McGeorge School of Law

Proposition 74

Proposition 74:
Public School Teachers. Waiting Period for Permanent Status. Dismissal.

By

Juliette A. Tognetti
JD, McGeorge School of Law, University of the Pacific
to be conferred May, 2006
M.P.H., Maternal & Child Health, Boston University, 2002
B.S., Physiological Sciences, University of California, Los Angeles, 2000

and

Alan T. Lee
JD, McGeorge School of Law, University of the Pacific
to be conferred May, 2006
B.A., Political Science, University of California, Irvine, 2002

Copyright © 2005 by University of the McGeorge School of Law


Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Issues
V. Public Policy Considerations
VI. Conclusion

 

I. Executive Summary

Proposition 74, commonly known as the “Putting the Kids First Act,” is an initiative proposing statutory amendments to sections 44929.21 and 44932 of the California Education Code. Proposition 74 primarily affects California teachers, but also implicates other certificated public school employees such as librarians and aides. The initiative, if passed, will increase the probationary period for certificated public school employees, hired during and after the 2003-2004 fiscal year, from two to five years. The longer probationary period will give public school administrators more time to conduct evaluations of new teachers before they become permanent employees as defined by statute. Cal. Educ. Code § 44929.21 (2005). The initiative would also modify the statutory process for dismissing such a permanent employee. The recording of two consecutive unsatisfactory evaluations against a teacher would be considered prima facie evidence of grounds for dismissal, in addition to the list of causes already defined in statute. Cal. Educ. Code § 44932(a)(1-11) (2005). Currently, permanent employees subject to dismissal for unsatisfactory performance have a 90-day grace period to make improvements and may demand specific proof of the school board’s case against them. Cal. Educ. Code § 44938 (2005). The initiative would eliminate these steps, and the opportunity for improvement and the requirement that school boards produce specific documentation of a permanent employee’s unsatisfactory performance would no longer be mandated by law.

The effects of Proposition 74 are largely fiscal and will vary by district, depending on district spending and desirability. There is a potential for increased costs in relation to the proposed evaluation processes and administrative changes, but also a probability that costs will be reduced with the turnover of high-salaried problem teachers. Regardless, Proposition 74 advocates and opponents focus on the effects of the initiative in the classroom. The initiative was first proposed for the benefit of public school students and in recognition of the idea that a new system will keep only effective teachers teaching. California Official Voter Information Guide, Analysis of Proposition 74 (Secretary of State, 2005).

II. The Law
A. A Brief History of Tenure

The establishment of a system of tenure is relatively new to the American educational system. Up until the late 19th century, most academic institutions made little use of a recurring full-time staff. Leslie Berger, The Rise of the Perma-Temp, 154 N.Y. Times 4A (Aug. 4, 2004).

At the beginning of the 20th century, most elite American universities were being underwritten by rich industrialists. Oftentimes, an instructor who taught lessons in direct conflict with the ideology of those in power could find himself dismissed from his teaching position. Id.

In response, many elite universities adopted a tenure system to protect their faculty, and bolster a more open atmosphere of discussion. Tenure, thus, in the years to come, became a cornerstone of academic freedom – protecting a faculty member’s freedom to teach, and encourage the discussion of ideas without fear of reprisal or termination. Id.

California codified protection of its teachers into law during the 1920’s to protect school teachers against firings as a result of frivolous rules, and to add a layer of job security. California Teachers Association, Evaluation Key to Excellence, CTA (2005). The California Education Code is commonly misunderstood as granting K-12 teachers lifetime employment after two years to teaching. Teachers in California are not afforded the same lifetime privilege that some university professors have when it comes to tenure. Rather, after a two-year probationary period California teachers are afforded, through the education code, an extra layer of process prior to dismissal. California teachers are not, and have never been guaranteed lifetime employment. Cal Educ. Code Ann. §§44929.21, 44932 (2005).

