This article appeared in the Winter 2016-17 edition of The Classroom Teacher.

You’ve likely heard and read a great deal about Districts of Innovation (DOI) in recent months, as the Texas Legislature last session approved this mechanism to allow individual school districts to exempt themselves from many of the state’s laws. (There are a few exceptions, including laws applicable to charter schools, and those relating to school finance and accountability.) We have provided information on the process for establishing DOI status at tcta.org/districts_of_innovation, and are now beginning to have a feel for what they are going to look like, at least for the near-term, when implemented.

Initially, it appears that they would more appropriately have been named Districts of Exemption — since there is little innovation present in the plans that have been filed with the commissioner thus far. Incidentally, the commissioner has no authority over these locally developed plans; he doesn’t approve or veto them, though it is our understanding that when districts try to illegally exempt themselves from something, his staff is advising the districts accordingly. The lack of innovation evident in the plans filed thus far was noted during a recent meeting by members of the Senate Education Committee, several of whom seemed somewhat dismayed that what was happening was not what they had envisioned. Unfortunately, some districts are also choosing to grant themselves the ability to ignore state laws that provide basic, but very important, teacher legal protections.

Are teacher rights and benefits really in jeopardy?

Teacher legal protections are absolutely in danger from these DOI plans. At least three districts (Huntsville, Big Spring and Coppell) exempted themselves from the law that requires districts to employ teachers under a contract, using a rationale that has to do with extending the probationary period for some teachers. Other DOIs that used this same rationale correctly took an exemption from the specific law regarding probationary contracts.

Even worse — much worse — at least one district (Anthony ISD) has exempted itself from the entire Chapter 21 of the Education Code, the chapter that contains most of the important key legal rights and protections for Texas teachers. This school district will no longer be required to hire teachers under contracts, hire certified teachers, follow due process when firing a teacher, pay at least the state-required minimum salary, or provide duty-free lunch and planning and preparation periods.

As other districts eye the experiences of districts such as Anthony ISD that are successfully eliminating state-based teacher legal protections, we expect to see many more making similar attempts. Teachers in districts going through the DOI process will need to be vigilant about the exemptions under consideration, and must be vocal when important laws are at stake.

Numbers increasing rapidly 

At the time of this writing, 51 districts have filed completed plans with the commissioner, though many more have begun the process. The numbers are growing quickly, perhaps in part due to rumors that if districts do not move to DOI status now, their ability to do so may be curtailed in the upcoming legislative session. A full repeal of the DOI designation is very unlikely, though it does appear that there may be a legislative revisiting of the start-of-school-date issue, which is one exemption that nearly all of the DOIs have sought, in order to allow school to start earlier than the fourth Monday in August.

Popular exemptions

Perhaps due in part to the guidance provided by the Texas Education Agency in the DOI portion of its website, there is much similarity among districts regarding the exemptions being sought. The TEA list providing a sampling of possible exemptions, which was relatively short, included the school start date, class-size caps and certification, in addition to (somewhat randomly) the new law initiated by TCTA last session providing for campus behavior coordinators at every school. There are issues, the implications of which have not yet become fully evident, associated with all of these exemptions.

For example, the real impact of a district exempting itself from class-size caps and parent notification laws in K-4 is that parents will no longer have to be notified when classes are larger than 22:1. Some DOI plans have stated that the district will notify parents at some point (for example, when a classroom reaches 25:1), but it’s important to note that the DOI law does not state that the rationale given in the plan is binding. In other words, regardless of the intended use of the exemption, the practical effect is that the district is completely exempted from the state law. 

Districts have long been able to get class-size cap exemptions from TEA — in fact, we’re not aware of one ever having been denied — and we wonder how many parents understood the loss of not only the 22:1 limit but the notification provision when the DOI plan was approved.

Similarly, and in apparent conflict with the push in recent years to address teacher quality and provide more meaningful training, teacher certification is a popular area for DOI exemptions. Federal law requires the certification of bilingual and special education teachers, though a few DOIs are apparently not yet aware of that continuing requirement. Generally, exemption from certification is being sought for career and technology and STEM educators, though again, the rationale is dubious. Current certification requirements allow the substitution of work experience for some of these positions, and districts have long had the ability under current law to hire individuals under “school district teaching permits” that do not require state certification, but do require commissioner approval. In fact, a law enacted in 2015 allows districts to issue a school district teaching permit to an uncertified person to teach a non-core academic career and technical education course without having to seek approval from the commissioner. All that is required is that they pass a criminal background check and obtain 20 hours of classroom management training. But apparently even this flexibility is not enough for some school districts.  Again, one of the primary benefits to districts of eliminating certification requirements is removing the requirement of parental notification, and potentially to be able to hire personnel less expensively.

Here’s a glance at the current DOI plans: 

Of the 51 district DOI plans finalized to date, 45 have exempted themselves from the school start date requirement. Forty-one are exempt from teacher certification requirements, and 31 from class-size limitations. Other common exemptions include the requirement that students be in attendance for 90 percent of class days to receive credit, the provision for 75,600 minutes of instruction in a school year, and the teacher and principal appraisal systems. A handful of DOI plans include exemptions from district- and campus-level planning requirements, teacher contract days, and staff development requirements.

