San Jose Unified, teachers to ask State Board for waiver from tenure law

In the ongoing trial Vergara vs State of California, lawyers for the state and the California Teachers Association have been defending the state’s two-year probation for teachers as a sound law that protects teachers’ and students’ interests.

On Wednesday, San Jose Unified and its teachers union together will ask the State Board of Education to permit a three-year probation for teachers in some instances. They’ll argue that tweeners, those teachers who have shown the potential but not yet all of the skills to become a good teacher, deserve an extra year of mentoring and monitoring before it’s decided whether they deserve “tenure.”

If the State Board agrees, it will be the first exception of its kind. It will also buck the recommendation of the state Department of Education, which, in urging a denial, said it’s the Legislature’s role, not the State Board through a waiver, to change the law. The California Teachers Association declined to comment on its position.

San Jose Unified Superintendent Vincent Matthews and San Jose Teachers Association President Jennifer Thomas negotiated the teachers contract that includes using panels of teachers and administrators to evaluate news teachers, with the option of a third year of probation.

San Jose Unified Superintendent Vincent Matthews and San Jose Teachers Association President Jennifer Thomas negotiated a contract that includes using panels of teachers and administrators to evaluate new teachers, with the option of a third year of probation. Credit: John Fensterwald, EdSource

San Jose Unified and the San Jose Teachers Association are actually asking for flexibility – the ability to grant tenure after one year for prospective teachers whom evaluators are confident will be outstanding and a third year, when, under a new evaluation system, a panel of teachers and administrators recommends that it’s needed. Under permanent status or tenure, teachers gain the right of seniority and job security, through due process protections, from unfair discipline and dismissal.

The numbers fluctuate somewhat from year to year, but, on average, about 90 percent of probationary teachers have been offered tenure, San Jose Unified Superintendent Vincent Matthews said. He and San Jose Teachers Association President Jennifer Thomas said that they both agree that the two-year probationary period – actually less than that because second-year teachers must be notified by March 15 in year two of their status ­– works fine in most instances.

Had the waiver already been in effect, only two teachers would have been given a third year of probation this year. Instead, they will join seven other second-year probationary teachers, out of about 125, who will not be offered jobs next year, Thomas said. The district has not decided how many of the first-year probationary teachers will be let go at year’s end, she said.

“In fairness to employees, we need a certain amount of flexibility when circumstances arise,” Thomas said.

Matthews said that the new Common Core standards, which stress critical thinking, problem-solving and communication skills, will “raise the bar” on what the district will look for in new hires, “so that bolsters the argument that some will need more time” to develop.

The national trend has been to take more time before granting teachers permanent status or tenure. California is one of a half-dozen states that awards tenure after two years or less. In 31 states, it’s three years, according to the National Council on Teacher Quality’s 2012 states survey.

Tenure in California was also three years until the mid-1980s, when in a deal with unionized teachers, lawmakers agreed to two-year tenure in exchange for agreeing that probationary teachers can be let go at any time without having a cause cited.

In all but a few districts, school boards make that decision based on principals’ or assistant principals’ evaluations. Under an innovative contract that the school board and 72 percent of San Jose’s teachers endorsed last year, six-member Teacher Quality Panels, split evenly between administrators and teachers appointed by the union, now make the recommendations after separate reviews by a principal and one of seven consulting teachers, a newly created position.

Thomas, a high school English teacher, says that including respected teachers on the teacher quality panels cuts both ways, as a protection from an inaccurate or unfair review and as an affirmation that it’s accurate. San Jose’s Teacher Quality Panels are based on Peer Assistance and Review programs that some districts use to mentor tenured teachers facing unsatisfactory reviews. Poway Unified also uses teacher panels to evaluate probationary teachers.

A more consistent, thorough system

Matthews said that midway through the first year, he is pleased with new evaluation system. There has been more consistency, since principals were trained together on what to look for in classroom instruction.

“Quality has risen, with more eyes on new teachers and more discussion of what they’ve seen,” he said. While some may have been apprehensive on whether teachers could judge one another, “consulting teachers have been just as rigorous” as principals, he said.

In the Vergara case, challenging laws on dismissal and layoffs by seniority as well as tenure, plaintiffs argue that a short probationary period leads to hasty decisions in which mediocre or even bad teachers end up getting tenure.

That happens in Los Angeles Unified, Superintendent John Deasy testified, even though the percentage of probationary teachers granted permanent status declined from more than 90 percent to half in the past few years.

