachers are caring and committed professionals, struggling against the odds of too few resources and too many youngsters coming to school with too much personal baggage from a chaotic home life.

But, just as there are bad lawyers and doctors, there are teachers who make coming to school a waste of time, if not a torment. And, like a virus, the failings of one or two teachers can infect entire schools, demoralizing other teachers and dominating the time of principals.

It’s the students who suffer the most. If only 1% of the state’s 220,000 teachers were incompetent, roughly 200,000 students would be directly affected.

“The process needs to be fair, but it also needs to be swift,” said Maureen DiMarco, Wilson’s top education adviser. “Who are we running the system for? The children or the employees?”

Teachers become tenured after two years in California, while in most other states it takes three. At that point a district can choose to let a teacher go, but most rarely exercise that option.

Once tenured, a teacher can only be fired after a formal process of charges, hearings and appeals. The state education code lists 12 causes for termination, including immoral conduct, dishonesty, drug abuse or alcoholism, and incompetence.

Union leaders say they need tenure for protection, pointing to cases in which districts have tried to fire teachers for their clothes, their hairstyles or their political views.

Teachers want incompetent teachers to lose their jobs, they say, but only if they are first evaluated honestly and fairly and given a clean shot at improving.

Union leaders said they analyze each dismissal case and, if a district’s case is solid, advise teachers to negotiate a settlement rather than fight. But many administrators chide the union for not doing more to police the teaching ranks.

In a handful of districts around the country, including Poway near San Diego, teachers help evaluate and counsel their peers. But the California Teachers Assn., which represents 90% of the state’s teachers, has resisted playing that role, saying that until teachers help hire and fire, they should not have to evaluate their peers.

Under state law, teachers are supposed to be evaluated every other year, with unsatisfactory reports leading to a plan for improvement or, ultimately, dismissal. The state education code recommends that evaluations consider whether the classroom environment is conducive to learning, students are making adequate progress, the right topics are being covered and the teacher knows, for example, when to lecture to the whole group and when to work with students one-on-one.

But teachers say many principals are ill-equipped, or unwilling, to make such judgments. Performance standards for teachers vary greatly among districts. Evaluations also differ and are often a sham, teachers say, taking as little as 15 minutes during which the principal runs down a checklist of irrelevancies such as the classroom temperature.

Stanford’s Bridges said a tough evaluation usually only brings headaches for the principal. “Criticism generates additional time demands and the need to work closely with teachers to improve their performance,” he wrote. “Under these conditions, the safest course of action is to . . . avoid the conflict and discomfort that accompany confrontation.”

Assemblyman Bruce Thompson (R-Fallbrook), who authored the tenure reform legislation that Wilson supported, said evaluations now are irrelevant. His bill--which he still hopes to bring to the full Assembly for debate--would have made a poor job evaluation a sure first step toward dismissal, and forced teachers to improve, he said.

“If you have honest evaluations with teeth in them, then people will rise to the occasion and they will improve their skills,” he said.

But the experience of other states suggests that, in isolation, tinkering with tenure laws accomplishes little. In Colorado, lawmakers gave administrators the power to fire teachers simply for failing to measure up to local expectations. But the provision is rarely used.

“There’s still a great deal of paranoia out there on the part of administrators that they will be sued for trying to dismiss someone,” said Kathy Christie, director of the information clearinghouse for the Denver-based Education Commission of the States.

Ellery said at least 10 other teachers had observed her in class and noted no problems, and she had received positive job evaluations throughout her career, until three months before the Grossmont district board decided to fire her in 1986.

But Pegas said when he became principal five years earlier, he could already tell something was wrong. Because of transfers out of her class, Ellery had far fewer students than other English teachers.

When he ended the transfers, parents began to complain. One, whose son felt belittled by Ellery, wrote a letter that was submitted to the commission and concluded: “I feel no student should have to be put through such treatment, humiliation, chastisement, and such, day in and day out.”

So Pegas began documenting Ellery’s shortcomings. “I had never seen a teacher that bad and the thing that was most damning about her was the complete unwillingness to accept any reason to change,” he recalled.

