Texas Teacher Law

The Kid Is Hurt, What Happens Now

A story in the news today provides an excellent fact situation to talk about what the teachers involved in this incident might expect to happen and where they would look to get help. Not a lot of detail is provided by the story in the Waco Tribune-Herald, so this discussion is merely hypothetical and speculation, but I'm sure all teachers can easily identify with the potential for something like this to happen in your own school. The phrase "unsupervised" stands out in the headline. For a teacher, that's often the start of scary things happening.

This kind of playground accident is also what teachers are often worried about happening. So let's consider all the worst case scenarios. The parents of the injured students might try to sue. Suppose the students normally would have been supervised, but for some reason the teacher that should have been present, was not.

State law protects the teacher from any liability unless excessive force was used in the disciplining the students. Since this did not involve discipline, the teacher has immunity from any liability under state law. The administrators responsible for supervising the teacher who was absent from her post are probably also immune from liability under this same state immunity statute. If the parents want to sue, they will literally have to make a federal case out of it. But federal case will involve only the district or its "officials."

This means the parent will have to show that the school district or its officials who were responsible for setting policy somehow violated the students constitutional rights by not having supervision available. If the parents could figure out how to make this claim (and it's a big if, but possible if the facts were right), they would still have to sue either the district itself, or some individual employee who was responsible for setting policy. Classroom teachers will rarely fit this criteria. So, if the parents' try to sue because of their child's injuries, the classroom teacher who left the student's unsupervised would likely be either immune from liability or would not be the "responsible party" under federal law. Either way, it would not be necessary to call on any liability insurance.

On the other hand, if the teacher who was supposed to be supervising had left her post for a reason the district thought was not sufficiently reasonable, then the teacher could be disciplined. That might mean anything from a write-up, to a lowered appraisal, to a contract non-renewal. If any of those things happened, the teacher would need to have employment rights help in the form of an attorney or other trained representative. If she belongs to one of the teacher groups, she could get help through their employment rights defense/protection program.

Legal Protection for Teachers

Last month I addressed the difference between liability insurance for teachers, and employment rights protection. The post has generated some discussion which is worth checking out. It also highlighted my original point in the post, which is that teachers generally are confused about what liability insurance actually covers, and that the teacher groups, unions, whatever you want to call them, tend to exploit that confusion when jockeying for members.

At least, they do that in Texas, where the competition for members is fierce. So, for your continuing professional education, today I thought I would list some things that teachers need legal help with, and whether the source of that help would be your liability insurance.

Situation Covered by Liability Insurance?

Firing from contract -No

Non-renewal from contract  - No

Criminal allegations - No

Investigation by CPS - No

Arrest - No

Disciplinary action against teaching certificate - No

Grievance/complaint against you by a parent - No

Salary problems - No

Grievances over denial of rights - No

All of the unions/associations provide help for teachers in most, if not all, of the above situations. Some do it exclusively with attorneys, some use trained laypersons (union stewards), some use legal defense funds, some use insurance policies that cover legal fees. But NONE of the situations above are covered by the liability insurance provided to teachers, because that's simply not what is covered (just like your auto insurance has no relationship to whether you can buy medicine to treat your high blood pressure).

The point being that if you are primarily concerned about having an attorney to protect you from the type of false criminal allegations faced by the teacher in Soccorro ISD that I wrote about yesterday, the $6 million liability insurance policy offered by one of the groups is simply irrelevant.

What you would want to know is how much money in legal fees for criminal defense is offered by the group. Similarly, if you want to know how well you would be protected in the event of mass layoffs in your district, don't look at the amount of liability insurance, look at whether the group provides an attorney for employment rights defense and for how long. Look at whether you are entitled to an attorney for employment problems, or if the group requires you to make application to a legal defense fund and be chosen for assistance.

Liability insurance just isn't that important to classroom teachers. But employment defense is important, and the more you understand the difference, the better job you'll do of choosing a group that will back you up if there's trouble.

