The Classroom Teacher | Winter 2020-21

THE MAGAZINE of the TEXAS CLASSROOM TEACHERS ASSOCIATION Winter 2020-21 | Volume 40 | Number 3

Texas lawmakers prepare to reconvene

ALSO INSIDE: Teaching in a pandemic | Is Social Security change on the horizon?

Candidates for TCTA statewide office in 2021 | Professional liability insurance policy

EXECUTIVE DIRECTOR’S MESSAGE

We’re with you

A

t the outset, let me make clear that I have no particular words of wisdom to offer. Like pretty much everyone else, we’re all waiting to see how and when the current public health crisis resolves itself. I have enough hope to believe that it will, with an assist from scientifically literate government officials. I don’t pretend to have answers for what the spring semester will be like, or what will be lost to the educators and students who survived it. All I can offer are some random observations, and a deep appreciation for everything and everyone who still makes me laugh.

Let me start by noting that I learn something new every day during this period that will surely be noted in history for future generations. For example, I recently learned the meaning of the word “brigaded.” In early December, TCTA asked, because we care for our members’ health and well-being, that teachers be included among the priority designees for early access to effective vaccinations. This seemed fairly benign, especially since so many of you (or members of your household) have underlying conditions that are likely to make COVID-19 more severe, should you contract it.

We also feared, having seen this happen on so many occasions, that teachers will be deemed essential workers when it comes to things like being required to show up for work, but not for the corollaries like being eligible for early vaccinations.

We said nothing about requiring all educators to take the vaccine. Reading for content, all we asked is that teachers be specifically listed as being essential workers and have early access to a vaccination when it is available. But after publicizing that request, our social media accounts were flooded with people who objected mightily to the stance that we would like to give our members every possible chance to stay alive during this pandemic, because they themselves did not wish to take the vaccine.

I noticed most of the negative commenters were not members, which is when I learned at the dinner table from my daughter that we may have been “brigaded.”

This is a tactic used when one or more individuals with a strong personal/political agenda brings to the attention of like-minded individuals that someone has suggested something loathsome — like access to a vaccination — thus inciting a firestorm of negative responses. I think that might have happened to us.

By the way, we appreciate those of you who support and defend TCTA on social media, some of you on a regular basis. And we appreciate those who don’t assume, but ask, if they have concerns about something we said.

All of this brings me to the real message of this column, which is something I hope you will consider and pay attention to. Teachers, like front-line health care workers, are either valued or devalued as conditions change.

In the early days of the pandemic, it seemed that almost everyone was appreciating teachers — loud and proud, and singing their praises. Then it got harder, and the other side started to emerge. There are people who assert that teachers are great, essential, and key to a good education for their children. Unfortunately, over time, some of those same individuals have morphed to the message that “therefore, they need to be on campus, helping my child.”

Many parents believe that on-site interaction with children is critical to success for their children. We think this sentiment should be reflected in salaries, health insurance, and concern for the educator’s health. Others are getting more overt about the view that attendance at school is child care, which allows them to return to their routines. We must believe that this pandemic will end, and look toward the long term in addressing it. Too many educators have died or will suffer lasting health consequences.

The tension is getting ugly, when, in my view, we should all be working toward a mutually acceptable solution during a unique time in history. For example, a district near Austin is sending a school bus to the homes of special education students who Continued on page 31 2

tcta.org | 888-879-8282

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

2020-21 Executive Board President

Twila Read, Grand Prairie President-Elect

Sherry Miller, Killeen Immediate Past-President

Albert Mosqueda, San Benito Budget

Melody Young, Sherman Curriculum & Instruction

Vacant

Governance

Eleanore Malone, Tyler Legislation

Cristal Isaacks, Levelland Membership

Vacant

Professional Rights & Responsibilities

Joyce McCurdy, Wichita Falls 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

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

Winter 2020-21 | Volume 40 | Number 3

DEPARTMENTS

2

10

Executive Director’s Message

On the Cover

Ready to reconvene

4

What you need to know as the new session starts in January

TCTA News & Notes

There’s no point in trying to predict what might happen during the upcoming legislative session, which begins on Tuesday, Jan. 12, 2021. Who could have predicted 2020? Any of it! The best we can do is tell you what we know, what we’ve heard, and what we don’t know, so that you can at least be an informed observer of the 87th Texas Legislature.

7 Legal Notes

8

Washington Watch

9

Planning Ahead

FEATURES

14

Teaching in a pandemic It was a fall semester full of challenges, and while the new semester will undoubtedly begin with more uncertainty, we may be able to see the light ahead that marks an end to the pandemic.

Many areas of Texas have been virus hot spots since the summer, and while others in more isolated, rural areas have had fewer cases, no part of the state has been immune to the challenges of learning amid a pandemic.

16

Connect with us during TCTA’s 2021 Virtual Convention Meet the candidates for TCTA statewide office in 2021 and save the date to join us online Feb. 26-27.

20

2020-21 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 © 2020. 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.

Winter 2020-21 | THE CLASSROOM TEACHER

3

TCTA NEWS & NOTES

TRS Board gets report on pension fund, other items The TRS Board of Trustees met remotely for its December meeting. Former TCTA State President Nanette Sissney, one of the employee representatives on the board, was reelected as vice-chair.

Here are some highlights from the meeting:

The pension fund is in relatively good shape

The board was briefed on the results of the actuarial valuation of the pension fund. This is a comprehensive analysis of the long-term fiscal condition of the fund that takes place every fall, based on information gathered on Aug. 31. Although TRS investment returns were slightly under the benchmark, the overall status of the fund improved, in part due to the increased contributions approved by the legislature in 2019.

The actuarial firm conducting the valuation informed the board that this was the strongest valuation of the fund in several years. The fact that the fund is meeting the expected trajectory was described as “kind of amazing” given the problems with the economy during the pandemic.

Most figures changed only a little from last year, but the trends are positive. For example, the funding period (the amount of time it would take to pay off obligations) decreased from 29 to 27 years. Texas law only allows the legislature to approve benefit increases if the cost would not take the fund above a 31-year funding period, so the lower that number gets, the more likely it is that retiree benefits could be increased (though it would need to be considerably lower than 27 years to afford a significant increase). So while the fund is considered actuarially sound, it is not yet in good enough condition to afford a benefit increase for retirees.

The actuary presenting the valuation noted that despite the increased contributions from the state, Texas still has by far the lowest contribution rate among peer public retirement systems. California, for example, contributed more than 19%

Interested in serving on the TRS Board?

Nominations and petitions for those interested in running for an active member representative position on the TRS Board are due by Jan. 25. Any current employee of a school district, charter school or regional service center is eligible. Go to https://www.trs.texas.gov/Pages/board_ election_2020.aspx for more information. of payroll this year, compared to Texas’s 7.5%, and several systems are in states that contribute 25% or more.

There were more deaths than anticipated during the year, which was attributed to COVID-19. Fewer employees than usual retired through August (possibly due to economic uncertainty) but it is notable that retirement rates, as well as requests for retirement estimates, have increased significantly this fall. The number of people retiring from September through November this year was more than 30% higher than last year’s figure for that same period.

COVID-19 health plan benefits extended

The three plans offered through TRS — ActiveCare, TRS-Care Medicare Advantage, and TRS-Care Standard (for retirees not eligible for Medicare) — will extend current benefits related to COVID-19 costs. Benefits under the Medicare Advantage plan include no copays for diagnostic testing, and no cost sharing for telemedicine and COVID-related treatment. For ActiveCare and TRS-Care Standard, there will continue to be no member cost sharing for telemedicine, COVID-related testing or COVID-related inpatient treatment.

Although the TRS staff and board had hoped to make a decision on TRS’s long-term office planning options, no such action was taken at this meeting, and the staff will continue to investigate options. Read more at tcta.org/node/15470.

SBOE approves revised health and science education TEKS During its November meeting in Austin, the State Board of Education approved revised Texas Essential Knowledge and Skills for health and science education.

