Discipline and due process

Reprimands to terminations

When an educator or another district employee is accused of wrongdoing, a school district may take action, including investigating the allegation and ultimately deciding that some type of disciplinary action should be taken.
Negative actions range in severity from simple reprimands to termination of employment. The due process protections available to the individual threatened with negative action also vary depending on:
  • The severity of the threatened action.
  • Whether the individual is employed under contract and, if so, what type of contract. 
Reprimands are the simplest and least severe negative action. Although some districts define a reprimand as a particular type of document, here it simply means a statement, oral or written, that someone did something he should not have done or did not do something he should have.
  • The reprimand itself is not evidence of wrongdoing, nor does not prove that the allegation is true. Although it is certainly best practice and reasonably expected that a supervisor conduct an investigation, including asking the individual for his “side of the story” before reprimanding an employee, there is no actual legal requirement that the supervisor do so. A supervisor must follow no legally required process before issuing a simple oral or written reprimand (although, under the PDAS teacher appraisal system, there are specific rules relating to written documentation).
  • A reprimand is significant because it establishes that you have been informed that you have or might have done something wrong. Usually it will also state what you should do in the future. This is important: You have been warned that your behavior needs to change, and, if it can be shown that you have continued the same behavior, the reprimand as proof of warning can make it easier for the district to take more serious negative action. Because one of the main purposes of a reprimand is to prove that you have been notified of the issue, it is common that you will be asked to sign it. Generally speaking, unless the document specifically states otherwise, your signature does not mean you agree with the contents of the document, It only establishes that you have received it. If you would like, you can write “signed for receipt only” near your signature, just to make sure there is no ambiguity regarding what your signature means.
  • A reprimand might later be used to support a more serious negative employment action. That’s why an individual’s due process protections are important even here, when few due process protections apply. It might seem counterintuitive, but an educator with a contract requiring the district prove it has good cause for termination might have more reason to fight a reprimand than an at-will staff member whose employment the district can terminate without cause.
Generally, a reprimand itself, because it’s just notice of an allegation and a directive, is not considered a negative employment action as far as the law is concerned (although it certainly feels like one to anyone on the receiving end). Because it’s not considered a negative action, the two options for response are the two options available regarding any employment situation: a written response detailing your side of the story or a grievance. A grievance is a legally required process all districts have to resolve complaints.
Investigations by the district administration will normally be conducted when a serious allegation is made against an educator or district staff member. The extent of an investigation will be determined by three things:
  • Local district policies and practices. Few laws regulate investigations and how they should be conducted, so how investigations are handled is very much locally determined. Local practice determines when an investigation should be undertaken, who will conduct the investigation and what steps will be taken. Although there are certain standards that everyone knows and reasonably expects, such as the right to explain your side of the story, the right to know who your accusers are and what the accusations are, as well as the right to a fair and objective investigation, the lack of real, enforceable legal standards leaves these matters up to the local administration. Unfortunately, some administrators are more objective, competent and professional than others. Although pointing out that an investigation was poorly handled might be an effective strategy in attacking the credibility of the results in a later hearing, there are often only limited ways to try to force an administration to conduct a fully appropriate investigation.
  • Nature and type of allegation. It probably is no surprise that a more serious allegation will result in a more thorough investigation. All else being equal, a district will be more concerned about an allegation that a teacher slapped a student in anger than an allegation that a teacher reported to work 15 minutes late. The more serious the allegation, the more likely it is that someone from the central administration will lead the investigation. When criminal allegations arise, many districts will involve either district or local law enforcement. If the allegation involves something in the classroom or somewhere else where witnesses were present, the administration will usually interview witnesses, including students. The accused educator does not have a legal right to be present while witnesses are questioned, and the administration is not required to inform an educator what the witnesses have reported while the investigation is ongoing.
The administration will almost always ask the accused individual for a statement. As long as the allegation does not involve possible criminal conduct, thus bringing the U. S. Constitution’s Fifth Amendment right against self-incrimination into play, the administration can demand that the accused or any other employee with information provide a statement, and negative employment action can be taken based on the employee’s failure to cooperate. Normally, the administration will allow the accused employee a day or two to submit the statement, which allows the employee the opportunity to receive legal guidance, but again, no law requires it, and some administrators have demanded an immediate written statement. Although there is no way that an administrator can literally force anyone to write a statement, as noted above, refusal can, in most circumstances, lead to negative action in its own right.
If possible, an educator who has been accused of wrongdoing and asked to write a statement should receive legal guidance before doing so.

