The electronic manifestations of legal theory, the physical laws surrounding us and beyond, play a role in educational environments as well. To that end, this post seeks to examine the covenants that restrict solicitation quintessential to Texas, and its impact on the educators within the state.
A non-solicitation agreement Texas is defined by the Texas Business and Commerce Code Chapter 15 Subchapter E as “A covenant given by a…(association) not to solicit for the purpose of selling goods or services to individuals or entities other than the employer.” Expository language aside, these types of covenants are prevalent in professional sports contracts, but may also be expanded to cover corporate full-time positions and other associations. The impetus being the state of Texas, like many others, has a revolving door approach to non-solicitation agreements in favor of international trade and the maxim “Business is business.” In other words, an employer wishes to protect its client base from poaching by former employees, which is why these contracts are employed with frequency. However, this leads to an ethical inquiry when applied to educational environments, which involve minors and their parents as clients (to use the term loosely). Yet, the motivations behind these covenants remain, and thus the potential for misuse within an educational context must be considered.
Professors, teachers and other educators are often privy to sensitive information about parents and students that could be construed as confidential for use in unsanctioned and non-educational contexts, to wit the solicitation of athletes and enrollment. If this is true, the question then becomes, are such non-solicitations legally enforceable by the injury requirements in tort law for non-physical harm? If so, are students and parents subject to enforcement of a document they did not authorize or even consent to? In a more temporal spectrum, if the school board terminates an educator for violating a non-solicitation clause, such that they had not agreed to in the first place, then what is to become of the pool of teachers available for instructional employment, that complies with federal and state educational laws? Essentially, such a change in policy could lead to an exodus of current educators due to intimidation by an unenforceable contract, leaving the growth of student minds in the hands of liars and opportunists. At the same time, such an approach leads to violations of the ethical mandates of many professional organizations that prioritize student welfare over inter-official competition.
As such, it is safe to say social changes within the community, and the shifting desires of students, may carry more weight than legal covenants in the long run, be they enforceable. There is a precedent for this, although minimal in case law research. At present, there is an ongoing labor dispute within the state of Texas regarding teacher salaries based on the cost of living (compared to other regions such as L.A.). Should teachers successfully receive a raise, that would undoubtedly draw people from other states and countries to apply for teaching positions. Conversely, if they do not, there is a significant chance current teachers will seek employment in other states. Such posturing offers extensive avenues of recourse, including economic based approaches by the government or school districts that are inversely proportionate to the ethics of net benefit principle. Put shortly, money talks.
Such a scenario is preferable to the erosive effect of non-solicitation employment agreements on ethics and student growth, facilitating more tolerance for failure within schools, as opposed to punishment. Such ideas have already been proposed at length by Sutters and Peddler (2017) which emphasize the understanding of such agreements from an educator’s point of view. Namely, because they are familiar with the history and background of the impact of non-disclosure and non-compete employment contracts on educational institutions, which yield negative results. This is the underlying goal of this post, to draw attention to a critical area of law that has largely been ignored by legal and pedagogical theorists alike, and allow for greater insights into the real costs of every whim dictated by power for the sake of profit, which always come at a cost.