“There is no way this is sufficient time to make an incredibly important judgment,” he said, on the future impact of a teacher who will be in front of students on average 25 years.

But Thomas and Matthews take a different tack. They say that the two-year period forces the district to be cautious, letting go potentially fine teachers who could prove their capability with another year on the job.

“This could be a life-altering decision that could be made too quickly,” Matthews said.

Thomas said she is confident that the California Teachers Association will not oppose the waiver request. Last year, after San Jose teachers ratified their contract, CTA Vice President Eric Heins told the Mercury News that he didn’t regard it as a template for other districts or the state. But, he said, “If it works for them, we’re supportive.”

The State Board’s waiver, if approved, would be for only one year, but renewable.

John Fensterwald covers education policy. Contact him and follow him on Twitter @jfenster. Sign up here for a no-cost online subscription to EdSource Today for reports from the largest education reporting team in California.

Filed under: Evaluations, Pay and Tenure, State Board, Teaching

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23 Responses to “San Jose Unified, teachers to ask State Board for waiver from tenure law”

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  1. Don on Mar 17, 2014 at 10:26 pm03/17/2014 10:26 pm

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    Someone pretending to be Floyd Thursby pretending to be Joel Fong

  2. Joel Fong on Mar 11, 2014 at 10:14 pm03/11/2014 10:14 pm

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    Caroline, the reason to go to Lowell is the students are the top 15%, better brains, character, work ethic, effort, and even activities outside of SOTA. June Jordan has mostly very troubled kids. Your kids would be around kids encouraging drugs, laziness, dishonesty, crime and in general poor moral character. The kids at Lowell are by definition the top 15% of middle school students in terms of their intelligence and effort. This is why I sent my sons there. The teachers are about the same as elsewhere but seem better, as they have students who care. Kids arguing can sap the energy of even a great teacher, so teachers at Lowell generally reach their full potential or at least close. The potential is the same, but they reach it because they can focus on education, not arguments and misdeeds.

    As for job protections, I think there should be some but if it costs $40,000 to fire a molester who later got a 25-year prison sentence in Los Angeles, it is too hard now. I know some will quit, but you shouldn’t have to make them quit or pay them severence, they should just be gone. It should not cost over six figures. 19 for performance in 10 years? Sounds like proof to me. Even if some quit, we should let principals focus on more important things than trying to force or pressure people to do the right thing, and even if they quit, they can drag it out a lot and hurt the students.

  3. Gary Ravani on Mar 11, 2014 at 1:26 pm03/11/2014 1:26 pm

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    Research indicates that only about half of new teachers actually get permeant status (aka, “tenure”) within two years. The other half of the teachers serve three or more years because of a combination of temporary status and probationary status. Statute requires that there be only as many FTEs of temporary as there are FTEs of permanent teachers “on leave.” The research implied (and personal experience confirms) that districts will push the envelope on statute to maintain maximum personnel flexibility. The research suggests this manipulation leads to morale problems for newer teachers.

    It should be understood, and to give district administrations the benefit of the doubt, that determining whether a teacher is effective or ineffective is often a complex and nuanced issue. Teachers, as human beings, can show differences in strengths and weaknesses in different aspects of the complex teaching task. It is not as cut and dried a process as some might suggest. Recall that the National Research Council, ETS, and RAND, as well as many others assert that test scores are not only not a valid and reliable way to evaluate teaching performance but actually damage learning by narrowing the curriculum. So using tests as a quick, dirty, and cheap method to ascertain the effectiveness of the teaching force is a fraud.

    It should also be remembered that there are (at least) two excellent filters in place for the sorting newer teachers: 1) classrooms, and 2) kids. That is, 50% of new teachers leave the profession within the first five years. Teaching is hard and compensation is low. That being said, 50% is a very high attrition rate. The CSU system, that prepares the majority of new teachers in this state, estimates that these “early leavers” cost the state close to 1/2 billion dollars a year. It is not unfair to say this state, and this nation, has a problem keeping teachers not getting rid of teachers. But that’s just reality. Exit interviews with teachers leaving the profession indicate it is lack of resources and lack of leadership that finally drove them away. Notably there have been no lawsuits filed to deal with those two, real, issues.

