YOUR LEGAL RIGHTS & RESPONSIBILITIES

YOUR LEGAL RIGHTS AND RESPONSIBILITIES

Key laws affecting teachers

Following are some of the key statutes on teacher rights, working conditions and related topics. These laws apply to school districts and campuses that operate under the Texas Education Code and are not necessarily applicable to the following: charter schools; programs, campuses or districts that have waivers from the commissioner of education; Districts of Innovation; or alternative education programs.

Your time School start date and last day of school

The first instructional day must be no earlier than the fourth Monday in August; districts may not receive a waiver from this requirement. (Note: More than two-thirds of Texas districts

have exempted themselves from this law through the District of Innovation process.)

Legislation that took effect in 2015 adds a requirement that a school district may not schedule the last day of school for students before May 15. Each district must operate so that it provides 75,600 minutes of instruction, including intermissions and recesses for students.

Length of instructional day

The instructional day must be at least 420 minutes, including intermissions and recesses. State law does not address the length of a teacher’s workday.

Required days of teacher service

The 10-month teacher contract year requires a minimum of 187 days of service. Recent TCTA-initiated legislation allows school districts anticipating providing fewer than 180 instructional days during a school year to also reduce the number of required teacher days of service proportionately without a reduction in an educator’s salary.

Professional development

A Texas public school district has the discretion to determine the number of days of the teacher contract year to devote to staff development and teacher preparation days. Staff development must be predominantly campus based and must be developed and approved by the campus site-based decision-making committee. It may include training in: (A) technology; (B) positive behavior intervention and support strategies, including classroom management, district discipline policies, and the student code of conduct adopted under Chapter 37; and (C) digital learning; The district also may use staff development that is designed and approved by the district-level site-based decision-making committee. The district must provide scientifically based staff development relating to the instruction of students with disabilities to educators who work primarily outside of special education and who do not possess the knowledge and skills necessary to implement the individualized education programs of students receiving instruction from the educators. School districts must provide training in the following: • suicide prevention; • recognizing signs of mental health conditions and substance abuse; • strategies for establishing and maintaining positive relationships among students, including conflict resolution; • how grief and trauma affect student learning and behavior and how evidence-based, grief-informed, and traumainformed strategies support the academic success of students affected by grief and trauma; and Continued

