The Educator's Guide to Texas School Law: Tenth Edition

By Jim Walsh and Sarah Orman

Much has changed in the area of school law since the first edition of The Educator’s Guide to Texas School Law was published in 1986. This new tenth edition of The Educator’s Guide offers an authoritative source on Texas school law through the 2021 legislative sessions. Intended for educators, school board members, attorneys, and taxpayers, it explains what the law is and what the implications are for effective school operations; it helps professional educators avoid expensive and time-consuming lawsuits by taking effective preventive action; and it serves as a highly valuable resource for school law courses and staff development sessions.

The tenth edition begins with a review of the legal structure of the Texas school system, incorporating recent features such as charter schools and districts of innovation, then addresses the instructional program, service to students with special needs, the rights of public school employees, the role of religion, student discipline, governmental transparency, privacy, parental rights, and the parameters of legal liability for schools and school personnel. The book includes discussion of major federal legislation, such as the Individuals with Disabilities Education Act, the Family Educational Rights and Privacy Act, Section 504 of the Rehabilitation Act of 1973, and Title IX. On the state level, the book incorporates laws pertaining to cyberbullying, inappropriate relationships between students and employees, and human sexuality instruction.

• Language: English
• Publisher: University of Texas Press
• Release date: Sep 13, 2022
• ISBN: 9781477324745

Book preview

The Educator’s Guide to Texas School Law

TENTH EDITION

Jim Walsh and Sarah Orman

University of Texas Press

Austin

Copyright © 1986, 1990, 1994, 1996, 2000, 2005, 2010, 2014, 2018, 2022 by the University of Texas Press

All rights reserved

Tenth edition, 2022

Requests for permission to reproduce material from this work should be sent to:

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University of Texas Press

P.O. Box 7819

Austin, TX 78713-7819

utpress.utexas.edu/rp-form

Cataloging-in-Publication Data is available from the Library of Congress.

doi:10.7560/324714

This book is dedicated to the stalwart individuals who work in public schools today. Whether they are teaching, coaching, counseling, administrating, driving buses, nursing, serving food, helping students use a library, or maintaining the safety and cleanliness of school district campuses, these are the people on whom our children’s futures depend.

Contents

Preface

1. Structure and Governance

Sources of Law

Constitutional Foundations

The Texas Education Code

Administrative Law

The State Board of Education

The Texas Education Agency

Judicial Law

School Finance

Charter Schools

Districts of Innovation

The Role of the Local School Board

The Superintendent

The Principal

District- and Campus-Level Decision-Making

State Laws That Pertain to School Districts as Public Entities

The Texas Open Meetings Act

Meetings and Quorums

Notice

Public Comment

Emergency Meetings or Additions to Agenda

Closed Sessions

Recordings and Certified Agendas

Meetings by Telephone and Videoconference Call

Internet Broadcast

Violations

Criminal Provisions

The Texas Public Information Act

Items That Must Be Disclosed

Items Exempt from Disclosure

Personal Information

Employee Information

Candidates for Superintendency

Criminal History Information, Witness Statements, and Investigative Reports

Inter- or Intraagency Memoranda

Student Records

Other Items

Production of Records

Penalties

Procurement

Summary

2. Accountability and the Instructional Program

The Instructional Program

Kindergarten and Prekindergarten Programs

The Required Curriculum

Sex Education

Social Studies

Virtual Instruction

Student Assessment

Overview

Required Assessments and Modifications for Special Populations

Assessment Intervention

Assessment and Graduation

Noninstructional Use of Assessments

Other Exams

Grading and Class Rank

Grade Promotion and Retention

School District Accountability

The Every Student Succeeds Act (ESSA)

Instructional Resources

Internet Safety

The Federal Copyright Law

Summary

3. Student Issues

Enrollment and Attendance

Eligibility

Desegregation

Transfers

Compulsory School Attendance

Absences

Extracurricular Activities and the UIL

State Oversight

Extracurricular Participation

Health and Safety Requirements

Title IX

Student Rights of Expression

Student Expression on Campus or at School-Sponsored Activities

Student Protests

School-Sponsored Speech

Class Assignments

Lewd Speech

Speech Advocating Drug Use

Threats

Non-School-Sponsored Student Publications and Materials

Student Expression Off Campus and Not at School-Related Activity

Student Dress and Grooming

The First Amendment

Uniform Policies

Gender Issues

Sexual Orientation and Gender Identity

Student Privacy

Requests to Acknowledge a Student’s Gender Identity

Equal Access Act

Summary

4. Students with Special Needs

Four Quadrants

Special Education: Background and History

The Individuals with Disabilities Education Act (IDEA)

Child Find

Evaluation

Eligibility

ARD Committee

Individualized Education Program

General Curriculum

Least Restrictive Environment

Procedural Safeguards

Attorneys’ Fees

FAPE

Related Services

Extended School-Year Services

Unilateral Placements

Private-School Children

COVID-19 and Special Education

Section 504 of the Rehabilitation Act of 1973

Dyslexia

Extracurricular Activities

At Risk

Emergent Bilingual Students

Pregnant and Parenting Students

Gifted and Talented

Summary

5. Parent Rights

Private School and Home Schooling

Choosing Private School

Home Schooling

Teaching Controversial Subjects at School

Parental Rights in State Law

Chapter 26

Human Sexuality Instruction and the SHAC

Lauren’s Law

Fees

Child Custody Issues

Child Abuse Reporting

Student Records

Parent Rights under the Family Educational Rights and Privacy Act (FERPA)

