Key laws affecting teachers
Does the state mandate the school start date? How about the length of the instructional day or school year? What kind of leave are you entitled to receive? The following are some of the key statutes in place regarding teacher rights, working conditions and related topics. These laws apply to school districts and campuses that operate under the Texas Education Code and are not necessarily applicable to the following: charter schools; programs, campuses or districts that have waivers from the commissioner of education; or alternative education programs.
Length of school year
The 10-month teacher contract year requires a minimum of 187 days of service, unless the district has adopted a furlough program as described in salaries and reductions/furloughs. Of the 187 days, 180 are instructional days and seven days are to be used as determined by the district. (See “staff development” below.)
Length of instructional day
The instructional day must be at least seven hours long, including intermissions and recesses. State law does not address the length of the workday for teachers.
School start date
The first instructional day must be no earlier than the fourth Monday in August; districts may not receive a waiver from this requirement.
Class size
Each district must maintain an average ratio of no more than 20 students for one teacher. For kindergarten through 4th grade, the district may not enroll more than 22 students in a class except during the last 12 weeks of the year. Districts with high migrant populations may exceed the 22:1 ratio during a different 12-week period than the last 12 weeks of the year, but the period must be specified by the district. Districts that obtain waivers from the limit must provide written notice to parents of each student affected by the waivers. Districts are required to specifically identify how student safety will be ensured if PE class-size ratios exceed 45:1.
Personal leave/other leave
Each school employee is entitled to five days of personal leave per year with no limit on accumulation. School districts may provide additional personal leave beyond this minimum. Granting local leave in addition to what is provided by state law is discretionary with local districts. Pursuant to a TCTA-initiated law passed in 2009, school employees may choose the order in which state and locally granted personal leave days are taken. The district may adopt a policy governing the use of personal leave, although legislative intent was that such policies should manage only the scheduling of personal days (for example, prohibiting the use of personal leave on student assessment days, the last day of school, etc.). A district may not limit the reasons for which personal leave may be taken. The prohibition against districts limiting the reasons for which personal leave may be taken applies to state personal leave and may not apply to local personal leave. As a result, districts granting local leave may presumably restrict the purposes for which local leave can be used (e.g., requiring an employee to have a medical reason in order to request local sick leave), though this issue has not been litigated.
The law also allows up to two years of paid assault leave for teachers to recover from injuries suffered in a work-related assault. If an employee requests assault leave in writing, the district must grant it immediately, and the leave may not be deducted from the employee’s accrued personal leave (unless the claim is found to be invalid). A TCTA-initiated law clarifies that a district may not deny assault leave based on the mental capacity of the assailant.
Districts must provide at least 180 calendar days of unpaid disability leave for any educator whose condition (as certified by a physician) interferes with the performance of work duties. Before returning to duty, the educator must give the district at least 30 days’ written notice and a doctor’s statement of fitness to return to work. Temporary disability leave covers inability to perform work duties due to pregnancy and postnatal recovery, but not child care. The contract of employment for an educator may not be terminated while the educator is on leave of absence for temporary disability.
Under the federal Family and Medical Leave Act (FMLA), districts with 50 or more employees must allow up to 12 weeks of family leave for a serious health condition that renders the employee unable to perform his/her job or for such condition of a spouse, parent or child. Any employee who has been employed for at least 1,250 hours during the preceding 12-month period may take 12 weeks of leave within 12 months of the birth or adoption of a child. The district may pay the employee during leave, but this is not required.
A TCTA-initiated law provides that employees on military leave are allowed to use any accumulated sick or personal leave and clarifies that school employees may take up to 15 days of military leave without loss of leave time for service in the reserves or state military forces. Districts may also adopt policies providing for fully paid leave during military service as part of the consideration of employment in a district.
Federal job protections following military leave
The federal law known as the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides job protections after service in U.S. military forces under certain conditions, including providing the employer advanced written or verbal notice of the service. An interactive online USERRA Advisor can be viewed at www.dol.gov/elaws/userra.htm. A state law provides similar protections for service in state military forces. These protections were extended to public employees in 2011.