DISCIPLINE Corporal punishment is defined as deliberate infliction of physical pain by hitting, paddling, spanking, slapping or any other physical force used as a means of discipline. It does not include physical pain caused by reasonable physical activities associated with athletic training, competition or physical education. It also does not include the use of restraint (subject to state law and TEA rules). Educators may use corporal punishment only if the board of trustees has adopted a policy allowing the use of corporal punishment, unless the student’s parent, guardian or other person having lawful control over the student has previously provided a written, signed statement prohibiting the use of corporal punishment for the student. Such a statement must be provided each school year. If you administer corporal punishment, comply strictly with your district’s policy, because it is a potential area of liability for educators. Use of “aversives” prohibited. Aversive techniques, which is defined as techniques or interventions that are intended to reduce the likelihood of behavior reoccurring by intentionally inflicting on a student significant physical or emotional discomfort or pain, are explicitly prohibited by law. Although most of the aversive techniques prohibited by law are obvious, the full scope of aversive techniques is broad, to include a technique or intervention that ridicules or demeans the student in a manner that adversely affects or endangers the learning or mental health of the student or constitutes verbal abuse; constitutes a use of timeout that precludes the student from being able to be involved in and progress appropriately in the required curriculum and, if applicable, toward the annual goals included in the student’s individualized education program, including isolating the student by the use of physical barriers; or deprives the student of the use of one or more of the student’s senses (unless it does not cause the student pain or discomfort or complies with the IEP or BIP). The law makes clear that a teacher is not prohibited from removing a student from class under current discipline laws. Additionally, teachers should be aware that the law also prohibits denying a student adequate supervision. Use of force. A professional employee may not be subject to disciplinary proceedings for the use of reasonable force against a student to the extent justified under Section 9.62 of the Texas Penal Code. This provision allows an educator to use non-deadly force “when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.” A professional employee may be disciplined for violating a district’s policy relating to corporal punishment, but may not be disciplined for using reasonable force for such actions as breaking up a fight. • preventing, identifying, responding to and reporting incidents of bullying. This training must be provided on an annual basis as part of employee orientation to all new school district/openenrollment charter school educators and to existing school district/open-enrollment charter school educators on a schedule adopted by TEA, and must use a best practice-based program recommended by the Health and Human Services Commission/TEA. The training may include two or more of the listed topics together (a TCTA-initiated provision). The suicide prevention training may be satisfied through independent review of suicide prevention training material that complies with TEA guidelines and is offered online. Districts must increase awareness and implementation of trauma-informed care, through a program selected from the list of recommended best practice-based programs and researchbased practices established under Section 161.325, Health and Safety Code. The law includes TCTA-initiated provisions that the training must only be provided as part of any new employee orientation for all new school district educators, and to existing school district educators on a schedule adopted by the agency by rule that requires educators to be trained at intervals necessary to keep educators informed of developments in the field. School districts are required to maintain records that include the name of each staff member that participated in the training and must report annually to TEA the number of teachers, principals and counselors employed by the district and the total who completed the training. Prevention techniques for and recognition of sexual abuse, trafficking and all other maltreatment of children also must be provided, as part of new employee orientation, to all new school district and open-enrollment charter school employees and to existing employees on a schedule adopted by TEA until all employees have taken the training. The district must maintain records naming each employee who participated in the training. Early mental health intervention and suicide prevention training must be provided to teachers, counselors, principals and other appropriate personnel. (The training is required at elementary campuses only to the extent sufficient funding and programs are available.) The district must maintain records naming each employee who received in the training, with relevant employees receiving the training at least once. All school nurses, and other school employees in regular contact with students must complete a TEA-approved online course of instruction regarding seizure recognition and related first aid. Bleeding control station training is required for school district peace officers, security personnel and any other personnel who might reasonably be expected to use a bleeding control station. District-offered staff development also may count toward the continuing professional education requirement for standard certification. However, it is the teacher, not the district, who determines whether any district-offered staff development also will count toward the teacher’s required CPE hours.

School safety training

Recent legislation requires school district/open-enrollment charter school multihazard operations plan to include: • emergency response training for district employees, including substitute teachers; and • training on integrating psychological safety and suicide prevention strategies into the district’s plan from an approved list of recommended training established by the commissioner and the Texas School Safety Center for members of the school safety and security committee, counselors, mental health professionals, educators, and other district personnel as determined by the district. Threat assessment and safe and supportive school program teams must report to TEA the number and percentage of school personnel trained in suicide prevention or grief/traumainformed practices, mental health or psychological first aid for schools, training related to a safe/supportive school program or any other program identified by the commissioner. School districts are required to maintain records that include the name of each district staff member that participated in the training and must report annually to TEA the number of teachers, principals and counselors employed by the district who completed the training and the total number of teachers, principals and counselors employed by the district.

Literacy Achievement Academies

All school districts/open-enrollment charters must ensure that, not later than the end of the 2022-23 school year, each K-3 classroom teacher has attended a teacher literacy achievement academy. New teachers subsequently must attend an academy prior to their first year of assignment in those grades. Teachers holding all-level certification in art, health education, music, physical education, speech communication and theater arts, or theater, are exempt from the requirement.

