While teachers and administrators enjoyed a well-deserved summer break, Commissioner Morath and the Texas Education Agency’s Office of Hearings and Appeals were busy issuing several important Commissioner’s decisions in employment matters. For this first of our regular series on Commissioner’s decisions, here is a roundup of lessons school districts can learn from this summer’s rulings out of Austin.

• Districts must strictly comply with all statutory and procedural requirements for Chapter 21 contract terminations and nonrenewals

The Commissioner reversed a teacher contract termination based on the teacher’s attempt to restrain a student during a fight because the school district did not consider the teacher’s immunity under the Education Code for use of force on the job. In Stoneham v. Crowley ISD, Docket No. 036-R2-04-2022 (June 15, 2022), the teacher noticed a young man in his classroom whom he did not recognize. The individual—a student—refused to provide identification and started a physical fight with the teacher. During the fight, the teacher attempted to control the student with his weight and pin him to the ground. The school district terminated the teacher for using force against the student.

Texas law gives educators immunity to use physical force against a student if the teacher reasonably believes the force is necessary to maintain discipline. The teacher’s belief that the use of force is reasonable must be considered from the employee’s perspective at the time of the incident. In Stoheham, the Commissioner determined that the teacher’s use of force was “privileged”—or allowed—under state law because the unidentified individual presented a danger to the school community. Under the circumstances, the teacher could use force to try and subdue the student, and the district was not permitted to terminate the teacher.

In Kelley v. Marlin ISD, Docket No. 041-R1-06-2022 (July 14, 2022), the Commissioner also reversed a teacher’s term contract nonrenewal because the district failed to follow Chapter 21’s requirements. Although the district notified the teacher that the administration had recommended the nonrenewal of her term contract, she was never told the specific reasons for the district’s decision, and she did not receive a hearing from the district.

The Commissioner determined that the notice given to the teacher was inadequate and found that the district violated Chapter 21 by (1) failing to provide the teacher with written notice, at least 10 days before the last day of instruction, that the board proposed to nonrenew the teacher’s contract for the next school year; and (2) failing give the teacher an opportunity to request a nonrenewal hearing. Additionally, the district failed to provide the teacher with the reasons for the proposed nonrenewal—which must come from a pre-established list of possible nonrenewal grounds adopted by the board—in advance of a hearing, thereby eliminating the teacher’s ability to prepare a defense. Ultimately, because the district failed to comply with the Education Code’s nonrenewal requirements, it was required to employ the teacher in the same professional capacity for the next school year.

In contrast, in Garza v. La Joya ISD, Docket No. 046-R1-06-2022 (Aug. 17, 2022), the Commissioner upheld a second grade teacher’s contract nonrenewal based on allegations that the teacher inappropriately touched several students. The district received three complaints of inappropriate touching against the teacher and the teacher was arrested. CPS then investigated and ruled out two of the allegations and was “unable to determine” any violations as to the third. An internal district Title IX investigation, however, found the teacher responsible for sexually harassing two students.

Unlike in Kelley, and as required under the Education Code, the district provided the teacher a detailed contract nonrenewal notice that listed eight specific bases for nonrenewal under the district’s DFBB (Local) policy and also explained the specific factual circumstances behind the decision. Based on the level of detail provided, the Commissioner found the district gave the teacher proper notice of the proposed nonrenewal.

The Commissioner also rejected the teacher’s attack on the credibility of the evidence against him. The teacher attempted to rely on conflicts in witness testimony and argued that one student denied that he had touched her, CPS ruled in his favor, and a colleague denied ever seeing him act inappropriately. The Commissioner noted that only “a scintilla of evidence”—a relatively low threshold—was required to uphold the school board’s decision to nonrenew. In light of the Title IX investigation’s findings, the teacher’s arrest, and negative publicity surrounding him, the district had far more than a “scintilla” to support nonrenewal.

• Documentation is critical to support employee leave decisions.

In Turner v. Mansfield ISD, Docket No. 005-R10-10-2021 (July 29, 2022), which involved a dispute over a district’s decision to end an employee’s assault leave, the Commissioner’s decision illustrates the importance of maintaining thorough documentation of the grounds underlying leave-related decisions. A special education teacher sustained injuries after a student assaulted him and was granted assault leave in November 2019. The teacher also received workers’ comp benefits and did not return to work for a lengthy period of time. In January 2021, a doctor completed a workers’ comp-related assessment of the teacher’s health and found that he had reached maximum medical improvement as to his injuries a year earlier, in January 2020. The district then terminated his assault leave as of January 2020 and offered him virtual teaching options, which the educator declined. The teacher filed a grievance with the district, which was denied at every level up to and including the school board.

The Commissioner recognized that Education Code § 22.003(b) requires districts to provide paid assault leave immediately on request when a teacher is physically assaulted on the job and needs time to recuperate from injuries. The statute, however, allows districts to then investigate and modify assault leave benefits. Districts can rely on workers’ comp-related medical reports in an assault leave investigation. In this case, the district obtained and properly relied on documentation showing the teacher had fully recuperated from the student’s assault. Although the teacher pointed to some contrary medical records that showed he needed continued medical attention even after January 2020, the Commissioner ruled in the district’s favor and upheld the denial of the teacher’s grievance because there was substantial evidence—documentation the district relied on during the grievance process and presented to the Commissioner—to support the district’s decision to end the assault leave period.

• The Commissioner continues to apply strict limits to his jurisdiction, and districts should carefully analyze possible jurisdictional defenses in Commissioner cases.

Numerous recent decisions show that the Commissioner applies strict statutory limits to his jurisdiction and does not hesitate to dismiss cases that fall outside those bounds. Under Education Code § 7.057, the Commissioner can only hear appeals of school board decisions that violate (1) the schools laws of the state or (2) provisions of written employment contracts while causing monetary harm. Here are just some recent decisions involving “jurisdictional” dismissals of cases that were not properly before the Commissioner:

• Gray v. Wichita Falls ISD, Docket No. 032-R10-04-2021 (July 12, 2022) – the complaining party did not obtain a decision from the district’s board before filing a claim before the Commissioner and alleged violations of the Texas Open Meetings Act and Robert’s Rules of Order, which are not school laws of the state.
• Koch v. Frisco ISD, Docket No. 016-R10-12-2021 (June 14, 2022) – the Commissioner lacked jurisdiction because the district’s board never took action on or made a decision against the petitioner on any school law claim.
• McNair v. Aldine ISD, Docket No. 034-R10-04-2022 (July 12, 2022) – a teacher who complained about being placed on administrative leave for misconduct filed a petition with the Commissioner while he still had a Level 2 grievance pending at the district level. Because the district’s board had not yet heard the complaint or issued any decision, the appeal to the Commissioner was premature.
• Khalil v. Fort Bend ISD, Docket No. 012-R10-12-2021 (July 26, 2022) – a teacher failed to comply with her district’s local grievance policy and filed an employment discrimination and retaliation grievance directly with the school board, rather than with the director of talent experience, as required by the local policy. The teacher, therefore, failed to exhaust administrative remedies at the local level and did not obtain a final board decision on her grievance. Thus, the Commissioner could not hear the case.

The Commissioner carefully protects the limited bounds of his jurisdiction to hear cases. Whenever a school district receives a new petition filed against it with the TEA, the district should carefully examine the claims and the procedural history of the complaint to determine what defenses may be available and whether it can ask the Commissioner to dismiss the petition for lack of jurisdiction.

Because employment issues are often complex and fact-specific, don’t hesitate to reach out to Thompson & Horton’s Employment Law Team for assistance with any particular employment dispute.