California Department of Education Executive Office SBE-005 General (REV. 12/2013) ITEM #W-19 CALIFORNIA STATE BOARD OF EDUCATION MARCH 2014 AGENDA General Waiver SUBJECT Request by San Jose Unified School District to waive California Education Code Section 44929.21(b), to enable both the granting of permanent status after the first year of probationary status and the granting of a third year of probationary status as deemed necessary. Action Consent Waiver Number: 39-1-2014 SUMMARY OF THE ISSUES San Jose Unified School District (SJUSD) is requesting a waiver of Education Code (EC) Section 44929.21(b), which entitles an employee to tenure after the completion of two consecutive school years in a position requiring certification and who is reelected for the next succeeding school year to be classified and become a permanent employee of the district. Authority for Waiver: EC Section 33050 RECOMMENDATION Approval Approval with conditions Denial The California Department of Education (CDE) recommends denial of SJUSD’s request to waive EC Section 44929.21(b), for multiple reasons. In general, this waiver request would impact major policies and would be better addressed by the Legislature. Specifically, this waiver is recommended for denial because (a) the waiver would eliminate the statutory requirements to grant tenure if the conditions of EC 44929.21(b) are met; (b) the waiver is in conflict with other provisions of the EC which cannot be waived; (c) under EC Section 33051(a)(4) the abrogation of this provision of the EC would result in unequal and potentially contentious treatment of probationary teachers; (d) it is unclear how probationary teachers who have been on probation for more than two years as of January 22, 2016, the date the waiver is scheduled to expire, would be treated; and (e) SJUSD should seek to amend the statute, which is the work of the Legislature. Therefore, CDE recommends that the SBE make a finding that the waiver would jeopardize pupil or school personnel protections pursuant to EC 33051(a)(4). SUMMARY OF KEY ISSUES 2/27/2014 5:03 PM San Jose Unified Teacher Evaluation Page 2 of 3 The waiver request states that SJUSD and the San Jose Teacher’s Association have developed and implemented a teacher evaluation and support system. As part of that new evaluation system, SJUSD seeks to waive EC Section 44929.21(b), stating that the new evaluation system would allow for some teachers to be granted tenure after one year of teaching, and others to be granted tenure after three years of probationary status. The CDE’s concern is that the proposed waiver would eliminate the statutory requirements and two-year period for determining when a probationary teacher becomes permanent. Without the statute in place, the time period for achieving permanent status could be as short or as long as the school district and the teachers’ exclusive representative agree, or as the district determines if there is no agreement. If the waiver were granted, it would create uncertainty for teachers and students because it is not clear how probationary teachers would be treated at the end of the waiver period. Granting the waiver could also encourage other school districts to apply for similar waivers, thus potentially further undermining the statutory framework. For these reasons, the changes proposed by SJUSD should be achieved through the legislative process. In addition, EC Section 44929.21(b) is part of a complex statutory framework regarding certificated employee rights and status, including probationary status, permanent status, and dismissal. Granting of this waiver may result in an unresolvable conflict with other relevant sections of the EC that are not subject to waiver by the SBE. For example, EC Section 44948.3 provides that first and second year probationary employees may be subject to dismissal for unsatisfactory performance or for cause. SJUSD is requesting a waiver that would, in effect, result in third-year probationary employees. Because EC 44948.3 is not subject to waiver by the SBE, it is unclear how SJUSD could dismiss those “third-year probationary employees” as requested in the waiver application since EC 44948.3 only provides for dismissal of a first-year or second-year probationary employee. Similarly, EC 44932, which is also not subject to waiver by the SBE, provides for dismissal of an employee that has achieved permanent status and would also not cover these “third-year probationary employees.” Again, given the potential for such consequences, with major policy implications, SJUSD is more likely to achieve the desired results through legislative action since the SBE’s waiver authority is limited. In conclusion, the CDE staff believes that the abrogation of this provision of the EC would result in uncertain, unequal and potentially contentious treatment of probationary teachers since the granting of this waiver would result in some teachers having longer or shorter probationary periods than others, thus jeopardizing personnel protections. All teachers should have equal access, opportunities, and outcomes. Because this is a general waiver, if the SBE decides to deny the waiver, it must cite one of the seven reasons in the California EC 33051(a), available at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml? lawCode=EDC§ionNum=33051. Demographic Information: SJUSD has a student population of 33,306 and is located in Santa Clara County 2/27/2014 5:03 PM San Jose Unified Teacher Evaluation Page 3 of 3 Period of request: January 23, 2014, to January 22, 2016 Local board approval date(s): October 10, 2013 Public hearing held on date(s): October 10, 2013 San Jose USD Board minutes indicate this waiver was heard on October 24, 2013 at 6:00 