State board denies San Jose Unified exception to 2-year teacher tenure law

May 8, 2014

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.

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 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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