The health education standards, which include sex ed and PE, were updated for the first time since they were adopted in 1998. Beginning in 2022, middle and high school students will learn about birth control options beyond abstinence, but there will not be any references to consent, sexual orientation or gender identity, despite public testimony urging a more inclusive curriculum.

“The first step to a child being able to learn is that he or she is healthy. The revised Health TEKS will provide needed knowledge for our students to make good health decisions 4

tcta.org | 888-879-8282

now, and in the future, as they become adults,” SBOE chair Dr. Keven Ellis said in a statement.

In addition to adopting the health education TEKS, the board gave final approval to revised TEKS for four high school science courses: biology, chemistry, physics, and integrated physics and chemistry.

Also during the November meeting, SBOE members approved what is projected to be a record distribution from the Texas Permanent School Fund to the Available School Fund for fiscal years 2022 and 2023. Based on preliminary figures and projections, the annual distribution will be about $1.72 billion, or $3.44 billion for the biennium, which would be about $900 million greater than any previous biennial distribution.

TCTA NEWS & NOTES

TCTA testifies about reducing teacher training requirements TCTA Director of Professional Development and Advocacy Holly Eaton gave invited testimony about reducing teacher training requirements to the Senate Education Committee in October as a subgroup leader of a Teacher Workforce Workgroup convened by the Lieutenant Governor’s Office.

The workgroup was formed in response to the Senate Education Committee’s interim charge to review existing teacher continuing education requirements, professional development and training for teachers; and to examine whether the requirements are appropriate or should be reduced, eliminated or increased. During a seven-month process, the workgroup conducted a thorough review of teacher training requirements and arrived at more than 30 recommendations to revise statute or rule and establish fewer but more meaningful teacher requirements, enabling educators to more freely select training opportunities to improve their craft.

TCTA’s testimony centered on some of the major themes that emerged during the workgroup’s deliberations. (Go to tcta.org/ node/15461 to watch video of the testimony.) The workgroup concluded that it would benefit educators and school districts for the State Board for Educator Certification to create a clearinghouse of all training requirements, and, rather than have varying frequency requirements in statute, recommend that the clearinghouse include research-driven, best-practice programs and industry-informed frequency recommendations for training. Additionally, local school districts would annually review and adopt professional learning policies guided by the clearinghouse, but tailored to local boards’ preferences as to how often training should be provided. The workgroup’s review also noted the duplication of training topics in different sections of law, including statutory provisions for continuing education for certificate renewal and in provisions for required training provided by districts. TCTA testified that the workgroup looked at whether a given topic was more a function of working in a school and with students in general, or more for purposes of honing one’s craft (closely tied to instructional practice) for continuing education for certificate renewal.

Using this guidepost, the workgroup concluded that a number of topics should be eliminated from continuing education for certificate renewal because they are covered more thoroughly, and with potential funding available, in statutory provisions for district-required training. This, in turn, would free up time for educators to pursue more relevant professional learning for purposes of certificate renewal, while still allowing educators to continue counting the applicable district-required training toward their CPE requirements if they choose.

TCTA has long advocated for reduced teacher training requirements, especially because those requirements have been layered on over the years with few, if any, being eliminated. The workgroup’s recommendations will be translated into legislation to be considered during the session.

USDE approves teacher stipends for self-selected professional development After receiving 89 comments, including TCTA’s, on a funding priority proposed in the spring, the U.S. Department of Education finalized its plans this fall to provide teachers with a stipend to self-select professional development. The final plans incorporate suggestions made by TCTA. TCTA’s support was based on TCTA’s long-standing advocacy for teacher self-selection in professional development opportunities. TCTA believes that, as professionals who have received extensive training in a discrete body of knowledge and skills, teachers should be entrusted with professional judgment and discretion in determining their own continuing learning needs. However, 37 of the 89 commenters opposed the general idea of teacher-driven professional learning stipends, putting TCTA at odds with some of the national-level teacher groups, including NEA and AFT. Fortunately, USDE largely disagreed with those views, noting that teachers have a vital role in professional learning decisions, and that the program focuses on enhancing the ways in which teachers are involved in identifying professional learning opportunities.

One of the suggestions made by TCTA that USDE included in the finalized funding priority was to require grant applicants to include a summary of the ways in which teachers were involved in the grant application and how teachers will be involved in key decisions about the proposed project. In particular, TCTA noted that it is vitally important than an applicant provide evidence of significant teacher input in developing the plan as well as how teacher feedback was incorporated into the plan. USDE responded that it “appreciates the suggestion for honoring teacher voice and agency by recommending ways that teachers could have input on proposed projects conducted under these priorities; such input is likely to help make systems more relevant and user friendly for teachers.”

Read more about the changes at tcta.org/node/15436.

Winter 2020-21 | THE CLASSROOM TEACHER

5

TCTA NEWS & NOTES

New elementary certification requirement starts Jan. 1

Need some CPE? Check out these free online courses from TEA

Those seeking elementary-level certification must demonstrate proficiency in the science of teaching reading on a new standalone certification exam beginning Jan. 1, 2021. The new requirement applies to the following certificates: • Early Childhood: EC–Grade 3 • Core Subjects: Early Childhood–Grade 6 • Core Subjects: Grades 4-8 • English Language Arts and Reading: Grades 4-8 • English Language Arts and Reading/Social Studies: Grades 4-8

The Texas Behavior Support Initiative is state-level training that provides foundational knowledge for the use of positive behavior interventions and supports for all students, including students with disabilities. TBSI meets legislative requirements related to procedures for the use of restraint and time-out and provides a framework for sharing a wide range of foundationallevel behavior strategies and prevention-based schoolwide, classroom, and individual interventions.

Candidates who completed certification by Dec. 31, 2020, were not affected.

Teachers who are currently standard certified in Core Subjects: EC-6, Core Subjects: 4-8, English Language Arts and Reading: 4-8, or English Language Arts and Social Studies: 4-8 will not be required to pass the STR exam for renewal of their certificate. For more information, go to tcta.org/node/15459.

Charles Butt Scholarship supports aspiring teachers Application deadlines are approaching for the 2020-21 Charles Butt Scholarship, which awards $8,000 to $10,000 per year for up to four years to aspiring teachers through 10 partner universities. Applicants must be committed to teaching in a majority-economically disadvantaged school or in a teacher shortage area in a Texas public school. About 100 new scholarships will be awarded this year. For more information and how to apply, visit CharlesButtScholarship.org.

Course reviews positive behavior interventions

The TBSI course has been reformatted and transferred from the Region 4 website to a Canvas course hosted by Tiered Interventions Using Evidence-Based Research. Please note, while the course is open and active, there will be periodic updates that may affect access. Go to https://tier.tea.texas. gov/TBSI to access the course.

Project Restore offers trauma-informed training

Teachers can earn professional education hours for completing TEA’s Project Restore training online. This trauma-informed series connects educators to relevant science and strategies that can help them address the emotional needs of their students, themselves, their colleagues and students’ families.

Launched to help with stress and other concerns amid the COVID-19 pandemic, the following six videos are available: • Understanding Trauma and Its Impact • Understanding Your Experiences and Building Resilience • Understanding Your Students’ Experiences • Building Secure Relationships • Developing a Positive Classroom Culture • Building Strong Partnerships with Students’ Families Access the materials at texasprojectrestore.org.

Member Accolades: 2021 Regional Teachers of the Year honored TCTA congratulates our five members who were honored as 2021 Regional Teachers of the Year.

• Region 3 Elementary: Tammy Reyes, Vickers Elementary School, Victoria ISD • Region 5 Secondary: Bill Williamson, C.O. Wilson Middle School, Nederland ISD • Region 15 Secondary: Allison Peterson, Lake View High School, San Angelo ISD • Region 17 Elementary: Haley Kirk, Westwind Elementary School, Frenship ISD

• Region 19 Elementary: Pedro Gurrola, Vista Del Sol Elementary School, Socorro ISD

TCTA congratulates member Jo King, who won the 2020 American Chemical Society, Southwest Region High School Teaching Award for her outstanding contributions to chemistry education. King is the Plano West Senior High School AP chemistry team leader in Plano ISD. She has a self-professed passion for AP chemistry and has been teaching chemistry throughout her entire 33-year career.

