Findings of Fact: The Permanent Employment Statute

Finding of Fact

The following “Findings of Fact” were compiled by Plaintiffs to demonstrate the overwhelming evidence presented at trial, by both Plaintiffs and the Defense, supporting the Court’s decision in Vergara v. California to rule unconstitutional the State’s Permanent Employment Statute, Dismissal Statute and “Last In, First Out” Layoff Statute.

Note: The notation “Tr.” refers to a specific place in the trial transcripts. The Court has not yet released the final transcripts to the public; however, when the Court does release the final transcripts to the public, Students Matter will post them to this site and link to them throughout the Findings of Fact.

Under the Permanent Employment Statute, school districts in California must notify probationary teachers whether they will be reelected as permanent employees by March 15th of the teachers’ second probationary year of employment.

  1. Education Code section 44929.21(b);
  2. 1/27 Tr. at 126:4-5 [Deasy] [“An employee has to be notified on or before March the 15th . . . .”];
  3. 2/3 Tr. at 902:15-905:12 [Raymond] [“The statute says that [site administrators must decide whether to reelect probationary teachers to permanent status] within two years, which really isn’t two years, because in California you have to give notice by March 15th.”];
  4. 3/12 Tr. at 3205:18-3206:15 [Seymour] [agreeing that teacher reelection notices must be given by March 15].

School districts in California must decide whether to reelect probationary teachers as permanent employees by approximately January or February of the probationary teachers’ second probationary year of employment in order to complete the appropriate reelection (or non-reelection) paperwork and comply with the statutory notification deadlines set forth in the Permanent Employment Statute.

  1. 1/27 Tr. at 126:13-15 [Deasy] [“[T]his has to be well taken care of in January which allows you the month of February at your board meeting, and then between February and March for notification process.”];
  2. 2/4 Tr. at 1042:27-1043:14 [Kappenhagen] [a principal in SFUSD has to make a decision as to whether a teacher is going to receive permanent employment “usually around the last week of January or the first week of February”];
  3. 2/5 Tr. at 1113:4-1116:9 [Douglas] [“[I]n December I ask the principals to tell me who is questionable on your mind, who may not make the grade. By first of February, right now, I’m asking for names to get ready to go for March 15 notifications based on that.”].

If California school districts fail to notify probationary teachers of their reelection decisions by March 15th of the teachers’ second probationary year of employment, the probationary teachers in question are automatically reelected as permanent employees.

  1. Education Code section 44929.21(b);
  2. 1/27 Tr. at 127:9-13 [Deasy] [“A failure to give notice of non-reelection [means] . . . you are telling the employee they’ve been reelected.  So they get permanency or tenure.”].

In practice, California school districts have 16 months or less to make teacher reelection decisions.

  1. 1/30 Tr. at 562:3-23 [Chetty] [stating there are 16 months of data available to make a tenure decision];
  2. 2/3 Tr. at 902:15-905:12 [Raymond] [the “very important decision whether or not to grant [an] individual tenure” must be made in “14 to 16 months”];
  3. 2/4 Tr. at 1045:18-1046:4 [Kappenhagen] [statute provides only “16 or 17, in some cases 15 months” to work with a teacher before having to make a tenure decision, which is “really too short”].

The reelection deadline set forth in the Permanent Employment Statute limits the amount of classroom evaluation data, student and parent input, and student academic data available to administrators who make teacher reelection decisions.

  1. 1/27 Tr. at 133:22-134:3 [Deasy] [“[I]n the very best of circumstances, you’ve had one year of data for the pupils for which the teacher worked with . . . . And then any of the other data which are national unavailable at all because those take place in late Spring such as AP exams or IB exams, et cetera”];
  2. 1/30 Tr. at 562:3-23 [Chetty] [“If you only restrict yourself to effectively using one year of test score classroom observation data because that’s really all you have at the point of 16 months, one complete year, you are going to get significantly less reliable estimates than if you have more data, and as a result, when you have less accuracy in your estimates, you are not going to have as accurate personnel evaluation and you are going to end up hurting students by not keeping the most effective teachers.”];
  3. 2/6 Tr. at 1300:4-22 [Kane] [“[J]ust seeing a year and a half gives me limited opportunity to see [a teacher’s] growth.”];
  4. 3/20 Tr. at 4217:24-4219:18 [Darling-Hammond] [“Principals especially in large schools, rarely have sufficient time . . . for the job of evaluation . . . .”];
  5. 3/24 Tr. at 4460:18-4461:12 [Smith] [“[T]here is no way to have enough information to make that kind of informed decision . . . [Y]ou don’t have evidence, and I just don’t think that it’s enough time to make that decision.].