  • Employment category of the individual being investigated. The employment category is significant because to a large degree it determines what job protections the accused individual enjoys and what the district must establish in order to take negative employment action. The district’s administration might not feel as compelled to conduct as thorough of an investigation into an allegation against an at-will employee because the district does not have to prove that the employee actually did anything wrong before taking negative action, such as a suspension or termination. A certified educator, however, will have a contract that in most cases requires proof that the educator did something wrong before the district can suspend without the educator without pay or terminate employment. This need of proof demands evidence, and that requires an investigation to compile it.   
Educators are increasingly placed on administrative leave when a more serious allegation, such as striking a student, is made, particularly when made against an educator under contract. The district uses this time to investigate the allegation and decide what action, if any, to take.
Like a reprimand, administrative leave is not considered a form of discipline or negative employment action, so the district does not have to prove that the educator did anything wrong prior to placing an educator on administrative leave. It is not considered a negative employment action because the district continues to pay the educator just as if the educator were in the classroom or other normal workstation.
Administrative leave typically involves:
  • Full contract pay: This is required for anyone under contract. Anything the district was obligated to pay before, it remains obligated to pay.  An educator on administrative leave should receive all other normal benefits, and the educator’s own leave should not be applied to the absences.
  • A directive to remain at home and not come to work: The educator is directed to remain at home or at least remain available during regular work hours. Practically, the educator has been “reassigned” to her home. Although administrative leave is a form of leave, it is different from sick leave for the same reason that it is not considered a disciplinary action—it does not change the obligations of either party. The district must continue to pay, the educator must continue to perform whatever parts of her job she is required to continue, such as simply being available, preparing lesson plans or grading papers.
  • A directive not to contact or communicate with co-workers: This is commonly directed as a part of the investigative process and is often one of the hardest directives to accept or comply with. An educator usually has friends on campus who want to know what is happening and want to express support. However, educators should know that failing to follow this directive has been used successfully in the past as grounds, in itself, for negative employment action. This directive also becomes complicated when the educator has children who attend the district. The district’s right to give directions to a district employee then comes into conflict with the employee’s parental rights.
There is no limit on how long the district can place an educator on administrative leave. Although the district has a practical incentive to conclude the matter because it’s practically paying the educator to stay home, administrative leave can be indefinite and, especially in particularly difficult cases where the administration is unsure how to act, the leave can drag on, even for months.
Because administrative leave is not disciplinary, no special due process protections apply to it. As with a reprimand, an educator can file a grievance to contest being placed on administrative leave or to complain about the length of the leave. 
A suspension is a temporary, involuntary removal from work. A suspension can be with or without pay, but here we will discuss suspensions without pay. (Administrative leave, as described above, is often referred to as a suspension with pay, and the points made there will cover suspensions with pay.)
Suspensions without pay are fairly rare in public education. Teachers are employed under contracts, so in order to place a teacher on involuntary suspension without pay, a district must go through the same due process as with a full termination, so districts rarely do it. Any misconduct serious enough to lead a district to consider an unpaid suspension will usually result in the district deciding to pursue termination instead. Although rare, a district will occasionally offer an unpaid suspension to a contract educator instead of termination. If the educator agrees, then no hearing is required.   
At-will employees are placed on unpaid suspension much more frequently than contract employees. Because no contract creates a legal right to the job, a district can place an at-will employee on unpaid suspension for almost any reason and at almost any time it sees fit. The only prohibition would be if the action was motivated by illegal discrimination or retaliation, both very narrow exceptions. It is common for at-will staff, such as paraprofessionals, bus drivers or cafeteria workers, to be placed on unpaid suspension while the district investigates an allegation against them. If they are cleared and returned to work, the district can but is not required to pay them for their time on suspension.
Contract employees involuntarily placed on unpaid suspension have specific legal due process rights and might have a legal claim against the district if their legal rights are violated. An at-will employee usually will not have a legal claim against the district, unless he can show that he was placed on unpaid suspension in retaliation for doing something that he had a protected legal right to do, such as take available medical leave or file a grievance, or because of illegal discrimination based on race, color, gender or other prohibited characteristics. Even if there is no legal claim, an at-will employee can file a grievance to contest his placement on unpaid suspension.     
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.

