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

March 10, 2014

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 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.

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