Every time I hear the word “scintilla” I envision a small fur bearing mammal.  But you will not hear this word tossed around by nature lovers or protectors of endangered species.  Nope. This is a lawyer’s word, as in “you have not produced even a SCINTILLA of evidence!”

It comes up in the context of teacher nonrenewal when teachers appeal to T.E.A.  The Agency does not conduct a new hearing. It reviews the record, and is required to uphold the board’s decision if it meets the “substantial evidence” standard. Don’t let that word “substantial” fool you.  You don’t need a whole lot of evidence.  A scintilla will do.  A scintilla is a tiny little bit, but in a nonrenewal appeal, it’s enough.

That’s not the case when the board hears the case. There, the administration has to prove its case by a preponderance of the evidence. So said the Commissioner in Whitaker v. Moses and his decision was ultimately affirmed by the Court of Appeals at 40 S.W.3d 176 (Tex. App. Texarkana 2001).

So if the district is pursuing a nonrenewal it needs to prove its case before the board, and then hope the Commissioner can find that scintilla hiding in the record.

DAWG BONE: HAVE MORE THAN A SCINTILLA OF FUN THIS WEEKEND.

We sometimes read news stories from other states about how difficult it is to fire an ineffective teacher.  In fact, a court in California has held that the state has provided such an excessive level of due process that it is virtually impossible to remove a bad teacher from the classroom, thus depriving students of their right to a good education.

Things are different here.  In Texas, a teacher’s contract can be “nonrenewed” at the end of its term as long as the school district follows procedure, meets timelines, and produces a bit of evidence to satisfy the legal standard. That legal standard is not too challenging.

When teacher nonrenewals are overturned by T.E.A. or a court it is usually because of a procedural error by the district. It is rarely because the district failed to satisfy the legal standard.  The legal standard is simply that the nonrenewal is based on one of the reasons set out in district policy. Want to know what those reasons are? Check out your district’s Policy DFBB (Local).  For over 90% of the districts in Texas, that’s where you will find a list of over 30 possible reasons for nonrenewal.

Sometimes the procedural error by the district involves leaving out a single word in the notice that is given to the teacher. That word is “PROPOSED.”  The board is supposed to give the teacher notice of a PROPOSED nonrenewal.  Then the teacher has the right to request a hearing.  If the hearing is requested, the board will act again, after the hearing, to actually renew or nonrenew the contract. If the teacher receives notice of PROPOSED nonrenewal and does not request a hearing, the board still has to take another action.  They have to take formal action to nonrenew the contract.

In other words, for term contracts, this is a two-step process.  The board PROPOSES nonrenewal; and then the board actually nonrenews the contract.

In Castaneda v. Lasara ISD (Dkt. No. 081-R1-502, T.E.A. 2002) the original notice to the teacher left out the crucial word.  On appeal, the commissioner ordered the district to reinstate the teacher with back pay.  Small mistake—big difference.

It’s a good idea to consult with your school’s attorney before proceeding with a term contract nonrenewal.  Getting the right words in the notice to the teacher is just one of the procedural hurdles. There are others. Furthermore, your attorney can help you decide if you have sufficient evidence to satisfy the legal standard.

DAWG BONE: NONRENEWAL SEASON IS HERE!  DOT YOUR I’S AND CROSS YOUR T’S.