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.

6

tcta.org | 888-879-8282

LEGAL NOTES

As federal COVID leave ends, educators have options In this article, we look at the end of federal pandemic benefits and COVID-19 leave, examine potential solutions to address the ongoing need for leave, and answer some COVID-19 questions. As of Dec. 16, Congress had not acted to pass new legislation to extend emergency sick leave, but check tcta.org for updates, as some senators were urging that leave be included in the latest stimulus bill.

End of federal leave benefits

The Families First Coronavirus Relief Act provided two types of leave that substantially benefited TCTA members.

Emergency paid sick leave, also known as “COVID leave,” gave employees 10 days (80 hours) of leave for COVID-19 illness, to seek testing, or during a quarantine ordered by a district or a health care provider. The expanded family leave gave parents up to 12 weeks of paid leave at two-thirds the regular daily rate (up to $200) to care for a child whose school closed due to the pandemic or whose child care was no longer available. Those federal protections were set to expire on Dec. 31.

FMLA (care for a family member)

The lapse of paid benefits for child care does not affect an educator’s right to job protections under the Family and Medical Leave Act to care for a child, spouse or parent whose illness prevents them from caring for themselves. For adult children or immediate family members, the Department of Labor’s Fact Sheet #28F states that an employee may be able to take leave to care for an adult child or parent because of the family member’s serious health condition: • when the family member is unable to care for his or her own medical, safety or other needs, because of the serious health condition or needs help in being transported to the doctor; or • to provide psychological comfort and reassurance to the family member with a serious health condition.

Although the right to paid leave for child care was due to lapse at the end of 2020, the right to take leave and have job protections does not end.

Sick leave options

TCTA cannot overstate the important role COVID leave has had in protecting teachers and their families. We see its continued importance because districts are pushing to reopen schools at a time when experts predict a continuing surge of COVID-19 and the ultimate efficacy, availability, and safety of vaccines is still unknown. With educators being directed to return to work, the risk of transmission persists and may increase.

As a result, TCTA provided supporting data to Congressional offices via our Washington, D.C., lobbyists to urge extension of the emergency paid sick leave and extended family leave provisions beyond Dec. 31.

If the federal government does not choose to protect educators, the Texas Legislature and local school boards can.

The biennial legislative session begins Jan. 12, and lawmakers can protect educators that the state expects to work in classrooms. A bill to provide additional COVID leave for educators Continued on page 19 Winter 2020-21 | THE CLASSROOM TEACHER

7

WASHINGTON WATCH

Potential changes at the U.S. Department of Education

U

.S. Secretary of Education Betsy DeVos spent several years working to reduce the federal government’s imprint on education policy through the regulatory process and internal authorities. For K-12 schools, the Elementary and Secondary Education Act was already in place during her administration, limiting her reach into altering K-12 policy. She consistently worked to create opportunities for parental choice in the selection of their children’s schools through Education Freedom Scholarships, although the program has not been authorized by Congress. Combined with other efforts to dismantle education regulations, her department’s actions were generally painted as a threat to the public school system.

The Biden Administration’s U.S. Department of Education

In a runup to the election, Joe Biden campaigned for a more robustly funded and resourced U.S. Education Department. For K-12, he promised to institute universal prekindergarten, improve facilities and buildings, increase funding for special education, and triple the funding for Title I schools. These Title I funds would be targeted for additional support staff — counselors, nurses and social workers at schools serving high concentrations of students from low-income families. For higher education, he promoted free community college, expanding Pell grant awards and the cancellation of some student debt. All combined, the price of these initiatives will far exceed the willingness of Congress.

Democrats and pollsters had predicted a landslide victory for Biden, an increased majority in the House, and a flipped Senate, but these did not materialize during the 2020 election.

While the Georgia special election on Jan. 5 will determine control of the Senate, it appears likely that Republicans will hold onto the majority. Democrats kept control of the House but with a far thinner margin, losing at least 10 seats to Republicans. With Democrats holding 222 seats to Republicans’ 211 (with two seats still undetermined), House Speaker Nancy Pelosi only has four votes over a 8

tcta.org | 888-879-8282

simple majority. Uniting a caucus that is split ideologically between moderates and progressives will be a constant battle for Pelosi in the 117th Congress.

With a likely Republican Senate and a narrower Democratic majority in the House, President-elect Biden will struggle to accomplish even a few of his education policy goals.

First 100 days A COVID-19 relief package could be the first legislative effort to be negotiated by the Biden administration.

An increasingly bleak forecast in the rise of COVID cases during the winter will warrant attention in terms of a federal action plan to mitigate negative outcomes and implement vaccination protocols. His new COVID Task Force may direct the issuance of a national school reopening plan, to outline the best practices and approaches “based on science.” The U.S. Education Department could also take a more active role and provide guidance to school districts on how to improve remote learning strategies, effective management of smaller class settings, and equitable practices toward rural students.

Prior to his election, Biden endorsed a plan to provide $88 billion in additional federal funding to help stabilize state education funding. Allowable expenses would include the purchase of protective equipment, improvement of ventilation

systems, reducing class sizes and other expenses needed to safely operate schools during the pandemic.

It is uncertain how and if additional school funding would be allocated to states in another COVID relief measure. The CARES Act created a $30.75 billion Education Stabilization Fund for governors ($3 billion), K-12 schools ($13.5 billion), and institutes of higher education ($14 billion). A recent USDE report indicated that much of the CARES Act aid provided to governors and state education agencies has still not been dispersed as the law directed.

USDE and several Republican lawmakers have suggested that states seem to be banking CARES Act funds to offset potential revenue declines in 2021 and have displayed a lack of urgency in allocating the funds to districts. Senate Republicans in particular are certain to point to these low expenditure rates in their opposition to approving additional federal resources.

One way Biden could shape education policy more quickly would be through executive action or executive orders, tools used increasingly by the executive branch.

Executive orders are legally binding and published in the Federal Register, while executive actions are directives issued to federal agencies and department heads by the president. Executive actions can be challenged in court or undone by either legislation or rescinded by the next administration. Executive orders must follow the regulatory process, which imposes time constraints to allow for consideration of public opinion.

We anticipate that several educationrelated regulations will be addressed early on, including those regarding Title IX, borrower defense, international student visas and school discipline.

Continued on page 18

PLANNING AHEAD

Is Social Security change on the horizon?

A s the Biden administration considers its priorities for 2021, will Social Security reform be on the list? Would reform proposals include consideration of the GPO and WEP? And is there any chance such legislation could finally pass?

A 2020 paper entitled The Biden Plan for Older Americans includes this proposal:

Eliminate penalties for teachers and other public-sector workers‌.[G]et rid of the benefit cuts for workers and surviving beneficiaries who happen to be covered by both Social Security and another pension. These workers deserve the benefits they earned.

In recent years, attempts to change or repeal the GPO and/or WEP laws have seen very little action. Legislation filed by U.S. Rep. Kevin Brady, R-Texas, in the U.S. House of Representatives to favorably revise the WEP got to the point of a committee hearing in 2016, but did not progress from there.

He has continued to refile the bill subsequently, including in the most recent session, and U.S. Sen. Ted Cruz, R-Texas, introduced companion legislation in the Senate in March 2020, but neither bill moved. However, there is at least theoretical support for action on these issues. In the 116th Congress, HR 141 by U.S. Rep. Rodney Davis (D-Illinois) was co-signed by a majority of House members. The idea has historically had less support in the Senate, most likely because it is a minority of states that are affected by the WEP and GPO. While the Biden administration may

push for revisions to or elimination of one or both of the Social Security penalties, changing a massive program like Social Security is a tall order. Making significant changes in the program that would increase benefits in any way would require new revenue, which could come in the form of increased taxes or raising the retirement age. Higher taxes would be unlikely to pass a Republican-led Senate (at the time of publication the outcomes of the Georgia Senate runoffs, and thus the partisan makeup of the Senate, were unknown). A Democrat majority in the Senate could lead to a more aggressive policy agenda, which could include expansion of Social Security benefits and potentially revisions or elimination of the penalties.