Personal and other types of leave

Under state law, each school employee is entitled to five days of personal leave per year with no limit on accumulation. School districts have the discretion to provide additional personal leave beyond this minimum. Pursuant to a TCTA-initiated law, school employees may choose the order in which they take state and locally granted personal leave days. The district may adopt a policy governing the use of personal leave, although legislative intent was that such policies should manage only the scheduling of personal days (for example, prohibiting the use of personal leave on student assessment days, the last day of school, etc.). A district may not limit the reasons for which personal leave may be taken. This prohibition applies to state personal leave but may not apply to local personal leave. As a result, districts granting local leave may presumably restrict the purposes for which it can be used (e.g., requiring an employee to have a medical reason to request local sick leave), though this issue has not been litigated. The law also allows up to two years of paid assault leave for teachers to recover from injuries suffered in a work-related assault. If an employee requests assault leave in writing, the district must grant it immediately, and the leave may not be deducted from the employee’s accrued personal leave (unless the claim is found to be invalid). A TCTA-initiated law clarifies that a district may not deny assault leave based on the mental capacity of the assailant. Districts must provide at least 180 calendar days of unpaid disability leave for any educator whose condition (as certified by a physician) interferes with the performance of work duties. Before returning to duty, the educator must give the district at least 30 days’ written notice and a doctor’s statement of fitness. Temporary disability leave covers inability to perform work duties due to pregnancy and postnatal recovery, but not child care. An educator’s employment contract may not be terminated while he/she is on a leave of absence for temporary disability. Under the federal Family and Medical Leave Act, districts with 50 or more employees must allow up to 12 weeks of family leave for a serious health condition that renders the employee unable to perform his/her job or for such condition of a spouse, parent or child. Any employee who has been employed for at least 1,250 hours during the preceding 12-month period also may take 12 weeks of leave within 12 months of the birth or adoption of a child. The district may pay the employee during leave, but this is not required. Note: The Families First Coronavirus Response Act offers up to 2 weeks of paid sick leave and 10 weeks of unpaid leave through Dec. 31, 2020, unless reinstated by Congress. Go to tcta.org/node/15338. A TCTA-initiated law provides that employees on military leave may use any accumulated sick or personal leave and clarifies that school employees may take up to 15 days of military leave without loss of leave time for service in the reserves or state military forces. Districts also may adopt policies providing for fully paid leave during military service as part of the consideration of employment in a district. Most districts’ leave policies are designated as DEC(local) and can be found by searching for the district’s name and policy online.

Paperwork reduction

A TCTA-initiated law on paperwork requirements provides that: • Districts must limit redundant requests for information and the number and length of written reports that a teacher must prepare. • Reports that teachers may be required to prepare are limited to a specific list that essentially covers grading, lesson plans, attendance reports, reports related to the health or safety of students, accreditation information or material related to a grievance or other legal matter.

Teachers may be required to prepare only unit or weekly lesson plans that outline, in a brief and general manner, the information to be presented in each period at the secondary Continued

level or in each subject or topic at the elementary level. The complete list is available at tcta.org/paperwork_reduction. School boards are required to review paperwork requirements and transfer to noninstructional staff any reporting tasks that could be reasonably accomplished by that staff. Districts may collect other essential information, but such situations require the agreement of the teacher. The commissioner of education must review paperwork that TEA requires of districts and adopt a policy that limits written reports and other paperwork that TEA requires a principal or teacher to complete.

Your classroom Class size

Each district must maintain an average ratio of no more than 20 students for one teacher. For kindergarten through grade 4, the district may not enroll more than 22 students in a class except during the last 12 weeks of the year. Districts with high migrant populations may exceed the 22-to-1 ratio during a different 12-week period than the last 12 weeks of the year, but the period must be specified by the district. Districts that obtain waivers from the limit must provide written notice to parents of each affected students, unless larger class sizes are part of a District of Innovation plan. Districts must specifically identify how student safety will be ensured if PE class-size ratios exceed 45to-1. Note: This is a popular District of Innovation exemption.

Pledge and one minute of silence

Students must recite the pledges to the U.S. and Texas flags once each day, followed by one minute of silence during which students may reflect, pray, meditate or engage in any silent activity that is not likely to interfere with or distract another student. The teacher or employee in charge must maintain silence during this period. Parents may excuse their children from these activities with a written request.

