Texas consistently ranks in the bottom 10 to 12 states for education spending per student and has not increased school funding since 2019.[i] Following the pandemic, in October 2023, the Washington Post reported that two-thirds of the nation’s schools [now] face severe chronic absenteeism.[ii] While the article focused on how “rampant absenteeism often hampers teaching and learning,” in Texas, it also hampers the bottom line. Finally, in late 2023, Texas school districts saw their special education/Medicaid funding cut almost in half after federal regulators found that the Texas Department of Health and Human Services failed to “follow its policies and procedures to ensure that the costs claimed for direct medical services were accurate and supported.”[iii] This one, two, three punch has left many Texas school districts financially reeling.
With 80-85 percent of a school district’s budget going to costs associated with personnel and benefits, it is natural for school districts to consider methods to reduce personnel costs, including a reduction in force (RIF) of Chapter 21 contract employees. There are two types of RIFs in Texas: financial exigency and program change. Financial exigency is guided by statutes; program change is now a function of local policy.[iv] The process is usually the same for both types of RIFs, requiring at least four different board votes, the first three of which are preceded by a recommendation from the Superintendent. During a RIF, employees can face either mid-contract termination or contract non-renewal at the end of the contract term. The specific process is a function of local policy. See policies DFF (LEGAL), DFFA (LOCAL) financial exigency, and DFFB (LOCAL) program change. Most policies require the following steps:
Vote | Financial Exigency | Program Change |
1 | Board adopts resolution declaring financial exigency (required by statute) | Board approves program change |
2 | Superintendent recommends employment areas to be affected Board determines employment areas to be affected | Superintendent recommends employment areas to be affected Board determines employment areas to be affected |
3 | Superintendent recommends employees proposed for contract termination or nonrenewal based on policy criteria Board determines employees to be proposed for nonrenewal or discharge | Superintendent recommends employees proposed for contract nonrenewal based on policy criteria Board determines employees to be proposed for nonrenewal |
Superintendent provides each affected employee with written notice of the proposed nonrenewal or discharge | Superintendent or designee provides each affected employee with written notice of proposed nonrenewal | |
4 | Final action in accordance with policies DCE, DFBB, or DFD with notice in writing; after a hearing, if requested by employee | Final action in accordance with policy DFBB with notice in writing; after a hearing, if requested by employee |
There are several things school districts should keep in mind as they contemplate, or proceed through, the RIF process.
- Policy DFBB applies to both types of RIFs if a nonrenewal is proposed. Therefore, any employee proposed for nonrenewal as part of the RIF must receive written notice no later than the tenth day before the last day of instruction in a school year. Calendar accordingly to avoid rushing the process.
- An employee who has received notice of proposed nonrenewal as part of the RIF process may apply for available positions in the district. The Commissioner of Education has held that, if the employee applies, meets the district’s objective criteria for a vacant position, and is the most qualified internal applicant, then the district shall offer the position to that person.[1]
- In the limited situation of a mid-contract termination due to a RIF, the distinction between term and probationary contracts does not make a material difference. Terminating a Chapter 21 contract mid-term invokes policy DFD, whether the contract is term or probationary. In addition, whether a probationary contract is affected, instead of only term contracts, will not be known until well into the process when the Board takes its third vote.
This brief summary of the procedures related to reductions in force (RIFs) is not intended to be and is not legal advice. Please contact the attorneys at Brackett & Ellis if you need help navigating the RIF process. We can be reached at (817) 338 – 1700.
[1] Why Texas School Funding Still Isn’t Fair | TPR (accessed January 23, 2024).
[2] Two-thirds of schools struggle with high absenteeism after pandemic – The Washington Post (accessed January 23, 2024).
[3] Texas school districts are facing another budget crisis, losing millions for special needs (dallasnews.com) (accessed January 23, 2024).
[4] Texas Education Code Sections 44.011, 21.1041, 21.157, and 21.211(a).
[5] Amerson v. Houston ISD, Tex. Comm’r of Educ. Decision No. 022-R2-1202 (2003).