As support for teachers grows during the COVID-19 pandemic, and especially if a Social Security revamp is on the agenda, the timing may be ripe for at least advancing the discussion.

The Government Pension Offset (GPO) reduces spousal Social Security benefits for employees receiving a government pension, like TRS, that is based on work in which they did not pay into Social Security. If you are a school employee and your spouse pays into Social Security but you don’t, any spousal benefits that you would otherwise be entitled to will be reduced or eliminated because of this law.

The Windfall Elimination Provision (WEP) affects benefits that you earned through your own employment; for example, if you worked as an accountant for 10 years before moving to a teaching career, you are likely eligible for Social Security benefits. However, they may be reduced if you also receive a TRS pension.

For links to important details on these laws, go to tcta.org/ node/11506.

Our Washington, D.C., lobbyists are among the top-ranked lobby firms in the country, and we will be working with them in the upcoming months to advocate for relief for those affected by these laws, and to keep you informed about any progress.

Winter 2020-21 | THE CLASSROOM TEACHER

9

Ready to reconvene

WHAT YOU NEED TO KNOW TO BE AN INFORMED OBSERVER OF THE 87TH TEXAS LEGISLATURE

T

here’s no point in trying to predict what might happen during the upcoming legislative session, which begins on Tuesday, Jan. 12, 2021.

Who could have predicted 2020? Any of it! The best we can do is tell you what we know, what we’ve heard, and what we don’t know, so that you can at least be an informed observer of the 87th Texas Legislature in action.

THE PLAYERS

Many key elements of the Austin leadership remain the same. Gov. Greg Abbott, Lt. Gov. Dan Patrick, and Education Commissioner Mike Morath will continue in their positions.

After the November elections, the 10

tcta.org | 888-879-8282

composition of the Senate changed very little, although by the time you read this we will have a new senator (the winner of the runoff election for a Dallas-area seat between current State Rep. Drew Springer and hair salon owner and conservative activist Shelley Luther — both Republicans). One other election changed the Senate partisan makeup by one seat, as Democrat Roland Gutierrez, formerly a state representative from San Antonio, defeated incumbent Republican Pete Flores in the general election. The Senate now has 18 Republicans and 13 Democrats.

In the House, an anticipated “blue wave” never happened, and the Republican to Democrat ratio remained

exactly the same at 83 Republicans and 67 Democrats. Two incumbents, Republican Sarah Davis of Houston and Democrat Gina Calanni of Katy, were defeated. But the most significant changes in leadership will be in the House. Though a new speaker will not be elected until the legislature convenes, House members have indicated they will select Republican Dade Phelan of Beaumont to lead them. As House Speaker, Phelan will appoint House committees and committee chairs. One unknown factor is whether current House Public Education Committee Chair Dan Huberty will remain in that position. Huberty initially supported a different candidate for speaker and could

be bumped in favor of an early Phelan supporter.

DIFFERENT KIND OF SESSION

The biggest question mark for lawmakers, staff and lobbyists is how exactly the COVID-19 pandemic will affect legislative operations and the ability of stakeholders (including your TCTA lobby team) to influence the proposals considered inside the Capitol building. Rules adopted early in the session will provide a clearer picture of how legislative operations will change. It is clear that the spectacle of thousands of employees, lobbyists and tourists mingling in close quarters for hours every day will no longer occur. But legislators have insisted that it is important for Texas citizens to have access to them and to the Capitol building during the session. This may result in scheduled visits, rather than drop-ins, and we expect to see plenty of masks, sanitizer and possibly plexiglass dividers in legislative offices.

An unofficial preview of possible Senate protocols indicated that public

testimony in committee hearings would have to take place at the Capitol and would not be allowed virtually (though invited testimony could be presented remotely), and that witnesses would be tested for COVID-19 before being allowed to appear. However, at the very least we would expect restrictions on the number of people allowed in committee rooms. Large group events (such as school groups, or TCTA’s Lobby Day) will likely not be permitted. Legislators will be allowed to determine for themselves how they handle office visits.

The expectation is that committee and floor action will focus on higher priority legislation, with fewer bills getting through the process. TCTA will continue to pursue our legislative priorities; we believe there is widespread support for preserving HB 3 funding for public schools, for example, and a large number of House members signed a letter asking the commissioner to eliminate STAAR testing this spring (though there may be a chillier reception in the Senate).

But smaller initiatives may be more challenging to push through.

CHALLENGING BUDGET YEAR

Approving a state budget will be the top priority for the session. Despite the damage to sections of the Texas economy and a predicted multi-billion dollar budget deficit, Comptroller Glenn Hegar and legislators have expressed optimism that the shortfall lawmakers will face will not be of the magnitude seen in 2011, when state education funding was significantly reduced, putting thousands of school personnel out of work.

In late November, Hegar updated state leaders with the good news that the legislature would have more money to work with than he had predicted in the summer, when he said lawmakers would be looking at a deficit in the current budget of $4.6 billion. However, he cautioned that while state sales taxes were down only around 5%, other key revenue sources such as hotel and oil/gas taxes had dropped by 40% or more. Hegar did not provide a specific projection of the deficit in November, but will provide more detailed figures in January.

Continued Winter 2020-21 | THE CLASSROOM TEACHER

11

Lawmakers will have access to the Economic Stabilization Fund (ESF, or the state’s “Rainy Day Fund”), which has an estimated ending balance in 2021 of $8.8 billion. However, the legislature may be reluctant to expend much of the ESF, in favor of reducing programs and budgets. Historically, the legislature has been more willing to use budget maneuvers to defer payments and transfers, apply revenue speed-ups, employ other one-time measures or draw down additional federal funds to offset shortages. These tactics will be available to budget writers in the upcoming session.

COVID-RELATED CONCERNS

For the upcoming biennium, lawmakers should consider how to ensure that school districts have the money they need to accommodate the changes that have been made in instruction since last March. Reinforcing the education infrastructure will involve providing adequate technology (devices and equipment, software, and reliable Internet access) and appropriate staffing (which we argue should include more teachers to provide for smaller class sizes, more nurses, and access to mental health professionals).

The pandemic focused a spotlight on the digital divide, exposing a lack of access to the vast information resources of the internet as perhaps the greatest obstacle to providing for the equitable dissemination of knowledge required by the Texas Constitution. It has become clear that internet service should be treated like a public utility to ensure more access and better affordability. We have recommended that the state implement a statewide broadband connectivity plan as soon as possible, addressing the immediate and long-term needs of students and teachers.

Schools are struggling to find lost students and saw sharp declines in attendance this fall. Without assistance from the state, declines in average daily attendance would cause significant budget shortfalls for public schools.

Commissioner Morath established a “hold harmless” provision for the fall semester that (with some conditions) provided districts with funding based 12

tcta.org | 888-879-8282

on 2019-20 enrollment regardless of actual enrollment. TCTA has joined other education stakeholder groups in requesting he extend the financial grace period through the end of the school year. If Morath does not extend the “hold harmless,” legislators may consider taking action to ensure that districts do not lose funding for the current year.

TCTA attorneys have received many calls from members about districts not enforcing health and safety law, rules and protocols. The lack of enforcement of education statutes, not limited to COVID-related situations, has often been problematic, but we hope to see a renewed effort to ensure that employees and parents have a way to report concerns about district practices, and that the state or other authority has the means to enforce current laws and policies.

The Families First Coronavirus Response Act passed by Congress last

spring ensured that employees who miss work for certain COVID-related reasons would have access to full or partial paid sick and family leave. This federal law has been helpful, but it is clear that such paid leave can easily be depleted even without a COVID diagnosis, as employees quarantine while awaiting test results. In a school setting, employees may need to be tested frequently and stay home until results are available, which can take several days each time. Key provisions of the Act were set to expire Dec. 31.

