ATPE has a lot of information concerning the Districts of Innovation with their Innovation Districts Resource Page.
Here is some very important details you need to be made aware of:
Since this law was enacted, ATPE has raised serious concerns about how some districts are approaching the new flexibility. ATPE believes the innovation district law was intended to offer districts flexibility for limited purposes aimed at achieving specific goals, but some districts are using the law to claim entitlement to blanket exemptions of all the laws that can be waived, and they’re doing so without explaining how they will use that flexibility. ATPE believes that school district employees and parents of students in the district should receive ample notice of any legal rights and protections they might be losing under a district’s innovation plan.
Of particular concern are districts that are claiming blanket exemptions in their innovation plans, seeking waivers of every statute in the Texas Education Code (TEC) that is susceptible to being waived under HB 1842. Those plans fail to identify particular statutes that the district intends to waive, and ATPE attorneys and lobbyists who’ve reviewed the DOI law believe that such blanket exemption claims could lead to unintended consequences. For instance, the TEC provides educators with strong immunity protection from civil liability for actions that the educators take in their professional roles. It also provides specific procedural requirements that a potential plaintiff must follow before filing a lawsuit against a school district or educator and provides for limits on potential damage awards. These protections are not included in TEC Chapter 12A’s specific list of non-waivable provisions. In other words, the immunity protections found in TEC Chapter 22, Subchapter B, are all statutes that can be waived under the language that the legislature adopted in HB 1842. Thus, it is unclear whether any district that chooses to “waive everything it can” within its innovation plan might unintentionally be waiving immunity protections, as well.
Examples of statutory rights and protections that may be compromised in DOIs
Parents and educators may take for granted many of the rights and protections that they enjoy and have little understanding of where those exist in the law. Most of them come from the Texas Education Code (TEC), and most of them can now be waived when a district becomes a DOI. The rights that can be waived, especially by a district that claims entitlement to blanket exemptions of every law that is exemptible, are too numerous to list. Here are just a few practical examples:
- Certified educators in a DOI that opts to exempt itself from TEC Ch. 21 will no longer have a legal right to a contract. If they do get a contract, the district will decide what rights the contract provides. For instance, the contract may allow the district to require additional work, such as work both during the school year and even through the summer with no additional compensation. The contract, if one is provided, could allow the district to lower an educator’s salary at any time.
- Certified educators in a DOI may or may not be given any due process before negative employment action is taken due to an allegation against them. It will be entirely up to the DOI as to what process is provided and whether it is possible to appeal a decision by the district. The educator will no longer be required to be notified if the district intends not to employ the educator for the next school year.
- Educators in a DOI that exempts itself from TEC 22.003 will no longer have a right to paid leave under state law. Any paid leave provided will be at the discretion of the district. While the right to federal leave under the Family and Medical Leave Act is unaffected, educators will no longer have a statutory right to temporary disability leave or assault leave.
- Educators in a DOI that exempts itself from TEC 21.003 will no longer have to be certified to hold their position. This means that a principal in a DOI may have no education experience, and the teacher across the hall may be uncertified. It also means that a teacher employed by the DOI may be reassigned to a new position for which the teacher is not certified and may be required to obtain certification as a condition of keeping her job.
- Duty-free lunch and planning time during the school day will no longer be guaranteed in a DOI that exempts itself from TEC 21.404 and 21.405. A district that provides such benefits to its teachers by virtue of a local policy will be generally free to make exceptions. For instance, a DOI might require special education program teachers to remain with their students during lunch, or a DOI might choose to take away planning time for group meetings and require teachers to do their individual planning and grading on their own time.
- While a DOI is required to maintain a student code of conduct, it can still exempt itself from TEC 37.002. This means that a teacher in such a district will no longer have a statutory right to send a student to the office or request the removal of a disruptive student. Also, the teacher will lose the statutory right to refuse to accept back into the classroom a student who has assaulted the teacher.
- There will be no set start time for the school year (TEC 25.0811), no set length for the school year, and no set instructional day in DOIs that exempt themselves from TEC 25.081. Each of these schedules will be entirely up to the DOI, and it is likely that the DOI will be able to make schedule changes at any time.
- While a DOI may make it much easier for the district to terminate an employment contract, if it chooses to provide one at all, a DOI can still choose to hold an educator bound by the contract and file a complaint to the State Board for Educator Certification if the educator leaves before the end of the contract, possibly leading to a suspension of the educator’s certification. This could be done even if the district takes one of the actions it will now be able to take, such as lowering the educator’s salary or reassigning them to a position they are not certified to hold.
- Parents will still have their right to access their child’s educational record, but they could lose the broad right to access instructional materials that the Education Code provides in a DOI that exempts itself from TEC 26.006.
- Parents could lose the right to prohibit the videotaping or audiotaping of their children, if the DOI exempts itself from TEC 26.009.
- Parents could lose the broad access to teachers and administrators that the law provides in TEC 26.003 and 26.008. DOIs are permitted to exempt themselves from these statutes.
- Parents could lose the expectation that their child will be safe at school or in the classroom with the DOI’s exemption of laws that require removal and expulsion for certain serious student offenses. These include, for instance, TEC 37.006 and 37.007.
If you live or work in a school district that is considering becoming a DOI, here are suggestions for how you can ensure that your district’s innovation plan is reasonable and specific, and ways that you can participate in the process:
Become knowledgeable.
Get to know the district’s plan. Find out which parts of the law the district is planning to claim as exemptions in its innovation plan. Once the district declares itself exempt from a requirement of the TEC, the DOI arguably can at any time simply stop following that particular statute. This action to ignore the law from which the DOI has claimed exemption may or may not happen immediately, and it may or may not coincide with additional board votes on specific policies. Innovation plans adopted under this new law can give school districts broad authority, which is why it’s important for interested stakeholders to find out early in the process exactly what types of exemptions the district intends to claim and how they will be used to facilitate innovations at the local level.
Get involved.
Ask questions if you are unsure about what your district is planning or why the district is recommending taking a particular action. Each statute that the district is seeking to exempt itself from should relate to a specific objective in the district’s innovation plan. As stakeholders, we encourage you to ask for explanations of how the DOI’s exemptions are needed to achieve the goals of the innovation plan. For instance, if your district is requesting an exemption from the law requiring that teachers be given a 30-minute duty-free lunch, ask why that exemption is needed. If the district is requesting an exemption from the law that gives a teacher the right to remove a disruptive student from the classroom, ask why that exemption is needed. If the district is asking to exempt itself from all laws from which it can legally exempt itself, rather than taking the time to determine which legal requirements really are interfering with the district’s educational goals, ask why such blanket exemptions are necessary.
Give public input.
The DOI law requires districts to post their innovation plans online for at least 30 days and discuss their plans in open meetings where the public has a right to appear and provide input. Take advantage of all opportunities to share your feedback on the district’s plans before they are voted upon and implemented. Remind your colleagues and other stakeholders to exercise their rights to be heard, too