The reelection deadline set forth in the Permanent Employment Statute forces school districts to make permanent employment decisions before the two-year teacher induction program is complete and before teachers are fully trained.  As a result, it is possible for a school district to reelect a probationary teacher to a position of permanent employment and for that teacher to subsequently fail to satisfy the requirements necessary to obtain a teaching credential in California.

  1. 1/27 Tr. at 138:3-18 [Deasy] [agreeing tenure decision is made before the expiration of the induction program];
  2. 2/5 Tr. at 1118:19-1119:13 [Douglas] [“Our [induction] program is outlined pretty much to give two years of induction or training or practice for a teacher, because it was observed and noted wisely that teachers coming out of college needed practical experience, not just book learning kind of thing and, therefore, [] induction was sort of that hand-in-hand classroom teaching while your classroom teaching kind of a situation.  I’m noticing some of those teachers in [the induction program] about February or March to let them know that they may be March 15th before they’ve even completed their [induction] program . . . .”];
  3. 3/12 Tr. at 3350:18-26 [Clark] [a teacher can “receive [a] notice that [she is] being reelected to a tenured teaching position” and “then subsequently fail to successfully complete the Induction Program” necessary to obtain a clear credential];
  4. 3/19 Tr. at 3973:20-3974:8 [Nichols] [a teacher “should have the full two-year benefit of induction” prior to the date by which a tenure decision should be made];
  5. Pls. Ex. 327 at P0327-46, P0327-51 [CDE Publication] [“Meanwhile, districts are forced to make decisions about the granting of tenure . . . while candidates are still receiving support . . . Ideally, a decision about permanent employment should occur after the completion of the [two-year] induction program.”].

The reelection deadline set forth in the Permanent Employment Statute limits the amount of time within which probationary teachers can improve the effectiveness of their teaching and demonstrate that they are effective teachers.

  1. 1/27 Tr. at 135:10-136:6 [Deasy] [“There is no way that this is a sufficient amount of time to make in my opinion that incredibly important judgment . . . [Y]ou don’t even have, in my opinion, a reasonable period of time to show growth . . . .”];
  2. 2/5 Tr. at 1118:19-1119:13 [Douglas] [“I’m noticing some of those teachers in BTSA about February or March . . . before they’ve even completed their BTSA program. That’s somewhat defeating a concept in the sense it’s real tough to focus yourself on learning and developing when you’ve got this weight of the world on your shoulder saying ‘and I may not come back.’ And so that’s a bit of a conflict. Good learning technique says you should have a little stress on the learner so that they maintain focus, but losing your job is more than just a little stress. And so sometimes they I’ll say blank out sort of, they freeze up and the growth doesn’t take place as we’d like it or need it to be from March to the end of the school year depending on that situation.”];
  3. 2/6 Tr. at 1299:26-1301:7 [Kane] [“[T]eachers improve their effectiveness from their first to their second to their third year of teaching on average.  And so if I only see one year, I’d have a limited opportunity to see a growth . . . . ”];
  4. 3/24 Tr. at 4459:15-4460:17 [“[T]here is just no way to collect enough information about the effectiveness of those teachers in service of our children . . . .”].

The Permanent Employment Statute provides inadequate time for administrators to make well-informed decisions regarding permanent employment for all of their probationary teachers.

