California Courts of Appeal Reports

ASSOCIATION, Plaintiff and Respondent, v. BAKERSFIELD CITY
SCHOOL DISTRICT et al., Defendants and Appellants. F048665
Court of Appeal of California, Fifth District Filed

APPEAL from a judgment of the Superior Court of Kern
County, No. 250895, John L. Fielder, Judge.

Littler Mendelson, Barrett K. Green and Daniel Cravens for
Defendants and Appellants.

Law Offices of Margaret A. Chidester & Associates, Margaret
A. Chidester and Cathie L. Fields for California School
Boards Association’s Education Legal Alliance as Amicus
Curiae on behalf of Defendants and Appellants.

Driscoll & Associates and Thomas J. Driscoll, Jr. for
Plaintiff and Respondent.

Joseph R. Colton, Beverly Tucker, Rosalind D. Wolf, Robert
E. Lindquist, Brenda E. Sutton-Wills, Michael D. Hersh and
John F. Kohn for California Teachers Association as Amicus
Curiae on behalf of Plaintiff and Respondent.


On February 25, 2003, faced with mounting uncertainties
about a state budget for the upcoming fiscal year, the
governing board of the Bakersfield City School District
(the District) adopted a resolution approving a reduction
or discontinuation of some “particular kind[s] of service”
(PKS) specified in the resolution (see Ed. Code, §
44955),[fn1] which in turn would necessitate the
elimination of up to 89 certificated positions (teachers
and counselors) in the 2003-2004 school year. The
resolution directed the superintendent “to send appropriate
notices to all employees, including temporary employees,
whose positions may be affected by virtue of this action.”

In fact, the superintendent then sent notices to over 225
certificated employees: “nonreemployment” notices to some
74 persons classified by the District as probationary
employees (§ 44949), and about 154 “release” notices
to persons classified as temporary employees (§
44954). Within the latter classification, the District
included all teachers and counselors holding anything less
than a regular credential, which in this case meant all
those working under an internship credential, a preintern
certificate, an emergency teaching permit, or a credential
waiver. As we will explain, there are several significant
differences between probationary and temporary employees in
terms of layoff procedures and reemployment rights, which
in turn affect their opportunities to accrue seniority and
permanent status. Probationary employees, for example, but
not temporary employees, have the right to an
administrative hearing to determine if a PKS layoff is
supported by legitimate economic reasons. (§§
44949, 44955; San Jose Teachers Assn. v. Allen (1983) 144
Cal.App.3d 627.)

The nonmanagement employees, both probationary and
temporary, who received the layoff notices all were members
of the Bakersfield Elementary Teachers Association (BETA or
the Association). Most of the probationary employees,
acting through BETA, exercised their right to a hearing.
BETA argued at the hearing, among other things, that the
rights of the probationary employees, or at least their
relative seniority, could not be determined without regard
to the temporary employees, many of whom BETA claimed had
been misclassified and actually were entitled under the
Education Code to be treated as probationary. The
administrative law judge (ALJ) found that even if this were
true, it would not affect the seniority rankings of the
probationary employees because, he said, service under an
emergency permit (the basis upon which the District had
made some of the temporary classifications) does not count
toward seniority. The ALJ concluded the District’s proposed
layoffs were reasonable under the circumstances, and the
governing board adopted the ALJ’s proposed decision without

As it turned out, the District was able to rehire all of
the certificated employees it had classified as
probationary, and 87 of the employees it had classified as
temporary, for the 2003-2004 school year.

BETA, on behalf of its members affected by the layoffs,
brought the present action against the District on August
6, 2003.[fn2] It sought a writ of mandate directing the
District to reinstate and reclassify the temporary
employees (Code Civ. Proc., § 1085); a writ of
administrative mandate setting aside the District’s layoff
of the probationary employees (Code Civ. Proc., §
1094.5); declaratory relief establishing the employees’
rights under the Education Code as to classification and
seniority; and injunctive relief prohibiting the
misclassification of certificated employees. The trial
court granted the requested relief, but stayed its
application pending this appeal by the District.

We will affirm the judgment insofar as it holds the
District’s policy of classifying teachers and counselors
solely on the basis of their certification is invalid, and
insofar as it directs the District to reinstate the
misclassified employees, for the 2003-2004 school year, to
positions and status consistent with their correct
classification. We will remand the matter for further
proceedings to determine the employees’ correct
classification, and the amount of back pay and benefits, if
any, to which each is entitled. We will reverse the
judgment insofar as it orders reinstatement beyond the
2003-2004 school year, and insofar as it denies the
District an opportunity to present evidence in mitigation
of the employees’ claims for lost compensation.