TCTA has been actively urging members of Congress to extend these provisions.

If it does not, we will be encouraging the legislature to provide additional paid leave covering COVID-related absences at least through the end of 2021.

HOUSE BILL 3

Legislative leaders have committed to maintaining the increased education

to legislative intent that the system be flexible, developed at the local level, and not based on STAAR exams. With school closures in the spring of 2020, student growth for 2019-20 is almost impossible to ascertain, which undermines the entire program. We have recommended that the legislature delay implementation of the teacher incentive pay program and retain its funding for teacher compensation.

TESTING AND ACCOUNTABILITY

On a related note, nearly 70 House members have indicated support for eliminating STAAR testing for the 202021 school year. This would require a waiver of federal law, which would have been unlikely under Education Secretary Betsy DeVos but could be feasible in the Biden administration. TCTA has consistently supported canceling STAAR for this year, but we have requested that if the test is administered, the high stakes should be removed. In December, Commissioner Morath announced that A-F accountability ratings would be suspended for 2020-21, but the tests would not be canceled.

TRS AND HEALTH CARE

funding levels from House Bill 3, the major school funding bill from the 2019 legislative session. Whether they can keep this commitment will depend on the state budget deficit, but for now, those who are talking about it publicly say they believe funding can be maintained.

The salary provisions of the bill remain intact, but unless the legislature increases funding again, additional salary enhancements are unlikely. HB 3 also included a merit pay program that so far has only been implemented in a handful of districts, but which Commissioner Morath and many legislative leaders are touting as a way to “reward the best teachers.” Under the Teacher Incentive Allotment, districts develop local teacher designation systems that identify highperforming teachers based on student growth and teacher observation. In effect, the program is an incentive pay system tied to STAAR tests, contrary

The Teacher Retirement System pension fund is in reasonably good shape, and should continue to improve if the legislature honors the commitments made in 2019, which included a schedule of phased-in contribution increases.

TRS-Care, the retiree health insurance program, is also financially sound, and TRS does not anticipate asking for additional funding to shore it up, as it has for most of the last few legislative sessions. We continue to ask for help with funding for active employee health insurance, but an increased state contribution is unlikely in a session with a budget deficit.

The system underwent a Sunset review — a comprehensive look at agency efficiency and effectiveness — during 2020, and a Sunset bill will be filed to implement recommended changes. The major issues identified during the Sunset staff ’s review of the agency were the need to repair relationships with TRS members that were damaged when the agency’s plans to lease expensive

office space in downtown Austin were publicized last year, and to improve transparency in its operations. The pandemic has changed TRS’s plans regarding office space, but the TRS Board has not made any decisions on how to accommodate its growing staff.

CHARTER SCHOOLS

With public schools already facing budgetary concerns, the expansion of charter schools has become even more problematic. TCTA and other public education groups are working to try to stave off rampant expansion, and we may see some legislative activity on that issue. We have recommended that the expansion and replication of more expensive and less effective charter schools should be decelerated and ended, with the funding that has been devoted to them reinjected into the traditional public school system.

PAYROLL DEDUCTION

Although it has been attempted and defeated in several past sessions, some legislators and far-right activists want to discontinue payroll deduction of dues for professional associations. We will continue to work to defeat any legislation that would remove this convenience for teachers.

LEGISLATION

Legislators began filing bills shortly after Election Day, and TCTA is already tracking nearly 200 education-related bills. As noted earlier, we expect fewer to make it through the process due to procedural changes related to the pandemic, but that apparently has not slowed down the rate of bill filings. See our list of tracked bills, with summaries of each, at tcta.org/billsummaries.

As we prepare to face the challenges of 2021 together with our members, we promise to keep you informed and updated, and to fight for you during this session.

Stay up to date through our social media accounts (Facebook.com/ TexasCTA, Twitter: @TexasCTA), our website (which will updated daily during the session), and the weekly eUpdate newsletter (sign up at tcta.org/eUpdate if you’re not already receiving it).

Winter 2020-21 | THE CLASSROOM TEACHER

13

Teaching in a pandemic EDUCATORS ADAPT TO CHALLENGES OF COVID-19

I

t was a fall semester full of challenges, and while the new semester will undoubtedly begin with more uncertainty, we may be able to see the light ahead that marks an end to the pandemic.

Most districts chose remote learning to start the 202021 school year. After a few weeks, many started offering a blend of in-person and distance learning, with starts and stops for quarantines as students and staff tested positive for COVID-19. Many areas of Texas have been virus hot spots since the summer, and while others in more isolated, rural areas have had fewer cases, no part of the state has been immune to the challenges of learning amid a pandemic.

We have heard from members concerned about their health and safety and that of their loved ones, with roughly 1 in 4 teachers at higher risk of complications. We’ve also received calls about districts failing to provide personal protective equipment and cleaning supplies. Others report that they are not being notified of positive COVID-19 tests and that districts are failing to order quarantines for everyone with close contacts.

But there are reports of good things too, such as districts that gave teachers and other staff stipends to thank them for showing up each day. Some districts granted requests from most teachers seeking accommodations so high-risk staff could teach from home.

And perhaps the most encouraging news of all, vaccines for adults from Pfizer and Moderna will hopefully provide further protection from COVID-19 in the spring. Trials of vaccines for

14

tcta.org | 888-879-8282

children were in early stages in December.

Throughout it all, TCTA has been advocating for our members, and our latest efforts include urging state officials to label teachers as frontline workers so that those who want to be vaccinated can do so sooner. TCTA has not advocated for mandatory vaccinations, only that teachers be given the same access as school nurses and other essential personnel as more doses are available in the coming months.

Since it likely will be late spring or early summer before a majority of Americans have access to a vaccine, procedures at schools will be much the same in the spring semester as the fall, with face masks, social distancing, frequent hand washing and sanitizing classrooms, along with temporary shifts to distance learning if cases spike.

We have learned a lot in the fall semester about what works and what doesn’t when it comes to teaching amid the pandemic, and, after hearing about the difficulties that educators are experiencing trying to teach both in-person and online students at the same time, TEA is highlighting other types of instructional arrangements that districts could use to try to reduce the burden on educators. TCTA offers a quick look at the pros and cons of each model in the box on page 15.

With all the disruption in learning, major concerns for teachers have been evaluations and student testing. TCTA advocated early and often that state leaders should suspend the requirement for teacher evaluation. The disruption of traditional modes of instructional delivery have rendered typical components of teacher evaluation (observation and student

FOUR MODELS TO MANAGE REMOTE AND ON-CAMPUS LEARNING METHOD 1: CONCURRENT TEACHING

HOW IT WORKS: Teachers deliver remote and on-campus instruction in the same class period simultaneously.

PROS: Allows students to stay with same teacher, easily accommodates students moving in and out of in-person/ virtual learning.

CONS: Heavy lift for teachers; teachers have to specialize in two instructional modalities and perform them simultaneously.

EXAMPLES: Many districts used this model in the fall semester, a challenge for teachers.

METHOD 2: SPLIT SCHEDULING

HOW IT WORKS: Teachers deliver remote instruction during one class period and in-person instruction in another.

PROS: Allows students to stay with same teacher; accommodates students moving in/out of in-person/ virtual learning. Although teachers have to specialize in two instructional modalities, they don’t have to do it at the same time.

CONS: Teachers must specialize in two modalities. Heavily dependent on whether numbers work out regarding the number of students choosing in-person or virtual learning.

EXAMPLE: Crowley ISD looks at the number of oncampus students vs. remote learners for a grading period to set the maximum student-teacher ratio for on-campus and virtual learning. Then it determines the number of on-campus periods required and the number of periods available for remote teaching. Students are assigned to teachers based on the ratios, and class schedules are arranged so students keep their teacher or team of teachers even if they switch between remote and inperson learning. Teachers focus on in-person students one class period, then remote learners in another.

