By Kevin Lungwitz
You have been the successful principal at Rosebud Elementary for 20 years. This year has been a little bumpy, and in March your supervisor tells you effective immediately you are reassigned to be one of five assistant principals at Cactus Thorn Middle School. Nothing against assistant principals, but this is not the career trajectory you had in mind. Can they do that to you? To make matters worse, can they cut your pay?
The Basics of a Reassignment
Generally, in Texas schools, supervisors may reassign personnel within the employee’s contractual, employment capacity.¹ Most Texas school employment contracts contain some version of this reassignment clause: “The District shall have the right to assign or reassign the Employee to positions, duties, or additional duties, and to make changes in responsibilities, at any time during the contract term.” There are limits to this clause. The Texas Education Code says a professional employee is entitled to occupy “the same professional capacity” from year to year, unless the school district formally nonrenews (or terminates) the employee’s contract.
So, there is tension between the contract that may allow a district to reassign the employee, and the law that limits reassignments to the “same professional capacity,” absent a more formalized procedure. Put in play, this is how it looks: The contract says a teacher may be reassigned, but the law says a teacher must remain a teacher—same with counselor, librarian and nurse. We can reassign these employees to a different campus, to a different grade level or to a different subject for which they are certified, but their “professional capacity” must not change.²
An Administrator’s Reassignment is Different
What about a principal or assistant principal? Unfortunately, the Commissioner of Education and some Texas courts have said a principal’s professional capacity is not “principal,” but rather “administrator,” which is a much broader category. This means a principal can generally be reassigned to another administrator position. Also, most principals and assistant principals sign contracts that say “Administrator” or “Certified Administrator” at the top. Most of those contracts don’t say principal or assistant principal anywhere on them. This is one of the factors used to decide the legality of a principal’s or assistant principal’s reassignment.
The result can be harsh for the principal or assistant principal because the range of administrator positions is restrained only by the school district’s imagination. Which is why it might be said, tongue in cheek, that a 30-year principal with a corner office may be reassigned immediately as Assistant Director of Bean Counting to a central office cubicle. With only a few nuanced caveats, the commissioner has blessed almost every reassignment from one administrator position to another.³ To make matters worse, school districts may threaten you with reassignment, rather than confronting you with a messy and expensive nonrenewal or termination.
You Should Not Be Involuntarily Reassigned Out of Your Contract Protections
The Texas Education Code requires that principals and assistant principals be employed under a written contract. The contract provides you with nonrenewal and termination protection. The code does not require a contract for other administrator positions, other than superintendent. If you are reassigned to a job that does not require a contract or state certification, you should consult a lawyer for advice.
Doesn’t the District Have to Give Me Due Process?
It sure seems like a reassignment from principal to assistant principal based on sketchy complaints might call for due process protection—notice of allegations and an opportunity to defend; however, due process is only required when the school district seeks to break the contract, demote you or cut your pay mid-year. The commissioner and some courts have decided a reassignment from principal to assistant principal does not violate an administrator contract, is not a demotion, and does not violate the Texas Education Code. Without due process, you might never know exactly what the allegations were against you that led to the reassignment, and you may never be given a chance to defend.⁴
You Mentioned Pay. Can They Cut That, too?
As discussed above, a reassignment at the same rate of pay probably does not require due process, since due process is usually associated with the economic benefits of the contract. So, can they reassign you from principal to assistant principal mid-year, and cut your pay? For contract employees, pay should not be cut during the school year. If a pay cut is to be implemented the following school year, clear notice of the cut must be given to the employee at least 45 days before the first day of instruction. If the school district notifies you in writing in the spring that your pay will be cut in the fall, the legal remedies become problematic—even in the middle of a multi-year contract.⁵ This is because, in theory, you have the opportunity to resign without penalty if you disagree with the new salary terms.
Conclusion
While most reassignments are permissible, this area of the law is more complex than this article can fully explore. If you are involuntarily reassigned, and especially if your pay is cut, it is always best to check with TEPSA or the legal counsel of your choice.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
¹Any reassignment that is motivated by illegal reasons, such as unlawful discrimination, is improper. If the reassignment is in retaliation for lawfully protected conduct, it may be actionable.
²Tex. Educ. Code Sections 21.206 and 21.201.
³Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142 (Tex. App. – Austin 2017 pet. denied); Docket No. 043-R10-1211 (Comm’r Educ. Dec. 2013) Principal reassigned mid-year to assistant principal. Veliz v. Donna Indep. Sch. Dist., Docket No. 011-R3-999 (Comm’r Educ. 1989) Assistant principal and attendance coordinator are within the same professional capacity. “Petitioner’s 1999-2000 contract was for a ‘certified administrator.’ Both of the positions at issue are encompassed by the professional capacity stated in the contract.” Lehr v. Ector County Indep. Sch. Dist., Docket No. 003-R3-0908 (Comm’r Educ. 2008) Executive director of special education and assistant principal are within the same professional capacity. “Both jobs are responsible administrator jobs.” Perales v. Robstown Indep. Sch. Dist., Docket Nos. 053-R10-104; 084-R3-604 (Comm’r Educ. 2006) Director of Even Start Program and assistant principal are within the same professional capacity. “While the duties and responsibilities are not identical, they are sufficiently similar.” Carpenter v. Wichita Falls Indep. Sch. Dist., Docket No. 247-R3-491 (Comm’r Educ. 1993) Science support specialist and assistant principal are within the same professional capacity. “In this case, the contract between the parties provides that the position to which Petitioner was entitled was that of a generic administrator.
⁴You could consider making a Public Information Act request for complaints, and you could consider filing a grievance as a way of expressing your disagreement.
⁵Perales v. Robstown Indep. Sch. Dist., Docket No. 052-R10-104 (Comm’r Educ. 2006) $7,000 pay cut between school years approved.
TEPSA News, March/April 2021, Vol 78, No 2
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Note: Information from Legal Ease is believed to be correct upon publication, but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