Notice required
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.
Termination commonly refers to any type of decision by an employer to end an employee’s employment. However, the Texas Education Code (TEC) requires a different process for ending a contract educator’s employment at the end of the contract (nonrenewal as covered above) than during the term of the contract. The latter is generally referred to as a “termination,” so it will be described here along with terminations of non-educator contracts and district employees who do not have a contract.

Contract educators
An employment contract gives the employee a legally recognized right to her job. That right is not absolute, however; it is limited by the terms of the contract itself and by state law. The TEC allows a district, as the employer, to terminate a contract before its end “for good cause.” Good cause is defined in the TEC as “failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in the state.”

The process for terminating a certified educator with a contract is defined by the TEC. Only the board of trustees can initiate the official TEC contract termination process. This begins with a board vote to propose termination and notification of the affected educator. The educator may then request a hearing in which the administration must prove to an independent hearing examiner (IHE) appointed by the Texas Education Agency that there is good cause to terminate the contract. The IHE makes findings of fact (what happened) and conclusions of law (what it means) that are submitted to the board. The board may either approve the IHE’s determinations or, in very limited circumstances, overrule the IHE. If the IHE rules there is good cause to terminate the contract, or if the board overrules an IHE ruling that there wasn’t good cause and terminates the educator anyway, the educator may appeal the case to the commissioner of education. If the educator prevails, the district has a choice: It may either place the educator back at work, or it can simply pay the educator one year’s salary.

Some noncertified employees of public school districts, such as business managers or transportation directors, may be employed under a contract that is not governed by the TEC. If this is the case, the contract will still usually require some type of due process to establish that good cause exists to terminate the contract, but the procedure may be quite different than the one described above and may require as little as a board vote. Similarly, many charter schools employ all staff under contracts that may or not provide due process before termination.

At-will terminations
Employment “at-will” is the term used in Texas for employees who do not have employment contracts that require due process before termination. The great majority of workers in Texas are employed at-will, but because the TEC requires school districts to employ most certified staff members under contracts, at-will employees—such as paraprofessionals, custodial and food service staff members, and bus drivers—sometimes feel slighted in comparison.

With at-will employment, both the educator and the district are free to end the employment relationship at any time and for almost any reason. The at-will employee may simply quit without having to prove that he has justification—something the contract employee cannot do. The district, however, may also terminate the at-will employee for (using the phrase adopted by the Texas courts) “a good reason, a bad reason or no reason at all.” The only limitation to this broad discretion is that the decision cannot be based on a legally prohibited reason, such as illegal discrimination or retaliation for the exercise of a protected right.

Because an at-will employee has no legal right to the position, the only recourse available to contest an at-will termination is the district’s grievance process, unless there is sufficient evidence to prove that the termination was illegally motivated. If there is evidence of a prohibited motivation, it is usually necessary to take specific required actions prior to a determined deadline. The actions required and the deadlines applicable depend on the underlying circumstance. For instance, a claim of racial discrimination has a process and deadline different than a claim for “whistleblower” retaliation.

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