YOUR ALLY
How protected is teacher planning time, really? Here’s what the law says
T BY PAUL TAPP ATPE Managing Attorney
he ATPE Member Legal Services Department is receiving an unusually high number of questions this school year about planning or conference time, almost all related to teachers being required to do other things during their planning time, such as participating in grade level, learning community, 504, or Admission, Review, and Dismissal (ARD) committee meetings or even covering other teachers’ classes. Many of these issues are long-standing, but the staffing shortages many districts are experiencing during this new phase of the pandemic are contributing to these issues as administrators are finding it hard to find substitutes. That makes this a good opportunity to review the law on planning time. Section 21.404 of the Texas Education Code states: “Each classroom teacher is entitled to at least 450 minutes within each two-week period for instructional preparation, including parent teacher conferences, evaluating students’ work, and planning. A planning and preparation period under this section 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 commissioner of education has made three significant rulings regarding what a teacher may be required to do during their planning time. First, in the 1986 Strater v. Houston ISD decision, the commissioner stated that it was the teacher who determined what planning activities were best: “The purpose of the planning and preparation period is to allow 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.”
In the 2010 Canutillo Educators Association v. Canutillo ISD decision, the commissioner defined “instructional day”: 10 ATPE NEWS
“The term “instructional day” as used in Texas Education Code section 21.404 is interpreted to mean the time when students are receiving instruction at the school where the teacher is located. Hence, planning and preparation time must occur during the time that students at the school where the teacher is located are receiving instruction.”
Finally, in the 2014 Bledsoe v. Huntington ISD decision, the commissioner made it clear a teacher could not be assigned or even voluntarily accept nonplanning duties during the required planning time: “There is no exception provided for teaching duties performed during the planning and preparation period. Performance of teaching duties during the planning and preparation duties is not permitted by the Education Code and is not an exception to the Chapter 21 teacher contract requirement.”
These decisions by the commissioner of education have given teachers a great deal of authority over their planning time. However, they are opinions of the commissioner, and, as such, Commissioner Mike Morath can modify, overrule, or make exceptions to them. For example, there has never been a case where the commissioner has ruled specifically about a teacher being required to attend ARD or 504 meetings during their planning time. There is no stated exception in the law for ARDs or 504 conferences. That said, there is some reason no one has challenged having ARDs and 504s during planning time. It could be concern about going out on a limb and having the commissioner say that ARDS and 504s are OK during planning. That is a realistic possibility because, by their nature, they would fall under the heading of “planning.” It could also be that the most likely alternative to having ARDs and 504s or other planningrelated meetings, such as team-planning meetings, during planning time is having them after normal school hours—meaning the educator would have to stay late to attend the meetings. Teacher contracts have an “additional duties” clause that allows the district to require them to stay late if needed. So, staying late would be a real possibility, and many teachers, given that choice, continued on page 38