pm. Bargaining unit(s) consulted on date(s): San Jose Teachers Association Representative: Jennifer Thomas, President consulted on September 19, 2013 Public hearing advertised by: Published in the Central Office lobby and on the school district’s website Advisory committee(s) consulted: District Advisory Council (DAC) Objections raised (choose one): None Objections are as follows: Did not receive any questions or opposing statements to the waiver as submitted to CDE. Date Consulted: February 13, 2014 SUMMARY OF PREVIOUS STATE BOARD OF EDUCATION DISCUSSION AND ACTION This is the first time the SBE has heard a request from an LEA for an entire district versus a specific certificated probationary teacher. At its September 2008 meeting, the SBE considered an application by San Francisco Unified School District for a waiver of EC Section 44929.21(b). The waiver was approved, with conditions, for one certificated probationary teacher for a third year of probation. The SBE stated that granting the waiver request would afford the district and the specific teacher a reasonable opportunity to resolve a dispute as to the individual teacher’s fitness to be given tenure after two years. FISCAL ANALYSIS (AS APPROPRIATE) There is no statewide fiscal impact of waiver approval or denial. ATTACHMENT(S) Attachment 1: San Jose Unified School District General Waiver Request 39-1-2014 (2 pages) (Original waiver request is a signed and on file in the Waiver Office.) 2/27/2014 5:03 PM Attachment 1 Page 1 of 2 California Department of Education WAIVER SUBMISSION - General CD Code: 4369666 Waiver Number: 39-1-2014 Active Year: 2014 Date In: 1/23/2014 1:42:09 PM Local Education Agency: San Jose Unified School District Address: 855 Lenzen Ave. San Jose, CA 95126 Start: 1/23/2014 Waiver Renewal: N Previous Waiver Number: End: 1/22/2016 Previous SBE Approval Date: Waiver Topic: Teacher Evaluation and Assessment Ed Code Title: Teacher Evaluation Ed Code Section: Chapter 4. Employment - Certificated Employees, Article 2.7, Section 44929.21 Ed Code Authority: 33050 Ed Code or CCR to Waive: Education Code Section 44929.21 (b) [Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for two complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district. The governing board shall notify the employee, on or before March 15 of the employee's second complete consecutive school year of employment by the district in a position or positions requiring certification qualifications, of the decision to reelect or not reelect the employee for the next succeeding school year to the position. In the event that the governing board does not give notice pursuant to this section on or before March 15, the employee shall be deemed reelected for the next succeeding school year. This subdivision shall apply only to probationary employees whose probationary period commenced during the 1983-84 fiscal year or any fiscal year thereafter.] Outcome Rationale: San Jose Unified School District (SJUSD) and the San Jose Teacher’s Association have worked together over the last couple of years to try to develop and implement an innovative teacher evaluation and support system that would improve the quality of education provided to the District’s students. A collaborative process, including during the course of bargaining the latest contract, led to an agreement to implement a new teacher evaluation system. As part of that new evaluation system, both parties saw it necessary to waive existing Education Code that prescribes the probationary period for teachers to be two years under all circumstances. Both parties believe the evaluation period should be more flexible, allowing the District to grant permanent status after one year, if appropriate, or to allow a third year of probationary status if further evaluation and support are required. The most recent contract includes an agreement to jointly pursue a waiver of the California Education Code as necessary to enable both the granting of permanent status after the first year of probationary status and the granting of a third year of probationary status. 2/27/2014 5:03 PM Attachment 1 Page 2 of 2 This is necessary to facilitate local agency operations, particularly as it focuses on the new evaluation system and ensuring that teachers are receiving ongoing and timely feedback about their instructional practice that will contribute to their professional growth. Exceptional teachers should be granted permanent status as soon as they demonstrate the merit as evidenced by a thorough and thoughtful evaluation process. Teachers who would benefit from an additional year of support should not be subjected to the harsh consequences of non-reelection if an additional year of probationary status would ensure that they become a highly functioning component of the educational system. If granted the waiver, SJUSD and SJTA intend to comply with all current requirements in Education Code 44929.21 (b) with the exception of the above alternative to the strict two year probationary period. Student Population: 33306 City Type: Urban Public Hearing Date: 10/10/2013 Public Hearing Advertised: Published in the Central Office lobby and on the school district's website Local Board Approval Date: 10/10/2013 Community Council Reviewed By: None, not necessary Community Council Reviewed Date: 8/1/2013 Community Council Objection: N Community Council Objection Explanation: Audit Penalty YN: N Categorical Program Monitoring: N Submitted by: Mr. Jason Willis Position: Assistant Superintendent E-mail: jwillis@sjusd.org Telephone: 408-535-6650 Fax: Bargaining Unit Date: 09/19/2013 Name: San Jose Teachers Association Representative: Jennifer Thomas Title: President Position: Support Comments: 2/27/2014 5:03 PM