Staff development
The school district has the discretion to determine the number of days of the teacher contract year to be devoted to staff development, as well as the number to be used for teacher preparation days. Staff development must be predominantly campus-based, must be developed and approved by the campus site-based decision making (SBDM) committee, and may include training in technology, conflict resolution, discipline strategies, preventing, identifying, responding to and reporting bullying, and prevention techniques for and recognition of sexual abuse and other maltreatment of children. The district also may use districtwide staff development that is designed and approved by the district-level SBDM committee. The district must provide scientifically based staff development relating to the instruction of students with disabilities to an educator who works primarily outside of special education and who does not possess the knowledge and skills necessary to implement the Individualized Education Program of a student receiving instruction from the educator. District-offered staff development may also count toward the continuing professional education (CPE) requirement for standard certification. However, the CPE obtained by the teacher is solely determined by the teacher and not the school district.
Grievances
Most school law-related complaints regarding an individual employee’s rights or conditions of employment should be addressed through the district’s grievance procedure. The time limits for initiating a grievance are extremely short, typically 15 days or less from the time the employee knew or should have known of the event for which the grievance is filed. Legal rights to appeal could be permanently lost if these time limits are not followed. For this reason, members with potential school employment-related legal problems should contact the TCTA Legal Department immediately for advice relating to the situation. Pursuant to a law initiated by TCTA, a grievance alleging a violation of law by the supervisor need not be filed with the same supervisor. Another TCTA-initiated law passed in 2009 allows an employee to make an audio recording of any meeting or proceeding at which the substance of a grievance is discussed.
Talking to school board members
A TCTA-initiated law provides that school district employment policies may not restrict the ability of a district employee to communicate directly with a member of the school board on matters relating to the operation of the district. The employment policy may prohibit such communication relating to an appeal in which such communication would be inappropriate pending a final decision by a school board.
Teacher grading authority
Pursuant to a TCTA-initiated law, an examination or course grade issued by a teacher is final and may not be changed unless it is erroneous, arbitrary or not consistent with a school district’s grading policy as adopted by the board of trustees. A school board’s determination with regard to a grade is final and may not be appealed unless the appeal relates to a student’s eligibility to participate in extracurricular activities. Grades must be based upon a student’s relative mastery of the subject, and teachers may not be required to award a minimum grade for an assignment without regard for the quality of the student’s work. However, a district’s grading policy may allow a student a reasonable opportunity to make up or redo a class assignment or examination for which the student received a failing grade. Some districts refused to change policies that require the assignment of a minimum grade on progress reports and report cards. At TCTA’s request, the commissioner of education sent a letter to school district administrators clarifying that the law applies to grade averages as well as individual grades. In response to the letter, several districts filed suit against the commissioner requesting that he be enjoined from enforcing the law in accordance with his interpretation and asking the courts to declare that the law does not apply to grade averages. The district judge who heard the case ruled that the letter from the commissioner was a correct interpretation of the law.
Another law provides that “Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments must be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school districts. Students may not be penalized or rewarded on account of the religious content of their work.”
Corporal punishment
Corporal punishment is defined as deliberate infliction of physical pain by hitting, paddling, spanking, slapping or any other physical force used as a means of discipline. It does not include physical pain caused by reasonable physical activities associated with athletic training, competition or physical education. It also does not include the use of restraint (subject to state law and TEA rules, see restraint of students). Educators may use corporal punishment only if the board of trustees has adopted a policy allowing the use of corporal punishment, unless the student’s parent, guardian or other person having lawful control over the student has previously provided a written, signed statement prohibiting the use of corporal punishment for the student. Such a statement must be provided each school year. If you administer corporal punishment, comply strictly with your district’s policy, since it is a potential area of liability for educators.
Use of force
A professional employee may not be subject to disciplinary proceedings for the use of reasonable force against a student to the extent justified under Section 9.62 of the Texas Penal Code. This provision allows an educator to use nondeadly force “when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.” A professional employee may be disciplined for violating a district’s policy relating to corporal punishment, but may not be disciplined for using reasonable force for such actions as breaking up a fight.
