Proposition 74 makes the following changes to existing state law:

Extends the probationary period required for every new certificated employee from two consecutive school years to five consecutive school years. This provision applies only to employees whose probationary period started during or after the 2003-04 fiscal year.

Expands conditions under which permanent employees may be dismissed. Currently, permanent certificated employees may be dismissed for unsatisfactory performance, as well as a variety of other reasons. There is no specific definition or limitation on the term "unsatisfactory performance" in the law. Proposition 74 adds a new definition of unsatisfactory performance by saying that two consecutive unsatisfactory evaluations constitute unsatisfactory performance for the purpose of dismissing a permanent certificated employee. The initiative gives a school board the discretion to dismiss an employee on the sole basis of these two evaluations and would no longer require it to provide an employee with either 90 days to improve performance or as much initial documentation identifying specific instances of unsatisfactory performance (beyond that included in the evaluations themselves)

The Legislative Analyst makes the following observation: "The effect of these changes would be to reduce requirements in the initial stages of the dismissal process and potentially place greater focus on the evaluation process. Although these changes would apply to all certificated employees, their primary effect would be on teachers."

Probationary Period. Under current state law, newly-hired certificated employees serve a two-year probationary period. Certificated employees are primarily teachers, but the classification also includes instructional specialists, counselors, and librarians. During the probationary period, state law requires them to be evaluated at least once a year. At the start of their third year, certificated employees are given permanent (or tenured) status. At the end of the employees' first or second year, school districts may choose not to rehire them without offering specific reasons. If not rehired, probationary employees do not have the right to challenge the decision. Under Proposition 74, California would have one of the longest probationary periods for teachers in the country. Only two other states have a probationary period of five years--Indiana and Missouri.

According to the Legislative Analyst, from 1927 to 1982 California had a three-year probationary period. During that time, probationary employees typically had at least limited legal rights to challenge dismissal decisions. In 1983, the probationary period was shortened from three to two years. In exchange for the shorter amount of time, some legal protections then given to probationary employees were removed. These policies remain in effect today. California is one of 13 states where probationary/nontenured teachers enjoy few or no rights in connection with nonrenewal (dismissal) decisions. (National Education Association, Office of General Counsel, 5/01)

Length of States' Probationary Period for K-12 Teachers (Legislative Analyst's Office, July 2005)

Dismissal Process for Permanent Employees. Under current state law, most permanent employees must be evaluated at least once every two years. If an employee receives an unsatisfactory evaluation, an annual evaluation is required until he or she achieves a satisfactory evaluation or is dismissed.

Permanent certificated employees may be dismissed for unsatisfactory performance, as well as a variety of other reasons, including immoral or unprofessional conduct; criminal acts; conviction of a felony or "of any crime involving moral turpitude"; dishonesty; unsatisfactory performance; and evident unfitness for service. (See Education Code, Section 44932 (a)(1)-(11) and Section 44933.)

Regardless of the reason for dismissal, the process (also set forth in state law) consists of about a dozen stages, beginning with a school district specifying reasons for dismissal and providing a 30-day notice of its intent to dismiss. If requested by the employee, the process includes a formal administrative hearing and the right to appeal to a Superior Court and then a Court of Appeal. Before being dismissed for unsatisfactory performance, the school district must provide employees a 90-day period to allow them an opportunity to improve their performance.

New Teacher Retention/Turnover. A growing body of research cites the quality of the classroom teacher as the most important factor in determining student performance. To achieve the goal of providing equitable education to all our students, California will need to recruit, train, and retain new teachers. According to The Center for the Future of Teaching and Learning, about one third of California's teachers will be eligible for retirement in the next five years and one in three over the next decade. By 2014, the state will have to replace 100,000 teachers due to retirement alone. Research has also consistently shown that beginning teachers (under five years) leave the profession at higher rates than experienced teachers. Current surveys suggest that there are more teachers leaving the profession or transferring to different schools because of job dissatisfaction or to pursue different careers than there are teachers retiring.

