The Classroom Teacher | Summer 2021

THE MAGAZINE of the TEXAS CLASSROOM TEACHERS ASSOCIATION Summer 2021 | Volume 41 | Number 1

COVID 2.0:

Options for teachers as pandemic persists ALSO INSIDE: 2021 legislative sessions | Meet TCTA State President Sherry Miller Districts turn to a new kind of tutoring | 2021-22 professional liability insurance policy

EXECUTIVE DIRECTOR’S MESSAGE

Sturm und Drang (Storm and Stress)

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n hindsight, it appears that spring break of 2020 was an inflection point, after which things will always be altered. The trick is to figure out just how to address what has changed in a meaningful way in this time of “storm and stress,” and that’s the hard part.

When the pandemic started and rapidly gained momentum, our office was — and continues to be — flooded with calls from members (and non-members who meant to join) with what seemed like every circumstance you can imagine relating to all things COVID. It was an unusual time for our remarkable legal staff as the answers were unknown, developing, changing hourly, varying by jurisdictions, and generally far from final.

Compounding the situation were the deep and unusual divides among our members. We rarely have unanimity among our members on anything because people’s politics and circumstances differ. As an aside, it always frosts me when a random legislator says the teacher groups don’t represent their members, when I feel certain that no legislator has all of his constituents singing in harmony.

But this time was different. We had a significant percentage of members calling in to seek protection from infection risk, whether through mask requirements, remote work, or even the possibility of a late resignation while other members were asking “can they make me do this” in the context of things like mask requirements.

And then the governor jumped right into the middle of it in Alexander Haig-like fashion to announce that masks could not be required. His attorneys acknowledged in court recently that he had no authority to enforce such an edict, which might suggest to the careful observer that he had no authority to make it.

Meanwhile, everyone from the CDC to WHO to local public health officials were weighing in, resulting in a revolt against both the governor’s edict and TEA’s guidance.

You might be interested to know that “guidance,” which does not go through the formal rule-making process, is technically the legal equivalent of a “suggestion.” So the next time your district starts quoting questionable TEA guidance, keep that in mind. For the record, the commissioner is a good sport when I tease him about the “suggestions” he issues.

Therein lies the potential silver lining, at least in my hopes and dreams. The lack of clear lines of authority and process and the question of whose guidance trumps all has highlighted the need for a much more structured and less off-the-cuff approach to matters affecting the health and well-being of the entire state’s population. Here’s hoping that some smart political figures will seize the opportunity to lead on that issue.

The same opportunity has arguably been presented for the operations of the public schools. For years, our lobby team has periodically heard legislators complain about how our schools look the same as they did 50 years ago, questioning why we’re still using an agrarian calendar, why we’re still using the same structure for classroom configurations, etc.

Obviously, technology has changed that some, but the pandemic has offered us a peek at how different things might be if we use and build on our newfound skills.

For example, I just finished a three-day legal seminar that used to require travel and two nights in a hotel, via Zoom, leaving me with time to complete other tasks before and after the online sessions each day. The potential for revising and customizing the instructional approach is significant, and you just demonstrated multiple facets of it Continued on page 31 2

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Texas Classroom Teachers Association PO Box 1489, Austin, TX 78767-1489 Office hours: 8 a.m. to 5:30 p.m., weekdays Phone: 888-879-8282 Fax: 512-469-9527 Website: tcta.org

2021-22 Executive Board President

Sherry Miller, Killeen President-Elect

Eleanore Malone, Tyler Immediate Past President

Twila Read, Grand Prairie Budget

Melody Young, Sherman Curriculum & Instruction

Joyce McCurdy, Wichita Falls Governance

Jennifer Hutchinson, Hays Consolidated Legislation

Cristal Isaacks, Levelland Membership

Debra Helbert, Lamar Consolidated Professional Rights & Responsibilities

Sharron Wood, Deweyville Teacher Personal Services

Nydia Alvarez-Alonzo, Mission

Staff Contacts Executive Director

Jeri Stone

General Counsel

Lonnie F. Hollingsworth Jr. Associate Executive Director

Ann Fickel Attorneys

Jeri Stone Lonnie F. Hollingsworth Jr. Dohn Larson Holly Eaton Michael Currie Gerald Francisco Julie Leahy Paige Bruton Williams Business Office

Park Brigtsen

Communications

M. Clare Haefner Legislation

Paige Bruton Williams Lonnie F. Hollingsworth Jr. Ann Fickel Holly Eaton Pamela McPeters Membership

Persie Ngo-Hatchie Professional Development and Advocacy

Holly Eaton

Services Corporation

Jan Lanfear

Special Projects

Kate Alexander

About TCTA

The Texas Classroom Teachers Association is an independent association for Texas teaching professionals that was founded in 1927. TCTA is based in Austin and is the only statewide teachers association that limits active-level membership to those directly involved in classroom teaching or teaching support.

CONTENTS

Summer 2021 | Volume 41 | Number 1

DEPARTMENTS

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On the Cover COVID 2.0:

Executive Director’s Message

Options for teachers as pandemic persists

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We hoped COVID-19 would be behind us. But the pandemic persists as the 202122 school year begins. While courts sort out mask and vaccine mandates, Legal Notes on page 7 looks at leave options and accommodations for educators. Our legislative wrap-up on page 14 includes some COVID-19 related legislation, and pages 8, 9 and 12 delve into relief funding and steps to address learning loss.

TCTA News & Notes

7 Legal Notes

8 Washington Watch

FEATURES

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State and federal laws make budget priorities clear The Texas Legislature passed Senate Bill 1, which includes $51.8 billion for the Foundation School Program, a 5.6% increase over the current biennium.

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Striking the right chord Get to know TCTA’s 2021-22 State President Sherry Miller.

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Districts turn to a new kind of tutoring Given that many students suffered at least some learning loss during the pandemic, tutoring has emerged as a key strategy to attempt to help them catch up to grade level. Understanding the nuances of the different design features of tutoring is important given that state and federal funding may only be available for certain types of tutoring, so TCTA put together FAQs to help navigate the complexities.

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The 87th Session The 87th session of the Texas Legislature ended abruptly as House Democrats walked out May 30 to break a quorum and preclude voting on a controversial elections bill. Other key legislation also perished, leading to two special sessions to address many of the governor’s priorities.

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2021-22 Professional Liability Insurance Coverage Policy

THE CLASSROOM TEACHER (ISSN-0279-2494) is the official publication of the Texas Classroom Teachers Association (TCTA), providing news and opinions in the interest of education excellence. All contents are copyrighted and may not be reproduced without the publisher’s permission. The views and opinions contained in this publication are not necessarily those of the publisher. Copyright © 2021. Publication schedule is quarterly. Annual membership dues for TCTA are $175, $5 of which is allocated to a one-year subscription to THE CLASSROOM TEACHER. Subscriptions for nonmembers are available for $10 per year. POSTMASTER: Please send changes of address, articles and/or photographs to: Editor, THE CLASSROOM TEACHER, PO Box 1489, Austin, Texas 78767-1489. TCTA is located at 700 Guadalupe, Austin, Texas 78701. PERIODICALS POSTAGE PAID AT AUSTIN, TEXAS.

Summer 2021 | THE CLASSROOM TEACHER

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TCTA NEWS & NOTES

TRS Board set to consider new office building in Austin After a proposal to occupy three stories in an upscale highrise building in downtown Austin was scuttled amid heavy criticism from media, legislators, and TRS members, the TRS Board of Trustees is scheduled to consider a different option at its September meeting.

TRS Executive Director Brian Guthrie has told the board for years that the agency has outgrown its current space, a building on the edge of downtown that TRS owns. The investment division moved out a few years ago for a more central office, but even that move has not provided the space needed for the growing staff.

One option is to renovate the current building, but as it has

inadequate parking and no room for expansion, the board will also consider a brand-new facility in East Austin that would reunite the investment team with the rest of the agency staff.

Funding to purchase the new facility would come from the pension fund, but staff maintain that it would be offset by the sale of the current property, the elimination of the lease for the investment division’s offices, and avoidance of the cost of the renovations that would have been necessary to remain in the current building.

TRS has provided more information on the pending decision at https://www.trs.texas.gov/Pages/news_trs_moving_ forward_together.aspx.

TEA plans stand-alone field test of new STAAR components in February 2022 Several requirements of House Bill 3906 in 2019 are influencing a redesign of the State of Texas Assessment of Academic Readiness that will be implemented in the 2022-23 school year. This redesign will include several components — transitioning to online assessments, adding writing to reading language arts assessments, capping the number of multiplechoice questions, and adding new item types. TEA said a stand-alone field test is necessary to integrate these new components into future assessments. It will be administered online in February 2022 to the following grades and courses: • Grades 3-8 mathematics • Grades 3-8 reading • Grades 5 and 8 science • Grade 8 social studies • Algebra I, English I, English II, Biology, and U.S. History • Spanish grades 3-5 mathematics • Spanish grades 3-5 reading • Spanish grade 5 science School districts and open-enrollment charter schools selected to participate were notified in August. Those districts may administer a stand-alone field test at any time during the Feb. 14-18, 2022, testing window.

State Board of Education updates timeline for social studies, math TEKS review, revisions Citing the need for more time to review and revise the recently updated science Texas Essential Knowledge and Skills standards, the State Board of Education decided to push back the timeline on its review of social studies and math TEKS.

Social studies standards will be reviewed during the 2021-22 school year, and math will be reviewed during the 2022-23 school year, according to the updated schedule approved by SBOE members in the spring.

U.S. Department of Education extends protections of Title IX to transgender students The U.S. Department of Education has expanded its interpretation of federal Title IX protections to include transgender and gay students, a move that reverses Trump-era policy and stands against proposals in many states to prohibit transgender athletes from playing on sports teams that are consistent with their gender identity.

The policy is not likely to bring immediate, sweeping change but carries the possibility of federal sanctions against schools and colleges that fail to protect gay and transgender students from discrimination based on sex, sexual orientation or gender identity. Related legislation at the state level considered during the regular session and the two summer special sessions did not pass the Texas legislature.

Share your success with us! Were you chosen as your campus Teacher of the Year? Did you win an award or receive grant funding? Email communications@tcta.org and tell us about your recognition so we can share it in The Classroom Teacher.

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TCTA NEWS & NOTES

Members connect with TCTA staff on Zoom T CTA members had several opportunities to get up close and personal (virtually) with TCTA staff and leaders over the summer.

Members of the legal, lobby and membership teams led Zoom workshops designed to keep participants updated and engaged in current events related to laws, education policies and the organization. We appreciate the many members who paused their summer vacations and work responsibilities to spend a little time with us.

Shortly after the regular legislative session ended, TCTA lobbyists Paige Williams, Ann Fickel, Holly Eaton and Pamela McPeters reviewed the session and detailed some of the bills that had passed (see page 14). More than 100 new education bills were signed into law, so the group focused on bills of major or general interest, also highlighting TCTA’s accomplishments throughout the session.

Members attending the presentation were treated to some insider information on the session and had the opportunity to ask questions.

Persie Ngo-Hatchie, TCTA’s director of membership, shares examples of recruitment table setup during TCTA’s summer training workshops.

Summer training workshops

“This session was uncharacteristic, especially in terms of process and limited access. But we were able to realize successes for you by relying on our relationships with legislators and their staffs, and working with alliances,” Pamela McPeters, TCTA’s public affairs coordinator, said in a legislative update.

In July, TCTA leaders were invited to a series of free summer workshops focusing on the benefits of TCTA membership and how members can become more involved with the association. TCTA lawyers and lobbyists also briefed members on current events. Registrants, who included local presidents, faculty representatives and other local and regional leaders, along with members interested in playing a larger role in the organization, received a “summer fun box” filled with TCTA promotional items prior to the workshop.

Participants interacted in breakout groups, providing input on several issues including how association meetings might be handled in the future as the state still struggles with the COVID-19 pandemic and teachers find it increasingly difficult to obtain release time.

Continued on page 19 Summer 2021 | THE CLASSROOM TEACHER

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MEMBER ACCOLADES

Sherry Miller

Twila Read

Eleanore Malone

Melody Young

Joyce McCurdy

Jennifer Hutchinson

Cristal Isaacks

Debra Helbert

Sharron Wood

Nydia Alvarez-Alonzo

TCTA’s 2021-22 Executive Board, Directors’ Council take office Please join us in welcoming the 2021-22 Executive Board and Directors’ Council members. We look forward to the year ahead with Sherry Miller of Killeen as state president and thank immediate past president Twila Read of Grand Prairie for her leadership during the past year. Also serving on the Executive Board this year are: • Eleanore Malone of Tyler as president-elect • Melody Young of Sherman as Budget chair • Joyce McCurdy of Wichita Falls as Curriculum & Instruction chair • Jennifer Hutchinson of Hays Consolidated as Governance chair • Cristal Isaacks of Levelland as Legislation chair • Debra Helbert of Lamar Consolidated as Membership chair • Sharron Wood of Deweyville as Professional Rights & Responsibilities chair • Nydia Alvarez-Alonzo of Mission as Teacher Personal Services chair

We also look forward to working with this year’s Directors’ Council members: • Director-at-Large: Ruben Chavez of Edcouch Elsa • Director-at-Large: Stephanie Granado of McAllen • District 1: Carmen Garza of Pharr San Juan Alamo • District 3: James Garcia of Victoria • District 4: Dawn Hopkins of Lamar Consolidated • District 5: Keri Hilton of Little Cypress-Mauriceville • District 9: Holly Lucas of Wichita Falls • District 10: Melanie Love of Pottsboro • District 12: Omar Esson of Killeen • District 13: Natalie Tatsch of Gonzalez • District 14: Tommy Evans of Abilene • District 15: Brec Espinoza of Brownwood • District 16: Christina Johnson of Amarillo • District 17: Sandi Hansen of Lubbock • District 19: Scott Berkenpas of Socorro • District 20: Vivian Burleson of Northside

Six TCTA members selected as 2022 Regional Teachers of the Year We’re proud to have these members among the 40 2022 Regional Teachers of the Year who will be honored at an Oct. 15 banquet.