The state education code does not define incompetence and neither do most school districts, meaning that principals must do so case by case, by citing specific examples of errors. Principals say they keep an eye out for teachers who are missing the mark in class--talking, for example, about polynomial equations to students still mastering arithmetic.

Other common shortcomings include not preparing lesson plans, not providing clear expectations, communicating poorly with parents or giving assignments unrelated to in-class lessons.

Often a teacher’s failings are as subtle as they are profound. “You can say that a teacher doesn’t make lesson plans . . . but it’s more difficult when you’re trying to say that a teacher isn’t motivating students,” said Fresno Assistant Superintendent Deberie Gomez.

By far the most frequent reason given to justify a dismissal for incompetence is failing to control the class.

Jackie Dobbins, principal of Frost Elementary in San Jose, said setting high standards and demanding that they be met is personally draining and she understands why many of her peers find it easier to look the other way.

“The teachers union is always watching you to see if you are picking on the employee . . . and they’re not pleasant about it; [they] just come in screaming at you,” she said. “You’ve got to be able to take a lot over a long period of time.”

But Lola Buie, executive director of the Grossmont Education Assn., the CTA local to which Ellery belonged, disputes that.

“If you are treating everybody the same and you are saying this person has a problem . . . and are dealing with them in a humane and fair manner, you’re not going to get any flak from teachers,” she said.

While Pegas was trying to build a case against Ellery, making formal visits to observe her class at least 20 times in three years, he had to keep some students with her, to make it possible to assemble a dossier of her deficiencies.

“The kids are the sacrificial lambs,” said McGrath, a Santa Barbara attorney who has been so successful in teacher dismissal cases that she is known as “the Terminator.”

In 1986, Grossmont voted to fire Ellery, and filed a 41-page bill of particulars portraying her manner as demeaning, her classroom as chaotic and her teaching methods as ineffective.

Ellery characterized the charges as opinions, hearsay, untruths and exaggerations. Ellery, who made $41,200 a year, said she suspects the district wanted to deny her a $5,000 raise she had earned by getting advanced degrees.

If the teacher chooses to appeal the dismissal, as Ellery did, the matter is heard by a panel.

That panel, called the Commission on Professional Competency, voted 2 to 1 to uphold the Grossmont district’s decision to fire Ellery, after a 14-day hearing that involved 44 witnesses and 85 exhibits. She had been out of the classroom for more than a year, but was still being paid when the decision formally terminated her.

The panel member appointed by the union voted in Ellery’s favor, saying the charges against her “bordered on nit-picking,” and that she had tried to improve by taking extra training, but “nothing would have been able to satisfy her supervisors.”

On the contrary, Pegas said, he would have done almost anything to avoid dismissing Ellery. He would have allowed her to transfer, he said, but no other principals in the district would accept her.

Ellery appealed to the San Diego County Superior Court, where a judge upheld the decision, but Ellery was not ready to concede defeat. She went to law school and, acting as her own attorney, appealed all the way to the U.S. Supreme Court, which declined to hear her plea.

McGrath said such sagas should not deter administrators from aggressively enforcing high standards. “There is a mind-set, that it is impossible to fire a tenured teacher and it gets the administrators off the hook from doing their job,” she said.

Pegas said getting rid of Ellery paid dividends. Under the tutelage of her replacement, he said, the same students’ performance became “outrageously different, from kids who can’t do it to kids who could.” And the morale and performance of other teachers at the school also improved.

“Our clients--our students and our parents--are calling for accountability,” said Larry Marquand, the district’s assistant superintendent for personnel.

He acknowledged that teaching in California, with large classes and diverse students, can be full of challenges. But, he said, “students can learn and teachers must be able to demonstrate that they can teach.”

After she was fired from the Grossmont district, Ellery taught for a while as a substitute in San Diego public schools. In November, her credential suspension will end and she will be eligible to teach again.

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The Dismissal Process

When Principal Arthur Pegas sought to have teacher Julie Ellery fired for incompetence, he had to follow a state-prescribed process that typically stretches over several years and can rack up litigation expenses of $100,000 to $300,000. The basic steps:

1. After spending several years cataloguing specific examples of misconduct or incompetence, officials warn a teacher in writing that he or she may be fired; in incompetency cases, teachers have 90 days to improve.

