It’s the time of year when personnel decisions are made.  Chapter 21 of the Education Code imposes a timeline for the renewal or nonrenewal of probationary and term contracts, and that time draws nigh.  So today and tomorrow we will offer a few reminders about this process.

The employment of a probationary teacher can be terminated as of the end of the teacher’s contract if the school board determines that this action is in the best interests of the district.  The process is pretty simple.  Normally, the principal and superintendent go to the board with a recommendation for termination and the board approves it.  Of course the board does not have to approve such a recommendation, but in most instances, it will do so. The teacher is then given written notice of this decision. The teacher is not entitled to a “nonrenewal hearing” like her counterpart down the hall who has a term contract. In fact, the law does not even require an explanation.

However, principals and superintendents should tread carefully here.  The probationary teacher is not without legal recourse.  The teacher can file a grievance internally, and can pursue legal action in court alleging that the termination of contract was based on an improper motive.  If the teacher pursues legal action, the time will come when the principal and superintendent will have to disclose why they believe that the termination was in the best interests of the school district.

Furthermore, even though there is no law requiring that the teacher be told the reasons for the termination, most administrators do have that conversation with the teacher.  In fact, that conversation, sometimes referred to as “the talk” usually comes before the matter goes to the board so that the teacher will have the option of making a graceful exit from the district via resignation.

We encourage you to talk to your school lawyer about any recommendation of termination of a probationary contract.  Your lawyer can provide a good sounding board to determine if the proposed termination is based on job-related, non-discriminatory and non-retaliatory reasons.  Your lawyer can also guide you through “the talk” so as to avoid any claim of harassment, duress or coercion.

DAWG BONE: DON’T GET A FALSE SENSE OF SECURITY IN DEALING WITH PROBATIONARY TEACHERS.  

It is conventional wisdom that school administrators need not tell a probationary teacher why his or her contract will not be renewed for another year.  Some lawyers advise that you simply say nothing. Others suggest that you should say “It’s in the best interests of the school district.”

That’s the language used in the law.  Section 21.103 of the Texas Education Code tells us that a probationary contract can be terminated at the end of its term (therefore, not renewed) “if in the board’s judgment the best interests of the district will be served by terminating the employment.”

But it is wise to keep in mind that if the teacher pursues legal action challenging the termination, an explanation is going to have to be offered at some point.  If the teacher files a discrimination complaint, alleging that the termination was improperly based on race, sex, disability, age, religion or national origin, the school is going to have to refute that allegation by explaining the reason for the decision.  “Best interests of the district” does not really answer the question.

So we think it is wise to keep this in mind before you have a conversation with a probationary teacher in which the subject is broached. What is the real reason?  If you cannot articulate a non-discriminatory, non-retaliatory, job-related reason why this action is in the best interests of the district, then perhaps you should re-think the decision.  And in any event, be sure to contact your school’s attorney to discuss the proper procedure and timing for these decisions.

DAWG BONE: ENDING THE PROBATIONARY CONTRACT: YOU DON’T HAVE TO EXPLAIN, BUT YOU SHOULD BE ABLE TO