Why It’s Dangerous to Judge School Districts on Personnel Decisions

And why you probably don't know half of what you think you know about why DISD fired three principals

ShawshankPanel

I’ve been avoiding writing about this kerfuffle for weeks. The one about three principals — Joy Morris at Wilmer-Hutchins Elementary, Dinnah Escanilla at North Dallas High, and Anna Brining at Rosemont middle and elementary schools – whose contract non-renewals were overturned by trustees but who were then fired by Mike Miles. I’ve avoided it because it involves personnel decisions at Dallas ISD, which means it involves people’s careers. Because the personnel files of most Chapter 21 employees (i.e., most educators) are confidential, I don’t like having to take someone’s word on what is contained therein. And unlike, say, Brett Shipp, I don’t like suggesting I know someone’s motivation just because it fits my narrative.

So I’m not going to be able to tell you what I think I know about Mike Miles’ decision to terminate three principals after the board of trustees had seemingly saved their jobs by declining to non-renew their contracts. (I’ll explain the difference soon.)

But I do want to explain the process that is going on here, because I find that most people don’t understand the issues that skew reporting on personnel matters. And almost nobody seems to know the difference between Chapter 21 employees, non-Chapter 21 employees, non-renewal of Chapter 21 contracts, and termination of Chapter 21 employees. And maybe if you know how complicated this stuff is, you’ll understand why you should withhold judgment until the process is complete — and in some cases, withhold judgment forever.

I think the easiest way to explain this is to start by talking about the two categories of employees in the district.

Chapter 21 employees – The term comes from a section of the Texas Education Code. Chapter 21 is a section of law that talks about all kinds of rights, rules, and restrictions associated with employing educators. Anybody that needs an education certification is covered, which includes teachers, principals, librarians, counselors, nurses, and a few others, including the superintendent himself. Chapter 21 covers something like 14,000 employees within DISD.

Non-Chapter 21 employees – This is everybody else. Positions like janitors, IT/maintenance/construction people, clerical staff, non-campus administrators. Folks like that. Chapter 21 of the Texas Education Code doesn’t talk about these employees at all. But they are still government employees. So they have the rights associated with those kinds of employees, from other parts of state law. This is something like 7,000 employees in DISD.

There are many special rights afforded to Chapter 21 employees that aren’t afforded to the others. One difference has to do with confidentiality. Everything that has to do with the evaluation of a Chapter 21 employee’s performance is confidential unless the employee authorizes the release of that information. Non-Chapter 21 employees don’t have this right. What that means is, any time you hear something in the media about a Chapter 21 employee’s evaluation, it is because the employee wanted that piece of information to get out. Not because the district wanted it to get out. Because the district can’t legally release any of that information. Occasionally, some district staffer or trustee with knowledge of an evaluative document might leak specific information from that document (or the document itself) to us in the media. When they do, they’re breaking the law. (I never seem to see a story about that. Can’t burn those sources!) But generally speaking, this means that every time there is some hot edu-opinion about an employee by a member of the media, that opinion has been formed by information provided by those arguing entirely from one side of the issue. This is a major reason those of us in the cheap seats should withhold judgment when presented with stories about a teacher or principal or really any Chapter 21 employee getting fired.

But evaluation confidentiality is only one difference. The biggest difference has to do with the process employees go through when they are getting fired. And that also effects how we outsiders form opinions on these issues. So let me outline the three types of grievances employees can bring in public school system in Texas. (Bear with me, folks. I’ve read a lot of policy documents and have tried to boil this down as simply as I can). They are as follows:

• Grievance – (Applies to non-Chapter 21 employees who get fired; and applies to all employees who want to grieve just about everything else): You can grieve just about anything — from an evaluation you don’t like all the way up to getting fired (if you’re a non-Chapter 21 employee). When an employee files a grievance, the matter is heard first by their boss at what is called a Level I hearing. If the employee doesn’t like the result of that meeting (which seems likely to me), then it goes to Level II, which is heard by some random high-level administrator who functions as a quasi-judge on the matter. If the employee still doesn’t like the outcome (fairly rare at this point), then it goes to a three-person subcommittee of trustees as a Level III hearing, at which the administration and the employee will once again make their case. (Important: This is an appellate hearing; no new information may be presented that was not presented at the Level II hearing.) The subcommittee will then decide whether or not it should uphold the Level II administrator’s recommendation (which it usually does). This decision is final.

