Q#1. "If I am a TSTA member, who do I call for help?"

Call the TSTA Help Center. We are open 7 to 7 Monday through Friday, during school days. No one else offers this kind of access. We are open when you have time to call. This is your one-stop resource for the answers to many education questions. You can call us at 1-877-ASK-TSTA, or email us at: TSTA.org. We are here to serve your needs.

Q#2: "Since I sign a contract with no salary figure in it, can the school district reduce my salary after the the school year has started?"

No. TSTA was largely successful in the 1990's in creating case law with the Commissioner of Education that said there could be no salary cuts after the 45thday before the first day of instruction. See San Elizario Educators Assoc. v. Sal Elizario Indep. School Dist., Docket No. 222-R3-392 (Comm'r Edu. Dec. 1994), where the school district adopted a salary schedule for the following school year which reduced the amount of pay for every year of experience as compared to the previous year's schedule. Under the new schedule, no teacher earned less than he or she did the previous year. However, the district adopted the new schedule after the time by which the teachers could unilaterally resign. The Commissioner made the following finding in this case, the right of the district to unilaterally set the compensation to be paid the teachers under this contract can be given effect until July 1, 1991. Until that date, the teachers of SEISD could have unilaterally released themselves from their contracts of employment with the district, by a simple written notice. But on July 1, I find a final event occurred which determines the outcome of this appeal. On that date, the power of the district to reduce the compensation of its teachers for the coming year expired, and the district became bound to pay at least the amounts provided by the previous year's salary schedule, under the common-law doctrine of estoppel. San Elizario, pp 5-6, second emphasis added. In josh and the Beaumont Teachers Assoc./TSTA/NEA v. Beaumont Indep. School Dist., (Comm'r Edu. June 30, 1993), the district reduced the salary schedule for the 1991-92 school year after the expiration of deadline for unconditional resignations by the teachers. The Commissioner stated: If a district decides to reduce salary allotments from one year to the next, then the employee must be in a position to unconditionally reject the new contract at the new salary at a time when the employee can meaningfully consider other employment options. Josh p. 9. In Weslaco Federation of Teachers v. Texas Education Agency, 27 S.W. 3d 258 (Tex. App. - Austin 2000, no pet.), the Commissioner found that although a school district cannot reduce a teacher's total salary after the teacher can no longer unilaterally withdraw from her contract, a school district may set a salary schedule that reduces elements of that salary so long as the teacher's total compensation is not reduced. The school district decreased its local supplement within 45 days of the first day of instruction upon finding that the state had raised the minimum salary schedule. The court of appeals in Austin noted that the legislature addressed this situation when it next increased the state salary minimum by prohibiting a District from reducing the local supplement. See Tex. Educ. Code Ann. 21.402(c-1) (West Supp. 2000).

Q#3: “We have been directed to attend a 2 day workshop this summer. This is outside my 187 day contract. Do I have to attend?”

During the 187 contract, you can be required to perform additional duties “as assigned.” Additional duties may be required unless they materially violate the terms of the employment contract. Some beleaguered school employees may ask, “Where does the work under the employment contract stop and indentured servitude begin?” TSTA receives variations on this question as frequently as any other question. This is really an issue about time. And time is more valuable than money to many people, and both are scarce resources. Unfortunately, this question is not easily answered in just a few words. This is a sliding scale issue, which means the legality of the additional assignment may depend on how far-reaching the additional assignment is. In other words, does it substantially violate the material terms of your contract? Remember: teacher contracts allow “reassignments” and “such additional duties as may be assigned.” At least one case supports the proposition that a school district may require nominal extra duties such as ticket taking at a Saturday night football game. Watson v. Lampasas Indep. Sch. Dist., (Comm'r Educ. 1989). (http://www.tea.state.tx.us/commissioner/1986/1041286.DOC.) This case implies that the 8 a.m. to 3:30 p.m. schedule establishes minimum working hours and did not preclude additional assignments. The fringes are pretty easy: On one hand, a one time, or short duration assignment during the school year, similar to the case above, is probably not going to be held to violate the contract. On the other hand, teachers should not be required to attend summer and Saturday meetings that occur outside the number of days in your contracts. In a case called Granbury Educ. Assoc./TSTA v. Granbury Indep. Sch. Dist., (Comm’r Educ. 1997), a summer assignment was the issue. The Commissioner of Education said the following: “By attending the [summer] training after being told how much they were to be paid, the teachers accepted [the school district’s] offer…If the teachers believed that the rate of pay was unfair, they should have refused to work for that amount.” (http://www.tea.state.tx.us/commissioner/word/087296.DOC.) If your school district is requiring summer or Saturday work outside the contract, then they must negotiate a separate agreement with you and provide adequate pay. In TSTA’s opinion they cannot require your attendance at all, although we do not have a specific case for that proposition. Furthermore, in TSTA’s opinion any extra duty assignment that is regular, continuous, or on-going, or that regularly exceeds the normal work day, or is far beyond the scope of your contract may very well be infringing on your free time. 

Q#4: “Do I have to change a grade if my principal tells me to?” 

If a teacher is asked to change a student’s grade, the first question for the teacher to ask is “what is the policy basis for changing the grade?”. If the administrator can articulate a policy reason that the grade should be recalculated, the teacher probably has no right to refuse. Furthermore, in that situation, refusal could be deemed insubordination, which could lead to the teacher’s termination. If, however, there is no firm policy basis for re-calculating a grade, and a teacher is simply ask to change a grade, one of the above-mentioned issues could be implicated. A teacher probably will not win if her only argument is that changing the grade violates her academic freedom. However, a teacher may be able to argue that the Educators’ Code of Ethics or UIL regulations have been violated. The main consideration for each issue is the basis for changing the grade. In many cases, the Commissioner has noted that when a teacher was asked to change a grade, the grade calculation being substituted was either specifically within the district’s grading policy, or at least it did not violate district policy. Compare that situation with a situation in which a teacher is simply asked to change a grade, and that change has no basis in policy. In the latter situation, the teacher has much more protection and a stronger position for refusing to change the grade.

