The State Board of Education on Thursday denied the San Jose Unified School District and its teachers union their request for the authority to require some probationary teachers in the district to work an additional third year before becoming eligible for tenure.

San Jose Teachers Association President Jennifer Thomas, left, and San Jose Unified Superintendent Vincent Matthews, right, testify before the State Board on Thursday. Source: State Board webcast.

San Jose Teachers Association President Jennifer Thomas, left, and San Jose Unified Superintendent Vincent Matthews, right, testify before the State Board on Thursday. Source: State Board meeting webcast.

Granting a one-year waiver from state law, Jennifer Thomas, president of the San Jose Teachers Association, had argued, would send a message that “a union can be an incubator of innovation in pursuit of educational excellence.” Board member Carl Cohn, a retired superintendent of Long Beach Unified, agreed, urging the board to encourage the cooperation between a teachers union and a district reflected in the request. “Sometimes it is easier to teach kids to read than to get this kind of trust,” Cohn said.

But with its 7-2 vote, the majority sided with the California Teachers Association and the state Department of Education’s position that the district and the union should ask the Legislature to change the tenure law or grant it an exception. Waivers, said board member Sue Burr, should be narrow and limited to circumstances involving individual teachers, such as a teacher who went on maternity leave while on probation. “For better or worse, we’re being asked to waive a fundamental personnel protection,” she said.

Under California law, probationary teachers can be let go at any time without having to be given a reason. When teachers are offered tenure, also called permanent status, they receive workplace rights, including layoffs based on seniority and protections from being fired without cause.

California is one of only a half-dozen states that decide tenure after two years on the job – a timetable that the California Teachers Association has fought to preserve. In most states, it’s three years or longer. But, as part of their teachers contract, San Jose Unified and the San Jose Teachers Association created an evaluation system in which a panel of teachers and administrators – not the superintendent alone – recommends to the school board which new teachers should receive tenure.

Both the union and the district agreed that in a small percentage of cases where they’re on the fence, they should have the flexibility to require a third year of probation. To do otherwise, argued Superintendent Vincent Matthews and Thomas, is unfair to new teachers who could use an extra year, with help from mentor teachers, to prove themselves. It’s also a protection for the school district worried about giving tenure to a teacher who might prove to be mediocre.

State Board member Carl Cohn argues for the waiver. Source: State Board meeting webcast.

State Board member Carl Cohn argues for the waiver. Source: State Board meeting webcast.

The state Department of Education and the California Teachers Association argued that only the Legislature has the authority to change a personnel statute. At the first hearing on the subject in March, they also said that, however well-intended San Jose’s contract is, there was no assurance that a three-year probation would not become the rule, rather than the exception.

Responding to that issue on Thursday, Matthews and Thomas said they had agreed to a stipulation that only the teacher-administration review panel could recommend an extra year of probation; the San Jose Unified board could not on impose this on its own. Although Matthews said at the first hearing on the issue in March that the district chose not to go to the Legislature because a waiver is best suited for a unique local circumstance, Thomas said after the defeat that she would definitely consider pursuing a bill specific to San Jose next year. “I don’t give up easily,” she said.

Jason Willis, San Jose Unified’s Assistant Superintendent for Community Engagement and Accountability, also expressed disappointment. He said that the district and union had addressed the issues that board members raised in March. The waiver provisions clearly allow for exempting whole sections of state law, and the state board frequently grants waivers affecting thousands of students, he said.

Matthews has said that San Jose on average grants tenure to about 90 percent of new teachers. Had the waiver already been in effect this year, only two teachers would have been given a third year of probation, he said. Instead, they will join seven other second-year probationary teachers, out of 125, who will not be offered jobs.

Patricia Rucker, a California Teachers Association lobbyist, recused herself from the decision, leaving nine members to vote. Joining Cohn in support of the waiver was student board member Jesse Zhang.

Comparisons with Vergara lawsuit

The waiver request for San Jose Unified coincides with a lawsuit challenging the constitutionality of the state’s two-year tenure law and other work rights of California teachers. In Vergara v. the State of California, Silicon Valley entrepreneur David Welch is suing the state on behalf of nine students who claim that teacher tenure, layoffs by seniority and a weak dismissal law disproportionately harm low-income, minority students, who are assigned the worst teachers. A Los Angeles County Superior Court judge will issue a decision in the case within the next two months.

