To Non-Renew or Not Non-Renew -- Key Considerations for Connecticut School Districts Facing Budget Shortfalls
School Budget

Every year as May 1 approaches, Connecticut school districts are confronted with an unpleasant, albeit familiar, process.  For better or worse, teacher non-renewal is a fact of life under the Teacher Tenure Act and the decision to renew or not renew is an important one because it carries significant consequences, particularly given Connecticut’s current teacher shortage and the difficulty in finding qualified teachers in certain subject areas. 

When faced with a prospective budget shortfall and the potential need to cut certified staff positions, districts have a choice between non-renewing prior to May 1 or waiting until after May 1 to terminate non-certified staff member contracts as the budget picture becomes clearer.  There are pros and cons to both approaches.

Non-tenured teachers who are non-renewed due to either the elimination of their position or loss of their position to another teacher (i.e., bumping pursuant to a layoff) are not entitled to a non-renewal hearing. The notice of non-renewal and statement of reasons, if requested, satisfies the district’s legal obligations.  Therefore, if and when a non-tenured teacher’s contract is non-renewed due to elimination of position or loss of position to another teacher (i.e., bumping), the teacher’s employment with the district is officially severed at the end of the school year.  If the budget picture improves, non-renewal decisions can be rescinded.

While the non-renewal approach avoids the potential costs and uncertainty of a termination hearing and ensures savings for the future school year, it has its drawbacks.  In today’s tight teacher labor market, a notice of non-renewal – or even an advisement that non-renewal may be on the table – might be enough to prompt a non-tenured teacher to move on to another district.  If a non-renewal decision is later rescinded, the district that non-renewed in an abundance of caution may have lost out on an excellent teacher who understandably will look for other opportunities upon receiving a non-renewal notice.

In addition, an underappreciated drawback to the non-renewal approach is potential unemployment compensation liability.  When a non-tenured teacher’s contract is non-renewed, the teacher no longer has reasonable assurance of returning as a teacher with the same district in the following school year.  As such, the teacher becomes eligible for unemployment compensation benefits over the summer months.  However, if the same teacher is terminated as a non-tenured teacher in the new school year once the budget picture finalizes, the district potentially would have saved on at least two months of unemployment compensation costs.  If only a handful of teachers face potential lay-off due to budget constraints this cost may be relatively small, but if large numbers of non-tenured teachers are under the budgetary knife, unemployment costs can be significant.

As might be expected, electing to terminate non-tenured teachers for budgetary reasons rather than non-renewing has its own drawbacks.  First and foremost, waiting to take official action on a teacher contract until after May 1 due to budgetary reasons when the outcome was reasonably certain before May 1 is not the model of professional courtesy and does little to build school culture.

Secondly, a non-tenured teacher who receives notice of termination is technically entitled to a hearing before the board, a board subcommittee or an impartial hearing officer before termination becomes effectuated even if the reason for non-renewal is a layoff, namely elimination of position or loss of position to another teacher.  If requested by a non-tenured teacher, the scope of such a hearing is essentially limited to the question of whether the lay-off is procedurally proper – i.e., has the district properly followed its layoff procedures per the applicable collective bargaining agreement provisions or board policy.  Per the Teacher Tenure Act, a teacher who is terminated following such a hearing has a right to appeal such decision to Superior Court.    

Outside of the budgetary context, the non-renewal versus termination decision is typically very straightforward.  Non-tenured teachers whose performance fails below district standards should almost always be non-renewed.  This is because establishing a legal basis for non-renewal is much easier than establishing a legal basis for termination even if the terminated teacher does not yet have tenure.  It is important to remember to non-renew such teachers before they have acquired sufficient months of experience so as to acquire tenure.  

While non-tenured teachers who are issued notice of non-renewal have a right to hearing if non-renewal is not due to position elimination or loss of a position to another teacher, the non-renewal decision may only be rescinded if it is found that the decision to non-renew was arbitrary or capricious.   This is a high legal standard and generally means that if the initial non-renewal decision was made in good faith and not for an improper reason, it should not be disturbed.  In contrast, for non-tenured teacher terminations, the administration has the burden of proving to the employing board of education, board subcommittee or impartial hearing officer that the non-tenured teacher’s contract of employment should in fact be terminated pursuant to specified reasons or “cause.”

As we have described in this blog previously, the Teacher Tenure Act is full of timelines and idiosyncrasies that school districts need to be aware of in connection with non-renewal/non-tenured teacher termination decisions.  District administrators should weigh their options carefully before acting and of course consult with legal counsel when the need arises.

Please contact any of Pullman & Comley's School Law attorneys should you have any questions.

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Alerts, commentary, and insights from the attorneys of Pullman & Comley’s School Law practice on federal and Connecticut law as it pertains to educational institutions, whether those institutions be public school districts, private K-12 schools, or post-secondary colleges and universities.

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