Academic Freedom – Fact or Fiction?

The Fifth Circuit has held that although the perimeters of academic freedom are ill-defined, the principle of a academic freedom does not extend to a teacher’s refusal to assign a grade as directed by an administrator. Hillis v. Stephen F. Austin St. Univ., 665 F.2d 547 (5th Cir. 1982). In Hillis, a university professor was instructed to give a student a “B.” Hillis thought the instruction violated his academic freedom, and refused to give the student a “B”, but instead gave her a “grade withheld.” The next day, Hillis received a letter stating that his contract would not be renewed for the following year. The roots of the principle of academic freedom “have been found in the First Amendment insofar as it protects against infringements on a teacher’s freedom concerning classroom content and method.” Id at 553. The Court recognized that the case law defining “academic freedom” is inconsistent. However, Hillis failed to establish that the University sought to “cast a pall of orthodoxy” over his classes, or that his refusal to assign a grade to the student constituted a “teaching method.” Id. See also Wozniak v. Conry, 236 F.3d 888 (7th Cir. 2001); Brown v. Armenti, 247 F.3d 69 (3rd Cir. 2001); Edwards v. California Univ. of Penn., 156 F.3d 488 (3rd Cir. 1998), cert. denied, ___ U.S. ___ (1999); and Lovelace v. Southeastern Mass. Univ., 793 F.2d 419 (1st Cir. 1986). Similarly, the Commissioner has followed this analysis. In two appeals, the Commissioner has ruled that academic freedom did not extend to the teachers’ refusals to assign a grade as directed by administrators. See Cook v. Ector County I.S.D., Docket No. 249-R2-486 (Comm’r Educ. Sept. 1987); Fleming v. San Marcos I.S.D., Docket No. 359-R8-591 (Comm’r Educ. Sept. 1992).

Educator Code of Ethics

Although instructing a teacher to change a grade my not be a violation of academic freedom, per se, such an instruction may violate the Educators’ Code of Ethics. Standard 1.6 states, “The educator shall not falsify records, or direct or coerce others to do so.” So, in what types of situations would this principle be violated? Consider two different scenarios. The first is a situation in which a teacher attributes more weight to a six weeks test than is normally given under the district’s policy. Several students fail the course for that six weeks. The principal then instructs the teacher to recalculate the grades according to the policy, and change the students’ grades. In the second scenario, principal, a staunch supporter of the football team, comes to teacher and “advises” her that student is a “solid B student.” Principal instructs teacher to change football player student’s grade from an F to a B. It is clear from student’s graded and incomplete homework that his grade cannot be a B. In the first scenario, the principal has not asked the teacher to falsify any record. She has simply asked the teacher to recalculate the grade according to policy. In the second scenario, the principal has clearly asked the teacher to change the actual grade that the student has earned. In this type of situation, the teacher may have a strong argument that the Principal violated the Code of Ethics. The Code of Ethics states that “[an] educator shall not use coercive means…in order to influence professional decisions or colleagues.” Standard 2.6. Again, if an administrator is instructing a teacher to follow policy, that in and of itself would not violate this principle. However, if the administrator coerced the teacher with threats to do something that violated school policy, this principle may be implicated. UIL Regulations The UIL prohibits school personnel from falsifying records or reports. Thus, if a teacher is instructed to falsify a student’s grade, the teacher and the educator cause the teacher to change the grade would be in violation of the UIL regulations. These consequences could be particularly important in the event that a grade is being changed for the purpose of UIL participation.

Q#5: “The principal is requiring our team to meet during my conference period. Can she do that?”

This is a question that involves planning and preparation time; Texas Education Code §21.404. Each classroom teacher is entitled to at least 450 minutes within each 2-week period for instructional preparation, including parent-teacher conferences, evaluating students’ work, and planning. The planning and preparation period may not be less than 45 minutes within the instructional day. During the planning and preparation period, a classroom teacher may not be required to participate in any other activity. “The statute was enacted for the purpose of giving teachers time to engage in parent-teacher conferences, reviewing students' homework, and planning and preparation as the teacher, not the administration, deems best. The statute clearly relieves the teacher of any duty during this period of time and prohibits the district and its administration from requiring the teacher to engage in any other activity the administration determines to be useful and important.” Strater v. Houston Indep. Sch. Dist., Docket No. 129-R8-685 (Comm’r Educ. 1985). (http://www.tea.state.tx.us/commissioner/1985/129685.DOC) “A teacher's planning and preparation period is … for the use of the teacher as he or she sees fit, within the statutory boundaries, free from any duty mandated by the school district.” Chaffin v. Los Fresnos Indep. Sch. Dist., Docket No. 128-R10-1290 (Comm’r Educ. 1990). (http://www.tea.state.tx.us/commissioner/1990/1281290.DOC). Note: The Planning and prep time must be “within the instructional day,” and not merely tacked on to the end.

Q#6: “Can some of my friends and I get together and approach the school administration to bargain a better salary package for teachers?”

No and yes. “No” because it is illegal is Texas for teachers to collectively bargain a master. Tex. Gov’t Code Sec. 617.002. TSTA is in favor of collective bargaining for teachers, while other associations are not. We do not understand why other teacher organizations would be against empowering teachers to increase their leverage at the local level. We feel strongly that teachers deserve a more level playing field in contract negotiations than currently exists with the “take it or leave it” contracts that are currently used in school districts. Nobody wants to see teachers strike, and we are against that. However, there are other alternatives to striking that can be used such as arbitration to resolve bargaining disputes. “Yes” because your local should consider becoming an “exclusive consultant” for the employees in your district, whereby your leadership team consults regularly with the administration regarding working conditions. This is perfectly legal and can have enormous benefits for both parties.