Jeana Banta Flour Bluff Intermediate Flour Bluff ISD Region 2 Elementary Teacher of the Year

Amy Thompson Lindale High School Lindale ISD Region 7 Secondary Teacher of the Year

Jayme Beckham Crockett Elementary Wichita Falls ISD Region 9 Elementary Teacher of the Year

Vanessa George-Sebro Silverlake Elementary Pearland ISD Region 4 Elementary Teacher of the Year

Robin Hilton Texas Middle School Texarkana ISD Region 8 Secondary Teacher of the Year

Sarah Hawkins Magnet at Travis Elementary Ector County ISD Region 18 Elementary Teacher of the Year

Congratulations to TCTA’s 2020-21 Awards Program winners TCTA’s statewide awards program honors outstanding contributions to TCTA and public education. This year’s winners are: Elizabeth Pirtle North East CTA Leader of the Year 6

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Kenneth Friar Lubbock CTA Paraprofessional of the Year

Clarissa Ruiz North East ISD Administrator of the Year

LEGAL NOTES

COVID 2.0: What’s new, what’s gone, and what remains with employee benefits options S ummer 2021 brought a brief period of optimism, but it appears that educators now enter the second full school year under the specter of COVID-19 with many new and ongoing questions. As a result of the delta variant and many other related medical issues, the “post-COVID” era seems further away than ever.

Current and pending legal battles are focused on masks and vaccines for Texas educators and students at both the state and federal level. At the same time, employee concerns about use of paid and other leave, as well as necessary workplace accommodations, may be exacerbated not only by the continued rebound of the COVID, but also by its long-term effects.

Employee leave

The Families First Coronavirus Response Act leave provisions that benefited many Texas educators during the past school year formally expired as of Dec. 31, 2020. Though a few school districts exercised the authority granted to extend them for the remainder of the 2020-21 school year, these benefits will also cease as of Sept. 30, 2021. What remains is FMLA leave under federal law and any leave available under state law and local policy. To qualify for FMLA leave, the school district employee must: 1. Be employed by the district for at least one year; 2. Have leave available per the district’s applicable 12-month period for use of FMLA; and 3. Have one or more serious health conditions.

It is imperative to become familiar with your school district’s leave policies, regulations, procedures, necessary paperwork, and contact personnel.

For example, districts that use the standard policy book provided by the Texas Association of School Boards designate local leave policies as POLICY DEC [LOCAL], which addresses the important matter of when the 12-month FMLA period begins and ends. This is determined by the individual school

Check out our FAQs at tcta.org/professional-resources/covid-19. district. The interplay between FMLA leave and other types of available leave (see below) and other critical information will be addressed by POLICY DEC [LOCAL] and [LEGAL] as well as POLICY DECA[LEGAL]. District websites and employee handbooks will normally not provide all the information that the employee should consider in requesting FMLA. Pursuant to a law proposed by TCTA, districts now must post any regulations referenced in employment policies on their websites and any applicable forms on their websites or intranet, but it may take a while for them to comply.

FMLA leave may be utilized for up to 12 work weeks during the applicable 12-month period. It protects the educator’s continued employment during the leave period. However, FMLA is unpaid leave, and as such, the employee must look elsewhere for possible paid leave to run concurrently.

Full-time certified educators may also be entitled to a leave of absence for temporary disability, known as TDL. This is unpaid leave unless there is paid leave available to run concurrently.

Districts also generally require it to run concurrently with FMLA leave. This leave requires a physician’s statement: • confirming inability to work; • stating the date requested by the educator for the leave to begin; and • stating the probable date of return as certified by the physician.

Paid leave options can also be found in POLICY DEC[LOCAL] AND [LEGAL]: State personal leave District local leave (normally)

Possible local district options: • Sick leave bank or pool • Extended leave — may provide 10-30 days of additional leave at partial pay for serious health conditions once all other paid leave has been exhausted • Any other local paid leave approved by the board of trustees, e.g., quarantine leave Please note that these matters are also addressed in the DEC policies and (sometimes) regulations, including specifics as to how paid leave will be coordinated with unpaid leave such as FMLA leave and TDL. This article does not address when and under what circumstances districts can require employees, particularly contractual employees, to take paid or unpaid leave when they have been exposed to COVID-19 and are not otherwise ill, as these issues are unclear and may take some time and litigation to sort out.

Reasonable accommodations

During the 2020-21 school year, COVID-19 and related student and district needs resulted in alternative work arrangements, as well as required accommodations (including virtual and virtual/remote instruction assignments) for employees under the Americans with Disabilities Act. However, the previously anticipated decline in COVID cases and resulting TEA mandates as to face-to-face on-campus instruction for the 2021-22 school year mean that both virtual and virtual/remote teaching assignments will be much more difficult to acquire for the current school year. Further, a federal Continued on page 18 Summer 2021 | THE CLASSROOM TEACHER

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WASHINGTON WATCH

Texas has received billions in federal funding. Is more on the way?

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ast fall, school superintendents raised their voices asking for federal intervention to help schools weather the pandemic at a time when state revenues were projected to drop and school districts were facing unprecedented needs in response to the COVID-19 pandemic. The 2020-21 school year was one of rapid adaptation, in creating new learning environments that would keep students engaged while supporting teachers and staff on the front line. The past year has seen an historic level of federal funding for K-12 education as the nation responded to COVID-19.

is broad, including school facility repairs and improvements primarily to reduce risk of virus transmission, and upgrades to improve indoor air quality. Schools that are able to take advantage of these building investments will benefit from structural enhancements for years to come.

Early in the pandemic, then-Secretary of Education Betsy DeVos announced $180 million in grant funding awarded to a handful of states to create innovative ways for students to continue learning.

The Texas Education Agency received $20 million for a statewide virtual learning and course access program.

In the past year, school systems received over $160 billion from the U.S. Department of Education (Texas has been allocated $19 billion) in three tranches of COVID relief bills.

Governors controlled the distribution of $330 billion in additional funds designated for educational supports such as distance learning, after-school programs, and addressing the social, emotional, and mental health needs of students.

Other federal health agencies had access to funds intended for K-12 environments as well. For example, the Centers for Disease Control and Prevention was allocated over $10 billion to distribute to states for COVID-19 screening testing for K-12 teachers, staff, and students in schools. The National Telecommunications and Information Administration was allocated funds to support broadband infrastructure deployment to areas lacking internet, especially low-income and rural areas to reconnect schools with their students.

State education agencies were required to submit application agreements and state plans detailing the intended use of COVID relief funds for the reopening

Future budget appropriations

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and safe operations of schools, providing supports for students and the educator workforce, and establishing programs to address learning loss, among other categories.

As of June 30, Texas had spent less than 7% of the $19.2 billion of funds awarded. However, the breakdown by each COVID relief bill varies. The CARES Act awarded $1.3 billion to TEA in 2020, of which 85.3% has been spent.

The CRRSA Act awarded $5.5 billion and almost 2% of those funds have been spent. And lastly, the $12 billion awarded under the American Rescue Plan has yet to be obligated. With the expansion of technology-based and emotional-based supports now being leveraged by local education agencies, it is conceivable that these tools and services may serve to improve outcomes in the Texas K-12 education system in the years ahead.

Stipulations for use

The federal COVID relief funds have “use of funds” limitations and these expanded with each COVID relief bill.

In the first bill, the CARES Act, states were required to maintain fiscal support on behalf of elementary, secondary and postsecondary education. They could not supplant federal funds for annual state appropriations to schools. Gradually stipulations were added to subsequent bills, requiring LEAs to measure and effectively address significant learning loss; but they were given freedom on how to do so. The list of acceptable uses

President Joe Biden’s Build Back Better Plan, a campaign platform, included an infrastructure proposal that suggested $50 billion in grants and $50 billion in bonds for school construction and facilities.

While that proposal did not make its way into legislation, the Senate passed the Infrastructure Investment and Jobs Act, which will provide $2.5 billion for low-emission school buses and another $2.5 billion for zero-emission buses, as well as $65 billion for broadband internet services. As of press time, this bill was pending action in the U.S. House, but has received vocal support from many members. The measure will most likely be paired with a second, “human infrastructure” bill that in broad strokes will encompass universal pre-K for 3- and 4-year-olds, school infrastructure grants, student success grants, and educator investments along with post-secondary benefits such as tuition-free community college and increased Pell grant aid.

In addition, Congress will also have to pass its annual appropriations bills, or a continuing resolution, as the end of the fiscal year approaches on Sept. 30.

The president’s FY 2022 budget request for the U.S. Department of Education proposes $102.8 billion for the agency, an increase of $29.3 billion above the previous year. The president requested robust support for Title I grants to local educational agencies, (an increase of $19.5 billion), special education (an Continued on page 18

State and federal laws make budget priorities clear

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n the 87th session that ended May 31, the Texas Legislature passed Senate Bill 1, the General Appropriations Act, that comprises the budget for fiscal years 2022 and 2023. SB 1 includes $51.8 billion for the Foundation School Program, the primary source of state funding for Texas schools. This is a 5.6% increase over the current biennium.

It includes the state’s commitment to the public education investments made

by House Bill 3 in 2019 and funding for projected enrollment growth, in addition to an increase in the state’s contribution rate to the Teacher Retirement System from 7.5% to 8% by 2023. While HB 3 was a significant step forward in education funding with investments in teacher pay raises, full-day prekindergarten, and additional dollars for low-income students, Texas remains in the bottom 10 states for per-student spending at $4,000 behind the national average, according to Education Week’s reporting on the 2020 Quality Counts survey.

Contained within SB 1 is a hard fought TCTA provision to specify that the budget includes funds sufficient to sustain across-theboard salary increases from HB 3, and to express the legislature’s intent that at a minimum, districts should continue these salary increases.

We included similar language in statute in HB 1525. TCTA was also able to include a budget rider that provides transparency regarding teacher designations under the Teacher Incentive Allotment program. It requires the Texas Education Agency to provide the number of teachers anticipated to receive each level of TIA designation (recognized, exemplary and master) under the program, as well as the amount of funding allocated for the associated incentives.

This new data indicates that only 5% of teachers across the state will be included in the program by the end of 2023, proving it to be an ineffective way to ensure salary increases to teachers.

Foundation School Program Funding at TEA

*Funding amounts are in millions.

The TIA not only leaves out the vast majority of deserving Texas teachers and includes questionable hurdles such as student growth measures, but the funding for the program is also not required to go directly to the designated teacher. Rather, the funding goes to the teacher’s school district, with the condition that the district must use at least 90% of the funds for teacher compensation on the campus where the designated teacher works.

Much of the conversation among public education advocates and legislators was around the pandemic relief federal funds made available to Texas. There were questions as to whether the state would accept the funds and if so, whether they would be directed to schools as supplemental dollars or replace the state’s obligation. In the end, TCTA joined public education groups to secure the investment of these federal funds into our public schools, a noteworthy success of the session that will result in billions of federal dollars flowing to your schools.

For each of the three rounds of federal funds, 90% is intended to go to school districts and 10% can be used by the Texas Education Agency.

The first round is from the CARES Act signed into law in March 2020. The total allocation of $1.3 billion was used to supplant state dollars. The only other state to utilize these funds to supplant its state obligation was New York.

The total allocation to Texas from the CRRSA Act that was signed into law in December of 2020 is $5.5 billion.

Funds will be provided to school districts to ensure districts maintain funding levels despite enrollment

Source: Legislative Budget Board

declines in the 2020-21 school year in addition to supplemental needs, such as to address learning loss, prepare schools for reopening, and improve air quality. Texas leaders are distributing these federal dollars with some additional qualifications. Districts that had enrollment declines will get hold-harmless funds, but their federal allocation will be reduced by an equal amount. Nevertheless, roughly $5 billion has flowed to school districts, which is a significant improvement over the CARES Act funds.

The final round of federal pandemic relief is from the American Rescue Plan signed into law in March 2021. The total allocation to Texas is $12.4 billion with $11.2 billion (90% intended for districts) as supplemental funding that will not be supplanted by the state.

Allowable uses for ARP funds include: professional development, pay for extended instructional time, additional staff for reduced class sizes, smaller group instruction, recruitment and retention, enrichment programs, and mental and behavioral health supports.

These funds will help meet needs arising from the pandemic, including reopening schools safely, sustaining safe operation, and addressing students’ social, emotional, mental health, and academic needs. At least 20% must be used for learning loss in response to these students’ needs and must address the disproportionate impact on Continued on page 18 Summer 2021 | THE CLASSROOM TEACHER

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Striking the right chord

Substitute teaching leads Sherry Miller into a career in music education

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rowing up in Amarillo before moving to Colorado Springs, Colorado, in eighth grade, Sherry Miller didn’t plan on a career as an educator.

Though her mother and an aunt were elementary school teachers, Miller’s interest — and degree from Texas Woman’s University — was in music therapy.

But a job as a substitute teacher at Meadows Elementary on Fort Hood opened a door to an opportunity Miller couldn’t refuse.