Even more disturbing is data that documents a significantly higher rate of attrition in poor schools than in wealthier ones. This data shows that newer teachers are more likely to be assigned to low-performing students with greater needs and are also far more likely to leave teaching. Students who need experienced teachers the most get the teachers with the least experience.

What Proposition 74 Would Do

Additional evaluation requirements. By extending the probationary period from two to five years, up to two additional performance evaluations would be required during the probationary period. The state Constitution requires the state to reimburse local governments, including school districts, for mandated costs, but only if the mandate is imposed by the legislature or state agency. Mandates imposed by popular vote are not reimbursable. The financial burden of this provision would, therefore, fall on already struggling school districts. (California School Boards Association [CSBA] analysis)

Impact on due process rights. During the probationary period, teachers do not have due process rights and are not entitled to a hearing. As noted in a recent California Teacher's Association (CTA) newsletter, this measure would give school districts five years--instead of the current two--to dismiss teachers without having to defend their decisions or even offer reasons.

Retroactive to 2003-04 fiscal year. Proposition 74 establishes the five-year probationary period only for certificated employees whose probationary period began with the 2003-04 fiscal year or later. Employees hired in 2003-04 have already completed their two-year probation and have become permanent employees. This provision appears to mean that if the initiative passes in November, it would apply retroactively and deprive these employees of their newly acquired status until they successfully complete five consecutive years. However, Article 1, Section 10 of the U.S. Constitution prohibits states from passing retroactive legislation as laws "impairing the obligation of contracts." Taking this one step further, the California Teachers Association (CTA) has stated its belief that this provision would deprive these employees of their legally vested property rights (permanent employment status). The Fifth and Fourteenth Amendments of the Constitution prohibit the taking of property without due process. If approved by the voters, this provision will most likely be tested in court.

Dismissal Process/Unsatisfactory Performance. Currently there is no specific definition of or limitation on "unsatisfactory performance" in the law. Proposition 74 adds a definition of unsatisfactory performance, by stating that two consecutive unsatisfactory evaluations constitute unsatisfactory performance for the purpose of dismissing a permanent certificated employee.

One of the CSBA's concerns is a potential legal problem with this section of the proposition. The new definition of unsatisfactory performance appears to constitute limiting language and, therefore, could limit the use of cause for dismissal to those instances where there have been two consecutive unsatisfactory evaluations. This means that with an annual evaluation schedule, a dismissal could not go forward for at least two, or more likely, for three years. The unsatisfactory evaluations must be consecutive. One critic noted, "Any teacher who has survived a five year probationary period can easily improve for one year and avoid dismissal!" If the initiative passes, this may be another provision that will have to be tested in implementation and clarified by the courts.

Effect on Teacher Compensation Costs

The proposition would affect school district teacher costs in a variety of ways. The net impact on a school district could vary significantly, depending on factors such as the local labor market, the perceived desirability of working in the district, and district actions in response to the measure. For example, districts would experience reduced teacher costs in the following cases: Given the longer probationary period, districts could dismiss more teachers during their first five years. This could result in salary savings by replacing higher salaried teachers toward the end of their probationary period with lower salaried teachers just beginning their probationary period. Similarly, due to the proposition's modifications to the dismissal process, school districts might experience greater turnover among permanent teachers. This too would result in teacher-related savings from replacing higher salaried veteran teachers with lower salaried, less experienced teachers.

In contrast, districts would experience increased teacher costs in the following instances: The supply of teachers could be reduced because the longer probationary period and modified dismissal process might be perceived as increasing job insecurity. This would have the effect of putting upward pressure on teacher compensation costs. The longer probationary period could lead districts to retain some struggling new teachers beyond the current two-year period to give them additional chances to succeed. Retaining these teachers--instead of replacing them with lower-cost entry level teachers--would have the effect of increasing teacher salary costs above what they otherwise would have been.