Lawsuit says a lot about choosing your teachers union

Commenter Ema has brought my attention to a follow up story on a lawsuit I wrote about here. In short, the parents of two kindergarteners have filed a lawsuit against a school district and a campus principal over alleged ongoing sexual abuse of the girls by a third kindergartner.

While the story itself is interesting, I thought it would be more interesting to the classroom teachers who read this blog to talk about the significance of WHO the parents are suing. Or more to the point, who they are NOT suing. And why that matters when you choose your teachers union.

There is no classroom teacher named in the Eanes lawsuit. And the truth is, most lawsuits that are filed by parents do not include classroom teachers. Texas' strong immunity statutes protect teachers from most types of personal injury claims, and federal civil rights violations must generally be asserted against administrators or the district itself, not individual teachers. The exception is when the teacher him or herself has committed the violation.

Teachers can also be the subject of a lawsuit if they have committed an actual criminal act against a student. The result is that in the many years I've been doing this, I've seen very few classroom teachers sued by parents. Those that have been sued, were mostly teachers who had sexually abused or physically assaulted a student. In general, classroom teachers simply don't get sued, because they have immunity from nearly all state law claims, and they either have immunity or are not the responsible party under most federal law claims (which includes civil rights claims). Classroom teachers don't need liability insurance.

Administrators, on the other hand, do get sued. Administrators do need liability insurance. The liability insurance provided by the teacher groups is mostly for show. However, because all of the teacher groups have some administrators among their membership (yes, all of them, although some have more administrators than others), the cost of providing that insurance is much higher than it would be if it covered only classroom teachers.

Teacher groups have convinced classroom teachers that liability insurance is necessary, then used those teachers to subsidize the cost of providing that insurance to administrators. Many of the various Texas school administrator groups also provide liability insurance to their members, but the coverage is a maximum of $1 million dollars, not the $6, $7 or $8 million dollars being touted by the teachers groups - although dues amounts are similar.

If administrators are the people with the greatest risk, why are their own membership groups providing less coverage than the teacher groups? Because $1 million is a reasonable amount of coverage. Even the National Education Association (NEA), TSTA's national affiliate, only provides $1 million in liability insurance to its members. TSTA had to purchase an excess policy solely for it's Texas members to keep up with the other Texas groups.

But the bottom line is this: anything over $1 million dollars is like going to the Pacific Ocean to swim instead of the Atlantic Ocean because the Pacific is bigger and has more water. It's true, but it makes absolutely no difference to your swimming experience. And if you don't plan on swimming anyway, you can go to the mountains. For classroom teachers, none of it really matters anyway.

Classroom teachers need legal protection to defend against being fired, against being reassigned, against being accused of misconduct, against unfair appraisals, against unreasonable work demands, and to assert their rights to duty free lunch, to planning periods uninterrupted by meetings, to a limit on paperwork, and to reasonable, clearly stated performance expectations. Classroom teachers need employment attorneys, not liability insurance.

Which brings us to choosing your teachers union. Pick the organization that will provide you the best individual representation for you when your employment rights are violated. The groups vary greatly in how they provide that service, and that's the service you need to pay attention to when you choose your group.

Liability Insurance

Last post I promised to continue the discussion of teacher groups in Texas and to talk about some of the drawbacks of each group. The way this will work is that in the next series of posts, I will talk about how the various groups handle different types of services, and rather than merely a comparison, I'll give you my best opinion on where they do well, where they are weak, and where it's mostly smoke and mirrors.

The first area to talk about is professional liability insurance, because that is the issue that gets most teachers to join a group for the first time. All the major groups offer this. Liability insurance acts much like your auto insurance does when you have an accident. Let's say you have a crash of some sort, and the other driver claims you're at fault and that you should pay for the damage to their car and all of their medical bills. You call your auto insurance company, and they assess the claim against you. If the other driver files a lawsuit against you, your own auto insurance carrier will provide you with an attorney to defend the lawsuit, and if you lose, the auto insurance company will pay the money to the other driver. The only money coming out of your own pocket is your insurance premium.