Standard of Review

“Ordinarily, a trial court’s findings and judgment on a
petition for writ of mandate are upheld if supported by
substantial evidence. [Citation.] However, the trial
court’s construction of a statute is purely a question of
law and is subject to de novo review on appeal. [Citation.]
The principles governing the proper construction of a
statute are well established . . .: `Courts must ascertain
legislative intent so as to effectuate a law’s purpose.

“In the construction of a statute . . . the office of the
judge is simply to ascertain and declare what is . . .
contained therein, not to insert what has been omitted, or
to omit what has been inserted; . . .” [Citation.]
Legislative intent will be determined so far as possible
from the language of statutes, read as a whole, and if the
words are reasonably free from ambiguity and uncertainty,
the courts will look no further to ascertain its meaning.

“`The court should take into account matters such as
context, the object in view, the evils to be remedied, the
history of the times and of legislation upon the same
subject, public policy, and contemporaneous construction.'”
[Citations.] “Moreover, the various parts of a statutory
enactment must be harmonized by considering the particular
clause or section in the context of the statutory framework
as a whole.” [Citations.]'” (California Teachers Assn. v.
Governing Bd. of Golden Valley Unified School Dist. (2002)
98 Cal.App.4th 369, 375-376 (Golden Valley), italics

The principal issue on appeal is whether some or all of the
teachers and counselors classified by the District as
temporary employees properly should have been classified
instead as probationary. If so, it follows we then must
determine the effect, if any, of this misclassification on
their dismissals, and on the seniority and reemployment
rights of the employees the District classified as
probationary. We begin, however, with the District’s
contention the temporary employees are barred by the
doctrine of laches from objecting to their classification.

I. Did the Temporary Employees Wait Too Long to Object

to Their Classification?

When it becomes necessary, as the result of a reduction or
discontinuation of services within a district, to reduce the
number of permanent or probationary employees, the district
must give notice to the affected employees, setting out
reasons for the action and the employees’ right to a
hearing, no later than March 15. (§§ 44955,
44949; Cousins v. Weaverville Elementary School Dist.
(1994) 24 Cal.App.4th 1846, 1854 (Cousins) [distinguishing
procedure to lay off probationary employees for economic
reasons from procedure to nonreelect them for subsequent
year] Gassman v. Governing Board (1976) 18 Cal.3d 137,
144-145 [distinguishing procedure to lay off probationary
employees for economic reasons from procedure to dismiss
them for unsatisfactory performance].)[fn3] If the district
fails to give the required notice by March 15, the employee
“shall be deemed reemployed for the ensuing school year.”
(§ 44955, subd. (c).)

No permanent employee may be laid off if a probationary
employee, or any other employee of less seniority, occupies
a position the permanent employee is certificated and
competent to fill. (§ 44955, subd. (c).) Likewise, a
probationary employee may “bump” another probationary
employee with less seniority. Seniority is determined as of
the date the employee “first rendered paid service in a
probationary position.” (§ 44845, italics added.)
Temporary employees therefore do not accrue seniority, and
so must be released before probationary employees.[fn4]

Moreover, temporary employees, unlike permanent and
probationary employees, may be dismissed at the pleasure of
the board and need be given only a more limited form of
notice before the end of the school year, and no hearing.
(§ 44954; Kavanaugh v.West Sonoma County Union High
School Dist. (2003) 29 Cal.4th 911, 917-918
(Kavanaugh).)[fn5] (The school year runs from July 1 to June
30 (§ 37200).)

Thus, if the employees in this case whom the District
classified as temporary were in fact entitled to be
classified as probationary, the District’s failure to give
them a timely notice of nonreemployment caused them in
effect to be rehired for the following year. It also,
depending upon when they should have been classified as
probationary employees, may have changed the relative
seniority of the other employees the District had
classified as probationary. (Some of the temporary
employees reportedly had worked in the District with that
classification for several years.)

The District maintains the temporary employees, because
they waited until after March 15 to challenge their
classification, were guilty of laches. Had they objected
sooner, the District urges, it “could have simply provided
them with notices of layoff and included them in the layoff
hearing.” And, it adds, “[s]ince the [ALJ] ultimately
concluded that there was good cause for the layoffs, the
affected temporary teachers would have lost their
positions, even under their own theory.”[fn6]

Laches is an equitable defense based on the principle that
those who neglect their rights may be barred from obtaining
relief in equity. (13 Witkin, Summary of Cal. Law (10th ed.
2005) Equity, § 16, p. 302.) “`The defense of laches
requires unreasonable delay plus either acquiescence in the
act about which plaintiff complains or prejudice to the
defendant resulting from the delay.'” (Johnson v. City of
Loma Linda (2000) 24 Cal.4th 61, 68.)