2. If improvement does not occur, the superintendent asks the Board of Education to dismiss and notifies the teacher he or she has 30 days to ask for a hearing. The teacher is provided a state of specific charges.

3. The board schedules a hearing before the Commission on Professional Competence, a panel that includes an administrative law judge and two teachers--one appointed by the district and one by the teachers’ union.

4. With both district and teacher represented by attorneys, the commission hears the case--which can take several weeks and include the presentation of testimony, witnesses and exhibits by each side.

5. The commission deliberates privately and renders a written decision on whether the district has proven each of its charges and demonstrated adequate grounds for dismissal. If the commission rules against the district, the teacher must be reinstated and paid all back salary and legal fees. (Usually the teacher remains on paid status until the commission rules.)

6. Either side can appeal to the Superior Court, where a judge reviews the evidence and rules either to uphold the decision, reverse it or send the case back to the commission for reconsideration of some or all of the charges, which begins the appeal process anew.

7. Either side can appeal the judge’s decision through the state court system and to the U.S. Supreme Court.

8. Once the case is final, the state Commission on Teacher Credentialing is notified of the dismissal. The commission can then act to remove or suspend the teacher’s license or to merely reprimand.

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Three Case Histories

* Teacher: Philip Rope, Monrovia High School drama teacher.

* Experience: 17 years.

* Summary: The district tried to fire Rope, alleging that he used racial slurs and obscenities, made offensive sexual comments and got into fights on campus, concluding one by banging on a car with a tire iron. Three times, the Commission on Professional Competence ordered him reinstated, saying students’ testimony was not believable. But last August, Los Angeles Superior Court Judge Robert O’Brien overruled the panel and ordered Rope dismissed for immoral conduct and unfitness to teach. The district’s cost: $150,000.

* Perspective: O’Brien wrote that Rope’s misbehavior with students and other teachers had been well known since 1986, harming his relationship with students. The judge ruled that even the eight charges the commission upheld constituted “conduct manifesting unfitness and unsuitability for teaching.”

* From the teacher: Rope, an acknowledged alcoholic, told the panel of awakening unaware of where he was or who he might have offended. “I was, I think, a great teacher when I was drunk and I’d like to prove to myself I can be a fantastic teacher when sober.”

* Teacher: Michelle Blair, Los Angeles Unified School District, junior high and high school English teacher.

* Experience: 20 years.

* Summary: Blair pleaded no contest to welfare fraud in 1988 and was fired. She appealed and was reinstated by the Commission on Professional Competence, which ruled the offense unrelated to her job performance. The district tried to fire her again three years later, citing her grading practices at Grant High in Van Nuys, where she allegedly gave “A” grades to students who didn’t show up, “F” grades for assignments done correctly, and lowered the grade of at least one student who complained. The commission ordered her reinstated. The district is appealing and has reassigned her to the classroom to gain evidence for a third dismissal attempt.

* Perspective: “If we’re not successful, we’ll try again,” said Belinda Stith, the school district’s attorney. “The kids are the ones who get hurt.”

* From the teacher: “I’m sure she would like to be left alone to do her job . . . without worrying whether the district is out to get her every day,” said Blair’s attorney, David Penner.

* Teacher: Bryan Bowman taught learning-disabled students at Blanche Reynolds School in Ventura.

* Experience: six years.

* Summary: Bowman, who had previously won honors for his teaching, was accused in 1993 of more than 70 charges involving poor judgment or mistreatment of his students. The employment panel upheld more than 50 of them, including that he taped a student to her chair, regularly had students sit in his lap, made comments about their bodies, pulled a chair out from under one, and remonstrated his students to “stop acting like tards of the world.” The employment panel voted 2-1 to retain him as a teacher, saying the evidence did not prove that he was immoral, dishonest or unfit. The district is appealing. Bowman remains on paid leave and is teaching at a Ventura private school.

* Perspective: “My question is, ‘What does it take to dismiss a teacher?’ ” said Ventura District Supt. Joseph Spirito.

* From the teacher: Bowman “did a very good job with a student population that is very difficult,” said his attorney, Paul D. Powers.