Qualified immunity from liability
Texas law affords teachers and other professional employees (including teacher aides, school nurses and student teachers) fairly strong immunity from liability for actions taken as part of their duties as employees of public school districts. Generally, the employee is immune from liability as long as the employee is on duty, exercising judgment or discretion, and not using excessive force or being negligent in the discipline of students. While the definition of corporal punishment specifically excludes physical pain associated with athletic training, competition or physical education, it is possible that the assignment of rigorous physical activity such as laps, pushups, etc. could be interpreted by a court as a disciplinary action, not subject to the qualified immunity from liability, so such activity should be assigned only for training or conditioning and not as punishment. This immunity from liability applies only to lawsuits in state courts. Note that having immunity from liability does not prevent lawsuits from being filed against a school employee, so all employees should have professional liability insurance such as that provided to TCTA members. Pursuant to a law initiated by TCTA, a school district may not require an employee to assume liability for an act for which the employee has qualified statutory immunity. This immunity specifically extends to student property such as cell phones and iPods in the possession of a school employee pursuant to the employee’s duties (i.e., confiscated by the employee). School districts and administrators may not require such employees who act in good faith to pay for student property that is lost, stolen or damaged.
Pledge and one minute of silence
Students are required to recite the pledges to the U.S. and Texas flags once each day, followed by one minute of silence during which students may reflect, pray, meditate or engage in any other silent activity that is not likely to interfere with or distract another student. The teacher or employee in charge is responsible for maintaining the silence during this period. Parents may execute a written request to excuse their child from these activities.
Instructional materials or technology
The board of trustees of a school district may not require a district employee who acts in good faith to pay for instructional materials or technology that are stolen, misplaced or not returned. TCTA-initiated legislation also specifies that a school board may not require an employee to pay for electronic textbooks or technological equipment that are damaged, stolen, misplaced or not returned, unless the school employee has entered into an agreement with the district in exchange for personal use of a laptop computer.
Diabetes management plan
Each student with diabetes must have a diabetes management and treatment plan developed by the parent and the student’s doctor. At each school that has a student with diabetes, the principal must seek out school employees (other than health care professionals) to serve as unlicensed diabetes care assistants, and attempt to ensure that the school has at least one unlicensed assistant if the school has a full-time nurse; if there is no full-time nurse, the school must have at least three unlicensed assistants. The assistants will be trained by a health care professional; the training will cover recognizing symptoms, understanding proper actions to take, understanding the details of the student’s health plan, performing finger-sticks and checking urine ketone levels, administering glucagon and insulin, recognizing complications requiring emergency care, and understanding recommended schedules and food intake. Parents must sign an agreement before the assistant is allowed to help the student; the agreement includes a statement that the parent understands that an unlicensed assistant is not liable for civil damages. Schools must allow students to self-check and self-medicate in accordance with the student’s health plan. TCTA added language to this law to avoid the creation of potential liability for school employees.
Psychotropic drugs
A school district employee may not recommend that a student use a psychotropic drug (a drug intended to affect perception, emotion or behavior), suggest a particular diagnosis, or prohibit a student from attending a class or participating in a school-related activity because of the parent’s refusal to consent to the student using a psychotropic drug or having a psychiatric evaluation. This law does not, however, prohibit a school district employee who is a registered nurse, advanced nurse practitioner, physician, or appropriately credentialed mental health professional from recommending that a child be evaluated by an appropriate medical practitioner. It also does not prohibit an employee from discussing a student’s behavior or academic progress with the parents or another school employee.
Texas Public School Nutrition Policy
The Texas Public School Nutrition Policy requires each school district participating in the federal child nutrition programs to follow nutritional guidelines that reduce or eliminate foods of minimal nutritional value, any type of candy and all foods and beverages not provided by school food service. Additional information on restricted foods, when and where use is restricted, policy exemptions, penalties for violation and more is available on the Texas Department of Agriculture website at www.squaremeals.org (877-TEX-MEAL).
Educator certification
The Texas Education Code requires the certification of teachers, and the federal No Child Left Behind Act specifies that all teachers must have been “highly qualified” by the end of the 2006-07 school year (in some cases, later deadlines apply). The State Board for Educator Certification (SBEC) regulates and oversees state teacher certification standards and educator preparation, as well as disciplinary procedures and a code of ethics. The code provides a specific statement of the conduct that is expected from Texas educators and a list of enforceable standards. For more information on educator certification, see Educator certification/professional development.