  1. 1/27 Tr. at 135:10-17 [Deasy] [probationary period does “not remotely” give “schools sufficient time to determine whether a tenured candidate should be given tenure.”];
  2. 1/30 Tr. at 652:1-652:20 [Adam] [stating the “probationary period provided under [the] California Education Code” is not “sufficient to allow administrators to make informed decisions about whether teachers should be granted tenure”];
  3. 2/5 Tr. at 1112:3-21, 1115:24-26 [Douglas] [“[T]hat is not a sufficient enough time to grant a teacher tenure . . . It can be as much as a crapshoot . . . whether that [teacher] is going to develop into the person you want.”];
  4. 3/6 Tr. at 2803:3-2804 [Rothstein] [agreeing that the “optimal amount of time” to make a teacher tenure decision is three years, with a boundary maximum of five years];
  5. 3/18 Tr. at 3890:23-3891:5 [Berliner] [agreeing that “a probationary period of three or even five years would be better than two years to make the tenure decision . . . .”];
  6. 3/24 Tr. at 4459:15-4460:17 [Smith] [“[S]trongly disagree[ing]” with the statement that school districts have sufficient time to collect enough information to make informed decisions about whether to grant tenure prior to March 15th of a probationary teacher’s second year];
  7. Pls. Ex. 688 at P0688-9 [San Jose Unified School District and the San Jose Teachers’ Association recently submitted a joint request to the State Board of Education “to enable . . . the granting of a third year of probationary status as deemed necessary.”].

As a direct result of the reelection deadline set forth in the Permanent Employment Statute, grossly ineffective teachers obtain permanent employment in California.

  1. 1/27 Tr. at 143:8-144:13 [Deasy] [“Because of the District’s inability to determine the effectiveness of probationary certificated teachers by March 15th of the teachers’ second year of employment, ineffective and grossly ineffective teachers have, despite the District’s best efforts, [] been able to obtain tenured and permanent employment . . . .”];
  2. 2/3 Tr. at 906:3-17 [Raymond] [Sacramento has granted tenure to grossly ineffective teachers as a result of the probationary time period];
  3. 2/4 Tr. at 1046:5-10 [Kappenhagen] [admitting to “hiring mistakes” when a teacher seemed promising in the first two years but proved to be ineffective in year three];
  4. 2/5 Tr. at 1118:2-7 [Douglas] [admitting that Fullerton has “granted tenure to a teacher that the district later determined to be grossly ineffective.”];
  5. 2/6 Tr. at 1303:8-13 [Kane] [agreeing that a school may believe that a teacher is effective in the first 18 months of employment and for the teacher to turn out to be in the bottom 5 percent of teachers];
  6. 3/10 Tr. at 2994:4-14 [Barrera] [agreeing that “[t]here are some teachers who have become tenured in San Diego Unified School District who were later evaluated as unsatisfactory”];
  7. 3/11 Tr. at 3092:1-16 [Mills] [agreeing “[t]here are some probationary teachers who become tenured teachers . . . who are later evaluated as unsatisfactory”];
  8. 3/24 Tr. at 4464:24-4465:13 [Smith] [“[T]he time has made it less possible for us to ensure that every single teacher is effective and in our district . . . [T]he time and the opportunity to actually assess [effectiveness] and to determine their effectiveness is so short, and the questions that an administrator and the staff may have, we have to proceed.  We need staffing.  We need people there.  And I do think it has had a negative effect on overall teacher effectiveness.”].

It is not possible for school districts to simply non-reelect probationary teachers whenever they have doubts about the probationary teachers’ effectiveness because districts have (or should have) doubts about the effectiveness of most probationary teachers after only 16 months.

  1. 1/28 Tr. at 270:15-271:3 [Deasy] [“[Y]ou don’t make such a weighty decision on either a single piece of evidence or just a doubt. You need evidence and you need to be able to show that there is a track record of improvement . . . [T]he statute provides ridiculously short period of time to do that in.”];
  2. 1/30 Tr. at 652:1-18 [Adam] [“[A]t that point I still have doubts about all of my second-year teachers because they are still very much in the steep learning part of the curve and it always feels like a big risk.”];
  3. 2/4 Tr. at 1046:5-10 [Kappenhagen] [despite trying to non-reelect when he has doubts, he has still granted permanent employment to a teacher who turned out to be grossly ineffective].

Even when school districts non-reelect all of the probationary teachers about which they have doubts as to their effectiveness, school districts still reelect grossly ineffective teachers because differences in teacher effectiveness often emerge more than two years into teachers’ careers, i.e., after the time that teachers have already obtained or been denied permanent employment.