“In the 1980s, there were very few jobs available in music therapy, so I began teaching elementary music,” Miller said, adding that she quickly discovered how much she enjoyed teaching.

She was able to integrate music therapy skills with music education, beginning her career in a part-time position in Killeen ISD while pursuing an emergency certification plan through the University of Mary Hardin-Baylor in Belton.

Thirty-six years later, she still loves her job. Skipcha Elementary School in Harker Heights is the only elementary campus in Killeen ISD with a piano lab, and Miller teaches all the students in grades 3-5 to play on full-size electric Yamahas.

“It is exciting to see the students as they explore the piano and guide them to not only play material that they may know, but to create music themselves,” she said.

Sherry Miller brought her daughter Kathryn Miller along to TCTA’s Convention in 2019 when she ran for president-elect.

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Miller loves helping students “explore their own natural music abilities” and introducing them to ever-changing music genres.

But her job is challenging at times. Class sizes are often larger, with double or even triple the number of students in a regular classroom. She also switches grade levels — and teaching styles — throughout the day.

Younger students require a different approach than older students, she said. “If you have a kindergarten class, then teach a fifth-grade class, the needs and class setup are vastly different.

You have to change your mindset very quickly as well as your teaching demeanor.”

Juggling different kinds of students pays off though, Miller said, especially when students are about to create their own music or make a connection between music and an event they have experienced.

For Miller, those connections go beyond the classroom.

In 1997, she teamed up with Kitty LaBay, then the theater director at Ellison High School in Killeen, to create the KISD Summer Musical Program. The “baseball moms” started talking at the ballpark about the need for a creative outlet for students in the summer.

“With continued discussion with our Fine Arts Director Doug Henry, he obtained a grant, and we were able to present the first elementary summer musical program,” Miller said.

Since then, the program has expanded to include middle school students and now uses MTI Musicals, which are adaptations of Broadway musicals for children. Despite a hiatus in 2020 and 2021 because of COVID-19, the KISD Summer Musical Program is scheduled to resume in 2022.

“For many students, this is an opportunity to be part of a group experience,” Miller said. “Seeing the smiles on students’ faces when they realize that through their hard work they were able to present a program for their community is priceless. I am so proud that it continues today, and a new generation of students is able to continue experiencing musical theater.”

That continuity is rare in a field that is ever-changing.

When she began her career, Miller said teachers had more control of their classrooms, setting schedules and teaching lessons according to the needs of their students. Need more time for math or reading? No problem. Adjust your plan and help your students learn.

“Currently, classroom teachers’ schedules are literally planned down to the minute, with specified times for math, ELAR, interventions and required testing,” Miller said. “There is very little time to breathe or create many of the units teachers once enjoyed teaching.”

That stifled creativity may be part of the reason why many districts are facing teacher shortages. With more longtime teachers like herself nearing and entering retirement and many newer teachers leaving the profession in less than five years, the teacher shortage is becoming a serious threat to education in

Sherry Miller, at left, and other members of Killeen CTA met with State Rep. Brad Buckley, center, during TCTA’s Lobby Day at the State Capitol in 2019. As an association founded by teachers for teachers, Miller says it’s important for educators to speak up for themselves about classroom issues.

Outside the classroom

When she’s not in the classroom, Sherry Miller likes to go shopping and enjoys spending time with family and friends. Her son Geoff Miller is a student loan counselor at Dallas Baptist University. Her daughter Katie Miller is an account executive at KWTX. Sherry Miller also serves as music director at Immanuel Lutheran Church in Killeen.

She is also a member of the Texas Music Educators Association, the Texas Choral Directors Association, and education sorority Alpha Delta Kappa. She served as cochair of the Alpha Delta Kappa 2018 State Convention for Carol Dugger, who was ADK’s 2018 state president.

Texas, and Miller said she hopes legislators and administrators address the underlying issues soon.

Tackling issues like teacher shortages and prescribed workdays is where TCTA comes in, she said, providing information and resources to help teachers make the best decisions they can.

“As an organization, we need to continue to represent teachers both at the Capitol and TEA, assisting with legislation that will help teachers in the classroom and continuing the protections of due process that we currently have,” Miller said.

“Our attorneys are the best in the state. We need to make sure that we continue to maintain the high standards they have set for themselves.”

Like many members, Miller joined TCTA when a fellow teacher asked her to. “Patti Blomquist, the faculty representative at West Ward Elementary, came out to my portable and informed me that I had not joined TCTA the year before and said I needed the liability insurance,” Miller recalled. “She literally had everything completed on the membership form except my address and phone number.”

Miller has been a member ever since, moving into local and regional leadership positions and eventually to the state level serving on the Executive Board.

“As educators, we have to be the voices to promote educators and the direction of education,” she said.

During her year as TCTA state president, Miller hopes to visit with members in other districts and regions to make connections and help nurture the next generation of members who will lead the organization forward.

“One of our strengths has always been having access to our Executive Board members and connecting with them, not only at convention, but also at district and local meetings.”

While she recognizes some of those meetings may have to happen virtually during the pandemic, she said TCTA’s strength is maintaining relationships. “Although we are a large state, when speaking with members at convention it’s clear that our successes and concerns are very similar.”

Summer 2021 | THE CLASSROOM TEACHER

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Districts turn to a new kind of tutoring

G

iven the general consensus that a sizable number of students suffered at least some learning loss during the pandemic, tutoring (or supplemental instruction) has emerged as a key strategy to attempt to catch students up to grade level. Legislation addressing tutoring was a prominent focus during the 2021 regular legislative session, and several tutoring bills passed as a result. But there has been noticeable emphasis from the Texas Education Agency and other entities on distinguishing what one may think of as traditional tutoring versus the kind of tutoring that research says actually works to advance students academically.

Understanding the nuances of the different design features of tutoring is important given that state and federal funding may only be available for certain types of tutoring, so TCTA put together the following FAQ to help members navigate the complexities.

Do school districts have to provide tutoring?

For certain students, yes. HB 4545, which passed in 2021, requires districts to provide students who fail a STAAR or EOC exam in grades 3-8 with accelerated instruction in the applicable subject area during the subsequent summer or school year and either: • assign them a classroom teacher designated as a master, exemplary or recognized teacher in the applicable subject area under the Teacher Incentive Allotment program, or • provide them with supplemental instruction (tutoring).

Since only about 2% of the state’s teachers are estimated to be designated under the Teacher Incentive Allotment in 2022 (and only 5% by 2023), it is likely that most districts will be providing supplemental instruction/tutoring.

What kind of tutoring must districts provide?

HB 4545 specifies that districts receiving federal COVID relief funds must include in supplemental instruction: • targeted instruction in the applicable TEKS, • instruction in addition to that normally provided to students, • provision of at least 30 hours during the summer or school year, including instruction at least once a week during the school year (unless provided entirely during the summer), • provision individually or in groups of no more than three unless parents of the students involved authorize a larger group, and • provision by a person with training in the materials for the supplemental instruction and, to the extent possible, by one person for the entirety of the supplemental instruction period.

At 1:3 ratios, how are districts going to find enough tutors to meet HB 4545 requirements?

There are several efforts underway. First, another bill that passed during the most recent legislative session, SB 1356, 12

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creates a tutoring program involving nonprofit teacher organizations, primarily the Texas Retired Teachers Association, to provide supplemental instruction to K-12 students on an individual or small-group basis. Tutors must be active or retired teachers and apply for the position in a manner specified by the organization, and they must note in their application whether they intend to tutor for free or for compensation, and whether they will tutor in person, online or both. Retirees participating in the tutoring program are not subject to the employment after retirement time limitations if employed after the bill’s effective date, June 16, 2021.

In conjunction with this, TEA created the Vetted Texas Tutor Corps, which consists of two parts: a list of TEA-approved tutor providers and TEA-subsidized tutoring supports.

TEA invited organizations interested in providing tutors for school districts to apply to be included in the vetted tutor providers list. The list includes full-service tutor organizations and partial tutor organizations (focused on staffing) and will continue to be added to as part of an ongoing application process.

Is there available funding to pay for HB 4545 tutoring, including compensation for tutors?

According to TEA, districts can use local federal COVID relief funds for tutoring that meets the requirements of supplemental instruction/tutoring of HB 4545 as set out above. Additionally, districts may use federal Title I funds and state compensatory education funds for tutoring required by HB 4545.

These funds could be used to compensate current teachers for providing tutoring that meets the requirements of HB 4545.

What other forms of tutoring are available?

During the legislative interim before the 87th regular session and continuing to the present, TEA has promoted the value of “high-impact tutoring” (HIT) programs, including identifying the features of HIT as well as the research supporting its use.

TEA’s list of HIT characteristics is as follows: • Well-trained, consistent tutor (can be a teacher, paraprofessional, or teacher candidate) who builds a strong relationship with students • High-quality instructional material aligned to standards and core classwork • One-to-one or small group for individualized support (1-3 student max. ratio recommended) • Embedded in, or immediately before or after, the school day to maximize student access • At least three sessions per week for sustained support • Minimum of 30 minutes • Data-driven with tutors building sessions around student strengths and needs Although HITs share a number of characteristics with HB 4545 tutoring, it is not a complete match. For example, HIT programs require at least three sessions per week, while

HB 1525, passed in 2021, provides $1.4 billion in federal and state funds for programs to ensure one-time intensive educational supports for overcoming COVID-19’s impact, including “COVID-19 learning acceleration supports.”

HB 4545 only requires tutoring at least once per week.

Toward the end of the regular legislative session, TEA announced a high-impact tutoring implementation workshop series geared toward school districts that are building tutoring programs from the ground up to meet unfinished learning needs or dramatically improving or expanding tutoring programs. Along with the workshop series, TEA released a high-impact tutoring toolkit.

Is there funding for high-impact tutoring?

Yes. HB 1525, passed in 2021, provides $1.4 billion in federal and state funds for programs to ensure one-time intensive educational supports for overcoming COVID-19’s impact, including “COVID-19 learning acceleration supports (TCLAS).”

Accordingly, TEA developed the Texas COVID Learning Acceleration Supports application, allowing districts to access not only the funding but a suite of targeted supports for school districts and open-enrollment charter schools to accelerate student learning in the wake of COVID-19, including “Support and Subsidies for Tutoring Programs.” The deadline for districts to apply was Aug. 20.

As mentioned earlier, TEA also created the Vetted Texas Tutor Corps, consisting of two parts: a list of vetted tutor providers and TEA-subsidized tutoring supports. Per TEA, districts wishing to access TCLAS funding must use the TEAsubsidized tutoring supports component of the VTTC, which includes high-quality instructional materials in grades K-8 in math and reading, tutoring platforms for data reporting and analysis, and aligned tutor training (on best practices, TEAsubsidized instructional materials, and tutoring platform). A list of TEA-subsidized tutoring providers is on TEA’s website.

TEA said districts applying for TCLAS funding will receive priority access to the free licenses and training from TEAsubsidized providers, as well as access to up to $500,000 in grant funding to cover other program costs, such as tutor labor.

Summer 2021 | THE CLASSROOM TEACHER

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The 87th Session (so far) THE REGULAR SESSION AND TWO SPECIALS HAVE ENDED — AND THERE’S MORE TO COME

T

he 87th session of the Texas Legislature ended abruptly as House Democrats walked out May 30 to break a quorum and preclude voting on a controversial elections bill (Senate Bill 7). The bill was one of Gov. Greg Abbott’s top priorities and had caused wide-scale partisan disagreement throughout the session.

Other key legislation also perished before the session’s end on May 31, leading to two special sessions so far to address many of the governor’s priorities. Many House Democrats left Texas during the first special session in July, preventing a

quorum and passage of any legislation. The second special session began Aug. 7, the day after the first special session ended, and the Texas House finally established a quorum Aug. 20. The second special session ended Sept. 2, and several education bills passed, including a 13th check for retirees.

A fall special session to address redistricting is anticipated, and Abbott could add more items to the agenda to address issues that failed to pass in the second special session.

Find the latest Updates from the Capitol at tcta.org/capitol-updates.

Bill Summaries

HOUSE BILL 1525

During the 87th sessions of the Texas Legislature, dozens of education bills passed and became law. Here is a brief look at some key education bills that passed in the regular and special sessions. More important details on these and other bills are available at tcta.org/capitol-updates/final-bill-summaries.

SENATE BILL 1

BY SEN. JANE NELSON/REP. GREG BONNEN The state budget fully funds last session’s HB 3 commitments to districts. It also includes: • $3.1 billion in additional funding to cover enrollment growth.

• $60 million for supplemental special education services.

• $464 million for increases in funding and allotments based on HB 1525 changes, and $664 million for programs to help students and schools adversely impacted by COVID-19.

SB 1 also includes a TCTA-initiated rider (offered by Rep. Chris Turner) to express the legislature’s intent that districts and charter schools maintain salary increases provided to employees in the 2020-21 school year. Another TCTA rider (offered by Rep. Erin Zwiener) ensured transparency in Teacher Incentive Allotment figures for the first time by requiring TEA to specify the anticipated number of designated teachers in each category. By 2023, TEA estimates 3,455 master teachers, 5,867 exemplary teachers, and 5,631 recognized teachers (about 5% of teachers statewide).

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BY REP. DAN HUBERTY/SEN. LARRY TAYLOR HB 1525 is a school finance clean-up bill to address issues arising from implementation of last session’s HB 3. Other substantive provisions were added during the legislative process.

• Includes a TCTA-initiated provision protecting teacher salaries so that districts cannot pay teachers and other employees a salary less than what they earned in 2019-20 (after the HB 3 raises).

