Portability of Nonprobationary Status Overview

In Poudre v. Stanczyk, the Court held that school districts may not require waiver of the statutory right to port nonprobationary status as a condition of employment. Poudre Sch. Dist. R-1 v. Stanczyk, 2021 CO 57 (Colo. 2021). In this case, Stanczyk, a teacher who had attained nonprobationary status in another district, applied to a probationary teaching position in the Poudre School District. The district’s online application included a statement requiring all applicants to voluntarily waive their right to assert the portability of nonprobationary status acquired in order to submit the application--there was no way for applicants to skip this step or indicate lack of agreement in the application portal. 

After being offered a position but before signing a contract, Stanczyk asked about porting her nonprobationary status only to be told that that the district “[didn’t] do that;” subsequently, Stanczyk signed the employment contract without receiving an answer to her question regarding portability. 

The following year, Stanczyk was notified that her teaching contract would not be renewed for the next school year and, in response, she formally requested portability of her nonprobationary status, which the district denied; this case followed.

In ruling in Stanczyk’s favor, the Court emphasized the statute’s language stating that hiring school districts must grant nonprobationary status to teachers who request it and submit the required documentation and the legislative intent behind SB10-191 to allow a teacher who has earned their nonprobationary status in one district to port that status to any other district in the state. Further, the Court noted that while the statutory language allows teachers to choose to opt out of requesting a transfer of their nonprobationary status, districts cannot mandate such an opt out or waiver as a condition of employment; a teacher’s waiver of portability must be voluntary. 

While the Court concluded that districts may not require teachers to waive portability of nonprobationary status as a condition of employment, it remanded the case back down to the lower courts to rule on the remaining issues of: (1) whether Stanczyk actually submitted the required documentation as part of her portability request and (2) whether the timing of Stanczyk’s portability request has any bearing on its effectiveness.

Takeaways / what does this decision mean for boards moving forwards?

• Districts should have a policy in place regarding portability of nonprobationary status—It was noted in Poudre v. Stanczyk that the district did not, at the time, have a policy in place regarding portability of nonprobationary status. CASB sample policy GCFA, Hiring of Instructional Staff/Portability of Nonprobationary Status, remains under review pending the final outcome of Poudre v. Stanczyk and should be reviewed by the district’s legal counsel prior to adoption or revision.

• While districts are free to negotiate with potential hires over portability, they may not avoid the statutory mandate to grant nonprobationary status to teachers who request it and submit the required documents by simply requiring applicants to consent to blanket waivers during the hiring process.

• The statutory language is clear that teachers may well choose to opt-out of requesting a transfer on their nonprobationary status, but such waiver must be voluntary.

• While districts cannot mandate waiver as a condition of employment, a school district that does not want to hire a nonprobationary teacher has several options:

• Apply to the State Board for a waiver of most of TECDA’s requirements, including the portability of nonprobationary status
  
  
• Choose to hire a less experienced teacher who has not yet achieved nonprobationary status
  
  
• Engage in arm’s length negotiations with teachers regarding voluntary waivers of portability during the hiring process
  
  
• It is still unclear whether the timing of a portability request bears on its effectiveness—It has generally been understood that a teacher may request portability during the district's hiring process and prior to an offer of employment from the district. In Poudre v. Stanczyk, the teacher requested portability several months into her employment with the district and after she was informed that her contract would not be renewed. The trial court will determine whether the timing of the request bears on its effectiveness.