Education Records

Directory Information

School Officials

Other Officials

Organizations Conducting Studies

Sex Offender Information

Health or Safety Emergency

Subpoena

Recordkeeping

Violations

FERPA and State Law

Law and the School Counselor

Parent Complaints

Removal of Objectionable Library and Study Materials

Summary

6. Employment

Constitutional Issues

How Much Process Is Due?

Types of Employment Arrangements

At-Will Employment

Non–Chapter 21 Contracts

Probationary Contracts

Term Contracts

Continuing Contracts

Retired Teachers

Selection of Staff

Certification and the Role of SBEC

Nondiscrimination Laws

Protected Activity

The Hiring Process

Criminal Records

Restrictions on Employment

Ending the Relationship

At-Will Employees

Non–Chapter 21 Contracts

Probationary Contracts

Term Contracts

Reduction in Force (RIF)

Continuing Contracts

The Independent Hearing System

Good Cause

A Few Final Thoughts on Good Cause

Constructive Discharge

Summary

7. Personnel Issues

Educator Rights of Expression

Electronic Communication

Academic Freedom

Texas Whistleblower Act

Reassignment

Same Professional Capacity

Counselors

Compensation Issues

Dual Assignment Contracts

Duties and Schedule

Compensation Disputes

Teacher Appraisal

Employment Benefits

Planning and Preparation Period

Duty-Free Lunch

Personal Leave

Health Insurance

Assault Leave

Teacher Retirement

Temporary Disability Leave

Family and Medical Leave Act (FMLA)

Military Leave

Miscellaneous Leave Policies

Wage and Hour Requirements

Workers’ Compensation and Unemployment Compensation

Grievances and the Role of Employee Organizations

Employee Grievances: A Brief History

Hearing Employee Grievances

The Role of Employee Organizations

Collective Bargaining on the National Scene

The Law in Texas

Summary

8. Religion

Legal Framework

No Government Establishment of Religion

Free Exercise of Religion

Constitutional Provisions

Federal and State Statutes

Contemporary Issues

The Pledge of Allegiance

School Prayer

School-Sponsored or Employee-Led Prayer

Prayer at School Board Meetings

Silent Meditation

Invocations, Benedictions, and Religious Speeches at Graduations

Baccalaureate Ceremonies

Student-Led Prayer at School, Extracurricular Activities, and Athletic Events

Teaching Creation Science

Secular Humanism and Pagan Religion

Religion in Classrooms, Choir Programs, and Holiday Observances

Teaching about Religion

Student Papers and Presentations on Religious Topics

Choir Programs and Holiday Observances

Clergy in the Schools

Distribution of Religious Literature

Wearing Religious Symbols

Student Religious Groups Meeting on Campus

Religious Exemptions

Assistance to Sectarian Private Schools

Summary

9. Safety and Discipline

Constitutional Concerns: Due Process

Other Due Process Concerns

Constitutional Concerns: Right of Privacy

Justified at the Inception; Reasonable in Scope

Use of Magnetometers and Metal Detectors

Locker and Desk Searches

Search of Cell Phones and Electronic Communications

Use of Sniffer Dogs to Conduct Searches

Student Drug Testing

Chapter 37: An Overview

Student Code of Conduct

Campus Behavior Coordinators

Bullying

Teacher-Initiated Removal

Suspension

Removal to a DAEP

Mandatory Placements

Discretionary Placements

Procedures

Life in a DAEP

Expulsion

Grounds

Procedures

Emergency Actions

Interactions with Law Enforcement

Other Disciplinary Practices

Corporal Punishment

Suspension from Extracurricular Activities

School Safety

Restorative Discipline

Discipline of Students with Disabilities

Ten Days

Change of Placement

Manifestation Determinations

Stay Put

FBAs and BIPs

Expulsion

State Law

Summary

10. Liability

Identifying Areas of Legal Liability

State Torts

School District Immunity

Governmental Immunity and Contract Cases

Qualified Immunity for Public School Professional Employees

The Special Case of Corporal Punishment and Physical Force

A Word about Charter Schools

Federal Civil Rights Liability

Governmental Liability

Individual Liability

Personal Injuries and the Constitution

State-Created Danger

Liability under Federal Statutory Law

Title IX and Sexual Harassment

Disability Discrimination

Summary

Glossary of Legal Terminology

Index of Cases

Index of Topics

Tables

1. Basic components of Texas education law

2. Relationship of law to establishment and operation of Texas public schools

3. Complying with copyright guidelines

4. Major school desegregation decisions since 1954

5. Four Quadrants

Figures

1. The overall structure of Texas administrative law

2. Geographic jurisdiction of U.S. district courts in Texas

Preface

THE LAW PERTAINING to public education continues to evolve and grow more complex. The tenth edition of The Educator’s Guide to Texas School Law seeks to describe that evolution and clarify the complexity in order to give educators a solid understanding of the legal infrastructure that undergirds the institution of public education. While the book is primarily aimed at educators, we hope it also provides a useful framework for lawyers, school board members, parents of children in our schools, and legislators, as well as anyone who is interested in how the law impacts the provision of education for the 5.5 million children in Texas who attend our public schools.