The board panel uses a “stop, look, and listen” standard to govern their decision. In other words, they are not looking for good cause or reason for the action, just whether or not the action was legal under state and local laws.

(Well, that is what the trustee panel is SUPPOSED to do. Even at this level of hearing, though, you’ll hear some trustees ask questions to gauge whether they think the administration action was fair or just or whatever standard they decided on that morning over Cheerios.)

That’s it for grievances. I give you that as background information only. This recent news about these three principals getting fired has nothing to do with grievances. I just think its useful contextual info, so I suckered you into reading it.

The other two processes, which are directly relevant to these principals, are the non-renewal and termination processes of Chapter 21 employees.

The thing about Chapter 21 employees is that, unlike non-Chapter 21 employees (and the rest of us in Texas), they aren’t employed “at-will.” At-will employees can just be fired. “Glad you came to work today, Bob. By the way, you’re fired.” That can’t happen to Chapter 21 employees. They have contracts. The contracts are for a minimum of one year. When they expire (on June 30th of any year in Dallas ISD), they automatically renew unless they are explicitly non-renewed. So, process No. 2:

• Non-renewal (Applies only to Chapter 21 employees): This is the process the district goes through when they want to let one of those contracts expire, so the employee doesn’t come back to work in the new school year. Here’s a walk-through:

Let’s say you’re an executive director in Dallas ISD. That means you are one of three or four EDs who all report to one assistant superintendent. Also, you are responsible for 10 to 12 or so school principals, each of whom report to you.

Let’s say you want to get rid of one of your principals. Perhaps this person’s school is underperforming in relation to other schools with similar poverty levels, perhaps this person was put on a growth plan early in the year and refused to complete any of the goals set out before this person – whatever. Let’s just say this you decide this principal needs to go.

First thing you have to do is decide this principal’s contract, which runs out on June 30, shouldn’t be renewed. You want the principal to be “proposed for non-renewal.” (That’s the awkward way the district officially phrases it, because that’s what state law requires.)

Before you propose that principal for non-renewal, you have to make sure you’ve put this person on a written growth plan to document what he/she has done wrong and how he/she must improve. (Check.) Then you gather all the other supporting evidence, like the fact he/she didn’t actually DO any of the things in the growth plan, or that his/her school underperforms when compared with like schools. (Check.) This recommendation must then be approved by your assistant superintendent and probably the superintendent himself. And the district goes through an extra internal step called legal review, where a bunch of lawyers make sure they agree with the recommendation. Assuming everyone is in agreement, then a list of folks proposed for non-renewal is prepared for the board of trustees. This has to go to the board before the end of the school year – even though your contract (and employment) will remain in force till June 30th – because that’s what the law requires.

When it goes to the trustees, in theory, all the supporting evidence goes to them, too. In actuality, what happens is the list of proposed non-renewals is shown to the board in closed session, at which point board members can ask the administration officials for details. Normally, they just approve this list. (In this case, they pulled three names and voted to NOT non-renew. We’ll come back to that in the next section.)

Approving the list usually begins the appeal process. Employees can just accept the non-renewal vote of the board, and they’ll be done on June 30th. Or they decide to fight it. In this case, the district hires an “independent hearing examiner” who conducts a sort of mini-trial about whether there was a valid reason to non-renew the employee’s contract. The employee and his/her attorney make their case before that independent judge, and the judge makes a recommendation to uphold or rescind the non-renewal recommendations back to a panel of three trustees.