During testimony, the plaintiffs’ attorneys had cited the waiver request by San Jose’s union as evidence of the need to overturn the tenure law. But on Thursday, Thomas bristled at that characterization and criticized the “corporate reformers” behind the lawsuit. Contrary to overthrowing the law, a waiver would show that “in a state as large as California, there is room for some innovation with a common sense approach,” she said.

The third probationary year is one of several distinct features of the San Jose teachers’ contract. To encourage teachers to consider innovative and flexible work conditions, teachers at a school can waive huge sections of the contract if 75 percent of teachers agree. Using this option, teachers at a low-performing middle school voted to convert next year to a blended learning model, combining computer-based and classroom learning with a new class schedule.

John Fensterwald covers education policy. Contact him at jfensterwald@edsource.org 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.


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  1. Gary Ravani 2 years ago2 years ago

    "California is one of only a half-dozen states that decide tenure after two years on the job – a timetable that the California Teachers Association has fought to preserve." John is correct in the above statement; however, there is some historical context that needs to be provided. At one time (prior to the 1980s) CA also had a three year probationary period. In a democratic process, and as part of a larger "reform' agenda, the 3 … Read More

    “California is one of only a half-dozen states that decide tenure after two years on the job – a timetable that the California Teachers Association has fought to preserve.”

    John is correct in the above statement; however, there is some historical context that needs to be provided. At one time (prior to the 1980s) CA also had a three year probationary period. In a democratic process, and as part of a larger “reform’ agenda, the 3 year period was reduced to 2 years, BUT (!) teachers lost the right to due process. Today teachers can be released without due process, which is to say without cause by the district drink the 2 year probationer period before “permanent status” is granted. I doubt most districts would want to return to the “old” system.

    While we are at it, lets deal with permanent status granted to teachers after that 2nd year. It is not “tenure.” Tenure is a higher education term that related to professors being granted tenure by, mostly, their peers. Teachers at K-12 are hired and dismissed by district boards of education via management. Due process means teachers must be notified they are being dismissed and given time to correct the situation. Teachers must be dismissed only with “cause” and the cause must be documented. Teachers have a right to a hearing. Dismissal is not a collective bargaining issue it is a statutory issue. The applicable due process is in law not contracts. As revealed in Vergara discovery process the time is typically months and thousands of dollars not years and hundreds of thousands. Also revealed in testimony is that a competent administration that follows due process can usually get a teacher to resign and not go through the full process. Note: “competent” and “follows due process.” Teachers can be removed from the classroom by management at any time if there is an allegation of abuse. Final point: just because management asserts a teacher should be dismissed doesn’t mean the teacher should be.

    Replies

    • Don 2 years ago2 years ago

      After the informative historical context you provided, Gary, I was disappointed to learn that you believe a reasonable and typical dismissal process is one in which competent administrators following due process procedures rely on voluntary resignation after months and tens of thousands of dollars in order to avoid years and hundreds of thousands. If resignation is the most we can hope for in the practice of current statutory dismissal procedure, then we do need reform.

    • FloydThursby 2 years ago2 years ago

      Gary, back in the real world, I had my son in a 1st grade class in which the teacher showed up 50 of 180 days yet didn't resign till the final month, despite every parent, the principal, and administrators wanting her to from early in the year. The union protected her. Kids were hurt. One teacher benefited and 22 kids suffered. They did all they could and it took to the … Read More

      Gary, back in the real world, I had my son in a 1st grade class in which the teacher showed up 50 of 180 days yet didn’t resign till the final month, despite every parent, the principal, and administrators wanting her to from early in the year. The union protected her. Kids were hurt. One teacher benefited and 22 kids suffered. They did all they could and it took to the end of the school year for her to be gone. You’re living in a fantasy land.

  2. Gary Ravani 2 years ago2 years ago

    16821 - Nothing herein shall preclude the Board of Education from examining information which it is entitled by law to review in connection with the evaluation of and/or decision to retain in employment certificated employees. 16822 - Nothing herein shall modify or in any manner affect the rights of the Board/District under provisions of the Education Code relating to the employment, classification, retention, or non- retention of certificated employees. Before anyone becomes dehydrated from shedding tears … Read More

    16821 – Nothing herein shall preclude the Board of Education from examining information which it is entitled by law to review in connection with the evaluation of and/or decision to retain in employment certificated employees.
    16822 – Nothing herein shall modify or in any manner affect the rights of the Board/District under provisions of the Education Code relating to the employment, classification, retention, or non- retention of certificated employees.