B. The Existing Law

Today, the law protects teachers in various ways from arbitrary dismissal, through employment laws and specific tenure laws. The existing law in California with regard to teacher tenure can be found in the California Education Code sections 44929.21 and 44932. Cal. Educ. Code Ann. §§ 44929.21, 44932 (2005).

The Education Code makes no reference to tenure in the text of the statute. Under the code, non-probationary employees are known as permanent employees. Cal.Educ.Code Ann. § 44929.21. Thus, for the purpose of this review we will refer to non-probationary employees as permanent employees, or as having permanent status.

California Education Code §44929.21 determines when, and under what circumstances, a teacher in the California elementary or secondary education system becomes a permanent employee of the school district. California law currently requires that certain employees, not limited to teachers, have some form of license or certification to show basic qualifications in their respective areas. Cal. Educ. Code Ann. §44830 (2005).

Prior to becoming a permanent employee, a teacher in the district is considered a probationary employee. Id. at §44929.21. Section 44929.21(b) requires that a district with an average daily attendance of 250 or more students must grant permanent employment status to a probationary employee after two consecutive years of employment at the commencement of his or her third year.

Additionally, notice must be given to the employee of the change in status. After two years as a probationary employee, the county superintendent of schools must notify the employee on or before March 15th of the employee’s second complete consecutive year of employment in a teaching position of the decision to reelect or not reelect the employee for the next succeeding school year to the position as a permanent employee of the school district. Cal. Educ. Code Ann. §1296(b) (2005). If notice is not given, the employee shall be deemed reelected for the next succeeding school year. Id.

Under the California Education Code probationary employees and permanent employees differ mainly in the procedure in which they are dismissed. Cal. Educ. Code Ann. §44932. Permanent employees currently receive more protections from dismissal that do probationary employees. Id. Under the education code, probationary employees do not have the right to challenge a district’s decision not to rehire them. Id. A district may, in effect, choose not to rehire them without offering specific reasons. Id.

Conversely, permanent employees may be dismissed for a specific cause. Section 44932 of the California Education Code lists eleven specific reasons for which a permanent employee may be dismissed. Examples of these reasons are: unsatisfactory performance, evident unfitness for service, dishonesty, or immoral or unprofessional conduct. Id.

Additionally, each permanent employee must be evaluated at least once every two years. Cal. Educ. Code Ann. §44664 (2005). If during these evaluations, the employee receives an unsatisfactory evaluation, he or she must then be evaluated annually, until he or she receives a satisfactory evaluation. Id. If it is determined that a permanent employee is to be dismissed, the school district is obligated to provide a 30 day notice of its intent to dismiss, including specific reasons for dismissal. Cal. Educ. Code Ann. §44830.3 (2005). A formal administrative hearing and the right to appeal to a Superior Court and then a Court of Appeal is provided for by statute to those permanent employees who request such hearings. Id.

C. Proposed Law

Proposition 74 proposes amendments to §44929.21 and §44932, and affects the enforcement of §44934 and §44938 of the California Education Code. Analysis of Proposition 74.

1. Extending the Probationary Period for Certified Employees

Proposition 74 changes the number of years that a newly certificated public school employee must be employed and evaluated before attaining permanent employee status. The probationary period is currently two years for new teachers and with the passing of Proposition 74, it will be extended to five years. California Official Voters Information Guide, Text of Proposed Laws, Proposition 74, § 4 (Secretary of State, 2005). A certificated employee would have to begin a sixth year with the same district, before they would be deemed a permanent employee. Id. Extending the probationary period would result in an increase in employee evaluations. Probationary employees are by law required to receive annual evaluations of their performance, and extending the probationary period to five years would create a statutory need for the administration of three more evaluations than currently required. California Official Voters Information Guide, Analysis of Proposition 74 (Secretary of State 2005).

