When a board determines that it does not wish to retain a certified educator at the end of his contract, the determination is commonly referred to as “nonrenewing” the educator or proceeding with a “nonrenewal.” What a district must do to successfully nonrenew a contract depends on the type of contract. Most educator contracts are governed by the Texas Education Code (TEC), and that set of laws requires that the district follow a certain, specific process.
If a school board does not plan to retain an educator, the TEC requires that the board first vote to make the intention official and, second, notify the affected educator of that vote. In 2011, the 82nd Legislature changed the deadline for this notice from 45 days before the last instructional day of the school year to 10 days before the last instructional day, giving the administration and board more time to make their decision. Educators who do not receive a notice before the deadline are automatically entitled to another contract in the same professional capacity for the next school year.
Due process required
The board action (what the board is voting to do) and the educator’s due process in response are also controlled by the TEC. That law first says it depends on the type of contract the educator has. There are two types of contracts that may be nonrenewed: term contracts and probationary contracts. (Look at your contract to determine what type of contract you have. It will say at the top.)
Probationary contracts: Nonrenewing a probationary contract is easy for a district. The board is only required to vote that nonrenewal is “in the best interests of the district” and notify the educator of that vote by the deadline. The board does not have to prove that nonrenewal is in the district’s best interests or even explain why it is believed to be. Only the vote and the notice are required.
The ability to fight a probationary contract nonrenewal is also quite limited. The only option, unless there is evidence proving illegal action, such as racial or gender discrimination, is to file a grievance. A grievance provides only the opportunity to make a 10–15 minute presentation to the same board that has already voted to nonrenew the contract. So, short of new information that will truly make board members decide that they made a mistake on their first vote, a grievance is unlikely to be successful. Finally, the TEC says that the nonrenewal of a probationary contract “may not be appealed.” This means, again, that unless there is sufficient evidence of illegal activity to warrant court involvement, the board will have the final say.
Term contracts: Nonrenewing a term contract is substantially more complicated for the district, and an educator’s due process in this situation is also relatively more effective. First, the board must have specific reasons, based on board policy, to nonrenew an educator. Second, the board must tell the educator what those specific reasons are. Third, the educator has a right to a hearing in which witnesses must be called and evidence presented. Fourth, while the hearing may be in front of the board itself, the board is prohibited from prejudging the matter before the hearing. In fact, the commissioner of education has reversed several board votes to nonrenew an educator after the board did something that established the board members had made up their minds before the hearing. Fifth, the board must find, based on evidence from the hearing, that there is “good cause” to nonrenew the contract. Finally, if the board does vote to nonrenew the contract, the decision may be appealed to the commissioner of education.
It must be noted that the standard for “good cause” to nonrenew a term contract is not terribly high. The district does not have to prove that the decision was necessary, only that it was reasonable, but the fact that the district has to go through the process does itself limit arbitrary or emotional nonrenewal recommendations.
Non-educator contracts and at-will staff
Some district employees, such as transportation directors or finance directors, are not required to be certified but may be employed under contract. Commonly, these contracts are not governed by the TEC provisions described above, so the notice requirements and due process rights might vary considerably.
Finally, district staff members who are not employed under a contract and who are therefore employed “at-will” may be released at any time and for any reason that is not itself illegal. No prior notice is required, and, unless there is evidence that the termination was illegally motivated, the only available response is a grievance.