How much power did the Texas Education Commissioner’s  decision in Jenkins v Crosby ISD give to school superintendents? “Too much,” says lawyer Kevin Lungwitz.

Lungwitz, an Austin attorney who primarily represents school district professionals, was hired by Hermenia Jenkins as she fought to keep her job as the principal of an elementary school in Crosby ISD. She’d held the job for eight years before being involuntarily reassigned by the Superintendent to an assistant principal position in an intermediate school.

Though Lungwitz argued that the reassignment was unlawful and shouldn’t stand, the Commissioner sided with the Superintendent, even going so far as to say that a superintendent’s decision need not be wise or fair.

“Campus principals should not be subject to involuntary reassignments of their positions,” said Lungwitz. “You can reassign [them] from Rosebud High School to be the principal of Prickly Pear Elementary, but you cannot reassign a principal to the position of assistant principal, or some other contrived administrative position.” This is not a revolutionary argument, he notes, observing that school counselors cannot be reassigned as teachers, or nurses as librarians. “Principals should be treated the same as these other statutory categories of school employees,” said Lungwitz.

In particular, they should be treated the same as superintendents. “Case law suggests that superintendents may not be involuntarily reassigned because they are ‘one of a kind.’ Principals are also one-of-a-kind,” according to Lungwitz.  “They are campus instructional leaders and they are the face of the campus community.

While he agrees that superintendents should have broad authority to reassign staff, Lungwitz emphasizes that an employee’s statutory position should be honored. “Instead of recognizing that principals are unique under the law, the Commissioner of Education routinely lumps principals in with all other administrators.” This is because generally a principal’s contract identifies him or her as an “administrator,” an ill-defined employment category. “The reassignment range is too broad and the impact too steep in some cases,” Lungwitz said. “It can do real damage to a person’s career to be the instructional leader of a campus one day, and an assistant paper-clip counter the next.”

Interestingly, Jenkins’ contract wasn’t even that specific, but identified her merely as an “employee” of the district—a term so nebulous that in other cases the commissioner has declared it an illegitimate employment category. “Our position,” said Lungwitz, “is, absent a legitimate contractual employment category, the commissioner should have deemed her to be a principal under the contract. Then she could not be reassigned outside of her contractual position. Without explanation, however, the commissioner said she was an ‘administrator’ and could be reassigned as such. There was no penalty to the district in this case for using the illegitimate ‘employee’ designation.”

In Lungwitz’s ideal world, the superintendent would not have such flexibility to reassign principals at will. “If the principal is accused of not performing to standards, [he or she] should have the right to accept a fully informed, mutually agreeable reassignment instead of a punitive, involuntary reassignment; or to defend against a dismissal—in which case he or she gets to see the district’s proof and be heard in response; or to resign.”

Going a little deeper, he suggested that school districts will often get around triggering a principal’s due process rights through the use of involuntary reassignments. “A school district need not be fully candid with the principal about its reasons for the reassignment… That is why school districts seldom move to nonrenew or terminate a principal. Once a reassignment is threatened, a principal will likely resign, sparing the district the need to explain or defend its action.”

This is not the case with Hermenia Jenkins, who chose not to resign, but accepted the reassignment. Nor have they given up their fight: Lungwitz filed an appeal in February in Travis County District Court.

“I can’t predict an outcome,” he said, “but I only appeal cases I believe should be reversed. Win, lose, or draw, sometimes the commissioner’s decisions need to be reviewed with a fresh set of eyes; that way everyone knows where they truly stand under the law.”

Read much more about Jenkins v. Crosby ISD in the April issue of Texas School Administrators’ Legal Digest.

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