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Virginia Journal of Education


What Does 'Tenure'Mean?

Some straight talk about teachers, continuing contracts and 'guaranteed employment.'

by Dena Rosenkrantz

The topic of “tenure” for teachers and other school employees is an often-misunderstood one. To help clarify the concept, here are some basic questions and answers:

Do Virginia teachers get tenure?
No. State law establishes “continuing contract” for experienced public school teachers. This protects such a teacher from arbitrary termination between school years, or without notice or opportunity to contest a recommendation to dismiss the teacher for good cause. However, continuing contract is not lifetime tenure. Teaching positions can be eliminated and continuing contracts terminated if student enrollment declines, subjects or classes are eliminated, or school funding is cut.

Do all school employees get continuing contract?
No. Only full-time, licensed, instructional employees are eligible. This includes, for example, teachers, guidance counselors, visiting teachers/school social workers, and librarian/media specialists whose employment requires a license and endorsement by the Virginia Board of Education. Principals, assistant principals and academic supervisors are also eligible for continuing contract. Part-time teachers are not; nor are other school employees, such as bus drivers, secretaries, custodians, teaching assistants/aides, occupational or physical therapists, nurses, bookkeepers, human resource staff, or security officers.

How long does it take to get continuing contract?
Virginia law requires teachers to serve a probationary period of three consecutive years in the same school division before being eligible for continuing contract. Continuing contract takes effect when the teacher returns for the fourth consecutive year in the same school division. A teacher who moves to another school division in year four must begin a new three-year probationary term.  

Can teachers take their continuing contracts from one Virginia school division to another?
A continuing-contract teacher who moves to another Virginia community can be required to complete one year of probationary service. Continuing contract as a principal, assistant principal or supervisor does not move. An administrator must serve three consecutive years in the new position and then return for a fourth year to regain continuing contract. 

Does experience teaching out-of-state count toward continuing contract?
Virginia does not recognize any out-of-state teaching service toward a continuing contract here.     

Can a teacher lose continuing contract?
Leaving full-time employment as a Virginia public school teacher for more than two years ends a continuing contract. Then it’s back to square one: three consecutive years of teaching service and return to the same division for the fourth consecutive year to return to continuing contract status. School employment that is not full-time or does not require a Board of Education license can also end continuing contract rights. 

How is a teacher fired?
Clearly spelled-out procedures must be followed to ensure that everyone’s rights are protected. Before being fired, teachers are provided with a notice of termination from the division superintendent, a hearing before an advisory fact-finding panel or the school board or both, and then a final decision by the school board. Virginia law says that teachers may be dismissed for incompetency, immorality, noncompliance with school laws and regulations, disability as shown by competent medical evidence, conviction of a felony or crime of moral turpitude, or other good and just cause.  Once all social service appeals are exhausted, a teacher who is subject to a finding of child abuse shall be dismissed and face license revocation.

If a teacher asks for a hearing, the superintendent must prove that there is cause for the dismissal, not “beyond a reasonable doubt,” but showing that the action is not “arbitrary, capricious or without substantial evidence.” Either the teacher or the school board can ask a fact-finding panel (made up of one school employee nominated by the superintendent, one school employee nominated by the teacher, and a neutral chairperson) to conduct a preliminary hearing and offer findings and recommendations. However, the final decision to dismiss the teacher for cause is in the hands of the school board. 
If the same procedures apply to firing probationary teachers on annual contract and continuing contract teachers for cause, what difference does continuing contact make?
One huge difference is the ability to deny the annual contract teacher a new contract. Probationary annual contract employment can end without a dismissal. All that’s required by state law is timely notice and the opportunity for the teacher to meet with the superintendent or designee to discuss the reasons for nonrenewal. School administrators do not have to prove good cause for not renewing the contract of a teacher without continuing contract status.

Does continuing contract protect “incompetent” teachers?
No. A continuing-contract teacher can be dismissed for incompetence or any other good cause. And, as discussed earlier, it’s not easy or automatic to earn a continuing contract. Teachers new to the profession, new to Virginia or returning to teaching after a break in service of more than two years must complete three consecutive years to allow administrators to evaluate their performance. When a continuing-contract teacher moves from one Virginia school division to another, administrators have one year to evaluate performance and competence. 

Why does Virginia have continuing contract laws? Why shouldn’t teachers be employed just like employees in other businesses?
Because they serve the public interest and purpose by protecting teachers from arbitrary or political interference:  We don’t want teachers’ jobs to hinge on matters such as how they vote,  where they attend church, what kind of personal favors they’ve done for people of influence, or how often they agree with school administrators. 

Turnover in public schools has different consequences than in other businesses. Continuing contract gives teachers the protection of a fair dismissal process and gives families and kids stability and consistency. If teachers weren’t on continuing contract they’d probably be more likely to leave the profession or go elsewhere, which would hurt schools already challenged to recruit and retain top-quality personnel. 

Teachers aren’t able to please all the people all the time; they must challenge students to meet high standards and conform to strict school discipline. Continuing contract gives teachers some buffer against every complaint or disagreement that comes up, and from angry parents or students who want them fired.

Rosenkrantz is VEA’s senior staff attorney.


Why We Need Continuing Contracts for Teachers

Nothing about Virginia’s continuing contract precludes the dismissal of a teacher. It is not difficult to fire a “bad” teacher here. “Guaranteed lifetime employment” for a teacher in the commonwealth is a myth.

What continuing contract does do is provide a due process procedure in which allegations against an educator can be tested for their accuracy and truthfulness. Teaching is a very public profession, and it’s easy to anger an individual parent. It’s easy to offend an entire community when a star athlete becomes ineligible because of poor classroom performance. Without the due process that a continuing contract provides, teachers can be fired for such things as constitutionally-protected speech, race, religious beliefs, eligibility for retirement, or who they support politically.
Teachers who live in fear of their jobs cannot afford to challenge students to higher performance, or give low grades, or question the system, or be “noticed” in almost any way.
Here are a few recent examples of good teachers without continuing-contract protection who were fired for bad reasons, provided by NEA:

• A New York teacher was fired for filing a grievance challenging his principal's decision not to discipline a student who had thrown books at the teacher during class.

• An Ohio teacher was fired for selecting controversial books—Fahrenheit 451 and Siddhartha—for her high school English class.

• A special education teacher in New York was fired because she complained about discriminatory and illegal conduct toward her school’s special needs students.

• An Illinois teacher was fired because she expressed her opposition to the war in Iraq; her statement was made in response to a student’s question during a high school class discussion of current events.


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