Laches is a question of fact for the trial court, but may
be decided as a matter of law where, as here, the relevant
facts are undisputed. (Heavenly Valley v. El Dorado County
Bd. Of Equalization (2000) 84 Cal.App.4th 1323, 1334.)

The District contends that each of the temporary employees
was aware of his or her classification by virtue of having
signed an employment contract identifying them as such upon
being hired for the 2002-2003 school year; that each such
employee acquiesced in this classification by failing to
object to it; and that the District relied to its detriment
on the employees’ silence. However, this claim overlooks
the fact the District led these employees to believe they
had no choice but to acquiesce.

The District utilized different contract forms depending on
whether the employee possessed an emergency permit, a
preintern certificate, or an internship credential, or was
working in a categorically funded program. Each of the
forms, however, required the employee to acknowledge that,
as a temporary employee, he or she had none of the rights
of, nor any claim to, probationary status. The following
provision is typical:

“Status of Employment: Employee specifically acknowledges
that this agreement does not establish any right to
probationary or permanent employment status. Employee
further acknowledges that the District may terminate the
[pre-internship, internship, or temporary employment] on
any basis . . . without any obligation to provide a
statement of reasons, evidence of cause, or a right to a
hearing. Employee further acknowledges that this
agreement does not establish any right to reemployment in
any status beyond the term of this agreement.”

However, any contractual provision purporting to waive the
protections accorded certificated school employees by the
Education Code, including the provisions governing their
classification and termination, is “null and void.”
(§ 44924; Fine v. Los Angeles Unified School Dist.
(2004) 116 Cal.App.4th 1070, 1077, fn. 7 (Fine); Zalac v.
Governing Bd. of Ferndale Unified School Dist. (2002) 98
Cal.App.4th 838, 849 (Zalac); United Teachers – L.A.
v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th
1510, 1517-1519.) “The statutory provisions in the
Education Code, governing the rights of teachers, are an
expression of public policy; they cannot be bargained away
either expressly or impliedly.” (Hart Federation of
Teachers v. William S. Hart Union High Sch. Dist. (1977) 73
Cal.App.3d 211, 214 (Hart Federation of Teachers).)

“Although the contracts of employment accepted by
petitioners purported to fix their status as that of
temporary teachers, they are not estopped to claim
probationary status if the statutory scheme of the
Education Code compels the latter classification under the
particular facts of each petitioner’s employment
situation.” (Santa Barbara Federation of Teachers v. Santa
Barbara High Sch. Dist. (1977) 76 Cal.App.3d 223, 227-228
(Santa Barbara Federation of Teachers).)

The District argues waiver and laches are distinct
doctrines, and to say a teacher cannot be required to waive
the benefits of the Education Code is different than saying
he or she cannot be precluded by laches from claiming those
benefits. Be that as it may, it misses the point. The
District may not now complain the temporary employees waited
too long to assert a right the District misled them into
believing they already had given up.[fn7] “One who comes
into equity must come with cleans hands.” (13 Witkin,
Summary of Cal. Law, supra, Equity, § 9, p. 289;
Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d
564, 576 [“`He who seeks equity must do equity'”].)

The District’s reliance on American Federation of Teachers
v. Board of Education (1977) 77 Cal.App.3d 100 (American
Federation of Teachers) is unavailing. That case involved a
teacher hired to replace a more experienced one who had
been assigned to a categorically funded reading program.
The district classified the teacher as a temporary employee
on the ground she was working in a categorically funded
position (former § 13329, see now § 44909)
rather than on the ground she was a long-term replacement
for a teacher on leave (former § 13337.3, see now
§ 44920). The district gave the teacher a release
notice at the end of the school year, subject to the
renewal of the funding for the reading program. She then
sought a writ of mandate to compel the district to rehire
her as a probationary teacher. She argued her temporary
classification was incorrect because she was not employed in
a categorically funded program; she therefore was entitled
to the default classification of a probationary teacher
(former § 13334, see now § 44915); and had
been effectively rehired in this classification given the
district’s failure to give her a timely notice of

