TECDA provides substantial employment protections for “teachers” who have earned “nonprobationary” or permanent status. A “teacher” is defined as any person who (i) holds a Colorado teaching license; and (ii) is employed to instruct, direct, or supervise the instructional program. Persons holding authorizations and superintendents are not “teachers” under TECDA. Colo. Rev. Stat §22-63-103(11). Under this broad definition, principals, assistant principals and other administrators who hold valid Colorado teaching licenses should be deemed teachers under TECDA.

A teacher who has worked in their district full-time for more than three continuous years obtains “nonprobationary” status and the right to continued employment. An administrator who has worked in the same district for more than three continuous years should be deemed a nonprobationary teacher if he/she holds a valid Colorado teaching license. Therefore, when a district eliminates the position of an administrator holding a valid teaching license pursuant to a RIF, it should offer the administrator a teaching position in the district. If no such position is available, the administrator should have the benefit of the RIF protections available under TECDA and, possibly, district policy.

TECDA strictly limits the district’s ability to terminate a nonprobationary teacher’s contract on performance or disciplinary grounds. However, TECDA affords districts considerable flexibility when implementing RIFs by allowing for the cancellation of a teacher’s employment contract when there is “a justifiable decrease in the number of teaching positions in the district.” A justifiable decrease occurs when the board determines that a “fiscal exigency” exists or a “program change” is necessary. These terms are not defined in TECDA but are broadly defined by district policy or employee collective bargaining agreements. See CASB Sample Policy GCQA. The board’s determination with regard to a fiscal exigency or program change will be upheld if it is supported by competent evidence.

The decision as to what positions will be cancelled is determined by the process and criteria laid out in district policy and/or employee collective bargaining agreements. The only requirement imposed by TECDA is that the contracts of first-year probationary teachers within a particular endorsement area slated for reduction must be cancelled first. If not varied by policy or agreement, TECDA permits consideration of second-year and third-year probationary teachers and non-probationary teachers within a particular endorsement area as a group.

Attempting to use a RIF as a pretext to terminate an employee because of performance or disciplinary concerns violates the employee’s due process rights. Even when a district isn’t using a RIF as a pretext, its right to reduce its teaching staff is limited by TECDA, district policy and/or employee collective bargaining agreements. The Courts have determined that a nonprobationary teacher subject to a RIF has a right to a hearing to establish that the purported reasons for the layoff were not the actual ones or that the layoff was effected in an arbitrary or capricious or unreasonable manner. Howell v. Woodlin School Dist., 198 Colo. 40 (1979).

The timeframes and scope of an employee’s due process rights should be laid out in district policy or employee bargaining agreements. CASB’s Sample Regulation GCQA-R limits the hearing to the following issues: Was there a rational basis to determine that the RIF was necessary?; Was the cancellation procedure arbitraty or capricious; and Was the decision to cancel the employment of the teacher arbitrary or capricious?

It is important to understand that neither TECDA, nor most district RIF polices or procedures prohibit a district from non-renewing administrators who do not have a right to continued employment by policy or contract. Administrators are not likely to be entitled to due process simply because their district has implemented a RIF. However, policies vary from district to district and administrators who have been non-renewed pursuant to a RIF should review their districts’ RIF policies to determine the extent of their protection. Finally, it is worth noting that, in certain limited circumstances, administrators without valid teaching licenses may be entitled to TECDA’s RIF protections.

Please note: this article is intended for informational purposes only and does not constitute legal advice. If you have been nonrenewed pursuant to a RIF you may wish to contact an attorney for legal advice concerning your specific situation. Michelle Murphy, the author of this article, may be reached at 303-449-6180.

Cyberbullying

On-line harassment, or cyberbullying, is more complicated because it raises the question as to whether a public school can discipline a student for acts — primarily speech — that occur away from school via the internet.  Student speech, including on-line speech, is protected by the First Amendment.  That protection is not absolute and school officials can place educationally based restrictions on student speech that is sponsored by the school; i.e., a school newspaper or a graduation speech.  Therefore, cyber-bullying conducted at school allows school authorities to more easily impose discipline. The use of school equipment to cyber-bully also makes a stronger legal argument for action by the school. Similarly, if the student e-mails offensive speech to school or downloads it at school and then distributes it, a school nexus is created, and the school may discipline the student if the speech is lewd or obscene and/or if the speech has created, or is likely to, create a substantial disruption to the educational environment. Speech created at home, which is not emailed and/or otherwise distributed at school, affords greater legal protection for the cyberbullies. However, it is important to remember that credible threats of bodily injury are never protected, whether made through the internet or not, and students making such threats are subject to school discipline and criminal punishment.

Prompt Investigation

Administrators should immediately investigate all complaints of bullying, intimidation and harassment and address any inappropriate behavior that occurs on school grounds or at school sponsored activities. If a case does end up in court, a district’s best defense is written documentation of a swift and thorough investigation, followed by the appropriate remedial action. Moreover, preventive programming designed to increase awareness as to the effect of bullying (both the emotional impact on the victim and the potential disciplinary consequences for the perpetrators), may have the added benefit of limiting the district’s legal liability.

Preventing Cyberbullying

1. Promulgate policies regarding bullying (including cyberbullying) and harassment, these policies should include clearly defined channels for reporting violations.
2. Specify clear rules regarding the use of the internet and other electronic devices.  Post signs in school computer labs, hallways and classrooms to remind students to use technology responsibly.  Blocking/filtering software is helpful, but tech-savvy students can often find ways around these programs.
3. Educate students and staff as to the harms and consequences of all forms of bullying.  Students need to understand that they will be disciplined at school for off campus behavior that substantially disrupts the school environment.
4. Create a positive school climate.  Research has shown a connection between a “negative” school environment and increased incidents of cyberbullying.  Establish a school climate of respect and integrity where violations result in formal or informal sanctions.
5. Educate teachers and administrators as to the actions they can take to address various situations before they arise.

[Click here  to schedule a legal seminar on cyberbullying  at your school]

Please Note: this information is  not intended as a substitute for individual legal advice.

Legal Literacy for School District Employees:  Raising the Level of Legal Awareness Among District Employees is a unique and innovative professional development curriculum for educators and administrators.  LLSDE provides its audience with up-to-date information on today’s most pressing topics.

Current Curriculum

• Appropriate Teacher-Student Relationships: A Step-By-Step Guide to Eliminating Claims of Educator Misconduct in Your Schools.
• Preventing and Responding to Peer Harassment and Bullying.
• Cyber-Bullying: Student Misconduct or Protected Speech?
• Teachers, Tenure and Termination.
• Student and Employee Free Speech Rights in the Digital Age.
• Understanding Student Rights and District Obligations under Section 504 and IDEA.
• Section 504/The Americans with Disabilities Act: Amendments, Impact and Procedures.

Developed by legal experts and advocates with more than 40 years combined experience, this seminar will provide district personnel with a basic understanding of the laws most likely to create significant legal exposure.  Our highly interactive format encourages participants to apply the complex legal principles presented to their every day experiences.

LLSDE can be presented on-site as part of your existing professional development program. 

For more information and/or to schedule a seminar at your school, please contact Michelle Murphy at 303-449-6180 or mmurphy@halpernllc.com