• Allows stipends paid under the Teacher Incentive Allotment program to count for TRS purposes.

• Extends the literacy academy deadline to 2022-23.

• Funds tutoring programs.

• Restores the gifted/talented allotment as a weight of .07, with a cap of no more than 5% of students.

• Reimburses districts for technology purchases before Feb. 28, 2021.

• Reimburses districts for additional costs incurred during the February 2021 winter storm.

• Includes a number of other funding provisions affecting CTE, comp ed, grant programs for students with autism and dyslexia, and more.

HOUSE BILL 1585

BY REP. STAN LAMBERT/SEN. EDDIE LUCIO HB 1585 is the Teacher Retirement System Sunset legislation resulting from a months-long review of the agency. The key provision for retirees is a change in the sanctions for retirees who return to work without having sat out a full 12 months,

and who exceed the half-time limitation on employment in a position other than a substitute. Current law requires TRS to penalize the retiree the full month’s TRS check; the revised series of sanctions will begin with a written warning to the retiree, then after a subsequent violation a penalty of either the TRS check or the amount of salary earned during the month (at the retiree’s choice). For further violations, the penalty is the entire TRS check for the month.

HOUSE BILL 3979

BY REP. STEVE TOTH/SEN. BRANDON CREIGHTON

SENATE BILL 3 (SECOND SPECIAL SESSION)

BY SEN. BRYAN HUGHES/REP. DAN HUBERTY HB 3979 is the bill that has been described as prohibiting the teaching of critical race theory, although this term is not defined or expressly mentioned in the bill. The new law, which addresses how teachers must present content regarding issues of race or sex, is problematic for teachers, who may now face complaints from both sides of the political spectrum. Several provisions were amended during the second special session via SB 3. The law was expanded to apply to all K-12 subjects, not only required social studies courses. One controversial section of the new law originally provided that a teacher may not be compelled to discuss a particular current event or widely debated and currently controversial topic; SB 3 removed the reference to current events, and modified related language to say that if such discussions are held, the teacher should “explore that topic objectively and in a manner free from political bias.” Other amendments would ensure that teachers

could assign activities such as writing a letter to a legislator, but the district or teacher could not influence the content of the letter. (Note: At press time, Gov. Abbott had not signed SB 3; we will provide the final status of the special session bills at tcta.org.)

SENATE BILL 1267

BY SEN. ROYCE WEST/REP. J.M. LOZANO SB 1267 is comprehensive legislation based on the work of the Teacher Workforce Workgroup, in which TCTA was a leading participant, that reduces and streamlines teacher training and professional development, with the goal of providing teachers with more flexibility to self-select relevant professional development. Rather than have training frequency provided in statute, SBEC will publish a clearinghouse not later than June 1, 2022, of all educator training requirements, with best practices and industry-based frequency recommendations for local boards to annually consider in adopting their local professional development policies. Local policies must be adopted no later than Aug. 1, 2022.

HOUSE BILL 4545

BY REP. HAROLD DUTTON/SEN. LARRY TAYLOR HB 4545 addresses accelerated learning for students who do not perform satisfactorily on certain STAAR exams, and repeals provisions requiring satisfactory STAAR performance for promotion. It creates a “strong foundations grant program” under which the commissioner may have authority Continued on page 17 Summer 2021 | THE CLASSROOM TEACHER

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Legislative recognition W

hile this was a more challenging session than most, there were legislators who made an extra effort to help teachers through filing and passing, or amending legislation. Some of these lawmakers were not always “good education votes” across the board, but TCTA found areas of agreement and common concern, and worked with them to get things accomplished.

We appreciate all of the legislators who supported teachers and public education in some way throughout the session and would specifically like to recognize those listed below.

SENATE

• Sen. José Menéndez — Menéndez routinely went to bat for educators in the 87th legislative session on issues ranging from COVID-19 protocols to STAAR testing. At TCTA’s request, Menéndez eliminated annual educator bullying training from his bullying bill.

He emphasized the importance of educator salary increases throughout the session and clarified with the author of the state budget bill that districts should at least continue 2019-20 salary increases.

• Sen. Royce West — West worked closely with TCTA and other members of the Teacher Workforce Workgroup to develop and pass legislation (SB 1267) streamlining teacher training requirements. He and his staff regularly checked in with educator groups for comments on upcoming bills.

• Sen. Beverly Powell — Powell teamed up with Sens.

Menéndez and West, working together to fight successfully against virtual vouchers and to oppose the removal of local and public input for charter school approval. The trio led efforts in the Senate to ensure that schools would receive their federal pandemic relief funds. They also successfully fought to remove high stakes from the STAAR exam and worked to persuade state leaders to postpone the exam during the pandemic. Powell and her staff are always a “go-to” when we need support on education issues.

• Sen. Eddie Lucio — Lucio submitted TCTAinitiated riders to the Senate budget and other legislation to ensure that teacher salary increases from the previous session would be maintained.

He passed a TCTA amendment to HB 4545 in a section that would have allowed parents to choose their child’s teacher in certain circumstances; the amendment instead requires a process under which parents can request, but are not guaranteed, the teacher. Lucio’s staff are among the best in the Senate — smart, capable, and easy to work with.

• Sen. Charles Perry — Perry was the Senate sponsor of TCTA’s HB 750, which requires districts to post their 16

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employment policies online, and successfully shepherded it through the Senate. He also led efforts to ensure that bills regarding virtual instruction prohibited the practice of “roomies and zoomies,” in which teachers must teach both in-person and remote students during the same class.

• Sen. Larry Taylor — The Senate Education Chair worked with TCTA and others to revise a bill that would have been harmful to the TRS-ActiveCare health insurance program (SB 1444) to instead ensure some flexibility for school districts without unduly increasing premiums for school employees. Taylor’s office and committee staff have always been accessible and helpful to TCTA. Sen. Bryan Hughes — Hughes successfully added language to virtual legislation to prohibit districts from coercing a teacher to teach full-time virtual instruction without the teacher’s agreement, though the language was later amended to provide that a teacher cannot be coerced to agree.

• Sen. Lois Kolkhorst — At TCTA’s request, Kolkhorst tightened language in her SB 348, which addresses parents’ ability to observe virtual instruction, to ensure that such observations are limited to the same extent as a parent’s ability to observe in-person instruction.

HOUSE

• Rep. DeWayne Burns — Burns filed HB 750 at TCTA’s request to ensure that employees will have access to school district employment policies and forms. Under the bill, districts must now post such policies online, with referenced forms made available on an intranet website or at a district administrative office. Burns and his staff were very helpful in defending the bill against concerns expressed by administrator groups and were always accessible and supportive throughout the session.

Rep. J.M. Lozano — Lozano worked with TCTA and other groups as the House sponsor for SB 1267, the legislation streamlining teacher training. The representative was new to the House Public Education Committee this session, and he and his staff were consistently communicative and accessible.

Rep. Erin Zwiener — As a member of the House Appropriations Committee, Zwiener successfully submitted TCTA’s riders to the state budget that ensure districts must maintain teacher salary increases, and that TEA must provide additional transparency on Teacher Incentive Allotment data.

• Rep. Eddie Rodriguez — Rodriguez worked with TCTA and others in the education community on an amendment, successfully added to the state budget on the House floor, to send federal stimulus funds directly to public schools.

• Rep. Keith Bell — Bell and his staff were very helpful as TCTA worked with him on his virtual education bill, especially regarding language prohibiting concurrent “roomies and zoomies” (though administrators later amended it to allow waivers from that provision).

• Rep. Drew Darby — Darby is a consistent supporter of teacher issues and filed and passed legislation (HB 2519) that will help ease restrictions on teachers who resign after the resignation deadline of 45 days prior to the first day of instruction.

Rep. Chris Turner — Turner is a go-to legislator for support on teacher issues on the House floor and worked with TCTA to amend HB 1525 to include our provision requiring districts to maintain teacher salary increases.

Rep. Alma Allen —Allen is a longtime education supporter on the House Public Education Committee, with an outstanding staff. This session, she worked with us to revise her HB 785 to ensure appropriate limitations on paperwork regarding timeouts for students receiving special education services.

Reps. Mary Gonzalez, Diego Bernal, and James Talarico and staffs — Gonzalez, Bernal and Talarico were standouts on the House Public Education Committee for their ongoing support for education and teachers. They and their staffers were always communicative and accessible, and great to work with throughout the session.

• Staff of House Appropriations Committee Chair Greg Bonnen — Bonnen is an intelligent and professional leader who set the tone for his well-run staff. The staff were extremely helpful in getting the two TCTA-initiated riders offered by Rep. Erin Zwiener (see page 16) included in the state budget.

Reps. Donna Howard, John Turner, and Gina Hinojosa — These knowledgeable and dependable education supporters took the lead in the House with regard to ensuring federal COVID relief funds would be directed to districts.

Rep. Vikki Goodwin — Goodwin worked with TCTA to accept changes to her bill on discipline reporting requirements, and she reaches out to us regularly for check-ins on teacher issues.

House Public Education Committee Chair Harold Dutton — Dutton accepted TCTA language revising his proposal in HB 4545 that would have allowed parents to choose their child’s teacher in certain circumstances. The revised version ensures that districts will create a process by which parents can request a teacher.

• Staff of Rep. Andy Murr — Murr’s staff were very communicative with TCTA and frequently reached out to us for thoughts on bills coming to floor.

Continued from page 15 over curriculum and materials, and allows the commissioner to enforce those requirements on certain low-performing campuses.

SENATE BILL 1365

BY SEN. PAUL BETTENCOURT/REP. DAN HUBERTY SB 1365 makes extensive revisions to the accountability system to address schools with failing campuses. It provides districts with more due process in accountability matters.

It clarifies how “D” and “F” school ratings factor into accountability ratings over time, and gives districts that would otherwise earn a D or F rating a “pause” in accountability ratings next year while they work to catch students up after COVID-19 disruptions.

SENATE BILL 15 (SECOND SPECIAL SESSION)

BY SEN. LARRY TAYLOR/REP. KEITH BELL Though its regular session counterpart, HB 1468, was stymied at the end of May by the walkout of House Democrats, SB 15 passed during the second special session.

Legislators seemed to agree that while virtual education is not the preferred method for the vast majority of students, it may be the answer for certain students and in certain situations — specifically including the current pandemic and the rise of the delta variant. Rep. Dan Huberty noted during the bill’s House committee hearing that he was “sick and tired of us standing here and thinking that kids aren’t getting sick, and staff aren’t getting sick.” SB 15 will ensure that districts can receive full state funding for limited virtual instruction (no more than 10% of students), and includes some protections for teachers such as not being required to teach “roomies and zoomies” during the same class period.

SENATE BILL 7 (SECOND SPECIAL SESSION)

BY SEN. JOAN HUFFMAN/REP. GLENN ROGERS SB 7 authorizes a 13th check for TRS retirees. The check will be in the amount of the retiree’s normal monthly payment, though it will be capped at $2,400. Retirees who were eligible for a standard annuity in the month before the payment is issued are eligible; certain disability retirees (those with fewer than 10 years of service credit) and some survivor beneficiaries are excluded. The check must be distributed no later than January 2022. There is a provision that if the TRS Board of Trustees determines that the legislature did not appropriate enough funding for the bill, the Board cannot make the payments, but funding of $701 million was approved and is expected to be sufficient.

Many other education bills were approved by legislators during the 2021 regular and special sessions. Several were in response to COVID-19. Others were related to teacher employment, TRS, teacher certification, counselors, tutoring, student assessment, accountability, classroom issues, special education, safety, extracurricular activities, charter schools and more. Find our complete education bill summaries at tcta. org/capitol-updates/final-bill-summaries.

Summer 2021 | THE CLASSROOM TEACHER

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LEGAL NOTES Continued from page 7 circuit court has held that even longterm reasonable accommodations are not legally protected when the employee is unable to perform the essential functions of his/her job based on a changed work assignment. Obviously, other reasonable accommodations should, and will, be granted under the ADA. An employee is covered under the ADA if they are: • an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual; • a person with a record of such an impairment; or • a person who is regarded as having such an impairment.

“Major life activities” include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. The term also includes the operation of major bodily functions, such as the functions of the immune system, cardiovascular system, neurological system, circulatory system, or the operation of an organ.

Long COVID as a disability

The EEOC has now issued guidance on repercussions from COVID resulting

in certain medical conditions and symptoms and the need for reasonable accommodations. The Centers for Disease Control and Prevention have identified people with long COVID as having a range of new or ongoing symptoms lasting weeks or months after infection with the coronavirus, which can worsen with physical or mental activity, including but not limited to: tiredness or fatigue, difficulty thinking or concentrating, shortness of breath or difficulty breathing, headache, dizziness on standing, fastbeating or pounding heart, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell.

A person with long COVID has a disability under the ADA if this condition or its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities. This may provide a legal entitlement to reasonable accommodation(s) in the workplace.

Vaccines

Many health officials have said the majority of COVID-19 transmissions occur among those who are unvaccinated.

Many also say the risk of breakthrough infection with symptoms upon exposure to the delta variant is reduced by sevenfold among those vaccinated, and twentyfold for hospitalizations and death.

Still, many employees forego vaccination

based on a variety of reasons and personal beliefs. Currently, litigation concerning issues related to mandatory COVID-19 vaccination is ongoing.