The trial court agreed the teacher was not a categorical
employee. It also found, however, that her identification
as such in the employment contract was not controlling;
that she was in fact a long-term replacement teacher; and
that in either event she properly was classified as a
temporary employee. In other words, the classification, if
not the basis for it, was correct and the teacher had
suffered no prejudice. (American Federation of Teachers,
supra, 77 Cal.App.3d at pp. 105-108.) Although this
conclusion ought to have ended the matter, the trial court
then went on to hold the teacher had waited too long to
bring it up (i.e., until after March 15), was guilty of
laches, and therefore was estopped to claim probationary
status. It found the district had explained to her when she
signed the contract that she was a temporary employee,
along with the implications of that status on her
reemployment for the following year, and the district had
relied in good faith on her apparent acceptance of those
conditions. (Id. at p. 109.) The appellate court affirmed
the judgment as to both the teacher’s classification and
the finding of laches. (Ibid.)

Apart from the fact the discussion of laches in American
Federation of Teachers was dictum, the circumstances are
distinguishable from those in the present case. There, the
teacher’s classification ultimately was correct; here, as
we are about to explain, it was not correct (and, arguably,
the District should have known it was not). Further, unlike
the present case, nothing in American Federation of Teachers
suggests the teacher’s silence as to her classification was
induced by any misrepresentations made to her by the
district. Here, the District cannot be said to have
believed in good faith that the teachers’ silence indicated
an acceptance of their classification.

II. Were the Temporary Employees Misclassified?

As we have said, the District classified certificated
employees having less than a regular (i.e., preliminary or
clear) credential as temporary employees, and required them
to sign a contract acknowledging their temporary
status.[fn8] It thus made the employee’s classification
dependent upon his or her certification. As a general rule,
however, classification and certification operate
independently of one another. The statutory classification
scheme applies typically to employees occupying “positions
requiring certification qualifications.” (See
§§ 44917 [substitute employee], 44915
[probationary employee], 44920 [temporary employee],
44929.21, subd. (b) [permanent employee], 44909
[categorically funded programs]; see also Golden Valley,
supra, 98 Cal.App.4th at p. 380 [teacher with emergency
credential may be employed in a position requiring
certification qualifications].)[fn9] That is, a person who
has been determined to be qualified to teach is not a
temporary employee simply because he or she is not yet fully
accredited, but rather because he or she occupies a
position the law defines as temporary. It is necessary,
therefore, to differentiate a teacher’s classification from
his or her certification.

A. Teacher Classification

The Education Code permits certificated employees to be
classified in one of four ways: permanent, probationary,
substitute, or temporary. (Kavanaugh, supra, 29 Cal.4th at
p. 916.) “The code authorizes the governing boards of
school districts to hire, classify, promote and dismiss
certificated employees (i.e., teachers) (see §
44831), but establishes a complex and somewhat rigid scheme
to govern a board’s exercise of its decision-making power.”
(Kavanaugh, supra, 29 Cal.4th at p. 917.)

“A certificated teacher’s classification . . . governs
the level of statutory job protection the teacher enjoys
and controls the level of procedural protections that
apply if he or she is not reelected. In general, permanent
employees may not be dismissed unless one or more
statutorily enumerated grounds are shown. (§
44932.) Probationary employees may not be dismissed during
the school year except for cause or unsatisfactory
performance (§ 44948.3), but, on timely notice,
`may be nonreelected [for the following year] without any
showing of cause, without any statement of reasons, and
without any right of appeal or administrative redress.’
[Citation.] . . . [] [But,] if nonreelection is
for economic reasons (such as a decline in daily
attendance or discontinuance of services), [a
probationary] teacher is entitled to certain procedural
protections pursuant to section 44949. [Citation.]”
(Kavanaugh, supra, 29 Cal.4th at pp. 917 & 917, fn. 4; see
also Cousins, supra, 24 Cal.App.4th at p. 1854.)

“. . . `Substitute and temporary employees, on the other
hand, fill the short range needs of a school district and
generally may be summarily released.’ [Citation.] Thus,
temporary teachers may be dismissed `[a]t the pleasure of
the [governing] board prior to serving during one school
year at least 75 percent of the number of days the regular
schools of the district are maintained’ (§ 44954,
subd. (a)), and after that time so long as the temporary
employee is notified before the end of the school year
(id., subd. (b)). The overall scheme the Legislature has
created in the Education Code is thus specific as to the
rights and responsibilities of certificated teachers and
their employers, the governing boards.” (Kavanaugh, supra,
29 Cal.4th at pp. 917-918; see also Balen v. Peralta
Junior College Dist. (1974) 11 Cal.3d 821, 826 (Balen);
Haase v. San Diego Community College Dist. (1980) 113
Cal.App.3d 913, 917-918 (Haase).)

