Answers to the five most common legal questions
TCTA staff attorneys respond to thousands of legal inquiries from TCTA members every year. Although every situation is unique, there are some questions that come up for lots of members throughout the state. This article will answer some of the most commonly asked questions received by the Legal Department.
1. APPRAISALS
2. PLANNING TIME & LUNCH DUTY
3. STUDENT REMOVAL
4. EXTRA DUTIES
5. RESIGNATION
This article is provided for general information purposes only. It is not directed toward any individual or specific case, is not intended to replace the advice of an attorney, and does not create an attorney/client relationship. Members requesting legal services are directed to contact TCTA through our toll-free telephone number (888-879-8282). In no event are legal services provided to persons who are not members of TCTA or who were not members of TCTA at the time of an action, omission or occurrence giving rise to the problem for which legal services are requested.
1. APPRAISALS
What are my rights if I receive a bad evaluation?
Most school districts use the Professional Development and Appraisal System or
PDAS to appraise teachers. The commissioner of education has developed a series of rules that govern this appraisal system, and these rules, combined with school
district policies, provide some options for responding to a negative appraisal document. These options may be exercised individually or all together, depending on the circumstances of the situation.
You have the right to submit a written response to the evaluation.
A teacher has the right to submit a written response or rebuttal after receiving a written observation summary, or any other written documentation associated with
the appraisal and/or after receiving a written summative annual appraisal report. A written response must be submitted within 10 working days from the date the objectionable appraisal document was received.
The response may point out violations of the commissioner’s appraisal rules or consist of an objective point bypoint discussion of observable classroom performance that demonstrates proficiency and should be viewed as a tool intended to persuade the appraiser to reconsider objectionable scoring on the evaluation. The response becomes part of the teacher’s appraisal record.
It is almost always a good idea to submit a response to a negative evaluation. A written response provides the teacher with the opportunity to present differing perspectives of events and clarify some points that may have been too hastily identified as “poor performance.” However, keep in mind that submitting a response
does not have the effect of changing the evaluation. The district will retain the appraisal document and may rely on it for employment action in the future, even in the face of the response.
You have the right to request a second appraisal by another appraiser.
A teacher may request a second appraisal by another appraiser after receiving a written observation summary with which the teacher disagrees and/or after receiving a written summative annual appraisal report with which the teacher disagrees. A request for a second appraisal must be submitted in writing within 10 working days from the date that the initial observation was received.
The second appraiser will be selected based on procedures adopted by the district. Once the second appraiser has been identified, he or she will make observations and walkthroughs as necessary to appraise the teacher in all domains. The relative weight assigned to the two appraisal results will be determined by local policy; however, many school districts assign equal weight to the two evaluations.
You have the right to file a grievance.
A teacher has the right to file a grievance regarding any condition of work, which can include the scores received on an appraisal instrument. Additionally, filing a
grievance may preserve an ability to assert a legal argument that the district has failed to comply with the law and district policy related to teacher appraisal. The timelines for filing a grievance are very short, usually 15 days or less. Please call the TCTA Legal Department if you are a TCTA member and believe that you might need to file a grievance.
2. PLANNING TIME & LUNCH DUTY
What are my rights to have a planning and preparation time and duty-free lunch?
Planning and preparation time
Every teacher is entitled to 450 minutes of planning and preparation time every two weeks, in increments of not less than 45 minutes within the instructional day. During planning and preparation time, the district cannot require a teacher to engage in any activity other than parent-teacher conferences, evaluating student work and planning.
A district may not require a teacher to participate in group planning or staff development during planning and preparation time if doing so would mean that the teacher receives less than the statutory minimum of planning time. For example, if teachers receive 45 minutes of planning and preparation time every day, the district may not lawfully require group planning or staff development during this time.
Duty-free lunch
Every classroom teacher and full-time librarian is entitled to a 30-minute lunch period that is “free from all duties and responsibilities connected with the instruction and supervision of students.” During this time, the district cannot require teachers to remain on campus or eat lunch with students. The law does provide exceptions to this entitlement, but the situations in which such exceptions will apply are rare and extreme. Even when they do apply, the district may only require a teacher to supervise lunch once a week. There is no exception in the law that allows a district to require teachers to perform lunch duty during the administration of a state assessment or a benchmark exam.
3. STUDENT REMOVAL
What are my rights to remove a disruptive regular education student from my class?
A teacher has the right to remove a student from the classroom when the student’s behavior repeatedly 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. A teacher may also remove a student 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.
If a teacher removes a student from class under these circumstances, the principal should apply appropriate disciplinary measures that are consistent with the Code of Conduct and specifically may place the student into another appropriate classroom or into in-school suspension.
When a teacher removes a student to the principal’s office for serious or persistent misbehavior, the teacher has the right to refuse to consent to allow the student to return to the classroom. In such a case, the principal may not return the student to the teacher’s class until the principal or the principal’s designee has conducted a conference with the student, a parent or guardian, and the teacher removing the student.