Gov. Greg Abbott’s late August executive order (GA-39) expanded his previous ban on vaccine mandates for vaccines approved under emergency authorization to include those fully approved by the FDA. The legality of the governor’s order will likely be the subject of much litigation and uncertainty, as has been his order about masks. The federal Equal Employment Opportunities Commissioner has issued guidance that employers may require employees to be vaccinated.

There are some important caveats, including compliance with employee rights to reasonable accommodations under the ADA, as well as reasonable accommodations for sincerely held religious beliefs under Title VII of the Civil Rights Act. Finally, a school district may offer incentives for educators receiving a COVID-19 vaccine, as long as they do not meet the legal definition of being “coercive,” i.e., the employee truly does not have a choice or option in the matter.

As we await court rulings on vaccination and mask requirements, TCTA members should follow their district’s pandemic guidance and call 888-879-8282 to discuss any specific concerns with a staff attorney.

WASHINGTON WATCH

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Continued from page 8 increase of $3.1 billion), and increases for school safety and mental health services, social and emotional learning initiatives, and educator development programs.

The additional Title I funding is targeted for a new Title I equity grants program that would address long-standing

disparities by providing incentives to ensure that teachers at Title I schools are paid competitively, improve the access to rigorous coursework, and expand high-quality preschool for underserved children and families.

While the outcome of FY2022 appropriations is subject to Congressional

approval in the coming months, federal funding for K-12 education continues to reach new plateaus and address the needs of local school systems.

Continued from page 9 underrepresented student subgroups.

The remaining funds may be used for a wide range of activities, including hiring new staff and avoiding layoffs. State legislators and leaders have emphasized these are one-time funds and districts should not anticipate that ongoing, replacement funds will be provided at either the federal or state level. The funds

will be available through September 2024.

TEA recently announced that a small number of school systems have more direct COVID-19 expenses or projected costs for learning loss recovery than they will receive under CRRSA and ARP formula funding, therefore these districts will be eligible to apply for supplemental funding from the 10% of

funds reserved for TEA. There is a requirement for each district to get stakeholder input on its plan for uses of the ARP funds and teachers are specifically named among the stakeholders. This is an opportunity for additional pay and classroom supports.

We are seeing several districts provide pay increases to teachers that are made possible by the federal funds.

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This article is provided by Van Scoyoc Associates, TCTA’s retained lobby firm in Washington, D.C.

TCTA NEWS & NOTES Continued from page 5 TCTA Director of Membership Persie Ngo-Hatchie reviewed membership materials and the support that staff can provide local leaders in the coming months. State President Sherry Miller, Membership Committee Chair Debra Helbert, and Legislation Committee Chair Cristal Isaacks talked about their successes in convincing colleagues to join TCTA.

Legal Spotlight

TCTA Director of Legal Services Dohn Larson and Staff Attorneys Gerald Francisco and Julie Leahy held a legal webinar on Aug. 21, focusing on COVID related issues such as mask mandates, leave and accommodations, and vaccines, and providing ample time for questions from attendees.

Leahy sympathized with members reeling from the myriad lawsuits, executive orders, judicial decisions and

Nydia Alvarez-Alonzo shares ideas with other members during a summer training workshop.

Staff Attorney Julie Leahy talks about mask mandates and offers guidance to members during the Legal Spotlight session on Aug. 21. school district directives regarding mask mandates, but went on to provide clarity on the current status of litigation and other actions and how school employees should react.

Larson analyzed the latest public health guidance from the commissioner of education on masks, quarantining, and the definition of “close contact,” and provided details on a few new bills.

Francisco reviewed the many types of leave that may be available to employees, particularly with regard to teachers who test positive for COVID-19 or who are required to quarantine, and discussed whether teachers may still receive

accommodations to teach virtually.

TCTA will continue providing similar opportunities throughout the school year. While we always enjoy seeing our members in person, we appreciate that videoconferencing allows us to reach those who may not be able to attend in-person meetings or who like the flexibility of viewing videos at their convenience. If you have ideas for topics for future webinars, please email communications@tcta.org.

You can watch all of these sessions now at www.tcta.org/membership/ get-involved/tcta-events.

Check out our website’s new look!

We launched a redesigned website Aug. 19 to provide a clean, easy-to-navigate site, filled with the same great news and information you’ve come to expect from TCTA. We’ve improved our search function, and rearranged and reformatted our content to make the site more visually pleasing and user-friendly, whether you’re on a computer, tablet or smartphone.

Click the “Member Login” button to sign into the site with the same username and password you’ve been using for membership renewal, discount codes, free CPE, and other members-only content. If you need help logging in, call us at 888-879-8282 and we’ll be happy to help you get set up.

Summer 2021 | THE CLASSROOM TEACHER

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THESE POLICY PROVISIONS, WITH THE APPLICATION, DECLARATIONS AND ENDORSEMENTS, IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETE THIS POLICY.

SCOTTSDALE INSURANCE COMPANY Home Office: One Nationwide Plaza | Columbus, Ohio 43215 Administrative Office: 18700 North Hayden Road Scottsdale, Arizona 85255 800-423-7675 A STOCK COMPANY

GENERAL AGENT NAME & ADDRESS ITEM 1. POLICYHOLDER & MAILING ADDRESS Texas Classroom Teachers Association Services Corporation 700 Guadalupe Austin, Texas 78701

Notice of CLAIM shall be given to: RT Specialty, LLC PO Box 4479 • Houston, Texas 77210-4479 Attn: Claim Administrator Educators Professional Liability

ITEM 2. POLICY PERIOD

FROM: 08/01/2021 12:01 a.m. Standard Time at the address of the POLICYHOLDER as stated herein.

TO: 08/01/2022

ITEM 3. LIMITS OF LIABILITY COVERAGE A—Educators Liability Insurance 1. Per INSURED, per OCCURRENCE (other than CLAIMS based on alleged federal civil rights violations) .............................................................................. See Section V. Limits of Liability, A. 2. Per INSURED, per OCCURRENCE for CLAIMS based on alleged federal civil rights violations ........................................................................................................................................ $2,000,000 Subject to the Coverage A.1. limitation above, there is a $10,000,000 annual aggregate for Coverage A.1. for the POLICY PERIOD as respects CLAIMS in excess of $3,000,000.

Coverage A—Annual aggregate for the POLICY PERIOD as respects each INSURED...................................................... $8,000,000 COVERAGE B—Supplemental Coverage 1. Per INSURED, per CLAIM (other than CLAIMS based on actual or alleged SEXUAL ACTION OR SEXUAL CONDUCT involving a minor or student) ........................................................... $15,000 2. Per INSURED, per CLAIM, and aggregate per INSURED for CLAIMS based on actual or alleged SEXUAL ACTION OR SEXUAL CONDUCT involving a minor or student .......................................... $10,000 COVERAGE C—Bail Bond per bail bond, per INSURED .............................................................................................................. $5,000 COVERAGE D—IDENTITY THEFT per INSURED ....................................................................................................................... $10,000 COVERAGE E—ASSAULT Related Personal Property Damage per ASSAULT ....................................................................... $5,000 Subject to the Coverages B, C, D, and E above, annual aggregate for the POLICY PERIOD as respects each INSURED .............................................................................................................................................................. $240,000 NOTICE OF SETTLEMENT OF LIABILITY CLAIMS — TEXAS (This endorsement is attached to the policy and reproduced below).

The Company will notify the POLICYHOLDER in writing of its initial offer to compromise or settle a CLAIM against the INSURED under this policy. The notice will be given on or before the tenth (10th) day after the date on which the offer is made.

The Company will notify the POLICYHOLDER in writing of any settlement of a CLAIM against the INSURED made under this policy. The notice will be given on or before the thirtieth (30th) day after the date of the settlement.

The following endorsements are attached to the policy but are not reproduced here: NUCLEAR ENERGY LIABILITY EXCLUSION | MOLD EXCLUSION | ASBESTOS EXCLUSION 20

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EDUCATORS PROFESSIONAL LIABILITY POLICY Scottsdale Insurance Company A Stock Insurance Company, herein called the Company This policy is not subject to the terms and conditions of any other insurance and contains provisions that may be different from those of any other insurance. The policy should be read carefully by the INSURED.

I. INSURING AGREEMENTS In consideration of the payment of premium and full compliance with the terms and conditions contained in this policy, the Company agrees, subject to all limitations, definitions, conditions, exclusions and terms contained in this policy, to provide the INSURED with the coverages set forth herein under COVERAGE A, COVERAGE B, COVERAGE C, COVERAGE D and COVERAGE E as follows: COVERAGE A — Liability Coverage To pay on behalf of an INSURED all sums which an INSURED shall become legally obligated to pay as damages by reason of liability imposed on him or her by law for damages resulting from a CLAIM arising solely out of the ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY and caused by any acts or omissions of the INSURED or any other person for whose acts the INSURED is legally liable, provided such acts or omissions occur during the POLICY PERIOD as stated in Item 2. of the Declarations.

With respect to such CLAIMS under this COVERAGE A and provided the CLAIM is otherwise covered by this policy, the Company shall defend the INSURED against any CLAIM or suit seeking damages which are payable under the terms of this policy, even if such suit is groundless, false or fraudulent; but the Company may make such investigation, negotiation and settlement of any CLAIM or suit as is deemed expedient. The Company shall provide Supplemental Payments in addition to the limits of liability with respect to such insurance as afforded by this policy under COVERAGE A as follows: 1. All expenses incurred by the Company; all costs taxed against the INSURED in any suit defended by the Company and interest only on that part of any judgment therein which occurs after entry of the judgment and before the Company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the Company’s liability thereon; 2. Premiums on appeal bonds required in any such suit, premiums on bonds to release attachments in any such suit for an amount not in excess of the applicable limit of liability of this policy, but the Company shall have no obligation to apply or reapply for or furnish any such bonds; 3. Expenses incurred by the INSURED for such immediate medical and surgical relief to others as shall be imperative at the time of the OCCURRENCE, for bodily injury to which this policy applies; and

obligated to pay in the defense of any CRIMINAL ACTION OR PROCEEDING or for any other proceeding described in COVERAGE B and not otherwise covered by this policy arising as a result of the ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY, provided such activities occur during the POLICY PERIOD as stated in Item 2. of the Declarations. The INSURED may select an attorney, subject to the approval of the Company. Reimbursement provided shall be limited to the Limit of Liability described for COVERAGE B in the Declarations and further limited to CLAIMS arising from: 1. Expenses incurred in any CRIMINAL ACTION OR PROCEEDING or civil action not otherwise covered under COVERAGE A against the INSURED arising out of ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY, except those charges or pleadings arising from actual or alleged SEXUAL ACTION OR SEXUAL CONDUCT involving a minor or student, in which instance coverage shall be the limit shown in Item 3. Coverage B.2. on the Declarations. Expenses for any action or proceeding covered by this paragraph will be paid regardless of final judgment; 2. Expenses incurred in any action, proceeding or notice for dismissal of a non-probationary employee at any time or for the dismissal of a probationary employee during the school year, provided, however, that in such an action final judgment is rendered in his or her favor; 3. Expenses incurred in any action against or brought by the INSURED involving dismissal, career ladder level assignments, salary, leave of absence, assignment, resignation, contract nonrenewal, appraisal, or other professional rights, duties and responsibilities, arising within the scope of employment, provided, however, that final judgment is rendered in his or her favor; or 4. Expenses incurred in any action or proceeding against or brought by the INSURED involving the issuance, suspension, cancellation, or revocation of any credential, life diploma, or certification document issued by the State Board for Educator Certification, State Board of Education or other commission, provided, however, that in such an action or proceeding, a final decision or judgment is rendered in his or her favor; or COVERAGE C — Bail Bond

4. Reasonable expenses incurred by the INSURED at the Company’s request in assisting the Company in the investigation or defense of any CLAIM or suit, including polygraph examination fees, if deemed appropriate by counsel, or actual loss of earnings, not to exceed $50 per day.

To pay the premium for bail bond required of the INSURED arising solely out of ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY during the POLICY PERIOD, but without obligation to apply for or furnish such bond. Coverage for bond premiums shall not exceed the limit shown in Item 3.

Coverage C.1. on the Declarations.

COVERAGE B — Supplemental Coverage

COVERAGE D — Identity Theft

To reimburse the INSURED for reasonable attorney’s fees for services and costs of court which the INSURED is legally

The Company will reimburse the INSURED for reasonable and necessary attorney fees which the INSURED is legally obligated to Summer 2021 | THE CLASSROOM TEACHER

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EDUCATORS PROFESSIONAL LIABILITY POLICY pay an attorney, but without obligation to furnish such attorney, incurred as a result of being a victim of IDENTITY THEFT. Coverage for IDENTITY THEFT shall not exceed the limit shown in Item 3. Coverage D on the Declarations.

COVERAGE E — Assault Related Personal Property Damage The Company will pay up to the limit of liability shown in Item 3. Coverage E on the Declarations for damage or destruction of the INSURED’S personal property or other people’s personal property when being used by, or in the care, custody or control of

an INSURED, provided the damage or destruction is caused by an ASSAULT upon the INSURED on or surrounding school property or while away from school property provided the INSURED is on an authorized school activity. This coverage is excess over any valid and collectible insurance available to the INSURED including Homeowners and Personal Property Floater policies. This coverage does not apply to damage or destruction of a VEHICLE of any kind. This coverage also does not apply to damage or destruction to property leased to, owned by or rented by an EDUCATIONAL UNIT.

II. COVERAGE LIMITATIONS Coverage A, B and C shall apply only for CLAIMS arising out of acts or omissions of the INSURED which occur during the POLICY PERIOD set forth in Item 2. of the Declarations.