A certificated employee is classified as permanent, i.e.,
acquires tenure, if, after having been employed for two
complete successive school years in a position requiring
certification qualifications, he or she is reelected for
the following year. (§ 44929.21, subd. (b).)[fn10]
Generally, this provision applies only to probationary
employees who are reelected after two years.[fn11] (Board
of Education v. Round Valley Teachers Assn. (1996) 13
Cal.4th 269, 279; Cousins, supra, 24 Cal.App.4th at p.
1849; Schnee v. Alameda Unified School Dist. (2004) 125
Cal.App.4th 555, 564 (Schnee) [“Regardless of the number of
years . . . employee may have served in a temporary status
in a position with certification qualifications, the
employee must serve one year as a probationary employee
before acquiring permanent status”].)

“The probationary plan envisions a twofold purpose: it
allows the new teacher sufficient time to gain additional
professional expertise, and provides the district with
ample opportunity to evaluate the instructor’s ability
before recommending a tenured position.” (Balen, supra, 11
Cal.3d at p. 829.)

“Governing boards of school districts shall classify as
probationary employees, those persons employed in positions
requiring certification qualifications for the school year,
who have not been classified as permanent employees or as
substitute employees.” (§ 44915.) Although this
section makes no reference to temporary employees, other
neighboring sections of the Education Code expressly
authorize that classification in some situations. (See,
e.g., §§ 44919, 44920.) Thus, section 44915
has been understood to make probationary status the default
classification for certificated employees who are not
otherwise required by the Education Code to be classified
as permanent, substitute, or temporary employees. (See,
e.g., Golden Valley, supra, 98 Cal.App.4th at pp. 378-382
[teacher may be classified as probationary pursuant to
§ 44915 although working under emergency permit];
Hart Federation of Teachers, supra, 73 Cal.App.3d at p. 215
[former § 13334, now § 44909, makes
probationary classification “catch-all” status for teachers
not properly classified as something else].)

The District disputes this interpretation, however, and
contends, essentially, that it retains the discretion to
classify employees as temporary based on criteria —
in this case, the status of their certification to teach
— other than those specified in the Code. That is,
it argues it is permitted to do whatever the Code does not
expressly prohibit it from doing. “Absent direct regulation
to the contrary,” the District maintains, “the designation
of the employees [working under emergency teaching permits]
as temporary should be deemed permissible under the
`permissive code’ provisions of . . . section 35160.”[fn12]

The Education Code’s “complex and somewhat rigid”
classification scheme is intended, however, to limit rather
than to enlarge the power of school districts to classify
teachers as temporary employees. (Kavanaugh, supra, 29
Cal.4th at p. 917; Turner v. Board of Trustees (1976) 16
Cal.3d 818, 825 [statutory scheme represents the “delicate
balancing” necessary to accommodate students’ need for
education, teachers’ need for job security, and school
boards’ need for flexibility in evaluating and hiring
employees].) “The Legislature . . . has restricted the
flexibility of a school district in the continued use of
temporary employees [citations], for otherwise the benefits
resulting from employment security for teachers could be
subordinated to the administrative needs of a district.”
(Haase, supra, 113 Cal.App.3d at p. 918.)

“The essence of the statutory classification system is
that continuity of service restricts the power to
terminate employment which the institution’s governing
body would normally possess. Thus, the Legislature has
prevented the arbitrary dismissal of employees with
positions of a settled and continuing nature, i.e.,
permanent and probationary teachers, by requiring notice
and hearing before termination. [Citations.] Substitute
and temporary teachers, on the other hand, fill the short
range needs of a school district, and may be summarily
released absent an infringement of constitutional or
contractual rights. [Citations.] Because the substitute
and temporary classifications are not guaranteed
procedural due process by statute, they are narrowly
defined by the Legislature, and should be strictly
interpreted.” (Balen, supra, 11 Cal.3d at p. 826, fn.
omitted, italics added.)