Q#7: “What are my rights as a probationary employee?”

The law states that every teacher new to a district must be employed on a probationary contract for at least one year. Therefore probationary contracts apply not only to every new teacher to the profession, but also to the 25 year veteran who gets a better offer and teaches for the first time in the neighboring district. For new teachers, the probationary period can actually last up to four years. For a teacher who has taught in five of the last eight school years, the probationary period can only last one year. After the probationary period, the school district must place the employee on a term or continuing contract, or else dismiss the employee. Are probationary contracts really that bad? On a day to day basis, a probationary contract teacher is entitled to all the rights and privileges of employment that all teachers have: (e.g. state minimum salary schedule and any applicable local schedules; thirty-minute duty free lunch; five days of personal leave, and any applicable local leave; 450 minutes of planning and prep time every two weeks; right to resign without board approval if done in writing at least 45 days before the first day of instruction.) In fact, a probationary contract teacher proposed for dismissal during the contract term is entitled to the same due process hearing that a term and continuing contract teacher receives. Further, the wording of a probationary contract may not differ at all when compared to a term or continuing contract. As you can see, a probationary contract is a heck of a lot better than no contract. The only difference between a probationary and term contract is the dismissal procedure at the end of the contract term. Like the term contract teacher, the probationary teacher is also entitled to notice of nonrenewal 45 days before the last day of instruction, but the probationary notice can be quite paltry. Most simply state words to the effect of, “The board has chosen not to rehire you next year. Thank you very much.” Unlike the term contract teacher, the probationary teacher has no opportunity for a board hearing and cannot appeal the board’s decision to the Commissioner, unless statutory procedures (such as issuing timely notice) were not followed.

Q#8: “What are my duties and obligations to report child abuse and neglect?”

Make a report or get more info by calling 1-800-252-5400 (Texas Dept. of Protective and Regulatory Services) For more info, go to http://www.tdprs.state.tx.us A teacher has an affirmative duty to report suspected child abuse or neglect. Failure to report is Class B Misdemeanor, punishable by up to 6 months in jail, and up to $2000 fine. Texas Family Code § 261.101. Persons Required to Report; Time to Report. (a) A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter. (b) If a professional has cause to believe that a child has been abused or neglected or that a child is a victim of an offense under Section 21.11, Penal Code, and that the professional has cause to believe that the child has been abused as defined by Section 261.001, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section21.11, Penal Code. A professional may not delegate to or rely on another person to make the report. In this subsection, "professional" means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, and employees of a clinic or health care facility that provides reproductive services. (c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services. (d) The identity of an individual making a report under this chapter is confidential and may be disclosed only on the order of a court rendered under Section 261.201 or to a law enforcement officer for the purposes of conducting a criminal investigation of the report. Sec. 261.102. Matters to be Reported. A report should reflect the reporter's belief that a child has been or may be abused or neglected or has died of abuse or neglect. Sec. 261.103. Report Made to Appropriate Agency. A report shall be made to: (1) any local or state law enforcement agency; (2) the department if the alleged or suspected abuse involves a person responsible for the care, custody, or welfare of the child; (3) the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse or neglect occurred; or (4) the agency designated by the court to be responsible for the protection of children. Sec. 261.104. Contents of Report. The person making a report shall identify, if known: (1) the name and address of the child; (2) the name and address of the person responsible for the care, custody, or welfare of the child; and (3) any other pertinent information concerning the alleged or suspected abuse or neglect. Sec. 261.106. Immunities. (a) A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed. Sec.261.107 False Report; Penalty (a) A person commits an offense if the person knowingly or intentionally makes a report as provided in this chapter that the person knows is false or lacks factual foundation. An offense under this section is a Class A misdemeanor unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a state jail felony.

Q#9: What kind of trouble can I get into if a student is injured on my watch?

1)    Employment problems
2)    Criminal charges/CPS investigation
3)    SBEC investigation
4)    Civil lawsuit

We will examine some issues related to civil suits. CIVIL SUITS In addition to possible criminal liability, employment liability, and certificate problems, a school district employee can be found liable in a civil court for federal or state claims. A school district employee may be found liable for a “constitutional tort” alleging that an employee failed to adequately supervise a subordinate employee or a student and that such failure caused injury to a person’s life, liberty or property in violation of the person’s constitutional rights under the 5th, 14th, or other constitutional provisions. To state a federal Title 42 U.S.C. §1983 claim against an employee of a school district, a plaintiff must allege two elements: 1) that he/she was deprived of a right or interest secured by the Constitution or laws of the United States; and 2) that the deprivation occurred under color of state law. 42 U.S.C. §1983; See Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994). Doe v. Rains Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995). Acting “under color of state law” for supervisory purposes means that state law gives the right of control over the perpetrator of the injury. Rains, Id. A supervisory school official can be held personally liable for a subordinate’s violation of a student’s constitutional right to bodily integrity in physical abuse cases if the plaintiff establishes that: 1) the defendant learned of acts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; 2) the defendant demonstrated “deliberate indifference” toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and 3) such failure caused a constitutional injury to the student. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 454 (5th Cir. 1994); see also, Doe v. Rains, 66 F.3d 1402, 1406 (5th Cir. 1995). Government officials enjoy qualified official immunity when performing discretionary functions as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known at the time of the alleged violation. Harlow v. Fitzgerald 457 U.S. 800, 818, 102 S.Ct. 2727 (1982); Kennedy v. Tangipahoa Parish Library Board of Control, 224 F.3d 359 (5th Cir. 2000). The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to [a reasonable person in the defendant’s shoes] that his conduct was unlawful in the situation he confronted. Branton v. City of Dallas, 272 F.3d 730 (5th Cir. 2001). Thus, an employee (other than the intentional actor) may avoid federal liability if the constitutional or federal right in question was not clearly established, or if the employee is not in a supervisory position over the intentional actor, or by not acting “deliberately indifferent” to a set of circumstances, or allegations, or proof that abuse has occurred. When confronted with such allegations supervisory school employees must investigate, document, and take appropriate action. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994).