Professional liability insurance is similar in that if you are sued by a student or parent, your insurance carrier would provide an attorney to handle the lawsuit, and if you lose, the company pays any money you are ordered to pay to the person who sued you. The insurance coverage offered by all the groups is very similar, and in truth, depsite what they say during recruitment, all of the groups are pretty much equal in the value of their liability insurance.

But what is very important for teachers to know is what the liability insurance DOES NOT cover, because how each group porvides for the things that are not covered is where the real differences in benefits between the groups exist. First, more is not necessarily better. 8 million versus 6 million is not a factor worth using as a basis for making a choice. Million dollar verdicts are rare, and in most cases any multi-million dollar verdicts in school law cases would be split between several parties (teacher, principal, district, board, etc). So as long as the insurance policy is a million or more, you're probably in pretty good shape. Some of the groups' policies pay attorney fees over and above the stated policy amount, some include the cost of attorney fees in the limit, but either way you're safe with about 2 million dollars in coverage.

Employment Defense is Not Part of Liability Coverage Now, what these policies do not cover: Just as your auto insurance only coveres claims against you, not the expenses of maintaining and repairing your car, professional liability insurance DOES NOT provide you with money to repair and maintain your job. In other words, the liability policies do not cover attorney fees for filing grievances, for defending reprimands, or for fighting contract termination or non-renewal. All the groups provide help for those things, but they do it in very different ways. I'll talk about those ways in a future post. Liability coverage also does not cover attorney fees for defending against criminal allegations or child protective services investigations. All the groups provide some sort of assistance in those cases, but again, in different ways and in different amounts.

Employment Lawsuits Not Covered The liability policies cover lawsuits brought by people other than school employees. And they are for defense only. That means that a teacher cannot use the liability coverage to hire an attorney to sue the district for sexual harrassment or anything else, and an administrator who is sued for sexual harrassment will not be able to use the liability policy through his or her teacher group to hire an attorney to defend the lawsuit.

Districts Usually Provide Some Coverage Most districts carry liability insurance that covers their employees in suits brought against them in at least some situations, so even if you do not have other liability insurance, or if your particular situation is excluded by the policy you do have, the district may provide coverage, at least for an attorney if not damages. Also, your homeowners insurance policy may cover some lawsuits filed against you.

There is a lot of noise from the teacher groups at recruitment time about their liability coverage because they know that's why most teachers join groups and because it's impressive to throw around phrases like "Six Million Dollars!." But in truth, you need to look at how they provide other benefits to distinguish among them.

Diving into Texas Teacher Associations

Teachers have a reputation for being relatively meek and mild. But when it comes to their organizations, they are anything but. Texas has the most contentiously competitive climate in the entire country when it comes to choosing teacher representation. So readers, feel free to add any comments you have on particular organizations.

First, some disclosure. I worked as an attorney for one of the organizations for many, many years. My view is that of an insider of the organizational structures, not as a member/consumer. Now, on to the review.

Texas is unique among the states in that it has four strong, comprehensive statewide organizations for teachers to choose from. In some regions of the state, there are additional choices. The four major organizations are: ATPE - Association of Texas Professional Educators TCTA - Texas Classroom Teachers Association TFT - Texas Federation of Teachers TSTA - Texas State Teachers Association In the Dallas- Fort Worth area, there is UEA - United Educators Association I am not aware of any other currently active regional organizations, but please let me know of any that are out there.

All the five organizations offer similar benefits and services, but they have different focus, philosophy and particularly strong areas. Which means that as a teacher, you can probably find one that you like. TFT and TSTA are affiliated with national labor unions. All the organizations have local organizations in individual school districts, although none of them have local units in every district. All the organizations offer professional liability insurance for instances when a teacher is sued. All the organizations offer some type of general legal assistance for employment-related problems, such as non-renewals, general grievances, parent complaints, student discipline problems, and the like. All the statewide organizations have legislative programs and paid lobbyists in Austin. TFT and TSTA, through their national affiliations, also have paid lobbyists in Washington. ATPE and TCTA monitor national legislative developments from Austin. All the organizations provide magazines and newsletters on educational issues. They also all offer professional development in some form.