2. Relaxing the Dismissal Process for Permanent Employees

Proposition 74 modifies the definition of unsatisfactory performance, cause for dismissal under Cal. Educ. Code § 44932, and effectively broadens the criteria for terminating a permanent employee. Proposition 74, § 5. It proposes that if an employee receives two consecutive unsatisfactory evaluations, that, in and of itself, would constitute an unsatisfactory performance for the purposes of dismissal. The proposition would also give school boards the discretion to ignore §44938 mandates requiring that a school board dismissing a permanent employee for unsatisfactory performance offer that employee a 90-day grace period to improve their conduct. Id. With two unsatisfactory evaluations on file, a 30-day notice of termination and the right to appeal would be the only procedural protections available to a teacher with permanent employee status. The initiative also affects a related section, §44934, which requires that the school board provide specific documentation of the unsatisfactory performance to the employee being examined. Proposition 74, § 5. Adding the two unsatisfactory evaluations as prima facie evidence of unsatisfactory performance would relieve a district of this burden of proof. Id. Altogether, with voter approval of the initiative, the dismissal process for permanent employees would be relaxed to the extent that, in the event of two consecutive unsatisfactory evaluations, a school district would only have to provide 30-day notice of its intent to dismiss, documentation of the evaluations upon which dismissal was founded and access to an administrative hearing to comply with the law.

III. Drafting Issues
A. Severability

Proposition 74 includes a severability clause. It states, “If any provisions of this act, or part thereof, are for any reason held to be invalid or unconstitutional, the remaining provisions shall not be affected, but shall remain in full force and effect, and to this end are severable.” Proposition 74, § 7. Moreover, for a court to sever a single provision from an initiative, it must be grammatically excisable, valid portions must be independently applicable, and the enacting body must have intended to implement the measure regardless of any other measure from which it may have been severed. People’s Advocate, Inc. v. Super. Ct., 181 Cal.App.3d 316 (3rd Dist. 1986). Proposition 74 amends two sections of the California Education Code. While each amendment could, in theory, be its own initiative and stand alone before voters, severability does not seem to pose any problems if one of the two amendments is deemed invalid. Consistent with the severability rule from People’s Advocate, the sections are grammatically and functionally distinct. Id. at 329-332. Moreover, a court would likely find that the voters were sufficiently focused on the two main components of the reform; namely, increasing the years of service before awarding permanent employee status, and the easing of procedural safeguards for dismissal of underperforming teachers. Id. at 332-333. As such the three part severability test would likely be satisfied.

IV. Constitutional Issues
A. Federal

1. Existing Law

As it stands, §44932(10) of the California Education Code may violate the First Amendment’s imputed freedom of assembly as it applies to state governments through the Fourteenth Amendment. Additionally, Proposition 74 does not address the issues of constitutionality that exist currently in the statute.

Section 44932(10) of the California Education Code makes “knowing membership by the employee in the Communist Party” grounds for dismissal of a permanent employee. Cal Educ. Code Ann. §44932(10) (2005). In 1967 the United States Supreme Court invalidated a New York state law that required public employees to take an oath that they were not members of the Communist Party. Keyshian v. Bd. of Regents of the St. U. of N. Y., 385 U.S. 589 (1967) [“Keyshian ”]. Then, the Court held that the law punished mere membership in a “subversive” group, without any requirement for proof that the individual know of the illegal objectives or intended to further them. Id . at 596. While §44932(10) of the Education Code does not require an oath, employees who are knowing members of the Communist Party are subject to dismissal. Just as in Keyshian, the Education Code requires no proof that the individual know of any illegal objectives, rather, the statute only requires knowing membership. Id.

Additionally, the Supreme Court has overturned a federal statute that denied employment to Communist group members. U S. v. Robel, 389 U.S. 258 (1967) [“Robel”]. The court held that the state could deny employment based on association only if the group participated in illegal activities and the individual was an active member. Section 44932(10) makes mere membership in the Communist party grounds for dismissal, no mention is made of active participation or illegal activities.