THE QUALIFIED IMMUNITY PROVIDED BY TEXAS EDUCATION CODE §22.051

The good news is that the legislature has granted civil immunity for professional school employees with respect to acts which:

1)    are within (or incident to) the employee’s scope of duties;
2)    involve the employee’s judgment or discretion; and
3)    do not involve excess force or negligence in discipline which causes bodily injury to a student; and
4)    do not involve an incident with a motor vehicle.

1. “Incident to or within the scope of duties”: Williams v. Chatman, 17 S.W.3d 694 (Tex. App. – Amarillo 1999, pet. denied). A junior high student attended a party sponsored by his school at a university swimming pool. Several teachers and other school employees also attended the party. The student almost drowned, was revived by CPR, and then died the following day of cardiac arrest. The case provides in-depth analysis of statutory immunity. The primary question was whether the school employees were acting “within the scope of duties.” The plaintiff argues they were not because 1) the party was not on school property, 2) it occurred after normal school hours, 3) they were not required to attend, and 4) they were not paid for attending the party. The court countered that the purpose of the teachers’ attendance was to supervise the students, and that this was within their scope of employment. Consequently, the school employees were immune. In Puryear v. Cockfield, 1998 WL 207797 (Tex. App. – Austin 1998, unpublished, pet. dism’d.), the teacher brought her 40-pound springer spaniel to school to show her elementary students how to take care of a dog, and to show the many benefits of owning and caring for a dog. The principal had authorized this event. After the “dog” lesson was over, the dog roamed freely around the classroom, and then napped under a table. When a student crawled under the table to retrieve a pencil, the dog bit her. The court held that the teacher was not immune from liability. The moment the dog bit the student; the dog was no longer a part of the lesson, even if the teacher was teaching at that precise moment. In Chessir v. Sharp, 19 S.W.3d 502 (Tex. App. – Amarillo 2000, no pet.), the kindergarten teacher brought a frying pan, oil and dough to make donuts to school as part of her lesson on the letter “d.” In the course of making fried donuts, some hot oil injured a child. Plaintiff claimed the teacher was not acting in the course and scope of her employment at the time of the injury. The court held she was. “Whether one is acting within the scope of his employment depends upon whether the general act from which injury arose was in furtherance of the employer’s business and for the accomplishment of the object for which the employee was employed.” 19 S.W.3d at 504. (emphasis added) If this threshold inquiry is met, it is then irrelevant whether the employer expressly authorized the event, or whether the act was performed negligently.
2. Acts vs. Omissions: In Pulido v. Fairleigh, 888 S.W.2d 518 (Tex. App. El Paso 1994, no pet. ) the issue was whether §22.051 provided immunity for acts as well as omissions. Here, the teachers were accused of failing to discipline a known bully who in turn injured another child. The injured child’s parent sued claiming the immunity only extends to “any act” and not for an “omission” of a professional school employee. The court rejected the argument saying omissions were addressed in Barr and other cases, and were found to be covered by the immunity statute. Johnson v. Calhoun County Indep. Sch. Dist., 943 S.W.2d 496 (Tex. App.-Corpus Christi 1997, pet. denied). The issue here is whether the negligent failure to discipline is actionable to the same degree as negligent discipline. The majority: “The supreme court has answered this question in the negative. Hopkins, 736 S.W.2d at 619. Although the general concept of negligence imposes liability where one acts imprudently as well as when one fails to act when there is a duty to do so, we are dealing here not with common law negligence but rather with a specific and narrow exception to immunity. Although there is a duty on principals and teachers to keep order in the schools, it is only when they are disciplining a student that they lose their immunity from suit.”
3. Excessive Force in Discipline or Negligence Hypo: A 15 year old student begins acting up in class. The teacher gives the student increasingly direct warnings about the consequences of his behavior. After about the fourth outburst, the teacher tells the student to follow him to the office. The student refuses to go, insisting that he has a constitutional right against “self-insemination.” The class erupts in laughter, as the teacher loses his cool, forcefully grabs the student by the arm, and forces him down the hall to the office. This action leaves some bruises and superficial marks on the student’s arm. The student’s parents want to take legal action against the teacher. These facts are similar to facts in a real case where the teacher was found to be immune. The court held that the teacher was acting “only to protect the school learning process from disruption by a wrongdoer by physically removing the wrongdoer and escorting [him] to the public official designated by rule, regulation, or law to impose the necessary and proper ‘discipline punishment’ – the Vice-Principal.” Doria v. Stulting, 888 S.W.2d 563 (Tex. App. – Corpus Christi 1994, no writ). This does not mean that this type of conduct is warranted by a teacher, or that a teacher will escape liability for this conduct the next time. Consider the following allegations in a lawsuit: A high school student is in football practice, in Texas, in August. It is alleged that the student is made to run “gasser drills” by his coaches, and is not given proper rest or water. The student collapses from exhaustion and the coaches, it is alleged, ignore the student. Are the coaches immune from a state law claim for the student’s death? In this scenario, the question for the court was whether a proper §1983 claim had been stated, and whether the coaches were “using excessive force in disciplining” the student. The court held that for summary judgment purposes, a fact question remained as to whether the coaches were administering discipline and whether excessive force was used in this pursuit. Thus, they were not immune from the state law claim. The court further held that there was a constitutional right to be free from the deprivation of his bodily integrity and his life caused by the callous disregard of school officials. Consequently, the coaches were not dismissed from the lawsuit. Roventini v. Pasadena Indep. Sch. Dist., 981 F.Supp. 1013 (S.D. Tex. 1997, opinion vacated). 