CONS: Students may not stay with same teacher and schedules may change if students switch modalities. (A way to ease that is to have common curriculum and scope/sequence and teacher teams, which is why this model may only work at the elementary level.) It also requires complex master scheduling.

EXAMPLES: Forney ISD’s virtual teachers only teach remotely, but they do so from campus so they can assist with student arrivals, dismissals, lunch duty — a way to manage social distancing effectively across remote/on-campus teachers.

In Victoria and Hawkins ISD, some elementary campuses use this method.

METHOD 4: VIRTUAL ACADEMY

HOW IT WORKS: Teachers within one site are staffed to deliver remote or on-campus instruction, not both.

PROS: Allows teachers to specialize in one modality.

HOW IT WORKS: One virtual academy is set up to support all remote learners in a district with dedicated teachers.

Other students attend school on campus with in-person instructors.

PROS: Useful when campuses vary widely on the percentage of remote students and teacher capacity to deliver remote learning effectively. In that case, it may be best to pool virtual students and teachers across the district via the virtual academy.

CONS: Requires significant communication with families that if a student changes modality, he/she is likely to see a teacher/schedule change (one way to ease this is common scope/sequence, common teacher collaboration time).

EXAMPLE: Lubbock ISD has its own virtual academy principal. Substitutes have been trained to teach virtually. Also, if teachers are quarantined and feeling OK while isolated at home, substitutes monitor in-person students while the teacher does lessons virtually from home. Lubbock ISD has 84 virtual teachers for elementary. These teachers are solely virtual, and their online classes have 25-35 students, to allow social distancing for on-campus learners. In middle and high school, some faculty teaches concurrently, some students use the selfpaced Edgenuity program for learning, and some teachers have designated virtual periods and in-person classes.

growth) difficult, if not impossible, to capture accurately.

TCTA also argued for the suspension of STAAR testing and the related A-F accountability ratings that would add stress to students who are already struggling to stay engaged this year.

On Dec. 10, Education Commissioner Mike Morath announced that districts could apply for waivers from teacher appraisals this year. He also said he would pause the A-F accountability ratings for districts, campuses and charter schools during the 2020-21 school year. But he said STAAR tests would be administered, though with longer testing windows to accommodate social distancing. Morath and other state officials have argued that the data collected from STAAR tests will help determine how much the pandemic affected

learning. TCTA will continue to urge that STAAR testing be suspended this spring.

As the fall semester ended, recent studies showed that COVID-19 transmission on campuses has been relatively low — at least when recommended health and safety guidelines are followed. While that’s good news, we must remain vigilant in the coming months to continue following CDC guidelines to stay safe.

We know many of you will continue to have questions and concerns about COVID-19, and we remain ready to help. Call the Legal Department at 888-879-8282 to speak with a staff attorney. We also will provide the latest information in eUpdate and in our COVID-19 FAQs at tcta.org/covid19.

METHOD 3: SPLIT STAFFING

Winter 2020-21 | THE CLASSROOM TEACHER

15

CONNECT WITH US!

TCTA 2021 VIRTUAL CONVENTION | FEBRUARY 26-27 The TCTA Representative Assembly will convene in the evening on Friday, Feb. 26, during the 2021 Virtual Convention, so no one needs to request time off to attend this year.

We also plan to provide several hours of professional development credit, including updates from TCTA’s legal and lobby teams, along with a variety of other presenters.

We’ll have more details in mid-January and links to registration at tcta.org/convention.

Delegates to the Representative Assembly will elect statewide officers for 2021 during the meeting. Positions on the ballot this year include President-Elect, Governance Committee chair, Legislation Committee chair, Membership Committee chair, Professional Rights & Responsibilities Committee chair and Curriculum & Instruction Committee chair to fill a vacant seat on the Executive Board. Odd-numbered districts also will elect directors to two-year terms beginning June 1.

The following six candidates declared their intent to run by Nov. 28 and their names will appear on the ballot. Additional nominations for write-in candidates may be made from the floor during the business meeting on Feb. 26.

ELEANORE MALONE PRESIDENT-ELECT

TCTA MEMBER FOR 13 YEARS CURRENT JOB: Seventh grade history teacher, Boulter Middle School, Tyler ISD EDUCATION: Bachelor of Science in Business Administration, Texas College; teaching certificate, LeTourneau University PREVIOUS TCTA LEADERSHIP: Tyler CTA faculty representative, vice president and president; District 7 director; Governance Committee chair CANDIDATE STATEMENT: Joining TCTA is one of the best decisions I’ve made as an educator.

Teachers often feel overwhelmed by all the demands on their time, and I love being a member of an organization that goes above and beyond to support its members and all educators. I’m proud to be part of TCTA, and if elected, I pledge to do all I can to represent TCTA and its members, speaking out for what educators need in these challenging times.

16

tcta.org | 888-879-8282

JENNIFER HUTCHINSON GOVERNANCE

TCTA MEMBER FOR 14 YEARS CURRENT JOB: Social studies teacher, grades 9-12, the Impact Center, Hays CISD EDUCATION: Bachelor of Arts in Sociology, University of Texas at Austin; Master of Education, Texas State University PREVIOUS TCTA LEADERSHIP: Hays CTA president; San Marcos CTA president; District 13 Director CANDIDATE STATEMENT: I am grateful for the opportunity to serve my fellow teachers in the role of Governance chair. This position is a good fit for me because I am committed to assisting the local associations with the details of and adherence to the guidelines established within the TCTA governance documents. I understand and am willing to undertake the responsibility of receiving and processing all motions to amend TCTA governance documents, interpreting existing governance documents, assisting local affiliates in drafting governance documents, and making recommendations for necessary additions or changes in the TCTA governance documents.

Thank you for considering me for this position.

CRISTAL ISAACKS LEGISLATION

TCTA MEMBER FOR 33 YEARS CURRENT JOB: Librarian and Library Coordinator and Public Relations, Levelland ISD EDUCATION: Bachelor of Science in Education, Texas Tech University; Master of Library Science, Texas Woman’s University PREVIOUS TCTA LEADERSHIP: Legislation Committee chair 2, Teacher Personal Services Committee chair, Budget Committee chair, Budget Committee member; District 17 director, DCC 17 treasurer; Levelland CTA president, vice president, treasurer and faculty representative.

CANDIDATE STATEMENT: I would love to serve you as TCTA Legislation Committee chair once again. I listen to your concerns and I will speak up for Texas educators to elected officials at the Capitol.

I’m not shy, I have a positive personality, and want to work with TCTA’s top-rated education lobby team in making sure that the SBEC, our representatives, our governor and lieutenant governor, and our senators understand that teaching is the most important investment for our country and the future. I want to get the message to these elected officials about our COVID-19 stresses and extra duties, the STAAR testing, the school grading system and merit pay, and the new issues that come our way. I have been honored to be part of the TCTA leadership before and wish to represent you again as Legislation chair.

DEBRA HELBERT MEMBERSHIP

TCTA MEMBER FOR 30 YEARS CURRENT JOB: Science teacher, grades K-5, Long Elementary, Lamar CISD EDUCATION: Bachelor’s degree in Early Childhood/Elementary Education, Houston Baptist University; Master of Education in Curriculum and Instruction, Houston Baptist University.

PREVIOUS TCTA LEADERSHIP: Lamar CTA faculty representative; District 4 Director CANDIDATE STATEMENT: Through the years, I have been interested in serving in more leadership roles for TCTA beyond the local level. I feel a call to serve in this organization. TCTA membership is a strong passion of mine. My colleagues joke at the beginning of each year when they see me walking the halls because they know I am on a mission to find our new teachers to offer them the opportunity to join TCTA. I know from personal experience with friends how detrimental it can be for educators if they have no representation. I do share these experiences with teachers to encourage those who are reluctant to join a professional organization. As Membership chair, I will work tirelessly to keep our memberships strong. I will offer encouragement to those campus level representations. I will work closely with TCTA staff to form ideas and implement these ideas to increase our membership numbers and maintain that we are the best professional organization for educators in the state of Texas. It would be an honor and privilege to serve our dedicated educators at the state level. I thank you for your consideration of me for this position of Membership chair.

