Teacher and Administrator Evaluations: How Confidential Are They?

by Tommy Fisher

The Texas Education Code 21.355 is simple and straightforward:

A document evaluating the performance of a teacher or administrator is confidential.

Tex. Ed. Code § 21.355(a).

What exactly is covered by the words “document evaluating the performance” and whether the documents are actually privileged has been left to courts to decide.

There are very few cases that deal with § 21.355.  The two most recent, North East ISD v. Greg Abbott and Fairchild v. Liberty ISD show that the confidentiality of the evaluations may depend on the court from which the subpoena originated.

Abbott v. N. E. Indep. Sch. Dist., 212 S.W.3d 364, (Tex. App. Austin 2006) was filed in the 345th District Court of Travis County.  North East ISD received a request for records regarding a teacher.  It sought guidance from the Attorney General, Greg Abbott. Attorney General Abbott ruled that one document, a memorandum from the school principal memorializing a meeting with the teacher concerning performance issues, was not privileged.  The District filed suit seeking a declaration that the document was confidential and exempt from disclosure.  The District Court granted summary judgment in favor of the District finding that the memorandum was “a document evaluating the performance of a teacher”.  On appeal, the Third Circuit Court of Appeals in Austin found that the memorandum evaluates the teacher because it reflects the principal’s judgment regarding her actions, gives corrective direction and provides for further review.  As a result, the memorandum was confidential under TEC 21.355. Similarly, other evaluative documents will likely be confidential as well.

However, if the reviewing court is a Federal District Court, the result will likely be different.  In Fairchild v. Liberty Indep. Sch. Dist., 466 F. Supp. 2d 817, (E.D. Tex. 2006), affirmed on other grounds, the U.S. Eastern District Court, Beaumont Division, found that the state law privilege set forth in TEC 21.355 does not protect the performance evaluations of a defendant teacher.  Julia Fairchild was a former teacher’s aide who filed an action against the District and the teacher in charge of her classroom, Jessica Lanier, alleging that she was fired in retaliation for complaining about Lanier’s dereliction of duty.  During discovery, Fairchild sought performance evaluations of Lanier.  The district argued that the evaluations were privileged under TEC 21.355.  Following a lengthy analysis of process by which state law privileges are applied by the Federal Court, the Federal District Court found that the evaluations were not privileged and that any privacy concerns can be preserved by entry of an appropriate protective order limiting further disclosure.

What does this mean for a District that receives a PIA request for teacher evaluations?  In Texas State Court and at the Attorney General’s Office, the TEC § 21.355 privilege will be recognized.  However, in Federal Court, there is a substantial risk that the evaluation will be produced.  A District producing such a report should seek to have a protective order entered by the Court that restricts the use and distribution of the report by those receiving it.

If you have questions about the release of evaluative documents, the attorneys at Leasor Crass stand ready to assist.