This article appeared in the Spring 2020 issue of The Classroom Teacher.

Some districts have already notified teachers about their 2020-21 employment prospects. Some teachers will get notices in the next few weeks. Some districts will wait until the middle of May to tell educators about their future employment status. 

This article covers, generally, the laws related to notice and hearing for end-of-year release of term contract educators (nonrenewal), end-of-year release of probationary contract educators (termination), the evidence districts need to take action, and some cautions and strategies. This article does not address continuing contract termination, term or probationary contract termination during the school year, or charter school contracts and at-will agreements.

Timely notice

Previous contract law (Chapter 21 of the Education Code) required districts to give notice of proposed nonrenewal or termination no later than the 45th calendar day before the last day of student instruction. Current law requires districts to give notice no later than the 10th calendar day before the last day of instruction. Many districts now wait until May to give notice, because events occurring in March, April and May could justify nonrenewal or termination. Notices must be hand-delivered, unless the educator is not in attendance at school when the district attempts to give notice.

Probationary contract termination

Texas Education Code Section 21.103(a) states that a district can terminate probationary contracts in the best interest of the district by giving the notice described above. The law does not require a district to give reasons for termination. The law does not entitle the educator to a hearing. This decision is not appealable. The notice received by probationary contract teachers will state that the board voted to terminate the educator’s employment at the end of the contract year in the district’s best interest. If a district fails to give timely notice, the district must give the employee a contract for the succeeding school year. To protect the right to a contract, an educator may have to file a grievance within a few days of receiving untimely notice. 

Districts cannot terminate educators for legally impermissible reasons such as age, but can for reasons that might seem arbitrary, such as a principal deciding that a teacher is not a good fit on campus. An educator can file a grievance seeking to overturn a probationary contract termination, but such grievances rarely succeed.

Employment application questions: termination or resignation

Most district employment applications ask whether the applicant has been terminated or resigned in lieu of termination. (Applications include many different questions posed in many different ways; failing to answer truthfully can be grounds for termination.) Avoiding termination and avoiding having to answer “yes” to questions about resignations in lieu of termination can protect an educator long term. One strategy involves submitting a resignation effective at the end of the school year before termination takes place or before a supervisor meets with an educator and discusses impending termination or resignation. A resignation that takes effect at the end of the school year cuts off termination and conversations regarding the district’s intent not to offer the educator a new contract. Submitting a resignation to the district completes the resignation process. An educator cannot rescind this type of resignation to continue working in the district.

Term contract nonrenewal

While probationary contract law puts an educator in a situation similar to an at-will employee at the end of the contract term, term contract law gives educators protections that most Texas employees will never have: the right to notice of the reasons for nonrenewal, a nonrenewal hearing and an appeal process through the commissioner of education. The process starts with a notice of proposed nonrenewal that must be delivered by the district as described above. 

The educator has 15 days to request a hearing, which must be held within 15 days of the request. (The parties can agree to extend the hearing deadline.) Unless the school board elects to use the independent hearing examiner process for the hearing, the board conducts the hearing. At the hearing, the educator (or the educator’s attorney) can cross-examine district witnesses, present evidence supporting renewal and make arguments for renewal to the board. The board makes decisions about the credibility of the witnesses, weighs the evidence and decides whether to renew or nonrenew the contract. The board can impose reasonable time limits on the presentation of evidence, limits that can be as short as one or two hours per side. Although the administration must prove its case by a preponderance of the evidence and an educator can appeal a nonrenewal decision to the commissioner, the standard of review on appeal presents the greatest roadblock to success for educators. 

The law limits the questions the commissioner can ask when an educator appeals the nonrenewal of a contract. The commissioner cannot ask whether the board made the right decision or whether the board could have made a better decision, and the commissioner cannot substitute his/her judgment for the judgments made by trustees. If a board gave timely notice, included notice of the reason(s) for nonrenewal adopted in district policy, presented evidence (more than a shred or scintilla) in support of at least one reason for nonrenewal, complied with open government laws, afforded the educator a minimum degree of fairness in the conduct of the proceeding, and made a timely decision, the commissioner must uphold the decision, even if the employee effectively countered the administration’s case and presented more or better evidence supporting renewal. To summarize the reality of nonrenewal hearings, the board judges the credibility of witnesses, weighs the evidence and is presumed to have acted legally in the face of an appeal. 

Many teachers choose to resign rather than go through nonrenewal. TCTA attorneys represent members in nonrenewal hearings and assist members as they seek to convince boards to renew term contracts. 

Evidence

A district does not, by law, have to disclose the evidence it uses to determine its best interest and to justify termination of a probationary contract. A district must disclose the evidence the administration believes supports contract nonrenewal. The evidence can take many forms, including conduct not directly school related that impairs the educator’s effectiveness as a district employee. Most frequently that evidence takes the form of observation summaries, walkthroughs, performance memos/reprimands and growth plans. The Education Code directs districts to use appraisal information in hiring and firing decisions.

A district shall use a teacher’s consecutive appraisals from more than one year, if available, in making the district’s employment decisions and developing career recommendations for the teacher. Texas Education Code § 21.352(e).

Instead of analyzing the types of evidence and the appraisal rules that might impact contract renewal, it should be noted that administrators seeking to document performance that could lead to nonrenewal focus on patterns of performance “deficiencies,” especially patterns of similar deficiencies that appear over the course of a year or multiple years in walkthroughs, observations, improvement plans and documentation related to improvement plan outcomes. 

It appears that the readiness of districts to terminate or nonrenew teachers has waned recently and more districts are focusing on remediation as they find it harder to attract and retain good teachers. 

Any TCTA member with questions about contract renewal or termination should call the TCTA Legal Department at 888-879-8282 promptly.