The conference must be held not later than the third class day after the removal. If the teacher objects to having the student placed back in the class, the principal may return the student to the teacher’s class, but only after the campus placement review committee determines that placement in the teacher’s class is the best or only alternative.
If the student has been removed for assaulting the teacher, the student may not be returned to the teacher’s class without the teacher’s consent.
Certain more serious conduct, such as assault or drug possession, requires a mandatory placement in the disciplinary alternative education program (DAEP) or expulsion unless there are mitigating factors or a lack of intent for the misconduct. The TCTA Legal Department can help identify whether specific student conduct requires removal to the DAEP.
Districts cannot assign students under age 6 to a DAEP and cannot place elementary students with non-elementary students in a DAEP.
4. EXTRA DUTIES
Can the district make me perform duty after school hours or on weekends?
Extra duty that is unpaid and occurs outside of the regular workday
Sometimes a district will direct a teacher to perform duty outside of the regular workday or on weekends without compensation. Whether this directive breaches a teacher’s contract depends on the circumstances. A teacher’s contract with a school district incorporates state law and district policy. State law specifies that the school year consists of 180 days of instruction. Teachers are required by state law to work a minimum of 187 days.
The board of trustees sets the district calendar that is also incorporated into a teacher’s contract. Therefore, an argument can be made that any duty that is assigned outside of the workdays set by the board of trustees constitutes a breach of contract by the district. Most teacher contracts have a provision that allows the assignment of extra or additional duties. Requirements for teachers to attend parent teacher meetings or other similar job-related activities at night have been upheld pursuant to this provision.
The district’s limitation on its authority to impose extra duty after hours stems from the fact that this provision must be read in harmony with the contract as a whole, which means that the imposition of too much extra duty may effectively invalidate the contract term and constitute a breach of contract. Whether or not this breach has occurred depends on how many days and hours of extra duty the district is attempting to impose and is evaluated on a case-by-case basis by the commissioner of education when cases on appeal reach this level.
Paid supplemental duties
Some teachers perform duties that are not explicitly provided for under the terms of the contract, but for which they receive additional compensation. For example, a classroom teacher may serve as a department chair and receive a stipend for serving in this capacity. Such duties are generally referred to as “supplemental duties.” Most classroom teacher contracts explicitly state that a supplemental duty is an at-will position that may be terminated by either party at any time.
Because a supplemental duty is not included in the contract held by a classroom teacher, there is no right to due process or any type of hearing prior to being released from supplemental duties, and a district may remove an employee from supplemental duties for any reason that is not in violation of the law. However, the converse is also true – a teacher who wishes to resign from a supplemental duty may do so, for any reason at all, without resigning from the contract. Teachers who choose to do this should be aware that the resignation from the supplemental duty will result in the loss of the stipend associated with that duty; however, the pay granted by the contract for classroom teacher duties should remain the same.
A supplemental duty differs from a dual assignment contract such as a teacher/coach contract. A dual assignment contract can either treat the additional assignment as a supplemental duty or link the additional assignment to the teaching contract. Whether you have contractual protection for the supplemental assignment and, conversely, whether you can resign from the supplemental assignment without resigning the teacher position depends upon the wording of your contract. If you are a TCTA member with questions about your contract, please contact the TCTA Legal Department.
5. RESIGNATION
What are my rights to resign from my school district?
A classroom teacher may resign for any reason without penalty up until the 45th day before the first day of instruction of the upcoming school year. A written resignation mailed by prepaid certified or registered mail to the president of the board of trustees or the board’s designee at the post office address of the district is considered filed at the time of mailing. After this time, the teacher may resign without potential penalty only if released from the contract by the school board, although most school boards delegate this authority to the superintendent.
Many school districts will agree to release a teacher from the contract when the district finds a suitable replacement. To that end, a district is more likely to release the teacher from a contract if the teacher gives plenty of notice and works to ensure a smooth transition. A teacher who wishes to resign mid-year should be prepared to assist the district in finding a suitable replacement, or if one has already been selected, to work on lesson plans or other transitional items that might assist the incoming teacher.
If the district chooses not to release a teacher from the contract and that teacher resigns anyway, the district may file a complaint with the State Board for Educator Certification (SBEC) and seek sanctions against the teacher’s credentials for contract abandonment. If this happens, SBEC may seek to reprimand, suspend or even possibly revoke the teaching certificate. The only defense to an action seeking sanctions for contract abandonment, other than the district’s failure to act in a timely fashion to seek sanctions, is that the teacher had good cause to leave employment.
There is no set definition of good cause. A teacher seeking to prove good cause has a very high burden to prove that the contract abandonment was for a reason beyond the control of the teacher, and the teacher took reasonable steps to mitigate the disruption caused by the teacher’s resignation. For instance, resigning a position to take another job has not typically been accepted as good cause.
TCTA members with specific questions about these topics or any other legal issue
related to school employment may call the TCTA Legal Department at (888) 879-8282.
