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Party On?! Chapter 21 and the First Amendment

Believe it or not, contract season is right around the corner. And, as you are no doubt aware, Texas Governor Abbott recently issued Executive Order GA-34.  The Order, which goes into effect on March 10, 2021, removes the state-wide operating limits and mask mandate that have been (depending on your perspective) keeping the spread of COVID in check and/or trampling personal liberties since last July.  The alignment with upcoming St. Patrick’s Day and Spring Break is almost astronomical in nature.  What could possibly go wrong?

While we sincerely hope public school district employees make good choices over the next several months, we thought this might be a good time to address some common questions about employees behaving badly.

Can public school employees be disciplined for off-campus behavior?

Yes.  While public school employees do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”, courts have long recognized that the First Amendment protections enjoyed by a public employee must be balanced with the public employer’s interest in an efficient, disruptive-free workplace. While an entire semester could be spent on the nuances of this area of law, a very simplified distillation is as follows:

1. Is the employee speaking/acting pursuant to their official duties?
   1. If so, the speech is not protected.
   2. If not, move to the second step.
2. Is the employee speaking as a citizen on a matter of public importance?
   1. If not, the speech is not protected.
   2. If so, move to the third step.
3. Does the employee’s interest in free speech outweigh the school’s interest in maintaining an efficient, disruptive-free workplace?
   1. If so, the speech is protected.
   2. If not, the employee may be disciplined.

By way of example, imagine that an employee travels to South Padre Island for Spring Break and ends up on a local news broadcast.  If the resulting video depicts the employee giving her thoughts on the wisdom of the Governor lifting the mask mandate, that speech (pro or con) would likely be protected.  However, video of the employee doing a keg stand on the beach while drunkenly singing “Danny Boy” would support disciplinary action.

Termination or nonrenewal? What’s the difference?

If Spring Break shenanigans should result in employment action, it will become important to weigh the options for termination vs nonrenewal. Simply put, termination means ending a contract before the contract expires according to the terms that have been agreed upon.  Nonrenewal means refusing to renew a contract for another term.  With respect to Chapter 21 Contracts:

• Continuing Contracts aren’t subject to renewal because they…um…continue. Consequently, Continuing Contracts must be terminated for good cause.
• Term Contracts may be ended during the contract period for good cause. However, by their nature, Term Contracts end after a set amount of time, typically one or two years.  State law requires that these contracts be renewed for another term unless the school district takes action by determining that one or more established policy reasons for nonrenewal exist.  These reasons are typically set out in District Board Policy DFBB(LOCAL).
• By law, a Probationary Contract may not be for a term exceeding one school year. A Probationary Contract may be ended during this contract period for good cause.  However, the law also allows a district to terminate the employment of an employee on a probationary contract at the end of this one-year contract period if the Board determines that such termination will serve the best interests of the District.

All three types of Chapter 21 contracts may be terminated for good cause during the contract period (importantly, Term Contracts have a different legal standard for “good cause” than Probationary or Continuing Contracts.) Additionally, all three types of contracts require notice and an opportunity for a hearing before termination can occur.  The specific notice and hearing requirements are statutorily defined and must be followed precisely to ensure that the termination is legal.

Term and Probationary Contracts may be nonrenewed at the end of the contract period.  Probationary Contracts only require that notice of the Board’s decision to terminate employment be given in accordance with specific statutory requirements.

Term Contracts provide the employee with more due process. The Board must meet specific statutory requirements regarding notice of the decision to propose nonrenewal, an opportunity for a hearing, and then notice of the actual decision to nonrenew.  Consequently, any action to nonrenew a Chapter 21 Contract is, at a minimum, a two-step process that requires multiple meetings.

At this time of year, it is typically more financially prudent to initiate nonrenewal proceedings than to engage in termination.  This is due in part to the more stringent good cause standard and the requirement that a termination hearing be held before an independent hearing examiner, while a nonrenewal hearing may be conducted by the school board. Of course, nonrenewal may not be an option if the employee is in the midst of a multi-year contract.

Our sincerest hope is that everyone will continue to behave in a safe and responsible manner.  However, should the confluence of personal freedom, green beer, and Spring Break result in poor choices, districts will need to be prepared to act swiftly to address personnel issues in accordance with the legal protections afforded by Chapter 21.  The education lawyers at Leasor Crass, P.C. are ready to help ensure that these legal mandates are followed.