Teacher grading authority

Pursuant to a TCTA-initiated law, an examination or course grade issued by a teacher is final and may not be changed unless it is erroneous, arbitrary or inconsistent with a school board-approved district grading policy. A school board’s determination with regard to a grade is final and may not be appealed unless the appeal relates to a student’s eligibility to participate in extracurricular activities. Grades must be based on a student’s relative mastery of the subject, and teachers may not be required to award a minimum grade for an assignment without regard for the quality of the student’s work. However, a district’s grading policy may allow a student a reasonable opportunity to make up or redo an assignment or examination for which the student received a failing grade. Some districts refused to change policies that require the assignment of a minimum grade on progress reports and report cards. At TCTA’s request, the then-commissioner of education clarified that the law applies to grade averages as well as individual grades. Several districts filed suit against the commissioner requesting that he be enjoined from enforcing the law in accordance with his interpretation and asking the courts to declare that the law does not apply to grade averages. The district judge ruled that the commissioner’s letter was a correct interpretation of the law. Another law provides that “Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments must be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school districts. Students may not be penalized or rewarded on account of the religious content of their work.”

Your students’ health Diabetes management plan

Each student with diabetes must have a diabetes management and treatment plan developed by the parent and the student’s doctor. Principals of schools with students with diabetes must seek out school employees (other than health care professionals) to serve as unlicensed diabetes care assistants. A principal must attempt to ensure that the school has at least one unlicensed assistant if it employs a full-time nurse; if it has no full-time nurse, the school must have at least three unlicensed assistants. School employees may not be penalized or disciplined for refusing to serve as diabetes care assistants. The assistants are trained by a health care professional on: recognizing symptoms, understanding proper actions to take, understanding the details of the student’s health plan, performing finger-sticks and checking urine ketone levels, administering glucagon and insulin, recognizing complications requiring emergency care, and understanding recommended schedules and food intake. Before an assistant is allowed to help a child, the parent must sign an agreement that states that the parent understands that an unlicensed assistant is not liable for civil damages. Schools must allow students to selfcheck and self-medicate in accordance with the student’s health plan. TCTA added language to this law to avoid the creation of potential liability for school employees.

Psychotropic drugs

A school district employee may not recommend that a student use a psychotropic drug (a drug intended to affect perception, emotion or behavior), suggest a particular diagnosis, or prohibit a student from attending a class or participating in a schoolrelated activity because of the parent’s refusal to consent to the student using a psychotropic drug or having a psychiatric evaluation. This law does not, however, prohibit a school district employee who is a registered nurse, advanced nurse practitioner, physician or appropriately credentialed mental health professional from recommending that a child be evaluated by an appropriate medical practitioner. It also does not prohibit an

employee from discussing a student’s behavior or academic progress with the student’s parents or another school employee.

Head lice

State law requires school boards to adopt a policy requiring a school nurse who becomes aware that a student has lice to provide written or electronic notice to the parent of the child as soon as possible (no more than 48 hours) and to the parents of children in the same classroom within five days. The notice must include information about treatment and prevention and the notice to other parents may not identify the child with lice.

Texas public school nutrition policy

Districts participating in the federal child nutrition programs must meet required nutrition standards for foods served by school food service or sold during the school day by the food Every teacher is entitled to a duty-free lunch and planning and preparation time. Except for a few minor changes made in 1995, the statutes have essentially remained the same since enactment.

Duty-free lunch Texas Education Code, Sec. 21.405 By law, each classroom teacher and full-time librarian gets at least a 30-minute lunch period “free from all duties and responsibilities connected with the instruction and supervision of students.”

According to a 1986 Texas attorney general opinion, the term “duty” would include a directive that teachers remain on campus during lunch, because it would relate to student instruction or supervision. Districts cannot require teachers to stay on campus during their 30-minute lunch even if the campus is “closed” for students. This restriction applies in a COVID-19 world as well. The law provides exceptions (personnel shortages, extreme economic conditions or unavoidable/unforeseen circumstances) that give districts the right to require teachers to supervise lunches, but not more than one time per week. The rules adopted by the commissioner of education set the bar very high before these exceptions apply. Scheduling problems, and state mandated testing, do not create unforeseen circumstances. They exist when an epidemic, illness or natural or man-made disaster leaves no one available to do the duty. An extreme economic condition exists when hiring a person to supervise lunch would cause the district to raise taxes to the extent that the district might face a tax roll-back election. A personnel shortage exists only after all available nonteaching personnel have been assigned to the duty and the district has diligently recruited community volunteers to help. service department, individuals and groups. Food that is given away during the school day (such as by parents for special occasions) is no longer subject to state regulations, but is subject to locally adopted nutrition policies. Details are available at www.squaremeals.org.