It is clear that §44932(10) is in clear contradiction to the principles set forth in Keyshian and in Robel. Section 44932(10) makes mere membership in an organization grounds for dismissal. The Supreme Court has expressly prohibited this type of statute. If challenged, this provision of the Education Code cannot withstand constitutional scrutiny.

It is unlikely, however, that if this section of the education code is challenged that the entire statute will be held to be unconstitutional. As discussed above, a severability test would be applied by a reviewing court and it is fairly certain that the offensive section could be grammatically, functionally and volitionally excised from the statute without implicating other provisions of the Education Code. See People's Advocate, 181 Cal.App.3d at 329-333.

2. Proposed Law

Notwithstanding the federal constitutional issues discussed above, Proposition 74 itself has no issues of constitutionality.

B. State

1. Single-Subject Rule

Proposition 74 likely meets the single-subject rule requirement of the California Constitution. Cal. Const. art. II §8(d). An initiative may not contain measures that speak to more than one subject or else it will be invalid. Id. The section aims to prevent voter confusion when initiatives combine a variety of independent issues having separate effects. Senate v. Jones, 21 Cal.4th 1142 (1999) [“Jones”]. The “reasonably germane test” recited by the Supreme Court in Jones permits initiatives to propose facially distinct provisions that are reasonably related to a common theme or purpose. Id. at 1157.

Proposition 74 should comply with the single-subject rule. Extending the probationary period for new teachers and relaxing the dismissal process for permanent public school certificated employees both relate to the Governor’s purpose of making sure our public school students have the best teachers in the classroom. An Education System Desperately in Need of Reform: JoinArnold.com (accessed Sept. 8, 2005). The Proposition extends the probationary period under the assumption that a longer evaluation process will be more thorough and effective in keeping the best teachers in California’s classrooms, and relaxing school board procedural mandates in the dismissal process will allow for more administrator discretion in evaluating permanent employees in pursuit of satisfactory teacher performance overall. Either way, in the event that a few collateral effects result that are not directly tied to the common theme of the initiative, a court will likely nonetheless conclude that the main parts of the initiative have a reasonable and commonsense relationship and further a common purpose. Under very recent California Supreme Court precedent this will be sufficient to satisfy the single subject rule. Manduley v. Super. Ct., 27 Cal. 4th 537, 581(2002).

V. Public Policy Considerations
A. Proponents

1. Cost-Effective Education Reform

Governor Schwarzenegger’s California Recovery Team has named Proposition 74 the “Put the Kids First Act.” Presented as “real education reform,” the Act is designed to prevent our public school system from wasting money on problem teachers and improve overall teacher performance in the classroom. An Education System Desperately in Need of Reform: JoinArnold.com (accessed Sept. 8, 2005). Proponents of the initiative suggest that if the quality of teaching in California is to improve, teachers must be held accountable for their performance in the classroom and schools should be allowed more discretion in regulating it. Thomas C. Dawson & K. Lloyd Billingsley, Unsatisfactory Performance: How California’s K-12 Education System Protects Mediocrity and How Teacher Quality Can Be Improved, P. Research Inst. for Pub. Policy, San Francisco, p. v (Sept. 2000).

a. Dismissal Process

Proponents of Proposition 74 believe that money spent on the expensive and drawn out process of dismissing teachers will be saved by relaxing the required procedures within the dismissal process. Some school districts have spent unnecessarily large amounts of time and taxpayer dollars on legal matters in their attempts to navigate the dismissal process. One incident reported in a May 1, 1999, California Journal article, involved one school district spending more than $100,000 in legal fees and ultimately paying a teacher $25,000 to resign. The same article referenced another case where a different school district spent three times as much on legal fees and 8 years litigating the dismissal of a bad teacher. Analysis of Proposition 74 . Moreover, in 1995, the baseline cost for dismissing a teacher before any appeals had been filed was between $10,000 and $30,000. Jan Carey, Understanding California’s School Improvement Issues, EdSource (1998).