  1. 2/4 Tr. at 1046:5-1047:23 [Kappenhagen] [administrators who deny tenure when they have doubts still reelect grossly ineffective teachers due to the time limitations imposed by the Permanent Employment Statute];
  2. 2/18 Tr. at 2165:7-8 [Johnson] [discussing the literature showing that teachers “plateau in years four, five six, or seven”].

It is not possible for school districts to avoid the reelection of all ineffective and grossly ineffective teachers simply by improving their hiring practices and/or requiring principals to conduct longer and more frequent teacher evaluations.  As a practical matter, administrators and principals have numerous demands on their attention and limited resources at their disposal to devote to hiring and evaluation.  Furthermore, improved hiring and evaluation practices cannot change the amount of time and student learning data available to school districts prior to the deadline imposed by the Permanent Employment Statute.

  1. 1/29 Tr. at 402:5-25 [Deasy] [changing to an affirmative tenure process still does not prevent below standard teachers from being granted tenure];
  2. 2/3 Tr. at 902:15-905:12 [Raymond] [site administrators have “numerous responsibilities” that are “practical limitations on the number of times” the district can evaluate probationary teachers for tenure.”];
  3. 2/4 Tr. at 976:5-10 [Raymond] [“[J]ust simply not enough time. And no matter what we do, we can’t create more time in which to make that important determination.”];
  4. 2/5 Tr. at 1114:26-1115:2 [Douglas] [“[P]rincipals have multiple tasks that they’re doing. They cannot sit and coach one teacher all day long. We don’t have the resources to send in expert teachers to teach brand-new teachers.”];
  5. 2/6 Tr. at 1266:25-1267:2 [Kane] [“[I]t is very hard to know who the effective and ineffective teachers are going to be at the moment that you recruit them . . . [H]uge differences . . . emerge later, but it’s hard to know who those teachers are going to be at the moment you recruit them.”];
  6. 2/18 Tr. at 2181:25-2183:10 [Johnson] [agreeing that principals have “a variety of demands on their time” and are “constantly trying to figure out how to get done that most important things that have to be done for the sake of the students”].

A longer probationary period would result in the reelection of fewer ineffective and grossly ineffective teachers in California.

  1. 1/30 Tr. at 562:3-23 [Chetty] [“If you only restrict yourself to effectively using one year of test score classroom observation data because that’s really all you have at the point of 16 months, one complete year, you are going to get significantly less reliable estimates than if you have more data, and as a result, when you have less accuracy in your estimates, you are not going to have as accurate personnel evaluation and you are going to end up hurting students by not keeping the most effective teachers.”];
  2. 2/4 Tr. at 1047:16-1048:21 [Kappenhagen] [admitting to “mistakes [] in granting tenure” that might have been avoided if he “had more time”];
  3. 2/6 Tr. at 1299:26-1301:7 [Kane] [“First of all, [you] would see . . . at least one . . . additional year[] of student achievement gains . . . .”];
  4. 2/6 Tr. at 1299:26-1301:7 [Kane] [“[I]t becomes easier to see who the effective and the ineffective teachers are as time passes . . . .”].

The reelection of fewer ineffective and grossly ineffective teachers would have a real and appreciably positive impact on students.

  1. See generally supra § IV.C; infra § V.C.2;
  2. 1/29 Tr. at 430:14-27 [Deasy] [the Permanent Employment Statute “impact[s] the quality of the pool of teachers from which assignments are made within” LAUSD and thus “the quality [of teachers] that will be in front of students”];
  3. 1/30 Tr. at 566:7-567:3 [Chetty] [“[T]he amount that students learn and the gain they would achieve . . . would be $163,000 larger if you were to use 3 years of data to estimate teacher effectiveness instead of 16 months.”].

California is one of only five states that require a probationary period of less than three years. 

  1. 2/19 Tr. at 2265:19-22 [Jacobs] [“California is among a very small group of states that requires a probationary period of less than three years.”];
  2. 2/19 Tr. at 2266:3-8 [Jacobs] [testifying that California is one of five states with a probationary period of two years or shorter].