By Kevin Lungwitz
Never underestimate the value of a well-written rebuttal. Rebuttals, responses, replies or whatever you want to call them, are almost always in order after you receive a reprimand, write-up, memo of concern, memo of conference or whatever you want to call them. No need to get technical with our jargon. When something negative is documented on you, you should strongly consider a well-written response.
Why a Rebuttal?
There are myriad ways to respond to a documented negative incident. You could meet with the supervisor who authored the reprimand, file a grievance or file a lawsuit. Maybe one of these options has merit. In the mix of options should be a professionally written response. It’s a perfect starting place. If you do nothing, then the negative document in your file will stand as the only historical account of the event in question. Your written response will counter-balance the situation. Should the negative event ever be brought up again, your voice will be in the file. And, in case you decide to file a grievance, the reprimand and rebuttal should tell most of the whole story. All you will need to do is fill out a grievance form, attach the reprimand and rebuttal, and timely file it.
When to Write A Rebuttal
It is a good rule of thumb to submit a rebuttal within 10 business days of receiving the negative documentation. The 10-day rule is important because memories are still fresh and generally more accurate. Check to see if there is a district policy or practice that requires one sooner. Often, the write-up will give a deadline for responding at the bottom, near the signature line. By the way, it’s okay – and arguably required – to sign for receipt of a reprimand when asked. Just sign at the bottom and, if it makes you feel better, write “for receipt only.” That’s all. You should expect the same of your teachers.
There are some places in the law that actually speak to a deadline for filing a rebuttal. For instance, under T-TESS, a teacher may submit a written rebuttal after receiving a copy of an observation, the summative appraisal or any cumulative data.¹ The rebuttal must be submitted within 10 workdays of the teacher’s receipt of the documentation. The T-TESS regulations are clear that a teacher may not submit a rebuttal to a part of the summative appraisal if that part was previously shared with the teacher and remains unchanged on the summative.² This rule is intended to invalidate end-of-year rebuttals by the teacher when the teacher should have responded much earlier. For better or worse, employees have begun to learn they must object to perceived injustices sooner rather than later, or else waive the right to object.
The Dark Side of Rebuttals
Rebuttals are good, yes, but they can also be very bad. A good rebuttal is professional, diplomatic, logical and accurate. It can firmly challenge facts when necessary, but it could also enhance your credibility to gently concede some points, if merited.
As the saying goes, if you’re in a hole, stop digging. A first-draft, late night, grape juice infused, email rant does not work. There is value in writing a draft of the rebuttal you really want to write. But you must have a trusted ally, professional association or lawyer review and heavily edit that draft. A hostile or angry rebuttal should never be sent, unless this is your version of the frazzled flight attendant who popped the slide, popped open a beer and jumped out of the back of the plane. That was the last flight he worked. Avoid rebuttal hang over: Absent a swan song, always take the high road. Moreover, it usually helps to end the rebuttal with conciliatory words that acknowledge your supervisor’s directives and, unless those directives are unreasonable or illegal, your intention to abide by them.
Be Concise. Be Accurate.
Another good rule of thumb is “less is more.” A two-page reprimand does not require a 10-page response that drags years of baggage into the fray. Be proportional. Take the reprimand and group its key allegations. If a super-specific allegation calls for a super-specific reply, so be it. Generally, though, it is best to respond at a 20,000 feet level. Don’t be granular unless absolutely necessary. A rebuttal that gets too weedy risks getting one of many small details wrong, which in turn, undermines the credibility of the reply. Also, maybe you should keep some cards close to the vest in case the reprimand and rebuttal turns into a longer tennis match. However, don’t be so vague that it negates the value of a response. Again, another set of eyes on your rebuttal before you turn it in is very valuable.
Most importantly, be accurate. If you challenge the facts, make sure you can corroborate your defense.
Important: The Rebuttal is Not for the Recipient
What? Yes. You are not writing the rebuttal for the recipient, your supervisor. You are writing for a broader audience that may not know you or your supervisor. Think, school board, central office, jury, etc. Your goal is to have a third party read the reprimand and the rebuttal, scratch their head and think, “The author of the rebuttal is more persuasive and more believable than the author of the reprimand.” It is not likely you will change the mind of the supervisor who wrote the reprimand; but if this goes higher, maybe you can persuade the superintendent or board.
Submitting the Rebuttal
There is nothing difficult or mystical here. It would be best to submit the rebuttal in the same format as the reprimand. A memo of concern calls for a memo of response. But this is not a requirement. Just make sure you can document the submission of your reply. Whether you attach a PDF of a memo to an email to your supervisor (my preference), or your response is just in the body of an email, probably does not matter. Just make sure you can prove you actually sent it.
Kevin Lungwitz is TEPSA’s Outside General Counsel.
Endnotes
¹19 Tex. Admin. Code Sec. 150.1004
²Id
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
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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.