Coverage D and E shall apply to ASSAULT or IDENTITY THEFT which is reported to the appropriate civil police entity during the POLICY PERIOD as set forth in Item 2. of the Declarations.

III. DEFINITIONS A. ACTIVITIES OF AN INSURED

IN HIS OR HER PROFESSIONAL CAPACITY Means activities of the INSURED in the course of his or her duties as an educator, classroom teacher, teacher’s aide, school secretary, substitute or student teacher, coach, member of a teaching staff, school nurse, licensed physical therapist, licensed athletic trainer, counselor, student counselor engaged in practicum, librarian, diagnostician, student diagnostician engaged in practicum, or other professional, nonadministrative employee of a Texas public school district or Texas institution of higher education. The terms of this policy shall specifically include the performance of assigned duties of an eligible INSURED as an appraiser, member of a career ladder selection committee, or a site-based decision-making committee.

B. ASSAULT Means a physical attack on an INSURED. Proof of an ASSAULT shall be a report of such ASSAULT to the appropriate civil police entity during the POLICY PERIOD. C. CLAIM 1. As respects COVERAGE A, means an oral or written notice from any party whose intention is to hold an INSURED responsible for any acts or omissions of the INSURED arising out of an OCCURRENCE in the course of ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY. 2. As respects COVERAGE B, means an oral or written notice from the INSURED or the INSURED’S attorney requesting reimbursement for attorney fees as a result of an action or proceeding arising from ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY. As respects C.1. and 2. above, CLAIMS based on or arising out of the same ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY or series of related or continuous ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY of one or more INSUREDS, regardless of the number of claimants who allege damages, will be considered a single CLAIM.

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D. CRIMINAL ACTION OR PROCEEDING Means the prosecution during the POLICY PERIOD of any INSURED initiated by the filing, with a court, or an investigation by a law enforcement department or the Child Protective Services that could lead to the filing, with a court, of an information, complaint, or indictment, and any amendments thereto, alleging that the INSURED had committed one or more crimes involving one or more incidents, acts or events.

Any such prosecution shall be considered a single CRIMINAL ACTION OR PROCEEDING, notwithstanding the fact that the prosecution may involve multiple incidents, multiple complainants, counts, or charges, and/or multiple trial and/or appellate proceedings.

E. EDUCATIONAL UNIT Means a school district, a college or university, a state department of education, and/or any other institution for which the instruction of students is its primary purpose.

F. IDENTITY THEFT Means the act of knowingly transferring or using, without lawful authority, a means of identification of an INSURED with the intent to commit, or to aid or abet another to commit, any unlawful activity that constitutes a violation of federal law or a felony under any applicable state or local law. Proof of IDENTITY THEFT shall be a report of such IDENTITY THEFT to the appropriate civil police entity during the POLICY PERIOD. G. INSURED Means a member of the Texas Classroom Teachers Association (TCTA) in accordance with the terms of its governance documents, with the following exceptions: A retired member is not an INSURED. A life member is an INSURED only if the member is engaged in a professional capacity as provided in Section III.A. above, in a position for which the member would otherwise be eligible to join TCTA as an active or associate member and has purchased this coverage. A student member is an INSURED only during the member’s semesters of student teaching for which the policyholder has been notified. If this

EDUCATORS PROFESSIONAL LIABILITY POLICY policy is a renewal, the term INSURED includes any members covered under the expired policy who reapply for coverage within sixty-one (61) days of the inception of this policy and who qualify as INSUREDS under the terms of this policy.

exposure, lewdness, sexual assault, sexual abuse, and other sexual offenses; and any other physical, verbal, and/or nonverbal activity of a sexual nature including sexual harassment with any adult or minor; and any tort or legal or equitable cause of action involving conduct of a sexual nature. The term also means conduct of the INSURED, conduct by a person acting under the direction or supervision of the INSURED, conduct by any person acting in concert with the INSURED, and alleged or actual omissions of the INSURED which may give rise to liability of the INSURED for the SEXUAL ACTION OR SEXUAL CONDUCT of any other person.

H. OCCURRENCE Means an event that results in damages to person(s) other than the INSURED. An OCCURRENCE can involve a single, sudden event or the continuous or repeated exposure to the same conditions. If the latter, the exposure shall constitute a single OCCURRENCE and shall be deemed to have occurred as of the most recent exposure to said conditions.

I. POLICYHOLDER

L. VEHICLE Means:

Means the Texas Classroom Teachers Association Services Corporation.

J.

1. Any motor driven device designed for transport on or off public roads. This includes, but is not limited to, autos, buses, motorcycles, motor bicycles, dune buggies, snowmobiles and golf carts;

POLICY PERIOD Means the period of time stated in Item 2. of the Declarations.

2. Any trailer or other device being towed by or carried on a VEHICLE; and

K. SEXUAL ACTION OR SEXUAL CONDUCT Means conduct prohibited by a penal statute involving physical, verbal, and/or nonverbal activity of a sexual nature including, without limitation, rape, indecency with a child, indecent

3. Any device which travels on fixed rails or crawler treads.

Wheelchairs are not considered VEHICLES.

IV. TERRITORY This policy applies only to OCCURRENCES within the United States of America, its territories or possessions, or Canada. The

original suit or CLAIM for damages must be brought within the United States of America, its territories or possessions, or Canada.

V. LIMITS OF LIABILITY The limits of liability provided under COVERAGE A, COVERAGE B, COVERAGE C, COVERAGE D and COVERAGE E are separate and distinct from each other.

A. The limit of liability applicable to Coverage A.1., per INSURED, per OCCURRENCE is the maximum limit of the Company’s liability for any CLAIM(S) not alleging federal civil rights violations: The first $3,000,000 of the per INSURED, per OCCURRENCE limit for Item 3. Limits of Liability Coverage A.1. is not subject to an annual maximum limit—all CLAIMS for all INSUREDS; The next $5,000,000 up to $8,000,000 per INSURED, per OCCURRENCE limit for Item 3. Limits of Liability Coverage A.1. is subject to an annual maximum limit of $10,000,000—all CLAIMS for all INSUREDS as stated in Item 3. Coverage A of the Declarations page.

After the annual aggregate is exhausted, the limit of liability stated in Item 3. of the Declarations as applicable to Coverage A.1., per INSURED, per OCCURRENCE is reduced from $8,000,000 to $3,000,000. The annual aggregate is part of and not in addition to the applicable limits of liability for Coverage A.1.

B.

The limit of liability applicable to Coverage A.2., per INSURED, per OCCURRENCE for any CLAIM(S) alleging federal civil rights violations shall not exceed the limit shown in Item 3.

Coverage A.2. on the Declarations and is the maximum limit of the Company’s liability for any CLAIM(S) alleging federal civil rights violations.

C. The Company’s limit of liability for COVERAGE A is further always subject to the annual aggregate for the POLICY PERIOD as set forth in the Declarations as respects each INSURED member.

D.

With respect to COVERAGE B, the Company’s limit of liability is the limit shown in Item 3. Coverage B.1. on the Declarations per INSURED, per CLAIM arising from CRIMINAL ACTION(S) OR PROCEEDING(S) or other proceedings as set forth in I. INSURING AGREEMENTS, COVERAGE B — Supplemental Coverage and is further limited to the limit shown in Item 3. Coverage B.2. on the Declarations, per INSURED and aggregate per INSURED for charges or pleadings of actual or alleged SEXUAL ACTION OR SEXUAL CONDUCT involving a minor or student. The Company’s total liability per INSURED and aggregate per INSURED for charges or pleadings of actual or alleged SEXUAL ACTION OR SEXUAL CONDUCT involving a minor or student shall never exceed the limits shown in Item 3. Coverage B.2.

E.

With respect to COVERAGE C, the Company’s limit of liability per bail bond, per INSURED shall not exceed the limit shown in Item 3. Coverage C.1. on the Declarations as respects each INSURED.

F.

With respect to COVERAGE D, the Company’s limit of liability per INSURED shall not exceed the limit shown in Item 3.

Coverage D on the Declarations as respects each INSURED.

G. With respect to COVERAGE E, the Company’s limit of liability per ASSAULT shall not exceed the limit shown in Item 3.

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EDUCATORS PROFESSIONAL LIABILITY POLICY Coverage E on the Declarations as respects each ASSAULT.

POLICY PERIOD as set forth in the Declarations as respects each INSURED member.

H. The Company’s limit of liability for COVERAGE B, C, D and E is further always subject to the annual aggregate for the

VI. EXCLUSIONS This insurance does not apply:

any INSURED unless the INSURED administers the medication pursuant to an employing district’s policy adopted pursuant to Sec. 22.052(a), Texas Education Code or any similar state or local law;

A. To any activities of the INSURED not carried on in his or her professional capacity, as defined in III. A. herein; B.

To any loss sustained as a result of the ownership, maintenance, operation, use, loading, or unloading by any INSURED, by any person under the supervision of an INSURED or by any other person of: (a) vehicles of any kind, other than farm tractors not operated on public highways; (b) watercraft; or (c) aircraft; except, however, coverage would apply to: (1) an INSURED who is a driver training instructor while riding as a passenger in the course of his or her duties as an employee of a school system; (2) an INSURED who is an automobile mechanics instructor in the course of his or her regular instruction carried out in a shop provided by the school; and (3) an INSURED while supervising students entering or exiting a school bus.

However, coverage does not apply to B.(1), B.(2) or B.(3) above when the INSURED has any other insurance of any kind whatsoever which affords coverage for such CLAIM(S).

SECTION VII–CONDITIONS, F. Other Insurance, does not apply to this exception to Exclusion B.;

C. To liability assumed by the INSURED under any contract or agreement other than a contract or agreement for performance of services or employment as an instructor, or member of a faculty or teacher staff or a Texas public school or Texas institution of higher education; D.

E.

F.

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To any obligation of the INSURED directly occasioned by, happening through, or in consequence of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalization or requisition or destruction of or damage to property by or under the order of any government or public or local authority; To employers’ liability, including employers’ liability as respects occupational diseases, and any obligation for which the INSURED or the INSURED’S employer and/or any company as their insurer may be held liable under any workers’ compensation, unemployment compensation, or disability benefits or similar law; and any obligation of the INSURED or the INSURED’S employer to indemnify another or contribute to the liability of another arising from a CLAIM by an employee of the INSURED arising out of the course of employment of that employee; 1.

2.

To the rendering of any dental, medical or surgical services or the omission thereof, except by an INSURED who is a registered or licensed vocational nurse, licensed physical therapist, or licensed athletic trainer in the course of his or her duties as an employee of a school system; or who is performing the procedure as a related service for a student with disabilities or pursuant to an individualized education program; or To the administering of medication to students by

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G. To the sale or furnishing of any food or beverage, whether in a cafeteria or otherwise, except to the reimbursement of attorney’s fees as provided under COVERAGE B.2., 3. and 4.; H. To criminal acts or for conduct prohibited by a state or federal penal statute, except as provided in COVERAGE B; I.

To the defense of any civil suit for alleged or actual criminal acts or for conduct prohibited by a state or federal penal statute other than corporal punishment of any student by or at the direction of the INSURED administered as permitted by the law governing corporal punishment in the jurisdiction where the school is located;

J.

To CLAIMS brought by INSUREDS against the POLICYHOLDER, as defined by the policy, or against the Texas Classroom Teachers Association;

K. To punitive damages or exemplary damages in excess of $5,000; L.

To any damages resulting from intentional acts of, or at the direction of, the INSURED, whether or not such damages are intended or foreseeable, except as provided by the following three exceptions to this exclusion: 1. This exclusion shall not apply to acts involving corporal punishment of any student or pupil administered by or at the direction of the INSURED in the course of ACTIVITIES OF AN INSURED IN HIS OR HER PROFESSIONAL CAPACITY administered as permitted by the law governing corporal punishment in the jurisdiction where the school is located; 2. This exclusion shall not apply to allegations of libel, slander, or defamation of character arising from an act within the course and scope of employment of an INSURED; 3. This exclusion shall not apply if the civil proceeding against the INSURED is based on an alleged violation of any civil rights guaranteed by the Constitution or Civil Rights statutes of the United States, except that this insurance shall not apply to any damages resulting from acts or omissions indicating deliberate indifference to a clearly established statutory or constitutional right of another of which a reasonable person would have known;

M. To any action for equitable relief, injunctive relief, declaratory relief or any other relief or recovery that is not seeking monetary judgment, award or settlement, except as provided in COVERAGE B, unless the relief prayed for also seeks damages which are covered under COVERAGE A; N. To any action for any fees, costs or expenses including, but not limited to claimant/plaintiff attorney fees related to equitable

EDUCATORS PROFESSIONAL LIABILITY POLICY relief, injunctive relief, declaratory relief or any other relief or recovery that is not seeking a monetary judgment, award or settlement, except as provided in COVERAGE B, unless the relief prayed for also seeks damages which are covered under COVERAGE A;

monitoring and/or controlling and/or removing and/or nullifying and/or cleaning up seeping and/or polluting and/or contaminating substances and materials.

O. To activities of any INSURED while acting in his or her capacity as an administrator or a member of any School Board or similarly constituted body, or other capacity for which the individual is ineligible for membership in the Texas Classroom Teachers Association; P.