Effect on Evaluation Costs

The proposition would increase teacher performance evaluation costs. Under current law, employees must receive at least three evaluations over their first five years. Under the proposition, they would need to receive five evaluations over this same period. That is, districts would need to conduct up to two additional evaluations for probationary employees. In addition, given the higher stakes involved with unsatisfactory evaluations, school districts might spend more time documenting these assessments. These costs would also vary significantly from district to district. The costs could range from minor (for districts meeting these additional tasks with existing administrative staff) to more significant (for those adding additional staff to meet these responsibilities). Depending on how districts respond, the statewide costs could range from relatively minor to the low tens of millions of dollars annually.

Other Fiscal Impacts

Administrative and Legal Costs. The proposition's effect on school district administrative and legal costs is unknown. On the one hand, the proposition simplifies the dismissal process by requiring slightly less documentation and eliminating the special 90-day notice required for dismissals due to unsatisfactory performance. This would likely result in some administrative savings. On the other hand, given the somewhat simplified dismissal process, teacher dismissals might become more frequent. As a result, the number of teacher requests for administrative hearings and appeals, and their associated costs, could increase.

Bargaining Costs. Collective bargaining costs could increase as a result of the proposition. Evaluation procedures are subject to collective bargaining and are commonly found in teacher contracts. To the extent that the evaluation process becomes a "higher-stakes process," related negotiations might take longer and be more costly. These costs would be associated with revising the evaluation process, refining evaluation standards, and/or defining unsatisfactory performance. The state would pay any additional costs, as it currently reimburses local school districts for their collective bargaining expenses.

(Note that CSBA has analyzed this differently: "Mandates imposed by . . . a popular vote are not reimbursable. . . . This also applies to the expansion of an existing mandate that is reimbursable. So, even though collective bargaining is a reimbursable mandate, the expansion of collective bargaining costs imposed by this initiative would not be. In submitting claims for reimbursement, districts will have a difficult time distinguishing reimbursable from nonreimbursable costs.")

Recruitment and Training. To the extent that districts have more or less teacher turnover as a result of this measure, their recruitment and training costs would be affected accordingly.

The Education Position in Brief states that the League supports "improvements in public education, based on access with both equitable and sufficient opportunities to learn for all students." Section 3 says that there are "fundamental elements that must be present to create a teaching and learning environment that provides access and equitable opportunity for all children." Included in the list of fundamental elements are "fully qualified teachers."

Personnel

Responsibility at the state level for:

• developing guidelines for recruiting, training, certifying, and retraining teachers which maintain high standards
  
• developing guidelines for evaluation which are fair, rigorous, and frequent with high standards for retraining teachers and with effective procedures for removing ineffective teachers
  
• regulations governing tenure which permit a fair, rigorous, and frequent evaluation system.

Responsibility at the local level for:

• maintaining high performance standards for teachers and administrators
  
• implementing a fair, rigorous, frequent evaluation system
  
• providing opportunities for retraining and professional growth for teachers
  
• providing a work environment which is conducive to good teaching
  
• providing incentives for excellence in teaching

SUPPORTERS Signing ballot arguments for	OPPONENTS Signing ballot arguments against:
Arnold Schwarzenegger, Governor State of California	Barbara Kerr, President California Teachers Association (CTA)
George Schulz, Chair Governors Council of Economic Advisors	Jack O'Connell State Superintendent of Public Instruction
Karla Jones, 2004 Educator of the Year Orange County	Nam Nguyen Student Teacher

The rebuttal to the supporters' argument was signed by Mary Bergan, President of the California Federation of Teachers; Monica Masino, President of Student CTA; and Manuel "Manny" Hernandez, Vice President of Sacramento City Unified School District Board of Education.

RESOURCES

Barbara Inatsugu, LWVC Program Director for Education (PK-12), LWVinatsugub@aol.com

Trudy Schafer, LWVC Program Director/Advocate, 801 12th Street, Suite 220, Sacramento 95814, 916-442-9210, Fax 916-442-7362, tschafer@lwvc.org

EdSource Voter Guide, Proposition 74: Waiting Period for Permanent Teaching Status and Dismissal Procedures, September 2005, http://www.edsource.org/pub_guide_prop74.cfm

No on 74, a Coalition of Teachers and School Board Members for Quality Teaching and Learning, 1510 J Street, Suite 210, Sacramento, CA 95814, 916-443-7817, www.noonproposition74.com.