    Before anyone becomes dehydrated from shedding tears over this lost opportunity to celebrate “trust” between the San Jose Board and Union please read the excerpt of the contract language above taken from the CTA document (see link on John’s post). The Board did not give up its legal right to make final decisions re teachers’ employment, so this was a very one-sided kind of “trust.” The other point is, because it is statute, the Board could not give up those rights. Likewise, as CDE staff pointed out, the SBE likely could not waive, wholesale, a portion of statute. A teacher in their “third year” of probation who was “non-relected” (let go) might well have been able to sue, whereas during the second year they can be non-relected without cause and have no recourse. Collaboration between management and teachers’ unions is a vital ingredient to almost all efforts to improve education in a district, but it must be done within the law. Of course, then you have “education expert” David Welch suing to change the law. Whoops! He’s not really an expert in education at all, is he? In fact he has no education background at all. He’s just another oligarch whose whims must be accommodated because he’s wealthy. And the wealthy are never wrong. Or are they?

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    • John Fensterwald 2 years ago2 years ago

      Gary: Throughout the Vergara trial, attorneys for CTA and the state praised those districts with active Peer Assistance and Review (PAR) programs, in which teams of teachers and administrators evaluate teachers, decide which need additional help in the classroom and, if assistance doesn't work, are recommended to be let go, as a primary reason why the state does not need to change its dismissal law. Poway Unified uses PAR to evaluate probationary teachers as well. … Read More

      Gary: Throughout the Vergara trial, attorneys for CTA and the state praised those districts with active Peer Assistance and Review (PAR) programs, in which teams of teachers and administrators evaluate teachers, decide which need additional help in the classroom and, if assistance doesn’t work, are recommended to be let go, as a primary reason why the state does not need to change its dismissal law. Poway Unified uses PAR to evaluate probationary teachers as well.

      San Jose Unified teacher evaluation panels were modeled after the PAR programs of Poway and San Juan Unified. San Jose teachers and the district agreed that in a limited number of instances, it would be in the mutual interest of the probationary teacher and the district to have probation extended to a third year – hardly a revolutionary concept. I did find it interesting that the California Teachers Association came down hard on the San Jose Teachers Association. Its lobbyist, in testimony last week, even dismissed the joint district-union proposal as “slick.” It indeed would appear that CTA central, as Peter Schrag noted, is paying lip service to local control and would appear to be against letting one flower bloom, let alone 1,000.

      • Gary Ravani 2 years ago2 years ago

        John: PAR is a program that allows teachers to self identify if they want the assistance of a PAR "coach," or, if the teacher receives an unsatisfactory evaluation, become a "mandatory" participant in PAR. At the end of a given period the PAR panel decides if the teacher is responding positively to coaching or not. If not, then the panel can decide to discontinue the coaching. That can be used as documentation for cause in dismissal. … Read More

        John:

        PAR is a program that allows teachers to self identify if they want the assistance of a PAR “coach,” or, if the teacher receives an unsatisfactory evaluation, become a “mandatory” participant in PAR. At the end of a given period the PAR panel decides if the teacher is responding positively to coaching or not. If not, then the panel can decide to discontinue the coaching. That can be used as documentation for cause in dismissal. The law says it is the decision of the local board to ultimately decide to proceed with dismissal.

        We are all supportive of PAR. The state, in enacting ‘flexibility” in funding de facto defunded it in many/most districts. Another good program sacrificed on the alter of CA’s (near?) last in the nation K-12 funding.

        The use of PAR was also another circumstance where,t when handled competently and humanely, the subject teacher often elected to resign or retire early.

        As I noted in the post above, the ultimate and unilateral power to hire and fire remained with the board in San Jose. The prudent course for the union was to protect its members’ interest as provided for unambiguously under the law.

        And before you lay the “blame” for this totally at the feet of my colleagues in CTA please recall that for transparently legal reasons the CDE staff recommended that the waiver request be declined.