  4. Don on Mar 11, 2014 at 10:23 am03/11/2014 10:23 am

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    Not supporting unproven and boneheaded reforms thought up by people who never spent a day as an adult in the classroom is not the same as not supporting any reforms at all – if that needs to be made clear to some people. No, I do not support that dumb movie that did more damage to the charter industry than good, though that doesn’t color my judgment about all charters, many of which have nothing to do with corporate forces behind CMOs/EMOs. I just don’t use pop culture or overt propaganda tools to make that judgment.

    To answer “Floyd’s” other question since he’s so persistent, peer review is a tried and effective teacher evaluation model that gives teachers ownership of the review process and has shown great usefulness in New Jersey and elsewhere. Having teachers involved is crucial because they are the ones most adept as understanding what effective teaching is. That doesn’t mean only teachers would be involved in the review, but it does mean they wouldn’t be omitted – a terrible mistake if that were to happen, Floyd. As I said, there is absolutely no reason to think that administrators, who in many cases haven’t taught for years or have even been given an adequate performance review themselves, would be better equipped to do the job than the people in the trenches. Your blind support for administrative oversight of the process has no basis.

    If evaluation was simply a matter of how students test, there would be no reason to have any evaluator. But everyone in education with a teaching background knows that teaching quality comes in many forms and is not akin to cardiac treadmill testing.

  5. CarolineSF on Mar 11, 2014 at 8:42 am03/11/2014 8:42 am

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    “Floyd,” you REALLY can’t refer to the “findings” of “Waiting for ‘Superman’.” It was a propaganda movie, financed and created for that purpose, and was packed with inaccurate supposed statistics and wild, un-backed-up claims. A classic was the narrator’s voice stating that it used to be believed that bad schools were caused by poverty, but now it’s understood that bad schools are the cause of poverty. This instantly cuts to a prison official talking about something unrelated. If you were inattentive or extremely gullible, you might interpret this as the prison official backing up the unsupported statement — that appeared to be the intent. That’s just an example that leaped out at me as I watched the film.

    The movie had a list of points it was supposed to make, and it presented them, without regard for accuracy, truth, fairness, or any journalistic or academic standards for backing up its claims. So, no references to “findings,” please. It was a propaganda piece, as intended by its wealthy right-wing backers, not an investigation. (Yes, I know the filmmaker was previously viewed as a liberal, but follow the money.)


    • Floyd Thursy on Mar 11, 2014 at 2:31 pm03/11/2014 2:31 pm

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      Caroline Caroline Caroline, I read the book and saw the movie. Trust me, the facts are clear. It hurts children that it is so difficult to dismiss ineffective teachers. Proponents of the status quo and stooges of the union simply try to scour details of anyone who dares oppose them, and individualize it. You know that it is so expensive and difficult for movies like this to be made, that you can individualize it and hope the issue goes away, and it usually does.

      So what is your solution? Let me guess. Keep LIFO, seniority, tenure, exactly as is for the foreseeable future and maybe reform it someday over the rainbow? Not discuss effort or services or tutoring? Just click our heels together and hope the achievement gap goes away while changing nothing?

      There are other movies, ‘The Lottery’ is a good one, which demonstrate the same thing, as well as books. It is clear to anyone with kids in the system. When my son had a teacher so bad she called in sick over 130 of 180 days for 3 reasons, and was seen in a cafe on days she called in sick, the union defended her. This hurt the kids and 22 of 22 parents were in meetings seeking her to be dismissed or just take a year of absence so we could get a permanent sub.

      Caroline, teachers would have to be a superior species akin to Superman for 19 to be fired for performance in 10 years in California, 91 including misconduct, and this to be the accurate number out of 600,000, in a decade. They aren’t, it’s that it’s so hard, costing an average well into the hundreds of thousands, that most districts don’t bother. I know, a perfect administrator can do it in a year, but many administrators are unionized or outnumbered by a staff. A principal isn’t the boss in the sense a CEO is, so they can’t get the same results.

      Our current laws prioritize job security over children’s services and education. This is morally wrong. Trying to attack people who fight the failed status quo as wealthy every time is getting tiresome. It makes no sense.

      • CarolineSF on Mar 11, 2014 at 8:18 pm03/11/2014 8:18 pm

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        Anyone who spends time in schools has seen struggling teachers leave on their own, and we parents aren’t privy to the discussions that may “help” them decide to leave. I don’t know statistics, except that we do know teacher attrition overall is extremely high. We have no way of knowing how many of those teachers who left the field were “assisted” in making that decision. It’s self-evident that only a few would stick it out to the point that they had to go through the official process of being fired.