SUMMARY POINTS

Teacher Tenure and Dismissal

• Proposition 74 is UNFAIR. It will:
• Take away certain due process rights. Probationary teachers don't have due process rights. If Prop. 74 passes, school districts will have five years--instead of the current two--to dismiss teachers without having to defend their decisions or even offer reasons.
• Establish a five-year probationary period for certificated employees whose probationary period began with the 2003-04 fiscal year or later--more than two years ago. That means thousands of teachers throughout the state, who in good faith completed their probation and achieved permanent status this September, may lose it if Prop. 74 passes. They would then be required to work another three years without the benefit of due process, or until the provision is tested in the courts.
• Disproportionately impact high poverty schools that predominately serve students of color.
• Proposition 74 is UNNECESSARY.
  • There is already a system in place to fire teachers who are not performing well in the classroom. Existing law allows teachers to be fired for such reasons as unsatisfactory performance, unprofessional conduct, criminal acts, and dishonesty no matter how long they've been on the job.
  • There is no evidence to support the claim that lengthening the teacher probation period improves teacher performance or student achievement.

• Proposition 74 is INEFFECTIVE. It does nothing to:
  • Encourage the best and the brightest to enter the teaching profession. There is no evidence to show that lengthening probation has any impact on teacher quality, while positive reforms, such as providing mentoring programs, professional development, and other forms of new teacher support, have proven effective.
  • Improve student learning, improve teaching conditions, or deal with the real problems facing our schools, such as class sizes, sufficient textbooks, clean and safe schools, retention of quality teachers, attracting experienced teachers to schools with the greatest needs.

• Proposition 74 is MISLEADING. It:
• Claims its intent is to ensure that the needs of students will be given a high priority in the assignment of teachers, but does nothing to address the current inequities.
• Criticizes union negotiated rules and lengthy, expensive appeals processes, but does nothing to address issues related to either one.
• Is not real reform, despite claims by its supporters. It is tinkering around the edges. Look carefully at what it says--what it claims to do is not what it really does.
• Claims to fix the current tenure system, but misleads people about how teacher employment really works. It ignores the fact that specific disciplinary and dismissal procedures are already required by the Education Code.
• Proposition 74 is COUNTERPRODUCTIVE. It
• Is poorly written and will likely end up in court.
• Creates nonreimbursable mandates for local school districts that will result in greater financial burdens on those already cash-strapped districts.
• Will not remedy and may actually add to the practice of assigning newer teachers with the least experience to students with the greatest needs. These are the teachers more likely to leave teaching within the first five years, whether they have permanent status or not, creating higher rates of turn over. Once again, students who need the most get the least.
• Begs the question: If there are only a few "bad" teachers and most are "good," why should we punish the "good" teachers by making them work with no due process protections for an extra three years? Doesn't that make it harder to attract and retain qualified teachers?

Note: Please adapt this letter to your own community, perhaps adding local examples of why Proposition 74 should be defeated. Check your local paper's word limit for published letters.

Editor:

At first glance, Proposition 74 on the November ballot might seem like a good idea. Its supporters claim that making teachers work five years on probation instead of two before earning permanent status will make sure our kids have the best teachers possible.

But under closer scrutiny, Prop. 74 reveals itself to be unfair, ineffective, and punitive. It would take away some due process rights that currently protect our children's teachers.

In California, probationary teachers have no protection and can simply be fired without recourse. Proposition 74 would give school districts five years--instead of two--to dismiss teachers without having to defend their decisions or even offer reasons.

And the measure is retroactive. Employees hired in 2003-04 have just completed their probation under contracts signed two years ago. If Prop. 74 passes, they will lose their newly acquired permanent status and have to work another three years to again complete probation. It would change the terms of the contract under which they were originally hired. How can that be fair?

Join the League of Women Voters, the California School Boards Association, teachers' associations and many others in voting NO on Proposition 74. Our children deserve better. We deserve better.

Sincerely,

(your name)

For more information on this proposition, go to Smart Voter's coverage.