  3. Carl Cohn 2 years ago2 years ago

    I was delighted that Jesse Zhang, the smartest person in the room, agreed with me…He’ll be a freshman at Harvard this fall.

  4. Peter Schrag 2 years ago2 years ago

    So this is what Jerry means by local control?

  5. el 2 years ago2 years ago

    To be clear here: the district’s position is that they wanted a waiver so they could keep a questionable/mediocre teacher on for a third year. It seems hilariously odd that people who normally argue that more teachers should be fired would be excited about this proposal.

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    • John Fensterwald 2 years ago2 years ago

      el: Just to be clear, so that you don't misconstrue my paraphrase for the district's position: The third year would be for tweeners,teachers who show some promise after 18 months (standard time for making a decision under state law requiring notification by March 15) but not enough to take the risk of giving permanent status. We aren't talking about many candidates as this and previous articles mentioned. An example might be a teacher assigned to … Read More

      el: Just to be clear, so that you don’t misconstrue my paraphrase for the district’s position: The third year would be for tweeners,teachers who show some promise after 18 months (standard time for making a decision under state law requiring notification by March 15) but not enough to take the risk of giving permanent status. We aren’t talking about many candidates as this and previous articles mentioned. An example might be a teacher assigned to teach first grade one year, third the next, making it more difficult to judge potential.

      • Educator 2 years ago2 years ago

        The link for the CTA letter doesn’t seem to be working, FYI. (In the “Going Deeper” section)

        • John Fensterwald 2 years ago2 years ago

          Sorry. Try this link.

      • navigio 2 years ago2 years ago

        The threshold for acceptability cannot be as fine-grained as the number of affected teachers would imply. That means this is simply about not having the adequate or qualified resources to do proper evaluation. That is not fixed by ignoring the process.

  6. FloydThursby 2 years ago2 years ago

    This is why we need a ballot initiative to change state law. Even a reasonable proposal gets shot down. The Davis initiative will win, but if it squeaks by with 50-55%, it will be a sign that we can't change this, but if it wins 60+ %, that means something which impacts more ineffective teachers can pass later, and that would be a good thing. Vergara is also a step in the … Read More

    This is why we need a ballot initiative to change state law. Even a reasonable proposal gets shot down. The Davis initiative will win, but if it squeaks by with 50-55%, it will be a sign that we can’t change this, but if it wins 60+ %, that means something which impacts more ineffective teachers can pass later, and that would be a good thing. Vergara is also a step in the right direction but it will be delayed by an appeal.

  7. Educator 2 years ago2 years ago

    Disappointed that a teachers union and superintendent came together with an idea only to be shot down.

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    • FloydThursby 2 years ago2 years ago

      The focus on tenure is misguided. Some teachers will be great for 20 years, then burn out, or become lazy, a little crazy even, and become mediocre teachers. When 12% called in sick the Tuesday before Thanksgiving, that wasn't because tenure was 2 or 3 years, it was because they had a culture with a union leader who made a joke about calling in sick because some people criticized his ideas to create … Read More

      The focus on tenure is misguided. Some teachers will be great for 20 years, then burn out, or become lazy, a little crazy even, and become mediocre teachers. When 12% called in sick the Tuesday before Thanksgiving, that wasn’t because tenure was 2 or 3 years, it was because they had a culture with a union leader who made a joke about calling in sick because some people criticized his ideas to create public teacher housing in the Presidio. To most of us, that’s lying, you don’t miss a day unless you have no other option, are sick or have something that can’t be done another day and is urgent. These were people with 20, 30 years, even 40. Not all did it, only 12%, but we all know the guilty included many with plenty of experience who wanted a day jump on a road trip to visit family for Thanksgiving and made the children suffer as a result and were willing to be dishonest for said benefit.

      Changing tenure from 2 to 3 or even 5 years will not address this. Most teachers are quite good, but changing this won’t prevent teachers from slacking mid career if they feel like it. A better solution would be instead of across the board raises, give bonuses for not calling in sick or taking personal days or taking 3 or fewer, how about $2000 for teachers who don’t miss a day and $1000 for teachers who miss 3 or fewer days? There would be no cost if it worked because the sub costs would drop precipitously. And the children would benefit greatly.

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