To any obligation of the INSURED arising out of Human Immunodeficiency Virus (HIV), Aids Related Complex (ARC), Acquired Immune Deficiency Syndrome (AIDS), or any virus, complex or syndrome related to the preceding including, but not limited to, any CLAIM, accusations, or charges brought against any INSURED, and to any obligation or duty of the Company to afford defense for such CLAIMS, accusations, or charges that were made because of any damages or injury arising out of HIV, ARC, and/or AIDS, no matter how transmitted;

Q. To bodily injury or personal injury; or loss of, damage to, or loss of use of property directly or indirectly caused by or arising out of seepage into or onto and/or pollution of and/or contamination of air, land, water and/or any other property, however caused and whenever happening, or to bodily injury or personal injury; or loss of, damage to, or loss of use of property directly or indirectly caused by or arising out of: (a) disposal, dumping, conveyancing, carriage, or transportation of any seeping and/or polluting and/ or contaminating substances or materials or waste substance(s) or waste material(s) of whatever nature; (b) waste of disposal sites which were, or currently are, owned, operated, or used by the INSURED or were or currently are utilized by others acting for and/or on behalf of the INSURED; or (c) evaluating and/or

The words “loss of, damage to, or loss of use of property” as used in this exclusion include, but shall not be limited to: (a) the costs of evaluating and/or monitoring and/or controlling and/or removing and/or nullifying and/or cleaning up seeping and/or polluting and/or contaminating substances; (b) loss of, damage to or loss of use of property directly or indirectly resulting from subsurface operations of the INSURED; and (c) removal of, loss of, or damage to subsurface oil, gas or any other substances;

R. To any circumstance or CLAIM resulting from the manufacture, distribution or use of asbestos or products or premises containing asbestos fiber including, but not limited to, any circumstance or CLAIM resulting from asbestosis or any related disease and any circumstance or CLAIM resulting from the inhalation of asbestos fiber and including, but not limited to, any circumstance or CLAIM arising out of the abatement or removal of asbestos from buildings; S.

To CLAIMS for actual or alleged SEXUAL ACTION OR SEXUAL CONDUCT of an INSURED or any other person or to the defense thereof, regardless of whether such action is alleged to be intentional or negligent, including, but not limited to, charges of sexual harassment brought by an employee or by or on behalf of a student of any school district or institution of higher education, except to the reimbursement of attorney’s fees as provided under COVERAGE B; or

T.

To the payment of any fines, monies, levies or other forms of payment required by a judge, court, or administrative agency as restitution or penalty for commission of a crime or for engaging in conduct prohibited by an administrative rule or regulation by an INSURED.

VII. CONDITIONS A. In addition to all the above terms, limitations, provisions, conditions and exclusions, this policy is further subject to the following conditions: 1. If a CLAIM is first made or suit is first brought against an INSURED for an act or omission which occurred during the POLICY PERIOD as stated in Item 2. of the Declarations, the INSURED shall immediately forward in writing to the POLICYHOLDER or the Company every demand, notice of summons or other process received by his or her representatives. If the required documentation is sent to the POLICYHOLDER, the POLICYHOLDER shall then immediately forward to the Company every demand, notice of summons or other process received by his or her representatives.

2. The INSURED shall cooperate with the Company and, upon the Company’s request, shall submit to examination and interrogation by a representative of the Company, under oath if required, and shall attend hearings, depositions and trials and shall assist in effecting settlement, securing and giving evidence, obtaining the attendance of witnesses in the conduct of suits, as well as in the giving of written statement or statements to

the Company’s representatives, and meetings with such representatives for the purpose of investigation or defense and all without charges to the Company.

3. Upon request, the Company shall furnish the INSURED copies of CLAIM or suit pleading, motion papers and depositions. The Company will defend any suit against the INSURED seeking damages to which this insurance applies, even if any of the allegations of the suit are groundless, false or fraudulent, and it is agreed that the Company may make such investigation and settlement of any CLAIM or suit as it deems expedient, but the Company shall not be obligated to pay any CLAIM or judgment or to defend any suit after the applicable limit of the Company’s liability has been exhausted by payment of judgments or settlements.

4. The Company shall have the exclusive right to contest or settle any of the said suits or CLAIMS. The INSURED shall not interfere in any way respecting any negotiations for the settlement of any CLAIM or suit, or in the conduct of any legal proceedings. The INSURED will cooperate with the Company’s authorized representatives and render to them all possible cooperation and assistance.

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EDUCATORS PROFESSIONAL LIABILITY POLICY Company until its consent is endorsed hereon. If, however, the INSURED shall die or be adjudged to be incompetent, this policy shall cover the INSURED’S legal representatives as INSURED with respect to liability previously incurred and covered by this policy.

B. SETTLEMENT

The INSURED shall not, except at his or her own cost, voluntarily make any payment, admit any liability, settle any CLAIM, assume any obligation, or incur any expense without the written consent of the Company.

C. SUBROGATION

H. DECLARATIONS

In the event of any payment under this policy, the Company shall be subrogated to all the INSURED’S rights of recovery against any person or organization and the INSURED shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The INSURED shall do nothing after loss to prejudice such rights.

D. IMPAIRMENT OF RECOVERY

I. CHANGES

Notice to any agency or knowledge possessed by any agent or by any other person shall not effect a waiver or change in any part of this policy or stop the Company from asserting any right under the terms of this policy nor shall the terms of this policy be waived or changed except by endorsement issued to form a part of this policy.

J.

CANCELLATION OR NONRENEWAL

This policy may be canceled by the POLICYHOLDER by surrendering the policy to the Company or any of its authorized agents, or by mailing to the Company written notice stating when thereafter the cancellation shall be effective.

This policy may be canceled for nonpayment of premium with a written notice to the POLICYHOLDER mailed to the address shown in the Declarations, stating when, not less than sixty (60) days such cancellation will be effective. In which case, earned premium shall be computed pro rata.

If this policy shall be canceled by the POLICYHOLDER, the Company shall retain the customary short rate proportion of the premium hereon. Payment or tender of any unearned premium by the Company shall not be a condition precedent to the effectiveness of cancellation, but such payment shall be made as soon as practicable. If the period of limitation relating to the giving of notice is prohibited or made void by any law controlling the construction thereof, such period shall be deemed to be amended to be equal to the minimum period or limitation of such law.

In the event of cancellation and with the consent of the Company, not to be unreasonably withheld, the coverage for individuals for whom premium has been paid will continue until the end of the POLICY PERIOD. If the Company elects not to renew this policy at the end of a POLICY PERIOD, a written notice of nonrenewal stating the reason for such nonrenewal will be mailed or delivered to the POLICYHOLDER at least ninety (90) days before the expiration date of the policy. The notice will be mailed to the last known address of the POLICYHOLDER. If notice is mailed, proof of mailing is sufficient proof of notice.

If the policy is written on a reporting basis, the POLICYHOLDER agrees in the event of cancellation to report the units of exposure and to pay premium thereon to the Company as provided herein up to date of cancellation. Premium adjustment may be made either at the time cancellation is effected or as soon as practical after cancellation becomes effective, but payment or tender of unearned premiums is not a condition of cancellation.

The Company shall not be bound to any loss of the INSURED if the INSURED shall have impaired any right of recovery for loss.

E. ACTION AGAINST COMPANY

No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy, nor until the amount of the INSURED’S obligation to pay has been finally determined either by judgment against the INSURED after actual trial or by written agreement of the INSURED, the claimant and the Company.

Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join the Company as a party to any action against the INSURED to determine the INSURED’S liability, nor shall the Company be impleaded by the INSURED or his or her legal representative. Bankruptcy or insolvency of the INSURED or of the INSURED’S estate shall not relieve the Company of any of its obligations hereunder.

F.

OTHER INSURANCE

This policy is specifically excess if the INSURED has other insurance of any kind whatsoever, whether primary or excess, or if the INSURED is entitled to defense or indemnification from any other source whatsoever, including by way of example only, such sources as state statutory entitlements or provisions. Other insurance includes, but is not limited to, insurance policies, state pools, and programs of self-insurance, purchased or established by or on behalf of any EDUCATIONAL UNIT, to insure against CLAIMS arising from activities of the EDUCATIONAL UNIT or its employees, regardless of whether or not the policy or program provides primary, excess, umbrella or contingent coverage. In addition, COVERAGE A is specifically excess over coverage provided by any EDUCATIONAL UNIT’S or school board’s errors and omissions or general liability policies, purchased by the INSURED’S employer or former employers, or self-insurance program or state pools, whether collectible or not, and it is specifically excess over coverage provided by any policy of insurance which purports to be excess to a policy issued to the INSURED.

This condition is not applicable to Section VI–EXCLUSIONS, Exclusion B.

G. ASSIGNMENT

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By acceptance of this policy, the INSUREDS, the POLICYHOLDER, and any successors agree that the statements in the Declarations and in the application forming a part of this policy are issued in reliance upon the truth hereof and that this policy embodies all agreements existing between such persons and the Company or its agent relating to this insurance.

Assignment of interest under this policy shall not bind the

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EDUCATORS PROFESSIONAL LIABILITY POLICY INSURED’S behalf. The POLICYHOLDER is charged with the responsibility of notifying the Company and all INSUREDS of any changes that might affect the insurance provided by this policy.

K. SOLE AGENT

Notice to the POLICYHOLDER shall constitute notice to each INSURED. By acceptance of this policy, the POLICYHOLDER will act on behalf of all INSUREDS with respect to: 1. The giving and receiving of notice of CLAIMS or cancellation; 2. Accepting any endorsement issued to this policy; 3. Paying premium when due; and 4. Receiving return premium.

Each INSURED agrees the POLICYHOLDER will act on the

L. AUDIT

The deposit premium shown in the Declarations is provisional and is based on the number of insured members at inception.

The POLICYHOLDER agrees to maintain a record of insured members and the policy will be subject to audit in a manner determined by the General Agent with the agreement of the Company. The premium will be adjusted accordingly based on the outcome of the audit. The final premium is subject to a Minimum Earned Premium.

DEDUCTIBLE ENDORSEMENT (THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY) The following is added to Section III. DEFINITIONS: Deductible means the amount the POLICYHOLDER must pay for CLAIMS. The following is added to Section V. LIMITS OF LIABILITY: Subject to the Limits of Liability, the Company will only be liable to pay CLAIMS in excess of the per CLAIM DEDUCTIBLE shown in ITEM 4. DEDUCTIBLE, 1. Per CLAIM of the Declarations.

The total of the POLICYHOLDER’S responsibility for all

DEDUCTIBLE payments will not exceed the Annual Aggregate DEDUCTIBLE amount stated in ITEM 4. DEDUCTIBLE, 2.

Annual Aggregate of the Declarations.

In the event that the Company expends funds for CLAIMS on the INSURED’S behalf, the POLICYHOLDER will reimburse the Company for such expenditures up to the amount of the DEDUCTIBLE shown in ITEM 4. DEDUCTIBLE of the Declarations. Reimbursement of the DEDUCTIBLE will be due within sixty (60) days from the date the Company bills the POLICYHOLDER.

TEXAS AMENDATORY ENDORSEMENT (THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY) Coverage A. is afforded for Educators Liability subject to the limits of liability, as stated in Item 3. of the Declarations, in excess of the underlying limit provided to Texas public school district employees through the Texas Association of School Boards (TASB) for liability for damages arising from negligence,

wrongful acts or failure to act.

The following is to the Other Insurance Condition: In addition, Coverage A. is specifically excess over coverage provided by the Texas Association of School Boards (TASB).

FIREARMS EXCLUSION (THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY) The following exclusion is added to the EXCLUSIONS Section of the policy: The Company shall not be obligated to make any payment or defend any lawsuit in connection with any CLAIM against the insured arising from: 1. The ownership, possession, maintenance, use (including the loading, reloading or use of ammunition), threatened use, operation or entrustment to others of any FIREARMS(S) by any insured; or 2. The negligent hiring or supervision of others by any

insured with respect to the ownership, possession, maintenance, use (including the loading, reloading, or use of ammunition), threatened use, operation or entrustment to others of any FIREARM(S).

The following definition is added to the DEFINITIONS Section of the policy: FIREARM(S) includes, but is not limited to, guns, handguns, revolvers, pistols, rifles, shotguns, semi-automatic weapons or stun guns or similar devices.

All other terms and conditions of this policy remain unchanged.

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EDUCATORS PROFESSIONAL LIABILITY POLICY

REIMBURSEMENT OF ATTORNEY FEES — PRIVATE INSTRUCTION (THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY) 1.

The following is added to SECTION I ­— INSURING AGREEMENTS, Coverage B — Reimbursement of Attorney Fees, Subsection A.: A. The Company will reimburse the insured for reasonable and necessary attorney fees which the insured is legally obligated to pay an attorney for the defense of any action brought against such insured arising out of the following activities, but without obligation to furnish such attorney: incurred in the defense of an action or proceeding against the insured arising from private instruction activities of such insured.

2. As respects the coverage provided by this endorsement, the following sublimits apply: Coverage B — Reimbursement of Attorney Fees

Sublimits of Liability $10,000 per CLAIM, per insured $10,000 Annual Aggregate, per insured and subject to the Annual Aggregate, all CLAIMS, as shown on the Declarations.

The sublimits of liability stated in this endorsement shall be part of, and not in addition to, the limits of liability shown on the Declarations.

3. Exclusion B. of SECTION VI — EXCLUSIONS is deleted in its entirety and is replaced by the following: The Company shall not be obligated to make any payment or defend any lawsuit in connection with any CLAIM against the insured arising from: B. as respects Coverage A. only, activities of the insured carried on in a private business or private professional endeavor.

SCOTTSDALE INSURANCE COMPANY IMPORTANT NOTICE — TEXAS

To obtain information or make a complaint: You may contact your agent or you may call Scottsdale Insurance Company’s toll-free number at: 1-800-423-7675.