Continued on page 18 Winter 2020-21 | THE CLASSROOM TEACHER

17

SHARRON WOOD

PROFESSIONAL RIGHTS & RESPONSIBILITIES TCTA MEMBER FOR 18 YEARS CURRENT JOB: Prekindergarten teacher, Mauriceville Elementary, Little Cypress-Mauriceville CISD EDUCATION: Bachelor’s degree in General Studies, Master of Education Administration, ESL PREVIOUS TCTA LEADERSHIP: LCM CTA secretary; District 5 Director, DCC 5 President and DCC 5 Vice President CANDIDATE STATEMENT: In the great state of Texas we have excellent teachers who deserve the very best. The very best begins with you and your team at TCTA. I am a candidate for Executive Board as the Professional Rights and Responsibilities chair. As your representative, I would strive for excellence as your voice. I have been in the educational system for 21 years. I have worked as a substitute, a paraprofessional, a prekindergarten, kindergarten, second and third grade teacher. I have been a member of only one professional organization and I have served in many different capacities from my local to district as well as serving on various committees throughout the years. I hope you will consider me to continue to represent you and TCTA in this new role as your representative on the Executive Board as the chair of the Professional Rights and Responsibilities Committee.

JOYCE MCCURDY

CURRICULUM & INSTRUCTION TCTA MEMBER FOR 21 YEARS CURRENT JOB: Sixth-grade social studies, Kirby Middle School, Wichita Falls ISD EDUCATION: Bachelor of Science in Interdisciplinary Studies, minor in English, Midwestern State University PREVIOUS TCTA LEADERSHIP: Wichita Falls CTA president and treasurer; District 9 director, Professional Rights & Responsibilities Committee chair CANDIDATE STATEMENT: As the saying goes, all good things must come to an end. My end has come as serving as the Professional Rights & Responsibilities Committee Chair. I want to thank you for giving me the opportunity to serve you. Now that I have gotten a taste of serving my fellow teachers, I just can’t seem to “Never Say Goodbye.” I’m asking you to give your support to me once again as I run for Curriculum & Instruction Chair on the Executive Board. I believe that this position has always been important, but now even more so as school has changed.

Teachers are faced with the challenges of teaching students remotely and face to face, many of us doing both at the same time, while planning lessons that will work digitally, keep all students engaged, and adhere to all of our students’ needs. Whew, we are doing a lot! If I receive your vote, I will use my voice to advocate for teachers, because we have always been essential workers!

WASHINGTON WATCH Continued from page 8 Title IX regulations issued under President Obama were subsequently revised last year. They became effective this past August. Democrats will want to reverse Title IX rules that detail how schools must conduct and report on sexual assault investigations, the narrow definition in place for sexual harassment and the protections offered to the accused.

Borrower defense rules made it more difficult for borrowers to have their student debt forgiven if they feel they were defrauded by their colleges, mostly in the for-profit arena. The Trump administration retracted Obama-era school discipline guidance that sought to address exclusionary and discriminatory practices.

The seesawing of education regulations has an impact on the ground, where schools and districts must expend resources to 18

tcta.org | 888-879-8282

comply with changing federal rules.

Annual assessments

In the fall, DeVos told state school chiefs that they should not expect the department to waive federal testing requirements for K-12 schools this year as it did last spring. Education Committee Democrats agree that data is needed to address achievement gaps and to identify inequities in the education system likely exacerbated by the pandemic.

While the next education secretary ultimately will make the final call, most agree that 2020-21 testing results should not impact the ratings of schools or factor into teacher evaluations.

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

LEGAL NOTES Continued from page 7 can become law immediately if approved by two-thirds of the members of the Texas Senate and House and signed into law by the governor.

Local school boards can provide for additional leave to protect educators and their families from the economic harm of contracting the virus and from the cost of state and districtimposed quarantines. That is especially important because districts will continue to quarantine educators if they have COVID-19, show similar symptoms, or have close contact with a person with a test-confirmed diagnosis.

constitute a disability under the ADA, and the district does not have to provide the accommodation that is requested.

The district must, however, discuss the situation with the employee to determine if the ADA is applicable and whether an accommodation is required by the ADA. Some districts have started to substantially restrict the number of employees with work-from-home accommodations in the spring. Members who have ongoing concerns with their district’s handling of accommodations for disabilities should call the TCTA Legal Department at 888-879-8282 to discuss their options and their right to appeal district determinations.

Medical information and quarantine

Vaccine availability and prioritization

The TCTA Legal Department has heard from members that districts have asked them to provide medical information regarding a family member’s COVID-19 status before returning after reporting a close contact. An educator does not need to provide that information according to quarantine expectations and return-to-work guidelines set out in the commissioner’s public health guidance available online at tea.texas.gov. The commissioner updates the guidance as the Centers for Disease Control and Prevention updates its recommendations.

Terminating virtual learning

As of the end of November, several districts had stopped offering virtual learning for students. The TCTA Legal Department has heard that some districts that are urging students to return to campus for instruction may be requiring parents to provide medical certification to keep their children home during the pandemic.

TEA’s COVID-19 attendance and enrollment guidance says districts that provide remote learning can end that option for all by giving notice at least 14 days in advance and allowing parents to enroll their children in districts that offer remote learning.

A district can end remote learning for a student who struggles academically with attendance or in any other way, e.g., for a student with a class average of 70 or below or three or more unexcused absences in a grading period. To do so, a district must give a parent a two-week notice and allow the parent to appeal or provide medical certification of the need for remote instruction.

ADA and virtual teaching

TCTA has heard from many members that districts have announced that all teachers must return for face-to-face instruction as of a certain date and that all work-from-home requests are denied. Such a blanket denial without further discussion by the districts regarding work-from-home requests may violate the Americans with Disabilities Act. The ADA requires that employers engage in an interactive process with employees who request an accommodation for a medical condition to determine if those employees have a disability as defined by the ADA and to provide accommodations to those with covered disabilities that allow them to perform the essential functions of the job or as necessary to enjoy the privileges of employment unless the accommodation poses an undue hardship to the school. Not all medical reasons

The COVID-19 Expert Vaccine Allocation Panel, a 17-member panel that includes public health experts, along with members of the Texas House and Senate, will “develop vaccine allocation strategies” and make recommendations to the Texas commissioner of health regarding vaccine distribution.

TCTA recently sent a letter to Gov. Greg Abbott requesting that the state assign teachers a high priority for vaccine distribution. (TCTA has not advocated that the vaccines be mandatory.) The Texas Department of State Health Services is developing the vaccine distribution plan. In early December, members of the governor’s COVID-19 Expert Vaccine Allocation Panel recommended teachers be designated as frontline workers to provide them with earlier access to the vaccine when it becomes available, as TCTA recommended.

However, the Texas commissioner of health will make the final determination and had not done so as of press time. (Look for the latest developments in eUpdate and on our website.)

Required immunization — looking to the future

Texas law requires that children at all public and private schools have 10 immunizations before enrolling in kindergarten and students are required to receive others in later grades.

Parents can opt out of the vaccine requirements based on (a) a physician-documented medical exemption, which clearly states a medical reason, or (b) through a conscientious exemption, which can include religious reasons. The conscientious exemption must be supported by a notarized affidavit valid for a two-year period. To date, the list of required vaccines does not include a required immunization for coronavirus. (And we’ll note that the initial Pfizer and Moderna vaccines are for adults; trials are ongoing to find a COVID-19 vaccine and dosage that is safe for children.)

Under the Texas Health and Safety Code, additional vaccinations may be required by the department and/or the local health authority through an order containing control measures to prevent the spread of disease. It is unclear whether employers, including school districts, can require their employees to be vaccinated. Though some prior case law suggests it is legal for employers to require vaccinations, there is an open question regarding the COVID-19 vaccine, due to its emergency approval status from the FDA. This article is not intended as legal advice. Call TCTA’s Legal Department at 888-879-8282 to speak with a staff attorney.