The three trustees, when looking at the independent hearing examiner’s recommendation, use a “good reason” standard to non-renew. This is a higher standard than the grievance process that I conned you into reading above. This standard doesn’t mean the judge or trustee thinks it’s a good reason. It means it meets one of the 39 criteria named in the board policy covering non-renewals. These can be anything from the fact the employee was part of a layoff to excessive tardiness to a lack of sufficient student progress to extremely broad criteria like “any activity [that] impairs or diminishes the employee’s effectiveness in the district” to “failure to fulfill duties or responsibilities.”

Again, given the broad range of acceptable reasons to non-renew and the standard of “good reason,” the board should almost never overturn a recommendation to non-renew, but they sometimes do because trustees gonna trustee.

After this, the employee has one final appeal: to the Texas Education Commissioner. If the commish says the reasons given show match up with one of the reasons allowed to non-renew, the employee has exhausted his/her appeals. If not, the employee is back on the job the next year.

• Termination (of a Chapter 21 employee): The three principals the trustees saved from being non-renewed were eventually fired by the district/Miles. The district can fire anyone it choses to fire. Unlike non-renewals, this doesn’t require a board vote to begin the process. Almost all of the internal processes are the same, and then the superintendent just signs off on it. Once terminated, employees have the exact same appeal rights they do when the board votes to non-renew them. So why not just terminate all the time, instead of non-renewing their contracts? For one: tradition. Terminations are historically reserved for more egregious breaches of conduct. But the bigger reason is that contract terminations require a higher standard of proof to survive appeal: “good cause.”

Now, instead of just matching any one of 39 broad policy reasons one can non-renew, there are 36 slightly more narrowly defined reasons the district can fire someone: things like bullying, or insubordination, or a “pattern” of absences. But instead of just saying, yup, you gave this reason, and it’s a reason listed, now the hearing examiner or the board or the education commissioner must say, “I know this looks like bullying [or whatever], but it doesn’t really overrule the employee’s other actions. It’s just not a good cause to terminate.” It really is a higher burden of proof for the administration. (Again, trustees seem to use this kind of burden all the time in other employee grievance hearings; they’re just not supposed to.)

The hearing still goes through a hearing examiner, then the board subcommittee, then the education commissioner. But it’s more likely the decision will be overturned than it is in the other two processes given the higher burden for the person making the termination decision.

So that’s the two processes that apply to Chapter 21 employees like the fired principals. Will the truth about what those personnel files finally come out in these appeals? For the trustees, yes. They’ll get very detailed presentations of the case, from both sides. And it’s only during these subcommittee hearings that the case is truly laid out and argued with enough information for outsiders (like trustees) to make a decision. But for me and you, this is a big “maybe.” Outsiders still only get to see documents if the employee authorizes their release, which almost never happens. But outsiders/media can sometimes at least watch these hearings. It’s up to the employees if they want their hearing before the board in closed or open session. I’ve watched a few of these, and it’s hit or miss as to whether employees want it opened or closed.

But I don’t know what will happen in these cases, and they probably won’t all go the same way. For example, I don’t think the Wilmer-Hutchins Elementary principal will appeal given comments from her attorney in some of the news stories.

Will Brining? I hope she does. I would love for the entire file to be discussed in public, because this is such a hot topic. But I’ll bet she doesn’t.

I haven’t talked to Escanilla, but I hope she opts to have her appeal heard by the public. I also think I know why she was proposed for non-renewal and then fired, and I personally don’t think it’s a fireable offense. A legitimate complaint about the district in my book is that the district, in its zeal for reform, too often punishes in situations where it hasn’t tried to first see if coaching works. I think that applies here.

Full disclosure: I like Escanilla. She’s been a big supporter of the district’s efforts under Miles. (Which is why the idea that this non-renewal process was designed to silence vocal critics is absurd.) But had I been a trustee, I would never have voted to overturn the recommendation for non-renewal — to keep her, in other words. Trustees set policy. They don’t make personnel decisions, for good reasons. At least that’s the way it’s supposed to be.

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