The importance of phrasing and rationale

Among the gravest concerns TCTA has about DOIs is that while the DOI plans explain how the exemptions are to be used, that explanation is not binding unless committed to policy by the board of trustees. In short, much like with bond issues, you don’t have to build what you told taxpayers you would when they were voting. Even if the rationale were converted to district policy, there may be no way to enforce the local policy, as there is no appeal to TEA unless a school law or contractual provision providing a monetary benefit is violated.

In one district, an exemption was sought from the current law requirement that teachers have planning and preparation time of not less than 450 minutes every two weeks, during the school day. The rationale was to allow teachers to request a different structure, such as scheduling their conference period before or after school. Despite this apparently “teacher-friendly” proposal, the impact was to completely eliminate the requirement for planning and preparation periods. There is now no ongoing requirement in that district, while its DOI plan is in effect, to offer planning and preparation periods at all.

Using teacher certification as another example, if a DOI plan includes an exemption from Section 21.003 of the Education Code, that district may not be required to hire certified teachers — even in core areas — regardless of the stated intent of the exemption, which may be limited to CTE or STEM teachers. (As noted earlier, certification is still required under federal law for special education and bilingual teachers).

Even if the district sticks to the rationale presented in the plan, these descriptions are often worded broadly. A district seeking certification exemption noted in its rationale that it was for CTE teachers “and others as needed.” This language would allow the hiring of uncertified teachers for nearly any class. Other districts noted that teachers could be required to teach one subject for which they were not certified. The phrasing is not limited to one class period in a subject for which the teacher is not certified, as we have seen in the past; rather, it would permit a social studies teacher to be assigned as a full-time math teacher.

A district could easily assert that it should be exempt from any sort of salary schedule so that it could pay good teachers more. In reality, districts can already pay “good” teachers more, and would not be bound to do so by virtue of the rationale expressed. In light of the long-term implications, the lack of binding rationale or a requirement that rationale be converted to district policy could be very damaging.

How to get involved

If you review the link mentioned previously in this article, you will see that there are opportunities for significant involve-ment if DOI status is being considered in your district. We are aware of a few districts, including Brownsville, Brownwood and Georgetown ISDs, in which involvement by TCTA members and others resulted in the district deciding to defer or delay action on becoming a DOI, or to at least remove potentially harmful proposals, due to legitimate concerns raised affecting students, parents and teachers.

Ideally, you and/or some of your local leaders would serve on the District of Innovation committee. That is the place where the plan is formulated, and the earlier your input is received, the more meaningful it will be. If you’re not on the committee and your district has announced plans to seek DOI status, find out who is, and talk to any of the members who might be willing to share information with you (this is supposed to be an open process) and to voice your questions and concerns. The district-level decision-making committee (these have been required by law for many years, though quite a few districts are now scrambling to get them up and running) must also approve the proposed DOI plan before it goes to the local school board for a final vote. The law requires a district to nominate and elect professional staff representatives to its decision-making committee, and at least two-thirds of the professional staff must be classroom teachers. Again, if you can, be on that committee; if not, communicate with the teacher representatives who are. This committee does not need to be a rubber stamp for the work of the DOI committee, and can be an important place to clarify or step on the brakes if bad policy is being proposed. 

There are relatively few opportunities for teachers to address their boards of trustees publicly about concerns without being labeled as troublemakers or drawing the ire of administrators. This is one of those chances, as the process requires an open hearing. If you’re worried about the consequences of what has been proposed, this is a great opportunity to tell your elected trustees why and suggest changes. It is also particularly critical, now that local boards have this newfound power to exempt themselves from significant aspects of state law, that you know your candidates for the school board and where they stand on the issues, and vote. This also may be a good time to consider encouraging candidates to run for the school board, including retired educators or others who have a good understanding of what supports are needed for a successful learning environment.

Finally, all districts seeking DOI status should be held accountable for the rationale they use to “sell” the proposal. At every opportunity, involved teachers should urge that the local board of trustees enunciate plans and a timeline to adopt policies that reflect the rationale used for seeking the exemptions from law, and go no further. This is a critical, but not currently required, component of ensuring that the community, its students, its policymakers, and its employees get what they thought they were getting.

How TCTA can help

By the time information becomes available on the TEA website regarding your district’s DOI, it’s a done deal. You will need to watch the local media, local school board agendas, and other sources of information within the district to determine whether an effort to seek DOI status is brewing. You can also ask your administration whether such status will be sought, and request to be involved in the process, if possible. Documents related to seeking DOI status should be open records and subject to disclosure with a written request to the custodian of public records (usually the superintendent). TCTA can make that request for you, if you call our legal staff and ask for that assistance.

Our attorneys also can review proposed exemptions and rationale and provide you with potential concerns or advantages, along with modifications that might be sought. We can provide you with language that a friendly trustee or superintendent might use to ensure that the rationale for DOI exemptions is placed in district policy in an appropriate manner, which could render that rationale binding and limit the exemption to the uses for which it was sought. We also can provide suggestions for more limited exemptions from laws that will accomplish the stated purpose without creating negative consequences, whether unintended or otherwise.

We fully expect the DOI issue to be revisited during this year’s legislative session, and will do our best to represent your interests in seeking changes to the law and keeping you informed.