Teacher Rights in Texas Creatively

Using Your DOI to Increase Your Flexibility

Rebecca Bailey & Holly McIntush Thompson & Horton LLP

Texas is a big state, y’all. We have districts with more than 189,000 students and fewer than 20 students. The diversity in Texas is something to celebrate. But the one-size-fits-all approach in the Texas Educate Code doesn’t always meet these diverse needs. That’s precisely why the District of Innovation (DOI) concept was introduced by the 84th Texas Legislature through House Bill 1842 in 2015. It allows traditional independent school districts in Texas to operate like an open-enrollment charter school by allowing districts to apply for exemptions from certain Texas Education Code (TEC) provisions. The idea was to increase local control over district operations by allowing districts to implement policies that suit local needs.

If you haven’t had the time to sit down and read the education code to identify HR requirements to consider for your DOI (beyond those you see in most DOI plans), don’t fret. We’ve done it for you! Below are some areas – common and rare – for your HR departments to consider for your District’s DOI plan.

Although the possibilities of your DOI seem endless, you do want to carefully consider the financial or other unintended consequences of an exemption and what your community will tolerate. And there are still many sections of the Education Code that are not subject to exemption:

• State law applicable to open-enrollment charter schools operating under TEC Chapter 12;

• Parts of TEC Chapter 11 (Subchapters A, C, D, and E except § 11.1511(b)(5) and (14) and 11.162;

• State curriculum and graduation requirements in Chapter 28;

• Academic and financial accountability and sanctions in Chapter 39; and

• A more specific and lengthy list in 19 T.A.C. § 102.1309.

And, of course, you cannot exempt yourself from federal constitutional and statutory requirements!

To guard against those unintended consequences and any negative reaction by your community, we recommend transparency in the initiation/ amendment process and giving strong consideration to your stakeholders’ input

Key Areas Of Flexibility

1. Teacher Employment Contracts (TEC §§ 21.002, 21.102, and 21.401)

Although you could exempt your District from Chapter 21 contracts altogether (and the headaches they sometimes cause), we recommend you consider narrower ways to accomplish your goals. For example, probationary contracts can be extended to give new teachers more time to learn and demonstrate their growth and effectiveness. Additionally, districts can reduce the number of contract days for teachers, provided they meet the minimum instructional minute requirements. This can be particularly beneficial for late hires and overall scheduling!

2. Terminations, Nonrenewals, and Suspensions Without Pay (TEC §§ 21.104(b) and 21.211(b))

Here’s a good one. Most of you have experienced that teacher who just engaged in the most egregious misconduct, and yet you’re stuck paying that employee to sit at home since suspensions-withoutpay are afforded the same Chapter 21 hearing rights as terminations. Meanwhile, you’re scrambling to find a substitute or figure out how to shuffle current staff to meet those vacant needs. Why not give your district the ability to make swift employment and financial decisions, particularly in cases of serious misconduct or allegations covered in the Educator Code of Ethics? To us, this one is a no-brainer – and really shouldn’t generate controversy if your primary intention is to protect students and maintain a safe learning environment (and we know it is!).

Initiating the termination and nonrenewal process can be time-consuming, inefficient, and expensive. Your DOI gives you an opportunity to design your own termination and nonrenewal process—as long as you provide the due process required by the Constitution. For example, you could have appeals reviewed by the Board, a staff member, or another delegated thirdparty review. Or districts could simply delegate (in part or whole) the duty in TEC § 11.1511(b)(14) that the board makes all decisions relating to terminating or not renewing the employment contracts of Chapter 21 employees.

3. The Penalty-Free Resignation Deadline (TEC §§ 21.105, 21.210)

Why not extend the penalty-free resignation deadline from 45 days to 60-90 days to give your HR departments more time to recruit and hire qualified staff? Yes, please!

4. Teacher Certifications and Qualifications (TEC §§

21.003, 21.051, 21.053, and 21.057)

The DOI designation also allows districts to hire the best candidates for hard-to-fill positions, regardless of their certification status, except in special education and bilingual areas. This flexibility is crucial in addressing the shortage of highly qualified teachers in specific fields. But if you do this, consider exempting the District from the parental notice requirements in TEC § 21.057. Districts can also exempt themselves from the requirement of 15 hours of field-based experience for teacher candidates in TEC § 21.051, providing more leeway in recruiting and hiring those with expertise in unique trades and vocations.

5. School Counselors (TEC § 33.002)

Districts must employ at least one school counselor certified by SBEC for every 500 elementary school students in the district. But maybe your community would be better served by the wrap-around services a licensed social worker provides. An exemption would allow you to hire mental health professionals licensed through the Texas State Board of Social Workers or the Texas State Board of Professional Counselors.

6. Local Appraisal System (TEC §§ 21.203, 21.352, 21.354, and 21.3541)

There are many ways to document good and poor performance outside T-TESS, the formal evaluation process in Texas. T-TESS can be unnecessarily burdensome to teachers and administrators. An exemption allows local appraisal systems to be tailored to the district’s needs, reducing the burden of state-prescribed evaluation requirements. This allows for more straightforward documentation of teacher and administrator performance.

7. The Duty-Free Lunch/Teacher Planning and Prep Time (TEC §§ 21.404 and 21.405)

Teachers are entitled to at least 450 minutes every two weeks for instructional preparation. Some teachers would give up those minutes to teach an extra class in exchange for more pay. However, the Commissioner has said this is prohibited even when teachers volunteer to give up their minutes. An exemption could allow teachers to request that their planning and preparation periods be altered—a request you’d certainly approve if they’re offering to teach a class that still has no consistent teacher! The same is true for the “duty-free lunch” requirement. An exemption would give districts the flexibility to assign additional duties to teachers based on district needs. And you can work with your teachers to craft language for your DOI plan that they will support!

8. Furloughs (TEC §§ 21.4021 and 21.4022)

State law dictates how districts implement a furlough program. Through your DOI, furlough policies can now be locally controlled, allowing districts to make decisions that reflect the views of their local communities.

9. Staff Development (TEC § 21.451)

State law requires staff development for educators to be predominantly campus-based. This same law dictates the staff development topics the state requires educators to receive. Shouldn’t the local school district determine the location and topics it believes best meet the needs of its staff? The lawyers in our office always consider the district’s needs and talk with leadership when asked to do training. An exemption would allow you to customize staff development to your district’s needs rather than adhere to state-mandated topics. We’ve heard this is particularly essential when training new employees and rolling out new curriculum and initiatives.

10. Mentors (TEC §

21.458)

The state sets eligibility requirements for teacher mentors and mentees. According to the state, mentees are teachers with less than two years of teaching experience, even though a teacher at any level benefits from having a mentor. An exemption would give districts the option to assign mentors to teachers anytime the need presents itself.

Conclusion

Did you realize the power of your DOI designation? The possibility of tailoring your district’s operations to meet local needs is pretty cool. With all of these options, you will want to work closely with those who know your community best and, of course, your favorite school lawyer. By adopting a DOI plan, districts can innovate and improve their educational offerings, ultimately benefiting students, teachers, and the community.