4. Discretionary vs. Ministerial Acts The Perfect Storm: In Doe v. Rains Indep. Sch. Dist., 865 F. Supp. 375 (E.D. Tex. 1994), reversed, 66 F.3d 1402 (5th Cir. 1995) one of the questions was whether the teacher was using judgment and discretion entitling her to state law immunity. Loosely, the facts show that in June 1992, a good, 11-year teacher (White) unwittingly discovers that a high school student (“Jane”) is having sexual relations with a high school coach. Jane calls White from the coach’s house and asks about a birth control problem. White is extremely upset by this call and immediately goes over to the coach’s house. The coach is not home, but White talks to Jane and learns about the ongoing sexual relationship. Jane makes White promise to NOT TELL ANYONE, and White agrees, figuring Jane would not confide if White did not keep this promise. White is worried sick about this. She tells her brother. She tells her husband. She even consults a lawyer. However, she does not make a report to the proper law enforcement authorities until late November 1992. Jane’s parents sue the school, the coach, and White, among others. White concedes that she “failed to report child abuse” (a criminal law), but that in not reporting, she was using judgment and discretion in deciding how best to handle this, and was honoring the student’s dire request for confidentiality. The court holds that she is not immune from state tort claims. White is also sued under §1983. The plaintiff must establish that her injury occurred under color of state law. The Court held that White’s violation of the child abuse reporting laws did not constitute action “under color of state law” required to sustain a §1983 claim. In order for state action to be involved, the teacher would have had to possess authority or control over the abuser, and she did not. In Downing v. Brown, 935 S.W.2d 112 (Tex. 1996) the issue was whether teachers were using the requisite “judgment or discretion” to be covered by the immunity statute. A 6th grade student, Teresa, was threatened by some other students. Teresa reported it to her teacher who attempted to mediate the conflict, yet matters only got worse. The teacher allegedly prevented Teresa from seeing the principal about it. Teresa was attacked and suffered injuries and withdrew from school. Two years later she returned, and was attacked again. The Lubbock ISD Discipline Management Plan provide that teachers have the responsibility to “develop and maintain a discipline management plan for their classrooms and to make all students aware of the plan, posting the rules.” The teacher did not develop or post such a plan. Therefore, the court of appeals held she was not immune, because the classroom discipline plan requirements were “ministerial” in nature, and were not left to her discretion. The Supreme Court disagrees: Ministerial acts are those ‘where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.’ City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). Ministerial actions require obedience to orders or the performance of a duty to which the actor has no choice. On the other hand, if an action involves personal deliberation, decision, and judgment, it is discretionary. In our view, maintaining classroom discipline involves personal deliberation, decision, and judgment. Moreover, LISD’s policy does not define teachers’ responsibilities with such precision to leave nothing to the exercise of a teacher’s judgment or discretion. And finally, we have the most recent case on the subject, Myers v. Doe, 52 S.W.3d 391 (Tex. App. Fort Worth 2001, no pet.), which also scrutinizes the issue of “ministerial” vs. “discretionary” act. Mary was a 17 year old student who had the IQ of a six year old. She was sexually assaulted by another special ed student nick-named “Mad Dog.” There was some dispute about whether the sexual act was consensual. In any event, the campus administration (and superintendent) enacted special policies to apply to this situation. The teachers were to prevent student access to the place where the prior assault occurred, to immediately report either student as tardy, and prevent the two from being together. However, the policies were not followed, and Mary was assaulted two more times during school hours. The court held that the policies defined the duties with such precision as to leave nothing to the exercise of the teacher’s judgment or discretion. The policies set forth ministerial acts, which had to be followed. Since they were not followed, the teachers and principals could be sued.
4. Motor Vehicle Exception: The negligent use or operation of a motor vehicle must have been the cause of the injuries, rather than the site where the injuries occurred. The poor design of a school bus stop does not constitute the use of a motor vehicle. The court of appeals are split as to whether permitting a student to exit the bus at an incorrect or nondesignated stop constitutes the use or operation of a motor vehicle. The motor vehicle must have been designed to transport people or property upon the public highways and involved in such transportation. A “motor vehicle” does not include a stationary car being worked on in shop class.

Q#10: “How can I decrease my exposure to liability?”

1. MAINTAIN YOUR BOUNDARIES: Parents and teachers can be friends with their children and students, but that is not purpose of the relationship. You are a teacher first. You cannot befriend a student as a peer. Never confide in a student as you would an adult, even if you consider a student to be a friend. When you confide in them, you cross the line and they lose respect for you. A teacher must find someone else to confide in other than a student or minor.

2. DON’T TOUCH STUDENTS TO SHOW AFFECTION (?) When the day comes that we cannot genuinely give a brief hug of support and encouragement to a little first grade student who falls on the playground, or even a senior in high school who gets accepted to college, then we should all vacate this profession en mass. If there’s a teacher shortage now, just wait until hugs are outlawed. As it is said, the devil usually lies in the details. A hug that lasts for two minutes with a high school senior is more than likely out of line. Teachers who insist on full, lengthy, frontal embraces at every turn, need to find a more acceptable way to express themselves. Always know about your school district’s policies on these matters.