You may also write to Scottsdale Insurance at:

Scottsdale Insurance Company

8877 N. Gainey Center Drive

PO Box 4110

Scottsdale, AZ 85261 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: 1-800-252-3439.

You may write the Texas Department of Insurance at:

Commissioner of Insurance

PO Box 149104

Austin, TX 78714-9104

Fax: 1-512-490-1007

Web: http://www.tdi.texas.gov

Email: ConsumerProtection@tdi.texas.gov

PREMIUM OR CLAIM DISPUTES:

Should you have a dispute concerning your premium or about a claim, contact the agent first. If the dispute is not resolved, you may contact the Texas Department of Insurance.

ATTACH THIS NOTICE TO YOUR POLICY:

This notice is for information only and does not become a part or condition of the attached document.

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LOSS CONTROL AVAILABILITY — TEXAS

Loss Control techniques are a function of safety in any operation. Loss Control is a managed analysis of accidents, equipment, facilities and employees to reduce the possibility that a loss will occur and/or reduce the severity of those that do occur. One or more of the following methods for controlling losses may be implemented: •

On-site physical inspection with recommendations for improvement

•

Hand-outs of similar industry claims and loss analysis

•

Provision of loss summaries and analysis of your operation

•

Recommendations for vehicle maintenance and inspection

•

Bulletin board type safety materials for posting in conspicuous locations

•

Loss Control Newsletter

Managing losses through Loss Control techniques can reduce both personal and financial injury. Should you desire Loss Control services, call 1-800-423-7675, extension 3184.

The professional liability insurance is provided by Scottsdale Insurance Company, a wholly owned subsidiary of Nationwide®, one of the largest insurance and financial service providers in the United States with an A.M. Best Rating of A+XV (superior). The coverage is provided through a purchasing group, and the insurer may not be subject to all insurance laws and regulations of the state.

RISK MANAGEMENT OVERVIEW

Information provided by the Texas Classroom Teachers Association in cooperation with Scottsdale Insurance Company

THE SCOPE OF QUALIFIED IMMUNITY IN TEXAS Fortunately for Texas teachers, the state of Texas has strong laws providing for qualified immunity from liability for professional public school employees. The purpose of this article is to provide an overview of those state statutes and review sources of potential liability in an effort to prevent liability. (NOTE: This article does not address any potential liability under federal law.) The Texas statute that provides for qualified immunity was amended and strengthened by the 78th Texas Legislature during the regular session and reads as follows: person that is or was in the possession of the employee because of an act that is incident to or within the scope of the duties of the employee’s position of employment.

Sec. 22.051. DEFINITION; OTHER IMMUNITY. (a) In this subchapter, “professional employee of a school district” includes: (1) a superintendent, principal, teacher, including a substitute teacher, supervisor, social worker, school counselor, nurse, and teacher’s aide employed by a school district; (2) a teacher employed by a company that contracts with a school district to provide the teacher’s services to the district;

Generally, the statute provides qualified immunity from liability in the following situation for the persons defined in Section 22.051. A professional school employee is immune from liability under state law if the following conditions are met: •

the act is incident to or within the scope of the duties of the employee’s position of employment;

•

the act involves the exercise of judgment or discretion on the part of the employee;

•

the employee is not using excess force or negligence in the discipline of a student3; and

(5) a member of the board of trustees of an independent school district; and

•

the act does not involve the operation, use, or maintenance of any motor vehicle.4

(6) any other person employed by a school district whose employment requires certification and the exercise of discretion.

Other than the use of motor vehicles, professional school employees have exposure to potential liability in two primary areas: ministerial acts and student discipline. Ministerial acts are actions or omissions that do not involve the exercise of judgment or discretion on the part of the employee. The negligent performance of (or lack of performance of) a ministerial act by a professional school employee resulting in injury could make the teacher liable for the injury. So far, the Texas cases have construed the term “ministerial” fairly narrowly. The Texas Supreme Court defines ministerial acts as those “where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.”5 Nevertheless, the Texas Supreme Court has declined to overrule a decision of the Fort Worth Court of Appeals holding that the alleged failure of school employees to follow certain mandatory procedures of the school constituted a ministerial act for which the qualified immunity from liability did not apply.6 In that case, a mentally disabled student was allegedly sexually assaulted by another student in the school elevator. The school administration implemented new procedures that included such measures as never allowing the students to be alone together, only allowing adults to have the keys to the elevator, and executing a mandatory tardy policy for the students.

The parents of the student alleged that these procedures were not followed and that the student was assaulted two additional times in the school elevator. The parents filed suit against the school district superintendent, principal, vice principal and special education diagnostician. These professional school employees asserted that they were entitled to the qualified immunity from liability.

The Court of Appeals held that they were not entitled to immunity from liability. According to the court, the procedures that were implemented to protect the student from additional assaults “defined the duties with such precision as to leave nothing to the exercise of Appellants’ judgment or discretion.”7 Since those

(3) a student in an education preparation program participating in a field experience or internship; (4) a school bus driver certified in accordance with standards and qualifications adopted by the Department of Public Safety of the State of Texas;

(b) The statutory immunity provided by this subchapter is in addition to and does not preempt the common law doctrine of official and governmental immunity.1

Sec. 22.0511. IMMUNITY FROM LIABILITY. (a) A professional employee of a school district is not personally liable for any act that is incident to or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee, except in circumstances in which a professional employee uses excessive force in the discipline of students or negligence resulting in bodily injury to students. (b) This section does not apply to the operation, use, or maintenance of any motor vehicle. (c) In addition to the immunity provided under this section and under other provisions of state law, an individual is entitled to any immunity and any other protections afforded under the Paul D. Coverdell Teacher Protection Act of 2001 (20 U.S.C. Section 6731 et seq.), as amended. Nothing in this subsection shall be construed to limit or abridge any immunity or protection afforded an individual under state law. For purposes of this subsection, “individual” includes a person who provides services to private schools, to the extent provided by federal law.2 (d) A school district may not by policy, contract, or administrative directive: (1) require a district employee to waive immunity from liability for an act for which the employee is immune from liability under this section; or (2) require a district employee who acts in good faith to pay for or replace property belonging to a student or other

Summer 2021 | THE CLASSROOM TEACHER 29

RISK MANAGEMENT OVERVIEW procedures were not followed, the employees could be held liable under Texas tort law.

The other source of potential liability is in the discipline of students.

A professional school employee can be liable for using excessive force in the discipline of students or by being negligent in the discipline of students. The most important thing to keep in mind is to be very careful not to use excessive force when disciplining students. You should be very familiar with your district’s policies relating to student discipline, especially if your policies authorize corporal punishment.

You should also strictly adhere to any policies relating to physical contact with students. While provisions of the Texas Penal Code and Education Code allow an educator to use reasonable force to maintain discipline, you should only use force on a student if necessary to protect another student or yourself from bodily injury.8 Teachers must keep in mind that potential liability for the negligent discipline of a student is not limited to situations involving corporal punishment or use of force against a student. The Dallas Court of Appeals envisioned the following scenario as a basis for potential liability: In other instances, the punishment involves no force, but rather requires some action on the part of the student as a result of which the student suffers bodily injury. An example of the latter instance would be running laps around an athletic field.

It is conceivable that an act or failure to act on the part of the professional employee might be a proximate cause of bodily injury suffered by a student in running the laps.9 While the definition of corporal punishment in state law excludes physical pain caused by reasonable physical activity associated with athletic training, competition or physical education, any physical activity should be assigned for the purpose of conditioning or training rather than as punishment.10 Professional employees should also note that another statute providing for immunity from liability for employees who dispense medication to students has been amended. This law provides: (a) On the adoption of policies concerning the administration of medication to students by school district employees, the school district, its board of trustees, and its employees are immune from civil liability from damages or injuries resulting from the administration of medication to a student if: (1) the school district has received a written request to administer the medication from the parent, legal guardian, or other person having legal control of the student; and (2) when administering prescription medication, the medication is administered either: (A) from a container that appears to be: (i) the original container; and (ii) properly labeled; or (B) from a properly labeled unit dosage container filled by a registered nurse or another qualified district employee, as determined by district policy, from a container described by Paragraph (A).11 (b) The board of trustees may allow a licensed physician or registered nurse who provides volunteer services to the school district and for whom the district provides liability insurance to administer to a student: (1) nonprescription medication; or

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(2) medication currently prescribed for the student by the student’s personal physician. (c) This section may not be construed as granting immunity from civil liability for injuries resulting from gross negligence.

It is unclear whether this law is supplemental to the immunity provided by Section 22.0511, or whether it creates an entirely different standard for immunity when dispensing medication.

Although it is possible that Section 22.0511 also applies, school employees should only dispense prescription medication under the circumstances provided under the above statute.

While Texas law provides a strong qualified immunity to its professional school employees, it is clear that there are situations in which there is exposure. For this reason, it is fortunate that the Texas Legislature placed a $100,000 cap on damages for suits against professional school employees for “actions incident to or within the scope of duties of the employee’s position of employment.”12 As this is a relatively new statute, it remains to be seen how the Texas courts will implement this cap on damages.

The fact that you may be immune from liability in certain circumstances does not keep someone from filing a lawsuit against you. If this happens, you will need the assistance of qualified counsel to represent you and assert the qualified immunity from liability on your behalf. You should be sure that you renew your membership in TCTA and the professional liability coverage within the grace period provided by the policy to make sure there is no lapse in your coverage.

One of the most important ways to prevent liability is to consult with legal counsel if you have any questions about your potential for liability and how to minimize it. TCTA members are fortunate to have toll-free access to staff attorneys to advise you on these matters.

If you ever have any questions about the potential for liability, you should contact the TCTA Legal Department at 888-879-8282.

Section 22.051, Texas Education Code.

Section 22.0511, Texas Education Code.

3 The Texas Supreme Court has ruled that the use of the term negligence in this wording of the statute applies only in the context of disciplining a student. Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978); Hopkins v. Spring Independent School District, 736 S.W.2d 617 (Tex. 1987).

4 It is important to note that the professional liability policy available to TCTA members does not cover the operation, use or maintenance of any motor vehicle except as provided by Exclusion B in Section VI of the policy.

Members should make sure they are covered by their own motor vehicle policy or that they are specifically named as an insured under their district’s motor vehicle policy if they transport students, whether in a school district vehicle or a personal vehicle.

5 Downing v. Brown, 935 S.W.2d 112, 114 (Tex.1996).

6 Myers v. Doe, 52 S.W.3d 391, 395-96 (Tex.App.-Fort Worth 2001, pet. denied).

7 Id. at 396.

8 Section 22.0512, Texas Education Code and Section 9.62, Texas Penal Code.

9 Diggs v. Bales, 667 S.W.2d 916, 918 (Tex.App.-Dallas 1984, writ ref ’d n.r.e.).

10 Section 37.0011, Texas Education Code.

11 Section 22.052, Texas Education Code.

12 Section 22.0515, Texas Education Code 1 2

EXECUTIVE DIRECTOR’S MESSAGE Continued from page 2 by pivoting, as you always do when needed, to meet the needs of your students in unexpected and creative ways.

Now for the “drang” part. The legislature has now passed two bills on the topic of critical race theory. My personal opinion is that this is a manufactured issue to be used for election purposes, based on a 40-year-old theory primarily discussed in law schools. Nevertheless, you are going to be confronted with implementing poorly written legislation that is vague and confounding. It may make your life difficult if some of your students’ parents are looking for a fight, as so many people seem to be right now. We will, of course, be covering the details for you in multiple formats.

But like with the onset of COVID-19, we will find ourselves without definite answers, in uncharted territory, and trying to help you navigate things like a law requiring you to explore

certain topics objectively and in a manner free from political bias. This will be a challenge for all of us. But rest assured that we’ll be with you on the journey of interpreting the law, defining any new boundaries that may have been created, and coming up with creative approaches to allow you to offer your students your best. We know and expect that there will be differences of opinion among you, which we’ll address as they arise in a non-hypothetical context.

You’ve been heroic during extraordinarily difficult times, and those of you who have experienced losses, including those who have felt forced to retire, have our sympathy. But we are girding our loins for the next rounds in these strange times, and we will be there with you, as always, to help sort it out and encourage that policymakers trust the experts, including teachers. Please know that we’re here for you and we wish you a successful school year.

Plan your next adventure and save!

Take advantage of TCTA’s cost-saving programs as you map out an adventure.

Log in at tcta.org to find deals on theme parks, movie tickets, sports and more.

Save on car rentals with Alamo, Avis and Budget. Reserve hotel rooms with participating Choice Hotels or Wyndham Hotels & Resorts, which include La Quinta properties.

Explore the savings today and make the most of your membership!

Summer 2021 | THE CLASSROOM TEACHER

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Texas Classroom Teachers Association PO Box 1489 Austin, TX 78767-1489 888-879-8282 | tcta.org

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Return Service Requested

“My TCTA membership has been 110% worth every penny over the years; any questions/concerns are quickly resolved with a phone call or email. Our educator rights are being steadily chipped away.

TCTA is fighting relentlessly to keep that from happening.” — R.E.

MAKE SURE YOU’RE COVERED!

Renew your membership by Sept. 30 to avoid a lapse in coverage and ensure you receive a copy of the 2021-22 Survival Guide in October.

Make The Educated Choice® — renew online at tcta.org or call 888-879-8282.

Encourage your colleagues to join and earn $25 for every two eligible First-Time Active members.

Find the complete Take 2, Make $25 program details at tcta.org/take2.