Now for the differences in the organizations. In alphabetical order: ATPE has traditionally been strongest in its individual employment representation. With a large membership, they also have local units in the majority of school districts, although the activities of each local unit vary widely.

TCTA focuses on classroom teachers, although they do have non-classroom members. They tend to specialize in classroom specific lobbying activities rather than general educational policy issues, both at the Capitol and at TEA and the state board of education. They have initiated a number of very teacher-friendly bills.

TFT has a strong union-style influence and provides most of its services through strong local units in major school districts. They do not have units in the majority of school districts. Where they do have local units, they have a strong presence before the school boards. TFT also a strong influence at the state capitol.

TSTA has struggled to define itself in recent years, but it has always had and still maintains an authoritative voice on educational policies and practices, and provides a lot of the research used to back up legislative programs.

UEA, as a regional organization, is able to offer regular professional development at its headquarters, and its staff representatives are able to maintain a regular presence before the school boards of the districts where it is active.

Tomorrow I'll discuss some of the weaknesses in each of these organizations.

Unions and Texas Public Schools

The subject of unions and teacher organizations in Texas is pretty big. I've been asked to talk about this topic before, but it can't be done in one post. However, you have to start somewhere, so here's the start.

Last week there was a small firestorm in Houston ISD over teacher bonus/incentive/merit pay. The criticism that was flung about over the whole deal at one point resulted in talk of teachers calling a "sick out" in protest of the way the administration handled the bonus money. A sick out is when employees designate a day to all call in sick to work, leaving the "bosses" in a scramble to get work assignments covered and theoretically demonstrating to the employer how valuable they are to the enterprise, therefore encouraging the employer to deal more fairly with the employees on work conditions, pay and benefits.

In Texas, a "sick out" by teachers is prohibited, and teachers who participate in one could potentially lose their job, their teaching certificate, and their TRS pension. Texas Government Code chapter 617 prohibits collective bargaining by teachers, along with strikes and other organized work stoppages, no matter what you call them. If you organize and plan to have a group of people fail to show up to work, it is prohibited. Unions, per se, are not illegal in Texas. But collective bargaining and strikes are.

What is Collective Bargaining? Collective bargaining is the heart of union activity. It is an arrangement whereby a representative of an entire class of employees negotiates with an employer (in this case it would be a school board) to reach an agreement over the pay, hours, and other working conditions of the employees. In other words, instead of each employee negotiating for their terms of work, the union does it for them on behalf of all employees with similar positions. The agreement reached is then put into contract form and can be enforced by a court.

But my union goes to the school board every year to bargain for better pay? A lot of districts get regular input from representatives of many of the teacher organizations in Texas, but what happens is distinctly different from collective bargaining. Input from the organizations is just that - input that the board can use or not as it sees fit. Even when a board implements some or all of the recommendations made by a teacher organization, there is no contract and the Board can change the policy at any time. Also, the teacher organization has no strike power to use as a tool to get the attention of a Board that is not giving reasonable thought to issues that are serious to the teachers. Teachers can always quit at the end of a year if they are unhappy with a district, but many people see that as an unrealistic option, especially in the western and rural areas of Texas.

Some Boards work very well with the teacher organizations. Some Boards don't. In Texas, because of the prohibition on collective bargaining, there is no way to force a district to work with teacher representatives. There is only the possibility of voting the Board members out of office.

An Analogy

The difference between collective bargaining and the input that is allowed in Texas is like the difference between a discussion over a family decision with your spouse versus your kids. Let's say you're deciding whether to take a big vacation or several weekend retreats. When your kids offer to give input, depending on the type of parent you are and the kind of week you are having, you listen and discuss their ideas and place great weight on them, you may listen and file them away, or you may just say this is a decision for the parents and go finish your homework. But when your spouse offers input, you will listen and "bargain" with him or her because they have joint control of the money, of the free time, and of the emotional state of your marriage and family. So you are much more likely to deliberate the issue with your spouse than you are with your kids, no matter how much weight you give the input of your kids.

Texas has a really unique situation with the teacher organizations that exist here, but I'll talk about that, and the organizations specifically, in another post.