3. AVOID BEING ALONE WITH STUDENTS: Often, the most serious charges against teachers involve situations where the teacher was alone with a student. If a student would like to meet with you before or after school for a school purpose like tutoring, or checking on grades, etc. do these things:

a. Try to arrange tutoring for several students at the same time;
b. Try to coordinate after-hours tutoring with other teachers;
c. Let your principal know you will be meeting with the student(s);
d. Always leave your classroom door open;

Exercise control over any meeting you have with a student. Don’t let the student dictate the time and place of your meeting. If a student wishes to meet with you, meet with the student outside the principal’s office or with another teacher. The other teacher does not have to participate in the conversation. The other teacher can simply be in the room doing some work of his or her own.

4. NO CORPORAL PUNISHMENT - THINK BEFORE YOU ACT: Remember: Your legal protection is in grave jeopardy if you cause injury to a student you are disciplining. Furthermore, most assault allegations arise out of some unforeseen altercation between student and teacher. A common example occurs when a teacher tells a student to sit down and the student refuses. The teacher reaches out to take the student to his chair and the student jerks away. Many teachers, particularly elementary teachers, “grab” students when the class is lining up on their way to restroom or cafeteria, etc. A preferable method would be to either verbally admonish a student or, with an open hand, simply guide that student into line. Think before you act.

5. HAVE A PROFESSIONAL RELATIONSHIP WITH THE ADMINISTRATION AND YOUR COLLEAGUES: In any criminal investigation the police will routinely turn to the administration for input to ask what they think about the teacher. If the teacher has a good reputation with the administration, that relationship can have a positive impact on the investigation. Teachers are each others’ eyes and ears. You are in a position to look out for each other. If you see or hear one of your fellow teachers doing something foolish – tell them. Documentation is always a good idea. Regardless whether it is ever needed, your recollection of events is always fresher at the time the events occurred, than it will be one or two years down the road

Q#11: “My principal is requiring me to take and pick-up my students from the lunchroom. This takes about 7 minutes away from my lunch period. Can he do that?”

This question involves duty-free lunch, Texas Education Code §21.404. Each classroom teacher or full-time librarian is entitled to at least a 30 minute lunch period free from all duties and responsibilities connected with the instruction and supervision of students. Districts may set flexible or rotating schedules for each classroom teacher or full-time librarian for implementation of duty free lunch policy but provision of duty free lunch may not result in a lengthened school day. A classroom teacher or librarian who is otherwise entitled to a duty-free lunch may be required to supervise students during lunch because of personnel shortage, extreme economic conditions, or an unavoidable or unforeseen circumstance for ONE day in any school week Q: “What constitutes a personnel shortage, extreme economic conditions, or an unavoidable or unforeseen circumstance? Can the district make-up this stuff to get around the law?” A: No. A personnel shortage exists when, despite reasonable efforts of a school district to use non-teaching personnel or the assistance of community volunteers to supervise students during lunch, there are no other personnel available. Extreme economic conditions exist when the percentage of a local tax increase, including any amounts necessary to implement this section, would place the district in jeopardy with respect to a potential tax roll-back election as provided in the Texas Property Tax Code, §26.08. Unavoidable or unforeseen circumstances exist when, due to illness, epidemic, or natural or man-made disaster, a school district is unable to find an individual to supervise students during lunch. 19 Tex. Admin. Code §153.1001

Q#12: “Do I have the right to refuse to take a student back in my classroom that has misbehaved?”

This is what we refer to as a Chapter 37 question. Texas Education Code §37.002: A teacher may send a student to the principal’s office “to maintain effective discipline in the classroom.” The Principal shall respond with appropriate discipline management techniques consistent with the student code of conduct. A teacher may remove from class a student (a) who has been DOCUMENTED by the teacher to repeatedly interfere with the teacher’s ability to COMMUNICATE effectively with the students in the class or with the ability of the student’s classmates to learn or, (b) whose behavior the teacher determines is so unruly, disruptive, or abusive that it seriously interferes with the teacher’s ability to communicate effectively with the students in the class or with the ability of the student’s classmates to learn. The principal may not return the student to that teacher’s class without the teacher’s consent unless the school’s PLACEMENT REVIEW COMMITTEE, composed of two teachers selected by the campus faculty and one professional staff member appointed by the principal, determines that such placement is the best or only alternative available. Texas Education Code, section 37.001 requires Boards of Trustees to adopt a student code of conduct for the district. In addition to establishing standards for student conduct it must (a) specify the circumstances under which a student may be removed from a classroom, a campus or alternative education program, (b) specify conditions that authorize or require a principal or other authorized administrator to transfer a student to an alternative education, and (c) outline conditions under which a student may be expelled or suspended. Before adopting a Student Code of Conduct the Board of Trustees must consider the advice of its district level decision-making committee. Chapter 37 of the Texas Education Code provides specific instances which permit or mandate the suspension or referral of a student to the alternative education campus. The district’s Code of Conduct may add to or supplement these limited statutory grounds for suspension or AEP referral. Retaliation by students is strictly forbidden! Texas Education Code §37.006 sets forth grounds for which a student shall be removed from class and placed in an alternative education program. One of the grounds for mandatory removal is retaliation; Texas Education Code §37.006(b). This is defined as intentionally harming, or threatening to harm, a person by an illegal act in retaliation for, or on account of, the service or status of one as a public servant. The student’s act of retaliation need not have occurred on school grounds or during school activities. Special rules may apply for special education students. The Individuals with Disabilities in Education Act (IDEA) 20 U.S.C. §§1400-1462 may trump Chapter 37. There is a 10 day rule for suspensions after which time the special education student must remain in (or be returned to) the current educational placement during the pendency of any proceedings, such as a parent's appeal of an ARD committee decision, unless the involved parties agree. The IEP may control the types of discipline that may be used through a behavioral intervention plan. Districts may develop even more stringent Codes of Conduct for students who engage in extracurricular activities since participation in extracurricular activities is a privilege and not a right.

