Date: April 2007
Two appellate courts have recently issued decisions that help clarify the rules for terminating teachers with emergency, pre-intern, and intern credentials when a district is going through teacher layoffs. Both courts have determined that such teachers must be considered probationary, as opposed to temporary employees, for layoff purposes and, therefore, they must receive the same layoff protections as probationary teachers with full credentials—March 15 notices and hearing and reemployment rights.
Background
Two districts, Bakersfield City School District and the Vallejo City Unified School District, were each sued by their local teachers association for classifying teachers with emergency, intern and pre-intern credentials as temporary employees for layoff purposes. In a layoff, a teacher classified as temporary receives less protection than probationary employees. The rights afforded to probationary employees, and to permanent employees, include the right to receive notice of the possibility of layoff by March 15, the right to a hearing to determine if there is cause for the layoff, the right to bump other employees with less seniority, and the right to reemployment. Temporary employees, on the other hand, only need to receive notice before the end of the school year that they will not be reemployed the next school year.
The confusion for districts comes from contradictions in the Education Code between classification of employees and a teacher’s right to obtain tenure. The district and the Education Legal Alliance argued that these teachers could not be classified as probationary because time spent teaching under a provisional credential does not count towards tenure, and therefore such teachers must, by definition, be classified as something less than probationary.
The Vallejo court acknowledged the argument of the district and Alliance that a finding of probationary status could result in a teacher with an emergency permit having more seniority than one with a regular credential and, as a result, that a fully credentialed teacher would be laid off first. However, the court determined that school districts have no discretion to deviate from the employment classification framework created by the Legislature (i.e., substitute, temporary, probationary and permanent employees). Both courts found there are limited circumstances in the Education Code allowing for the hiring of temporary employees and that the lack of a full credential is not one of the specifically enumerated circumstances. Therefore, without legal authority to classify these employees as temporary they are, by statutory default, deemed probationary employees who can only be laid off based on employment classification and seniority.
Impact on districts
Now that two court decisions have determined emergency holders are probationary employees (unless one of the enumerated basis for temporary employment applies), the rules for districts are clearer: In the event of a layoff, teachers with provisional credentials must be provided the same due process rights as probationary employees, including the March 15 notice, a hearing and preferential reappointment after a layoff. Obviously, these court decisions will lead to districts providing many more March 15 notices in order to ensure all teachers who may be subject to layoff receive early notice.
To avoid the consequence of having to retain teachers not fully credentialed, the Vallejo court noted that under the layoff statutes districts may take into account “qualifications” in making assignments and reassignments as part of the layoff and likewise districts may determine teachers lacking full credentialing are not “certificated and competent” to render service.
The Vallejo court also acknowledged that districts cannot notice these probationary employees for non-reelection of employment under Education Code section 44929.21, because other court cases bar utilizing that notice provision for economic reasons. However, the Vallejo court observed that, having gone through the layoff process with these probationary employees, a district may then choose to non-reelect the laid-off employees who lack a full credential for other reasons, such as for a lack of a full or clear credential.
After consulting with legal counsel, districts should give serious consideration to these two alternatives suggested by the Vallejo court to avoid the retention of teachers lacking full credentials.
The Bakersfield school district has asked the California Supreme Court to review the appellate court’s ruling. This request preceded the Vallejo decision. As we wait to see if there will be Supreme Court review, districts should examine how teachers without full credentials are classified and, if they do not fall within the narrow exceptions allowing for temporary employee status, districts should ensure that those teachers receive the rights and protections afforded to probationary employees.
Resources
- For more information about the Education Legal Alliance contact Dick Hamilton at dhamilton@csba.org
Copies of the decisions can be found at:
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