Donation of surplus food

A law passed in 2017 allows districts to donate food, including surplus food from cafeteria meals, to be distributed on campus to students in need.

Your employment Federal job protections following military leave

The federal Uniformed Services Employment and

DUTY-FREE LUNCH; PLANNING AND PREPARATION TIME

Continued Even with all of these circumstances, a district would still have to attempt to utilize administrator and community volunteers prior to asking teachers to supervise students one day a week.

There is no exception in the law that allows a district to require a teacher to eat lunch with students on standardized testing days.

Planning and preparation time

Texas Education Code, Sec. 21.404

The law entitles every teacher to planning and preparation time, during which the district cannot require the teacher to engage in any activity other than parent-teacher conferences, evaluating student work and planning.

Teachers must have at least 450 minutes of planning time every two weeks in increments of not less than 45 minutes within the instructional day.

Examples:

A teacher could have five 90-minute conference periods within a two-week period, rather than a 45-minute conference period each day. A district can provide 50-minute blocks of planning time daily, exceeding the minimum requirement, but it could not provide 50 minutes one day and 40 minutes the next.

A district cannot schedule a 7:45 a.m. to 3:15 p.m. instructional day, and then give teachers 3:15 to 4 p.m. to plan after the students leave.

According to the commissioner of education, if a district gives teachers no more than the statutory minimum planning time, the district cannot ask teachers to engage in group planning during one of those planning periods.

Reemployment Rights Act provides job protections after U.S. military service under certain conditions, including providing the employer advanced written or verbal notice of the service. See an interactive USERRA Advisor at https://webapps.dol.gov/ elaws/vets/userra/. State law provides similar protections for public employees who serve in state military forces.

Educator certification

The Texas Education Code requires the certification of teachers. The State Board for Educator Certification regulates and oversees state teacher certification standards and educator preparation, as well as disciplinary procedures and a code of ethics. The code provides a specific statement of the conduct that is expected from Texas educators and a list of enforceable standards. For more information, see pages 13-16.

Criminal background checks and fingerprinting

State law requires virtually all individuals who will have direct contact with students in the public school system to undergo some type of criminal history review. Certified educators, classroom substitutes and aides must submit fingerprints and be subject to national criminal history background checks. Individuals who have been convicted of certain serious crimes are ineligible for employment by a public school and may be subject to suspension or revocation of their teaching credentials. Criminal history information collected by a school district, the Department of Public Safety, SBEC or TEA is confidential. An educator may obtain a copy of his/her own criminal history. All applicants for certification who have not previously held a certificate issued by SBEC are required to undergo fingerprinting and a national criminal history background check prior to becoming certified. Additionally, any individual enrolled/planning to enroll in an educator preparation program for teacher certification or planning to take a certification exam who has reason to believe that he/she may be ineligible for certification due to a conviction or deferred adjudication for a felony or misdemeanor offense, can ask TEA to issue a criminal history evaluation letter regarding the person’s eligibility for a teaching certificate. The fee for such a request is $50.

Grievances

Most complaints regarding a public school employee’s rights or conditions of employment should be addressed through the district’s grievance procedure. The time limits for initiating a grievance are extremely short, typically 15 days or less from the time the employee knew or should have known of the event for which the grievance is filed. Legal rights to appeal could be permanently lost if these time limits are not followed. For this reason, members with potential school employment-related problems should call the TCTA Legal Department at 888-8798282 immediately for advice. Pursuant to a TCTA-initiated law, a grievance alleging a violation of law by a supervisor need not be filed with the same supervisor. Another TCTA-initiated law allows an employee 30

to make an audio recording of any meeting or proceeding at which the substance of a grievance is discussed. Still another TCTA-initiated law allows teachers to be represented via teleconference, subject to availability of necessary equipment. During the 2019 session, the law protecting employees from any adverse employment action for reporting abuse or neglect in good faith was expanded. Previous law only protected against termination or suspension. Adverse employment action is “an action that affects an employee’s compensation, promotion, transfer, work assignment, or performance evaluation, or any other employment action that would dissuade a reasonable employee from making or supporting a report of abuse or neglect.”