Q#13: “I received a bad appraisal. What can I do about it?”

Teacher Appraisals – Texas Education Code §21.351; Texas Administrative Code §150.1001 A teacher may submit a written response or REBUTTAL at the following times: Within 10 working days of receiving a written observation summary, a written summative annual appraisal report, or any other written documentation associated with the teacher's appraisal. At the discretion of the appraiser, the time period may be extended to 15 working days. A teacher may request a SECOND APPRAISAL by another appraiser at the following times: Within 10 working days of receiving a written observation summary or a written summative annual appraisal report. At the discretion of the appraiser, the time period may be extended to 15 working days. The second appraiser shall appraise the teacher in all domains. The second appraiser shall make observations and walk-throughs as necessary to evaluate Domains I through V. The second appraiser shall use the Teacher Self-Report Form and cumulative data from the first appraisal to evaluate Domains VI through VIII. Cumulative data may also be used by the second appraiser to evaluate other domains. Each school district shall adopt written procedures for a teacher to present grievances and receive written comments in response to the written annual report. Each district shall also adopt written procedures for determining the selection of second appraisers. These procedures shall be disseminated to each teacher at the time of employment and updated annually or as needed. Teachers must be appraised each school year and, whenever possible, the appraisal shall be based on the teacher’s performance in fields and teaching assignments for which the teacher is CERTIFIED. The annual teacher appraisal shall include at least one classroom observation of a minimum of 45 minutes with additional walk-throughs and observations conducted at the discretion of the appraiser and a written summary of each observation which shall be given to teachers within ten working days after the observation with a pre- and post observation conference conducted at the request of the teacher or appraiser. 19 Tex. Admin. Code §150.1003 (b)(2). The evaluation must also include CUMULATIVE DATA of written documentation collected regarding job-related teacher performance, in addition to formal classroom observations. “Any third party information from a source other than the teacher’s supervisor that the appraiser wishes to include as cumulative data shall be verified and documented by the appraiser. Any documentation that will influence the teacher’s [evaluation] must be shared in writing with the teacher within 10 working days of the appraiser’s knowledge of the occurrence.” Though the regulations state that the classroom observation is to be 45 minutes it may be conducted in shorter time segments that add up to 45 minutes if the teacher and appraiser both agree.

Q#14: “What are my rights to personal leave offered by the state?”

Personal Leave Program – Texas Education Code §22.003(a): Prior to 1991, school teachers got 5 sick days from the state each year, which could only be used in certain instances described by the statute. In 1991, all school employees were given 5 days of sick leave from the state. In 1995, sick leave became personal leave, and a school employee no longer had to be sick to take a day of leave. The current law states the following: All district employees shall receive at least five (5) personal leave days per year. These personal leave days may be accrued without limit and are transferable among districts. The Board of Trustees may adopt a policy governing an employee’s use of leave but may not restrict the purposes for which the leave may be used. The problem is that the vast majority of districts have strict limitations on when employees may take their personal leave. The questions become: 1) What does it mean to “govern an employee’s use of leave?” and 2) What does it mean to “restrict the purpose for which the leave may be used?” In a case called Amaral-Whittenberg v. Castleberry ISD, Docket No. 003-R10-901, Comm’r Educ. (2002), the district (like most districts) has a policy which seeks to maximize its “governing” of the employee’s use of personal leave. She was denied the use of one leave day because it violated the policy against more than “two employees in each category” being absent at any given time. She was denied the use of another leave day because it violated the policy against using a state personal day on a day which precedes a school holiday – in this instance, spring break. She was denied the use of another leave day because it violated the policy against using “more than two consecutive personal leave days.” TSTA believes strongly in the right of a school employee to take their personal leave days with as few restrictions as possible, and is arguing in this case that the overreaching policy exceeds the school district’s ability to “govern the use” of leave, and instead it actually “restricts the purpose for which leave may be used.”

Q#15: “What are my rights if I am assaulted at work?”

Assault Leave Program – Texas Education Code §22.003(b) provides that: 1) In addition to all other types of leave an employee of a school district who is physically assaulted during the performance of the employee’s regular duties is entitled to up to two years paid leave to recuperate from all physical injuries.] 2) At the request of the employee, the school district must immediately assign an employee to assault leave and, on investigation of the claim, may change the assault leave status and charge the leave against an employee’s accrued personal leave or against an employee’s pay if insufficient accrued personal leave is available. 3) Assault leave benefits are to be coordinated with Temporary Income Benefits due from workers’ compensation so that employee receives no more than 100 percent of their weekly pay. 4) An employee is “physically assaulted” if the person causing the injury (a) could be prosecuted for assault or (b) could not be prosecuted only because of age or mental incapacity bars criminal liability.

Q#16: “My supervisor has called me into a meeting. Can I refuse to go until a Building Rep. can go with me? Can I tape record my meeting with my supervisor?”