Current statutory dismissal procedures are notoriously time consuming for school districts and can debilitate administrative resources. Most investigations start long before a teacher is notified of a district’s intent to dismiss and the whole process can seem endless. Thomas C. Dawson & K. Lloyd Billingsley, Unsatisfactory Performance: How California’s K-12 Education System Protects Mediocrity and How Teacher Quality Can Be Improved, Pacific Research Institute for Public Policy, San Francisco, p. 13 (Sept. 2000). General Counsel for the San Juan Unified School District near Sacramento opined when interviewed for a paper written by the Pacific Research Institute for Public Policy, “It takes longer to fire a teacher than convict a criminal.” Id. at 12. Amending the statute to include two consecutive unsatisfactory evaluations as prima facie evidence of cause for dismissal would cut out the time and resources spent on investigation and give school districts statutorily defined proof of a teacher’s incompetence. Moreover, taking out the 90-day improvement period would also contribute to expediting the dismissal process, potentially saving additional other time and money that could be spent in California’s classrooms. Argument in Favor of Proposition 74. Voter approval of Proposition 74 would relieve many of the financial and procedural burdens currently faced by districts attempting to dismiss problem teachers.

b. Extending the Probationary Period

Supporters of Proposition 74 suggest that the tenure laws for California teachers are out-of-date and that the concept of teacher tenure altogether is archaic. Thomas C. Dawson & K. Lloyd Billingsley, Unsatisfactory Performance: How California’s K-12 Education System Protects Mediocrity and How Teacher Quality Can Be Improved, Pacific Research Institute for Public Policy, San Francisco, p. 68 (Sept. 2000). What was once designed to protect women in the workplace in the early part of the 20th century is believed by some to be one of the foundations for collective bargaining organizations and protection for incompetent teachers. “Tenure” is no longer in effect to prevent quick and unjust employment decisions against teachers because other protections exist in the employment context. As a result, most proponents would rather see California replace the teacher tenure system with a performance contract system and make teachers accountable for their performance on the job much like other professional industries. Id.

Regardless, permanent employee status is not facing elimination by Proposition 74, but postponement. In its current state, California is behind most of the nation with the probationary period in effect. Its teachers are given permanent employee status after only two years in a district, while a majority of states have a three-year probationary period and many require a five-year probation. Analysis of Proposition 74 . Proponents assert that extending the number of years before a teacher is given “tenure,” or permanent employee status within a school district would ensure that the evaluation of new teachers is more thorough and effective and leave better teachers in the classroom. It would require that teachers perform well and for a longer period – five years instead of two – before they earn permanent employee status and all of the procedural protections to termination that come along with that. In addition, for many in the teaching profession, two years is just not enough time to determine if a new teacher is making progress that would merit permanent employee status. Most new teachers do not have any depth to their practical experience through the state’s credentialing programs and need more than two years to learn effective classroom practice or even decide if teaching is the profession they want to be in. A teacher’s attainment of permanent employee status should represent his/her dedication to a field and be recognition of his/her hard work and substantial performance. Mark H. Shapiro, The Irascible Professor: Irreverent Commentary on the State of Education in America Today, < http://irascibleprofessor.com/comments-07-31-05.htm> (accessed Sept. 8, 2005). Extending the probationary period works to improve the workforce of teachers. If a district has five years to evaluate a new teacher, they will be promoting arguably better, more guided and devoted, teachers into the profession who can then be rewarded with the permanent employee status. Id.