Winter 2020-21 | THE CLASSROOM TEACHER

19

L i a b i l i t y Po l i c y

|

R e n e wa l o f N o. E P S 24 0 0 0 0 6

|

Po l i c y N u m b e r E P S 2 5 0 0 0 0 6

TCTA EDUCATORS PROFESSIONAL LIABILITY INSURANCE

DECLARATIONS This Insurance is only available to members of Texas Classroom Teachers Association through Texas Classroom Teachers Association Services Corporation (RPG).

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: 8877 North Gainey Center Drive Scottsdale, Arizona 85258 800-423-7675 A STOCK COMPANY

GENERAL AGENT NAME & ADDRESS ITEM 1. POLICYHOLDER & MAILING ADDRESS Texas Classroom Teachers Association Services Corporation PO Box 1489 Austin, Texas 78767-1489

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: 08/01/2020 12:01 a.m. Standard Time at the address of the POLICYHOLDER as stated herein.

TO: 08/01/2021

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

tcta.org | 888-879-8282

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; 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 Winter 2020-21 | THE CLASSROOM TEACHER

21

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.

22

tcta.org | 888-879-8282

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.

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.

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:

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.

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.

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

Winter 2020-21 | THE CLASSROOM TEACHER 23

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.

24

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

tcta.org | 888-879-8282

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.

Winter 2020-21 | THE CLASSROOM TEACHER 25

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

26

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

tcta.org | 888-879-8282

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.

Winter 2020-21 | THE CLASSROOM TEACHER

27

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.

28

tcta.org | 888-879-8282

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

Winter 2020-21 | 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

30

tcta.org | 888-879-8282

(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 need direct contact with their teachers to park in front of the student’s home and allow the teacher some one-on-one time to meet the student’s needs. This is a great example of the sort of creative thinking that will get us through this public health crisis.

More than a few districts have offered surprise bonuses to their teachers, up to $2,000, from what our elected leaders and the media report. I think this is great. I also have to wonder to what extent this is an acknowledgment of hard, potentially risky work done, and to what extent it is a plea for “please don’t quit.” Perhaps it is a bit of both.

Anecdotally, we have been receiving a high number of questions from members asking about the consequences of not finishing out the year. We have made several inquiries of TRS and have been told that the number of retirements this year was not atypical — until late fall, when the data indicated more than a 30% increase in retirements compared to the fall of 2019. I fear, based on our inquiries, that that number will further balloon once the final mid-year data is received, reflecting the number of employees who retired as soon as they were able to get credit for this school year.

In short, a lot of veteran teachers are being lost, for understandable reasons.

Which brings me to my final point. If districts want good, veteran teachers to stay, they may need to change their ways.

We have done that with our staff at TCTA — there’s no reason to require everyone to be breathing on each other, when other mechanisms exist to be responsive to our members and local affiliates. Many teachers want to be on campus, many others are

concerned for their safety, or that of a family member. Districts need to work with faculty to provide what is needed to students without unnecessary risk.

I fear that many districts — which have had declining enrollment due to students who have disappeared or moved — will look to reductions in force in the spring, as a result of a smaller student population. That is the opposite of what needs to happen. Schools need to relocate and re-involve students who have disappeared, and to catch up on the learning loss that many students have experienced during the better part of the last year. This means a demonstrable need for smaller class sizes, more personalized instruction, and an effort to locate and recapture the students who have gone missing. That costs more money, not less, and any reduction to funding will be counterproductive and more expensive in the long run. (It is worth noting that the evidence of learning loss is conflicting, with an NWEA study of MAP Growth test results finding that the move to virtual learning has had little effect on reading growth, and a relatively small drop in math.)

Your districts need to value you more highly, if they have not already done so. That doesn’t mean just bonuses, it means higher base salaries (which will require at least as much, if not more, funding than HB 3 provided last session), enhanced health insurance benefits, and a commitment to trusting you to perform your highest and best uses — which may not be bus duty or cafeteria supervision. You are professionals, and particularly important ones right now.

We will continue to anticipate and advocate on your behalf with policymakers and districts. You can count on us to be with you as you face the difficult challenges of our current reality.

U.S. Postal Service Statement of Ownership, Management and Circulation* Publication Title: The Classroom Teacher Publication Number: 815620 Filing Date: Sept. 22, 2020 Issue Frequency: Quarterly Number of Issues Published Annually: 4 Annual Subscription Price: $10 Complete Mailing Address of Known Office of Publication: PO Box 1489, Austin, Travis County, TX 78767-1489 Contact Person: M. Clare Haefner; Telephone: 512-477-9415 Complete Mailing Address of Headquarters or General Business Office of Publisher: PO Box 1489, Austin, Travis County, TX 78767-1489 Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor: Texas Classroom Teachers Association (Publisher), PO Box 1489, Austin, TX 78767-1489; M. Clare Haefner (Editor), PO Box 1489, Austin, TX 78767-1489; Jeri Stone (Managing Editor), PO Box 1489, Austin, TX 78767-1489 Owner: Texas Classroom Teachers Association, PO Box 1489, Austin, TX 78767-1489; Texas Classroom Teachers Assoc, 700 Guadalupe St., Austin, TX 78701 Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None Tax Status: Has Not Changed in Preceding 12 months

Publication Title: The Classroom Teacher Issue Date for Circulation Data Below: July 20, 2020 Extent and Nature of Circulation: Average No. Copies Each Issue in Preceding 12 Months: a. Total Number of Copies: 37,875 b. Paid Circulation 1. Mailed Outside-County Paid Subscriptions: 34,724 2. Mailed In-County Paid Subscriptions: 0 3. Paid Distribution Outside the Mails: 0 4. Paid Distribution by Other Classes of Mail Through USPS: 15 c. Total Paid Distribution: 34,739 d. Free or Nominal Rate Distribution 1. Outside-County: 227 2. In-County: 0 3. Mailed at Other Classes Through the USPS: 0 4. Outside the Mail: 2,438 e. Total Free or Nominal Rate Distribution: 2,665 f. Total Distribution: 37,404 g. Copies Not Distributed: 471 h. Total: 37,875 i. Percent Paid: 92.88% No. Copies of Single Issue Published Nearest to Filing Date a. Total Number of Copies: 35,000 b. Paid Circulation

1. Mailed Outside-County Paid Subscriptions: 34,265 2. Mailed In-County Paid Subscriptions: 0 3. Paid Distribution Outside the Mails: 0 4. Paid Distribution by Other Classes of Mail Through USPS: 10 c. Total Paid Distribution: 34,275 d. Free or Nominal Rate Distribution 1. Outside-County: 249 2. In-County: 0 3. Mailed at Other Classes Through the USPS: 0 4. Outside the Mail: 200 e. Total Free or Nominal Rate Distribution: 249 f. Total Distribution: 34,724 g. Copies Not Distributed: 276 h. Total: 35,000 i. Percent Paid: 98.71% 16. Total Circulation Includes Electronic Copies: No 17. Publication of Statement of Ownership: Winter 2020 18. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).

Signed by: M. Clare Haefner, Editor Items above were reported using PS Form 3526.

*Note: The information listed above does not include copies of The Classroom Teacher delivered digitally to members who go green and opt out of printed materials.

Winter 2020-21 | THE CLASSROOM TEACHER

31

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

PERIODICALS POSTAGE PAID AT AUSTIN TEXAS

Return Service Requested

HELP SPREAD THE WORD!

Second-semester hires can join TCTA for 1/2 price!

When you return to your campus, welcome new teachers and tell them about TCTA. Eligible new hires can go to tcta.org/half_price or call 888-879-8282 and get the full benefits of membership for half the cost.

(Join by Feb. 1; membership expires Aug. 31, 2021.) Regrettably, TCTA cannot accept payroll deduction requests in January.