TCTA testifies on proposed SBEC disciplinary rule changes

The State Board for Educator Certification discussed proposed revisions to its disciplinary rules during its September meeting. Those rules govern the circumstances under which an educator may be subject to sanctions and also outline the procedures SBEC must follow when investigating and potentially imposing a sanction on an educator's certification.

The SBEC staff conducted stakeholder meetings prior to drafting rules to present to board for discussion. TCTA participated in those stakeholder meetings and the draft rule language incorporates some of the suggestions TCTA made at that time.

TCTA Staff Attorney Julie Leahy testified before SBEC Sept. 20, saying that we appreciate the opportunity to provide input to board staff at the initial stages of the rule drafting process. However, we do have some remaining concerns with some of the proposals.

Notice to educators of proposed disciplinary action

The proposed revisions seek to eliminate current requirements to serve educators with notice of proposed actions to initiate disciplinary proceedings against them via certified mail. The proposed revisions would require staff to provide notice only via first-class mail and email. TCTA believes that the proposed revisions violate provisions of the Texas Government Code that specifically require a state agency to give notice by personal service or by registered or certified mail when it intends to initiate disciplinary proceedings against a license holder.

We spoke with staff regarding this issue prior to the board meeting and believe it intends to propose revisions to the rules that would correct this issue. However, these proposed corrections do not currently appear in the proposed language.

TCTA also requested during the stakeholder process that the proposed amendments specify that, if SBEC staff is aware that an educator is represented by an attorney, SBEC staff will email a copy of certain notices to that attorney. The SBEC staff agreed with that request and included this suggestion in its proposed language. TCTA appreciates inclusion of this suggestion, as TCTA members have access to an attorney for representation before SBEC and therefore this proposed revision in particular will help ensure that TCTA members have adequate notice of and ability to respond to proposed disciplinary actions before sanctions are imposed.

Grooming

The proposed revisions related to grooming were initiated in response to the adoption of a new criminal offense of child grooming during the 2023 legislative session. TCTA agrees that inclusion of parallel language that incorporates this offense into SBEC's disciplinary rules would be an appropriate response to the new statute. However, the proposed amendments are significantly broader than the provisions in the new statute.

The proposed language related to grooming would modify the definition of "solicitation of a romantic relationship" that is currently found in the SBEC's rules. TCTA's concerns are that these behaviors are defined as evidence of grooming, despite the fact that they can be appropriate during the performance of a teacher's duties, and sometimes are even required.

For example, the proposed rule states that "meeting behind closed doors with the student without another adult present" constitutes prima facie evidence of grooming conduct. However, homebound teachers routinely meet with students on a one-on-one basis in a student's home, often with no other adult present in the room. Additionally, in the campus setting, TEA has specifically directed school districts as part of its required school safety action steps to ensure that all exterior doors remain closed and locked. This mandate applies to doors on portable classrooms and does not make an exception for situations in which one-on-one instruction, pull-outs or tutoring is taking place.

The proposed rule amendments would also subject an educator to sanctions for actions such as providing meals or gifts to students. TCTA is concerned that the proposed language would discourage teachers from reaching out to at-risk students by providing snacks in their classrooms for students who would otherwise go hungry or providing school supplies or sometimes clothing to children who are in need. The proposed language requires that such compassionate outreach be considered evidence of grooming.

TCTA presented proposed alternate rule language during testimony that we believe appropriately draws a distinction between conduct that is appropriate and conduct that constitutes grooming.

Contract abandonment

The proposed revisions related to contract abandonment would require that resignations due to a significant health condition be accompanied by documentation confirming the health condition and that the educator disclose the significant health condition as part of the resignation process with the district.

TCTA generally does not object to an educator presenting supporting medical documentation when requesting resignation from a district due to a significant medical condition. This requirement is consistent with statutes that confer protections on an employee due to illness, such as the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

However, TCTA has concerns with the creation of a new requirement that the educator apply for medical leave, if eligible, before resigning. The basis for the objection to this proposal is that it does not clarify whether the educator has good cause to resign under this provision if the educator applies for medical leave and the request is denied. It also does not provide adequate relief to an educator who may be eligible for medical leave but would not benefit from it because they do not have a reasonable expectation that they will ever be able to return to the classroom due to the progression of a degenerative and ultimately terminal illness, such as Parkinson's or late-stage cancer.

TCTA requested that a requirement that an educator request medical leave prior to resigning for medical reasons be removed from the proposed rule language.

Testing violations

Proposed revisions would remove a requirement that SBEC prove that a teacher intentionally manipulated the results of a state-administered test in order to impose a minimum sanction of a one-year suspension for testing violations.

Although this sanction would only be imposed for testing violations that are defined as "serious testing violations" by TEA, TCTA believes that some of those serious testing violations do not warrant a mandatory one-year suspension unless they are committed with an intent to manipulate the results of the test.

For example, TEA states that "viewing secure test content before, during, or after an administration" is a serious testing violation. The proposed rule changes would require SBEC to suspend an educator for a period of one year, even if the educator accidentally or negligently viewed the secure test content and did not intend to cheat when doing so.

A similar analysis would apply if the educator were accused of "discussing or disclosing secure test content or student responses." Absent the intentionality requirement, negligent or accidental comments that are made with absolutely no intent to cheat require SBEC to suspend an educator for a year.

TCTA requested that SBEC decline to remove the requirement that an intent to manipulate the test results be proven in order to suspend an educator for a year.

SBEC members discussed the proposed rule language and TCTA's testimony Sept. 20 and directed staff to continue to meet with stakeholders as it prepares a draft for initial approval at SBEC's December 2024 meeting. The proposed rules do not become final until they have been adopted by SBEC and approved by the State Board of Education.TCTA will continue to work with SBEC and its staff to ensure that the proposed rules balance the need to impose sanctions on educators who subject students to harm with adequate protections for teachers who wish to develop a compassionate and nurturing learning environment.

More September meeting coverage

Also during SBEC's Sept. 19-20 meeting, TCTA Legislative Liaison Quinn McCall testified on proposed changes to rules surrounding the ways in which special education teachers can demonstrate content competency in core subjects for their teaching assignments. Click here to read more.

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