Arguably, current law and teachers’ unions are standing in the way of “real education reform.” However, even the union leaders believe that incompetent teachers should not be protected by permanent employee status and the maze of procedure involved in dismissing a teacher. Former American Federated Teachers president Sandra Feldman made a keynote address to the 1998 AFT Convention and said, "Even one incompetent teacher is too much for the children she teaches, the parents she faces, the members who get her students in subsequent grades … and, frankly, for the good of our union." Sandra Feldman, Keynote Address <http://www.aft.org/topics/teacher-quality/downloads/TQmanifesto.pdf > (July 17, 1998). Bob Chase, while president of the National Education Association, a prominent teachers’ union, once commented, “There are indeed some bad teachers in America's schools, and it is our job as a union to improve those teachers or—that failing—to get them out of the classroom." Kate Cambor, "Bad Apples," The American Prospect, (September 1, 1999). Proposition 74 would leave good teachers in the classroom and take away some of the hurdles school districts currently have to deal with when attempting to take the bad ones out.

B. Opposition

1. Fiscal Effects on State and Local Budgets

a. Dismissal Process

Opponents of the proposition argue that “Proposition 74 will cost school districts tens of millions of dollars to implement.” California Official Voter Information Guide, Rebuttal to Argument in Favor of Proposition 74 (Secretary of State, 2005). As discussed above, the amendments call for changes in process, rather than spending. Even still, these changes in process could have drastic fiscal effects on each district. For instance, a more relaxed dismissal process may result in fewer teachers applying because of a fear that there is less job security as a teacher. This coupled with the possibility that more teachers will be dismissed, could create pressure on school boards to increase the salaries of the teachers that are being retained. In other words, attracting and retaining good teachers will require greater financial resources when the pool of qualified individuals is reduced. Rebuttal to Argument in Favor of Proposition 74.

Additionally, a more relaxed dismissal process could result in a higher percentage of dismissed teachers engaging the school districts in litigation. With the removal of the 90-day improvement period, and a more relaxed documentation standard, the threat of litigation increases. As stated above, Proposition 74 requires only two consecutive unsatisfactory performance evaluations before the school board may dismiss a permanent employee. Given the five years that will be required to reach permanent status, dismissed permanent employees will be more likely to resort to litigation to protect their investment in time as well as their livelihood. This becomes even more plausible when considering the assertion that “60 percent of all new teachers quit after three years because the job is so emotionally draining.” KPIX, Payments, Protests Surround Proposition 74, Interview by Hank Plante with Gray Davis, Former Governor of California http://cbs5.com/seenon/local_story_277230132.html > (Oct. 4, 2005).

b. Extending the Probationary Period

While it is arguable that a longer probationary period may also weed out teachers who are not suited to teach, it does not necessarily follow that administrative costs will decrease. It is more likely, however, that a longer probationary period would make those teachers, who have achieved permanent status more inclined to fight to protect what they have achieved. Litigation is an expensive endeavor, and is arguably more expensive than the administrative costs that are saved by a more relaxed dismissal process. It has been estimated that one formal dismissal process can take several years, and cost the district approximately $250,000. Louis Freedberg, In Search of Problem Teachers , San Francisco Chronicle, B-4 (July 11, 2005).

Thus, if more teachers are being dismissed by relaxed and often subjective standards, and are also more likely to litigate to protect a status it took five years to achieve, the fiscal effects could be enormous. More litigation means increased cost, and increased cost means fewer resources for the students, who are meant to be the focus of this proposition.

2. Effects on Teacher Hiring and Retention

a. Dismissal Process

Opponents to Proposition 74 argue that a more relaxed dismissal process has obvious negative effects on teacher hiring and retention. It has been argued by the proponents of the proposition that it is almost impossible to remove teachers once they are granted permanent status. When asked for proof of this assertion, however, there was only one documented case in the past decade where a permanent employee was dismissed and went through the entire Administrative Hearing procedure. Id. The proponents of the proposition have used this example to imply that only one permanent teacher has been dismissed in an entire decade.

In reality, in the past decade, the same district terminated 2,141 teachers, which averaged to approximately 210 a year. Id. This suggests that there is currently no difficulty in districts in removing underperforming teachers.