Communication with school board members

A TCTA-initiated law provides that school district employment policies may not restrict the ability of a district employee to communicate directly with a school board member on matters relating to the district’s operation. However, an employment policy may prohibit such communication relating to an appeal in which such communication would be inappropriate pending a final decision by a school board.

Job postings

A TCTA-initiated law requires school districts to allow employees the opportunity to apply for open professional positions, and to post notices of job vacancies for at least 10 school days on the district’s website or on a bulletin board at a place convenient to the public in the district’s central administrative office and at each campus office. Districts are allowed to fill a position without such notice if the position affects student safety and security or if the district must fill a vacant teaching position during the school year.

Nepotism

A school board member cannot vote to hire a person who is related to any school board member within the third degree by consanguinity or within the second degree by marriage. The first degree is a parent or child. The second degree is a grandparent, grandchild, sister or brother. The third degree is a greatgrandparent, great-grandchild, aunt, uncle, niece or nephew. There are exceptions. One applies to school bus drivers in counties where the population is less than 35,000 people. Another is the continuous employment exception. If a person is an employee of a school district for at least 30 days prior to the appointment of the public official, the employee may continue in employment and other members of the governing board may vote to rehire, promote, increase the compensation of, or dismiss that employee, but the relative of the employee must abstain from voting. If a district has delegated final hiring authority to the superintendent for a class of employees, then the above provisions apply both to school board members and to the superintendent for decisions relating to that class of employees. For example, if a district has delegated the final hiring authority to the superintendent for all classified employees, the superintendent could not hire his/her son, daughter, spouse or any other person within the prohibited degree of relationship as a classified employee.

Your protection Qualified immunity from liability

Texas law affords teachers and other professional employees (including aides, school nurses and student teachers) fairly strong immunity from liability for actions taken as part of their duties. Generally, an employee is immune from liability as long as he/she is on duty, exercising judgment or discretion, and not using excessive force or being negligent in the discipline of students. While the definition of corporal punishment specifically excludes physical pain associated with athletic training, competition or physical education, it is possible that the assignment of rigorous physical activity such as laps, pushups, etc., could be interpreted by a court as a disciplinary action, not subject to the qualified immunity from liability, so such activity should be assigned only for training or conditioning and not as punishment. Note that this immunity from liability applies only to lawsuits in state courts. Also note that having immunity from liability does not prevent lawsuits from being filed against school employees, so all employees should have professional liability insurance such as that provided to TCTA members. Pursuant to a TCTAinitiated law, a school district may not require an employee to assume liability for an act for which the employee has qualified statutory immunity. This immunity specifically extends to student property such as cellphones and tablets in the possession of a school employee pursuant to the employee’s duties (i.e., confiscated by the employee). School districts and administrators may not require such employees who act in good faith to pay for student property that is lost, stolen or damaged.

Instructional materials or technology

TCTA-initiated legislation specifies that a school board may not require a district employee who acts in good faith to pay for instructional materials or technology that are damaged, stolen, misplaced or not returned, unless the school employee has entered into an agreement with the district in exchange for personal use of a computer or tablet.

Political activity/professional associations and payroll deduction of dues

Teachers may not be prohibited from participating in political affairs in the community, state or nation. Teachers also continue to have the right to join or to refuse to join any professional association, and a school board member or administrator may not directly or indirectly require or coerce a teacher to join any group, club, committee, organization or association. On an employee’s request, a school district must provide payroll deduction of professional dues in the amount and the number of pay periods the employee specifies. Under state law, the deductions must be made until the employee requests in writing that they be discontinued. The district may charge an administrative fee, but it cannot be greater than the actual administrative cost or the lowest fee the district charges for similar salary deductions, whichever is less. The attorney general has issued an opinion that says school districts do not have the authority to use payroll deductions to collect political action committee contributions. Although the opinion is advisory only, some districts refuse to accept payroll deductions that include political action committee contributions. TCTA members may make contributions to our political action committee, ACT For TCTA, by check or credit card. See tcta.org/

act_for_tcta or call 888-879-8282.