        But my point was simply that it’s inaccurate to refer to any “findings” in “Waiting for ‘Superman’,” because it was not a piece of investigative work. The movie was based on selling certain ideas that were established as its basis, not on seeking out any “findings.”

        By the way, did you read the article on San Francisco’s badly troubled June Jordan high school in a recent Chronicle? June Jordan has chronically low achievement and an astounding amount of student attrition, which, if you count from freshman year, adds up to a dropout rate of nearly 70 percent. June Jordan, under some special regulations that SFUSD adopted when small schools were the miracle fad du jour a few years ago, is exempt from many teacher hiring rules, so that the administrators have far more control over who teaches there than at other high schools. So you could send your kids there, to a school that’s right in line with your philosophies about teacher hiring and exempt from many of those terrible horrible job protections, and see for yourself the magical miracle results. You’re welcome for the tip!

  6. Floyd Thursby on Mar 11, 2014 at 1:58 am03/11/2014 1:58 am

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    So Don, what is your solution for teacher ratings? Do you now believe Seniority is the best way? Do you support the findings of the movie ‘Waiting for Superman’? Do you feel a comprehensive rating system can be challenging, real, accurate and lead to real results in teacher improvement? Do you have any fear a complex system will revert back to 98% satisfactory? The high school exit exam was supposed to make a high school diploma meaningful, but all we heard were victimhood complaints about the poor kids who wouldn’t pass, and now so few fail it has very little meaning, almost as bad as before. Could challenging principals, saying many are bad, etc. ultimately lead to almost going back to the status quo?


    • el on Mar 11, 2014 at 9:21 am03/11/2014 9:21 am

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      I’m still wondering what percentage of kids should have an unsatisfactory teacher.

      • navigio on Mar 17, 2014 at 8:09 pm03/17/2014 8:09 pm

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        its probably the only way we’ll be able to raise that ‘firing’ rate..

    • navigio on Mar 17, 2014 at 8:20 pm03/17/2014 8:20 pm

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      waiting for stupidman wasnt a research study, it was a propoganda movie. it has no ‘findings’. it merely is trying to get people to buy into a political point of view. apparently it was fairly effective at achieving that, despite its inaccuracies and misleading nature.

  7. Patrick Mattimore on Mar 11, 2014 at 12:05 am03/11/2014 12:05 am

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    It’s been quite a few years since I retired from the public school system but in South San Francisco the tenure decision was made after a teacher had been viewed four times during the probationary period. Generally, two of the observations were made by the principal in the first year and two other observations were made by an AP during the second year. Two of the observations were pre-announced visits (i.e. teacher knew in advance (s)he would be observed.
    I’ve been wondering about the Vergara lawsuit. Even were the plaintiffs to win on the constitutional issue that the children are being denied equal educational opportunities (and it is by no means clear that they will since it’s hard to see how the plaintiffs can establish that this is a Serrano finance issue), I would think the remedy would be to tailor administrative decision-making thereby adjusting the method by which teachers are assigned to various classes. I think the plaintiffs are a long way from being able to claim that eliminating the contractually bargained right of tenure is the appropriate remedy. Would love to hear others opinions on this.

  8. Don on Mar 10, 2014 at 8:36 pm03/10/2014 8:36 pm

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    Why the persistent disrespect for teachers but the undiscriminating and blind faith in the effectiveness of principals? Is there any researched basis for this viewpoint or are you just working out some demons? You shouldn’t let your bad personal experiences color your judgment of the whole educational landscape. I’ve come across more unsound administrators than I have teachers and I am under no illusion that administrators can be relied upon to hold teacher accountable.

    The people who read Ed Source are generally looking for something informative based on sound reasoning – not some anecdotal accounts of one’s personal vendetta against “bad” teachers.

  9. Paul on Mar 10, 2014 at 8:23 pm03/10/2014 8:23 pm

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    John, thanks for covering the history of the two-year probationary period. I’m curious whether you have a survey report or other empirical evidence for the claim, “In all but a few districts, school boards make [the reelection] decision based on principals’ or assistant principals’ evaluations.”

    Dismissal without cause means just that, and school districts would open themselves to some risk if they disclosed an internal decision-making process based on evaluations.