Employees are entitled to representation by their union representatives or other persons in and during the grievance process. Lubbock Prof. Firefighters v. City of Lubbock, 742 S.W.2d 413 (Tex. App. - Amarillo 1987, writ ref'd n.r.e.); . Corpus Christi American Fed. of Teachers v. Corpus Christi Indep. School Dist., 572 S.W. 2d 663 (Tex. 1978); Sayre v. Mullins, 681 S.W.2d 25 (Tex. 1984). There is no legal requirement that a principal must wait until an employee can summon a rep to accompany him or her to a non-grievance meeting. However, a principal will often allow this upon a diplomatic request made by the member or a rep. If allowed, who should an employee take to this meeting? 1) The Building Rep.; 2) another member of the local association; 3) Anyone else willing to go (preferably someone who is on good terms with the principal). What if the principal questions the employee about circumstances that could lead to criminal charges being filed? The member should err on the side of invoking his/her 5th Amendment right and not talk, realizing that not talking might result in termination of employment. If able, the member should call Education Austin at 472-1124 for immediate advice. It is never safe to give statements about conduct that could be construed as criminal in nature without seeking the advice of an attorney. In Texas a surreptitious tape recording may be made of a conversation as long as one party to the conversation - including the one doing the taping - knows the tape is being made. However, this is not advisable behavior, and in fact, it is unethical for an attorney to advise anyone to engage in such conduct. It is better to walk into the meeting with a tape recorder in plain view, and place it on the desk, and announce (or ask) while the tape is running, that you are taping the meeting.

Q#17: “Can I file a grievance?”

Anyone who properly fills out a grievance form and timely files it may file a grievance over any matter involving your wages, hours, or conditions of work. “The term “conditions of work” should be broadly construed. Op. Tex. Att'y Gen. No. JM-177 (1984), construing former Tex. Rev. Civ. Stat. Ann. art. 5154c §6, now Tex. Gov't Code §617.005: This is NOT to say that every situation warrants a grievance. In fact, we must find new ways to communicate with the administration to seek desirable (or at least fair) outcomes to problematic situations. One of these ways is to become an effective local that carries weight with the administration and/or board. In any event, here is the black letter law on grievances:

RIGHT TO GRIEVE:

1. Texas Constitution, Article I, §27: “The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and to apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance."

2. Texas Government Code §617.005: “This chapter does not impair the right of public employees to present grievances concerning their wages, hours of employment, or conditions of work either individually or through a representative that does not claim the right to strike."

3. 19 Texas Administrative Code §150.1005(g) [brackets added]: “Each school district shall adopt written procedures for a teacher to present grievances and receive written comments in response to the written [summative] annual [appraisal] report.”

4. Policy DGBA (local) SCHOOL DISTRICT’S LEGAL OBLIGATION: Professional Assoc. of College Educators v. El Paso Co. Comm. Dist., 678 S.W.2d 94 (Tex. App- El Paso 1984, writ ref'd n.r.e.). [construing Tex. Const. Art 1, §27] "We find no requirement that those trusted with the powers of government must negotiate or even respond to complaints filed by those being governed. But surely, they must stop, look, and listen. They must consider the petition, address or remonstrance. If the response, or lack thereof, is not as desired, the remedy then lies in the ballot box where free and independent people ultimately deal with those who rule over them.

Q#18 “I don’t like the school board’s decision in my grievance. Can I appeal to the Commissioner of Education?”

In order for the grievance to be reviewed by the Commissioner of Education, the grievance must involve at least one of the following:

1) a violation of the SCHOOL LAWS of this state; OR

2) a violation of a written employment CONTRACT that causes MONETARY harm to the employee.

“School laws of this state” are defined as Texas Education Code provisions, and any regulations adopted there under and implemented statewide. Thus, the Commissioner has held that violations of school board policies are not appealable. On appeal to the Commissioner, he merely reviews the local record developed in the grievance, and determines whether there is any evidence to support the school district’s decision. TSTA Legal Services will generally accept valid grievance appeals under this provision and assign an attorney to prosecute the case before the Commissioner.

Q#19: “What do I have to do to resign from my employment contract?”

One of the most orderly benefits of the 1995 education code reforms was the parallel alignment of the right to resign by all contract employees.

Probationary, term and continuing contract employees may all unilaterally resign if they do so in writing at least 45 days before the first day of instruction. Tex. Educ. Code §§21.105; 21.160; 21.210.

The resignation should be sent certified mail, return receipt requested, to the board president or designee, and it will be considered “filed” on the day it is mailed. During the school year, contract employees must get the board’s permission to resign, which may sometimes be granted by its designee. If an employee resigns without permission, the school district may report the employee to SBEC for possible certification sanction. The Remorseful Resigners: Employees continue to make offers of resignation that they soon regret. The prevailing issues in these cases involve who has the authority to accept the resignation, and whether the acceptance was timely or properly communicated. In Cantu v. San Benito Cons. Indep. Sch. Dist., 884 S.W.2d 565 (Tex. App. – Austin 1994, no writ), the teacher hand-delivered her written resignation to the secretary in the superintendent’s office. A few days later, unbeknownst to the teacher, the superintendent placed his acceptance in the mail. Before the teacher received the acceptance, and before she knew it had been sent, she hand-delivered a revocation of her offer to resign. The court held that the school district had properly accepted her offer. Recently, the Commissioner ruled against a school district in a resignation case. A choir director had a feud with the music coordinator of the district. In writing, the teacher threatened “to tender my resignation effective at the end of this year.” The music coordinator wrote back a simple letter saying, “Your resignation has been accepted.” The teacher fired back a quick response saying in effect, “wait just a minute – I haven’t resigned anything!” The school district treated the teacher as having resigned, and ended his employment at the end of the year, over his objections. The Commissioner held that the teacher did not make an affirmative or proper offer to resign, and the music coordinator did not have the authority to accept. Pierson v. Donna Indep. Sch. Dist., Docket No. 005-R10-999 (Comm’r Educ. 2000). We do not stand in the way of an employee who truly desires to resign. However, TSTA members should not resign until they have had a chance to calmly analyze the situation with a fellow member, or an attorney from the TSTA Help Center. (1-877-ASK-TSTA -- or via the web at TSTA.ORG).

The information provided here is demonstrative only and should not be construed as providing legal advice in any particular situation.