With a more relaxed dismissal process, this amount of dismissals will likely increase, which incidentally is what proponents hope the proposition will achieve. What proponents have not anticipated is that this will also directly affect the number of applications. A more relaxed dismissal process brings with it the perception of poor job security. Job security is essential in a profession with such high stress. KPIX, Payments, Protests Surround Proposition 74, <http://cbs5.com/seenon/local_story_277230132.html> (Oct. 4, 2005). With fewer teachers coming in, and more teachers being dismissed, the new dismissal process stands to significantly reduce the number of teachers hired and the number of teachers retained.

Without more evidence, the proponents of Proposition 74 have wrongly asserted that the current system makes dismissal of permanent employees nearly impossible. By soliciting “horror stories” of teachers who cannot be dismissed supporters have focused more on the exception than the rule. Juliet Williams, Schwarzenegger Seeks ‘Bad Teacher’ Stories , Associated Press (Sept. 21, 2005). In truth, as evidenced above, school districts routinely remove underperforming teachers. It took an effort on the part of the Governor to find stories of costly dismissals of underperforming teachers and when public light was shed on the efforts of the Governor to hunt out “horror stories” the Governor’s campaign removed from their website their request for stories of substandard teachers. Id. Opponents contend that this effort to hunt out and create a problem with dismissal of inadequate teachers is not evidence of a real and existing public concern.

b. Extending the Probationary Period

The opposition further argues that the extension of the probationary period will also have a negative affect on the hiring and retention of public school teachers. It is argued that by extending the probationary period fewer applicants will apply to be teachers. California already applies strict guidelines in hiring teachers. All public school teachers much complete a certification program and be registered with the state. Additionally, all teachers in California are required to pass the California Basic Education Skills Test (CBEST). Thomas C. Dawson & K. Lloyd Billingsley, Unsatisfactory Performance: How California’s K-12 Education System Protects Mediocrity and How Teacher Quality Can Be Improved, P. Research Inst. for Pub. Policy, San Francisco, p. 10 (Sept. 2000). Extending the probationary period, in light of the requirements prior to being employed seems to make the burdens outweigh the benefits in entering the teaching profession. Opponents argue that by increasing the requirements even more will seriously stifle the amount of good and qualified applicants. Jennifer Torres, Prop. 74 Would Lengthen Teacher Probation, Stockton Record (Sept. 29, 2005).

Additionally, extending the probationary period is argued to have a negative effect on the creativity teachers will be able to bring to the classroom. Without the protection of permanent status for five years, teachers will be reluctant to try new techniques and test new material on students for fear of reprisal, especially where districts are becoming increasingly focused on test scores. Permanent status was designed to protect a teacher’s ability to be more creative. Stifling teachers’ ability to teach creatively can have two affects. First, the less ability teachers have to teach in a style and method they want to teach, the fewer teachers might apply. NBER, The Market for Teacher Quality, (Aug. 5, 2005). Second, with the relaxed dismissal procedures imposed by Proposition 74, less creative teachers may be dismissed for being complacent, which could be construed as unsatisfactory performance. Id. This could create a lot of stress on teachers who would now have to tow the line between teaching creatively and not seeming complacent, in addition to their normal teaching duties, just to keep their job – which many teachers argue is already quite stressful.

In sum, adding this extra layer of uncertainty on top of all of the requirements currently mandated by the state could have a devastatingly high impact on the amount of teachers who are hired and retained by local school districts.

VI. Conclusion

Proposition 74 targets unsatisfactory teachers and provides new flexibility for administrators trying to dismiss them. Extending the probationary period for new teachers increases a school district’s opportunity to evaluate and instruct new hires. Relaxing the dismissal process by creating a statutory provision indicating what is prima facie evidence for cause for dismissal also gives school districts the flexibility to ensure that permanent employees continue to build on those first five years, and make progress in the classroom long after reaching permanent employee status. On the contrary, Proposition 74 has the potential to raise costs and weaken the teacher workforce in California. Requiring more evaluations of teachers would increase the workload and costs of administrations, and making it easier for school districts to dismiss a teacher will deter professionals from choosing a career in education.