KBS Reference Desk: Accelerated and Supplemental Instruction HB 4545

Q:        I have interpreted HB 4545 as allowing accelerated and supplemental instruction to not only occur before or after school but be “embedded” in the school day as well. If we have teachers willing to give up their conference period to satisfy this tutoring obligation, can we allow that?    

 A:        No, the Commissioner of Education has held that Texas Education Code section 21.404 prohibits a school district from assigning teaching duties during a teacher’s planning period, even if the teacher agrees to the duties.

Texas Education Code section 21.404 guarantees each classroom teacher a planning period. Specifically, each classroom teacher is entitled to at least 450 minutes within each two-week period for instructional preparation, including parent-teacher conferences, evaluating student work, and planning. A single planning period must be at least 45 minutes long. This 45-minute planning period is so instrumental to instruction that the Commissioner has held that section 21.404 prohibits a school district from assigning teaching duties during a teacher’s planning period, even if the teacher agrees to the duties. This means that a signed waiver agreeing to performance of teaching duties during a teacher’s planning period violates section 21.404. An exception to this prohibition is where a district provides more than the statutory required time for planning, e.g., sufficient excess that the additional duties (in this instance, supplemental instruction) does not reduce the time for planning below the 450-minute threshold.

In contrast to the above, a teacher may voluntarily give up a planning period for non-teaching activities, so long as the attendance at the activity is not mandatory and does not occur on a regular or frequent basis, such that the employee is repeatedly deprived of sufficient planning time. Examples of such non-teaching activities might include voluntary attendance at staff development or department meetings. Importantly, to maintain the voluntary nature of the teacher’s participation, the employee cannot be reprimanded or otherwise disciplined for failure to attend; rather, attendance must remain purely at the will of the employee.

For specific questions or additional information regarding teacher planning periods generally, or planning period waivers, please consult with your local school law attorney.

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