The Education Code recognizes two general kinds of
temporary employees: those who are employed to serve for
less than three or four months, or in some types of
limited, emergency, or temporary assignments or classes
(see §§ 44919, 44921, 44986);[fn13] and those
who are employed for up to one year to replace a
certificated employee who is on leave or has a lengthy
illness (see §§ 44920, 44918). We will refer
to these as “short term temporary teachers” and “long-term
replacement teachers,” respectively (and include counselors
in those categories as well.) In addition, persons employed
in categorically funded programs or in programs operated by
a district under contract are treated like temporary
employees in certain respects (§ 44909), as are
persons employed as substitute teachers. (§

It appears in the present case that all of the 154 persons
classified by the District as temporary employees were
working during the 2002-2003 school year in either
long-term replacement positions or in categorically funded
programs. We therefore will confine our discussion to these
two groups.[fn15]

1. Long-term Replacement Teachers

By our count, the District treated 133 of the 154 temporary
employees as long-term replacement teachers in ongoing
classes (§ 44920), and two others as regular
teachers in what evidently were temporary classes (§
44852).[fn16] All 135 of these teachers possessed something
less than a regular credential: 47 had a preintern
certificate (§ 44305), 33 had a university
internship credential (§ 44450 et seq.), 31 had an
emergency teaching permit (§ 44300), four had a
credential waiver (§ 44225, subd. (m)), and the
remainder had some combination of two of these.[fn17]

Section 44920 provides in part:

“Notwithstanding the provisions of Sections 44917
[substitute employees, see fn. 14, ante] and 44919
[short-term temporary employees, see fn. 13, ante], the
governing board of a school district may employ as a
teacher, for a complete school year, but not less than one
semester during a school year unless the date of
rendering first paid service begins during the second
semester and prior to March 15th, any person holding
appropriate certification documents, and may classify such
person as a temporary employee. The employment of such
persons shall be based upon the need for additional
certificated employees during a particular semester or
year because a certificated employee has been granted
leave for a semester or year, or is experiencing long-term
illness, and shall be limited, in number of persons so
employed, to that need, as determined by the governing
board.” (Italics added.)

This provision is significant in two respects. First, other
than requiring that long-term replacement teachers have
“appropriate certification documents,” i.e., are qualified
to teach the material in the classroom to which they are
assigned, this classification is not concerned with the
particular type or form of certification the replacement
teacher holds. Second, the statute directs that a district
may employ no more long-term replacement teachers than it
has permanent or probationary teachers absent on leave at
any one time. (Welch v. Oakland Unified School Dist. (2001)
91 Cal.App.4th 1421, 1431-1432 (Welch); Santa Barbara
Federation of Teachers, supra, 76 Cal.App.3d at pp. 232-233
[temporary teacher need not be replacing a particular
regular teacher on leave]; Paulus v. Board of Trustees
(1976) 64 Cal.App.3d 59, 62-63 [same].)

Here, the undisputed evidence shows there were at most 22
regular teachers in the District on long-term absences
during the 2002-2003 school year. Therefore, the District
was not permitted to classify more than this number of
teachers as temporary employees under section 44920. The
rest were, perforce, probationary teachers unless the
District, as it claims, was entitled to classify them as
temporary employees based entirely on the fact they
possessed something less than a regular credential.

Section 44920 also limits the power of a district to rehire
teachers year after year in temporary positions. It goes on
to provide:

“Any person employed for one complete school year as a
temporary employee [e.g., a long-term replacement teacher]
shall, if reemployed for the following school year in a
vacant position requiring certification qualifications,
be classified by the governing board as a probationary
employee and the previous year’s employment as a temporary
employee shall be deemed one year’s employment as a
probationary employee for purposes of acquiring permanent

“For purposes of this section `vacant position’ means a
position in which the employee is qualified to serve and
which is not filled by a permanent or probationary
employee. It shall not include a position which would be
filled by a permanent or probationary employee except for
the fact that such employee is on leave.” (Italics

A similar provision appears in section 44918, which also
requires that long-term replacement teachers must be given
priority in filling vacant positions in the district in the
year following their temporary service, and that their
subsequent employment in a vacant position will, in most
circumstances, cause their year of temporary service to be
deemed a year of probationary service.[fn19] (Taylor,
supra, 36 Cal.3d 500 [preferential reemployment rights
granted by § 44918 apply to temporary teachers hired
under § 44920].) It thus appears that the positions
occupied by long-term replacement teachers in excess of the
number of positions normally occupied by regular teachers
on leave qualified as “vacant positions” within the meaning
of sections 44920 and 44918.

As we discuss below, the provision that permits a year of
temporary employment to count in some circumstances as the
first of two consecutive probationary years needed to
acquire permanent status is central to the District’s
argument, on policy grounds, that it should be able, on a
yearly basis, to lay off and rehire teachers having less
than a regular credential.