    On the other hand, case law makes clear that it is perfectly acceptable not to reelect a probationary teacher who received excellent evaluations — in short, that there is no legal tie between evaluation and reelection. I’m looking up several cases now, to see if there is a suitable, short quote.

    Staff’s recommendation against approving the waiver reminds us that parts of the Education Code cannot be waived even by State Board of Education action, that the legal status of third-year probationary teachers would be uncertain, and that there would be conflicts between different Education Code provisions. I sounded some of the same cautionary notes when San Jose Unified’s idea was first reported.

    The framework for teachers’ due process rights really should be decided for the whole state, through the legislative process.

  10. Floyd Thursby on Mar 10, 2014 at 1:13 pm03/10/2014 1:13 pm

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    On the one hand, it’s interesting to see a union think outside the box. That is sorely lacking in SF, where the union is so blind they scream at you if you suggest that even a single member of the 6,000 member union is ineffective. Ken Tray will literally interrupt you and scream that you are “defaming 6.000 people who have sacrificed their lives for children” if you seek any change.

    However, I think tenure really applies to Universities more than K-12. Tenure isn’t so much the issue as due process. Due process needs to be reduced to the point whereby teachers feel they must strive and obey principals. Now an order from a principal is more of a suggestion, and willful defiance not at all uncommon. We need a top down approach where more responsibility is given to principals.

    The focus on tenure is overstated. Some teachers are good for 30 years and then figure, I paid my dues, I can use every sick day and have T.A.s correct all the papers and coast. I’m not saying all teachers do this, just that some do. No teacher should cost $100,000 to fire, no one anywhere should cost that much to fire. We need to make terminations more frequent, about the same as other professions.

    So we maybe have to eliminate tenure or else drastically change it’s meaning. Otherwise we can’t provide top quality to students. In SFUSD there are still some teachers who refuse to do school loop because it’s extra work.

  11. Don on Mar 10, 2014 at 1:11 pm03/10/2014 1:11 pm

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    Sorry for the couple of typos. Ed Source ought to have a system whereby the comment can be edited.

    No teacher should be granted… scratch the double negative

  12. el on Mar 10, 2014 at 1:10 pm03/10/2014 1:10 pm

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    To be clear, what San Jose is saying is exactly what I’ve been saying on this issue all along – that extending the period to three years will cause the district to keep teachers that they would otherwise dismiss after two years. IE, they want to give a third chance to teachers they consider marginal.

    “Had the waiver already been in effect, only two teachers would have been given a third of probation this year. Instead, they will join seven other second-year probationary teachers, out of about 125, who will not be offered jobs next year, Thomas said.”

    I agree with Don that it is not a good idea to grant tenure after only a single year, especially if it is done at the March 15 date.


    • navigio on Mar 10, 2014 at 7:36 pm03/10/2014 7:36 pm

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      interesting how it cuts both ways. personally i think the desire to extend the duration for keeping mediocre teachers is a resource issue. schools are probably not adequately staffed to feel confident in making that determination. so instead of properly staffing schools, we’ll just ask to extend the ‘due date’…

      • el on Mar 11, 2014 at 9:19 am03/11/2014 9:19 am

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        I think that’s right, navigio, it’s mostly about wanting an extension on making a decision.

        In my mind, this isn’t beneficial.

        – it means students have an extra year of a marginal teacher
        – it means the principal has less urgency to mentor and improve the teacher and come to a decision
        – it increases the possibility that a probationary teacher will become permanent by accident rather than by affirmative choice
        – it makes the non-reelect a more disruptive event

        I want to add that a teacher who isn’t a good fit for one district may well still be very capable and successful in another district, with a different population and different culture or staff mix. Teachers who aren’t perceived as successful are also better off finding out sooner rather than later.

  13. Don on Mar 10, 2014 at 11:55 am03/10/2014 11:55 am

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    This waiver application would allow both a shorter 1-year probationary period as well as a longer 3-year probationary period. No teacher should not be granted tenure after only one year on the job. The whole point of a probationary period is to see how teachers do over time. The amount of time should be standardized for everyone. One new teacher can have a strong start while another can have a weak start. We need to see growth year after year. Teachers know that the same concept applies to their students. Teacher should obtain tenure after demonstrating effective instruction practices over a reasonable period of time whether strong out the gate or not. The 18 months or two school years at present for a probationary period is not nearly long enough and another year is not much of a change. 4-5 years gives evaluators enough year over year information to see a trend and to make an informed professional judgement.

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