Criminal background checks and fingerprinting
State law requires virtually all individuals who will have direct contact with students in the public school system to undergo some type of criminal history review. Specifically, certified educators, classroom substitutes and aides must submit fingerprints and be subject to a national criminal history background check. Individuals who have been convicted of certain kinds of serious crimes are ineligible for employment by a public school entity and may be subject to suspension or revocation of their teaching credentials. Criminal history information collected by a school district, the Department of Public Safety, SBEC or TEA is confidential. An educator may obtain a copy of his or her own criminal history.
Job postings
A TCTA-initiated law requires school districts to allow employees an opportunity to apply for an open professional position, and post notice of job vacancies for at least 10 school days on the district’s Internet website if the district has one, OR on a bulletin board at a place convenient to the public in the district’s central administrative office and at each campus office in the district. Districts are allowed to fill the position without such notice if the position affects the safety and security of students or if the district must fill a vacant teaching position during the school year. School district employment policies may include a provision that allows each current district employee an opportunity to participate in a process for transferring to another school or position within the district.
Nepotism
A school board member cannot vote to hire a person who is related within the third degree by consanguinity or within the second degree by marriage to any member of the school board. The first degree is a parent or child. The second degree is grandparent, grandchild, sister or brother. The third degree is great-grandparent, great-grandchild, aunt, uncle, niece or nephew. There are exceptions. One applies to school bus drivers in counties of less than 35,000 in population. Another is the continuous employment exception. If a person is an employee of a school district for at least 30 days prior to the appointment of the public official, the employee may continue in employment and other members of the governing board may vote to rehire, promote, increase the compensation of, or dismiss that employee, but the relative of the employee must abstain from voting. If a district has delegated final hiring authority to the superintendent for a class of employees, then the above provisions apply both to school board members and to the superintendent for decisions relating to that class of employees. For example, if a district has delegated the final hiring authority to the superintendent for all classified employees, then the superintendent could not hire his/her own son, daughter, spouse or any other person within the prohibited degree of relationship as a classified employee.
Paperwork reduction
A TCTA-initiated law reducing paperwork requirements provides for the following:
- Districts must limit redundant requests for information and the number and length of written reports that a classroom teacher is required to prepare.
- Reports that teachers may be required to prepare are limited to a specific list that essentially covers grading, lesson plans, attendance reports, reports related to the health or safety of students, accreditation information or material related to a grievance or other legal matter. Teachers may only be required to prepare unit or weekly lesson plans that outline, in a brief and general manner, the information to be presented in each period at the secondary level or in each subject or topic at the elementary level. The complete list is available on the TCTA website.
- School boards are required to review paperwork requirements and transfer to noninstructional staff any reporting tasks that could be reasonably accomplished by that staff.
- Though the law allows districts to collect other essential information, it requires the agreement of the teacher in such situations.
The commissioner of education must review paperwork that TEA requires from a school district and must adopt a policy that limits the written reports and other paperwork that TEA requires a principal or classroom teacher to complete.
Professional association/political activity
Teachers continue to have the right to join or to refuse to join any professional association, and a school board member or school employee may not directly or indirectly require or coerce a teacher to join any group, club, committee, organization or association. Teachers also may not be prohibited from participating in political affairs in the community, state or nation.
Payroll deduction
Each school district must provide payroll deduction of professional dues upon the request of the employee for the amount and the number of pay periods specified by the employee. Under state law, the deductions shall be made until the employee requests in writing that the deductions be discontinued. The district may charge an administrative fee, which may not be greater than the actual administrative cost or the lowest fee the district charges for similar salary deductions, whichever is less. The Attorney General has issued an opinion that school districts do not have the authority to use payroll deductions to collect political action committee contributions. Although the opinion is advisory only, some school districts are refusing to accept payroll deductions that include political action committee contributions, in which case TCTA members are encouraged to make contributions to our political action committee, ACT For TCTA, by check or credit card.