Many things have changed since the first edition was published in 1986. We now have a burgeoning charter school movement. A traditional school district can declare itself a district of innovation (DOI) and thereby free itself from some state laws. The demographics of the state continue to evolve, thus requiring schools to serve a larger percentage of students for whom English is not a native language and to accommodate parents and students from a diverse range of cultural and religious backgrounds. Meanwhile, advances in technology affect everything, from how school board meetings are conducted to how teachers operate in the classroom to how students communicate with one another.

Many things have not changed. Teachers are still employed by contracts that may be terminated or nonrenewed for various reasons. Administrators can assign and reassign teachers and other employees, leading to grievances. Parents want to know what is going on in school, and may object to certain parts of the instructional program. Students will misbehave, leading to disciplinary action. Students with special needs require various accommodations. School boards are expected to conduct their business in the open. School districts are big businesses, frequently the largest employer in the community, providing the most meals and driving the most miles. The law affects all that.

The public school continues to be ground zero in our country’s culture wars. Americans expect the local public school to reflect their values, but there is little agreement on those values. So we fight over what level of free speech young students should enjoy, the role of religion in our schools, and the right way to teach about sexuality, not to mention what we should do about masks and vaccinations. All these disputes eventually find their way to the courthouse. We hope this tenth edition will help readers better understand the issues and how they are addressed in the law.

This tenth edition is built on a firm foundation. The first edition was the brainchild of Dr. Frank Kemerer, then of the University of North Texas. What many of us continue to refer to as Frank’s Book has served as a comprehensive and authoritative source for educators and lawyers. Dr. Kemerer was the sole author of the first edition and has continued to serve as an author on all the subsequent editions. His vision and influence are still apparent, for which the current authors are most grateful. Earlier editions were also coauthored by Joe B. Hairston and Laurie Maniotis. They, too, have contributed to the foundation for this latest edition.

The authors also wish to express our appreciation to the staff at the University of Texas Press for their continued support of this project, and to those who employ us at our day jobs—the law firm of Walsh Gallegos Treviño Kyle & Robinson, P.C., for Jim Walsh, and the Texas Association of School Boards for Sarah Orman.

ONE

Structure and Governance

IN THIS CHAPTER, we examine the basic legal framework of school law in Texas. We begin by discussing the sources of school law and then describe the roles of the state and federal governments in the establishment and operation of the Texas school system. We examine the functioning of the State Board of Education, the Texas Education Agency, local school districts, and charter schools. We review the long-running controversy over the financing of Texas schools. And we discuss the responsibilities of school administrators and the functioning of site-based management. Later in this chapter, we provide a basic overview of the Texas Open Meetings and Public Information Act and purchasing statutes—all state laws that promote transparency in school district operations.

SOURCES OF LAW

Constitutional Foundations

Because power over education is not specifically delegated to the federal government by the U.S. Constitution, it is a state function. The Tenth Amendment to the Constitution declares that all powers not delegated to the federal government are reserved to the states. This amendment gives state governments their traditional power over schools. Viewing the school as an important socialization device, states gradually expanded public education in the nineteenth century. By 1918 all states had compulsory school laws.

When a state decides to provide public education, as all the states have done, it has established an important benefit, which, as we will see later, it cannot take away from students without following due process procedures. Consistent with the Tenth Amendment, the Texas Constitution of 1876 established the legal basis for a public school system in the state. Section I of Article VII reads: A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of free public schools. The Texas school finance litigation has typically centered on whether a finance system resulting in substantial interdistrict disparities is suitable and efficient within the meaning of this constitutional provision.

Since the mid-1960s, the Bill of Rights and the Fourteenth Amendment to the U.S. Constitution also have furnished a basis for litigation against public schools. Claims to freedom of speech, press, religion, and association; due process; and other rights have a constitutional basis, just as the state’s power to establish and operate schools stems from the Constitution. The Bill of Rights of the Texas Constitution protects many of these same civil liberties. Constitutional law at both the federal and state levels is thus an important source of education law.

The role of Congress and the federal courts in education matters was once quite limited. However, the quest for individual rights and greater procedural safeguards triggered by the civil rights movement of the 1960s spilled over into the schools, and a new generation of constitutional law evolved. (These changes have been significant and will be discussed in detail in subsequent chapters, but here we will provide an overview.)

Most of our basic civil liberties are included in the Bill of Rights of the U.S. Constitution. The First Amendment is particularly important, as it lists several liberties inherent in a democratic society: the right to be free from governmental control in the exercise of speech, publication, religious preference, and assembly. However, the First Amendment, like the other nine in the Bill of Rights, applies only to the federal government. (The first word in the First Amendment is Congress.)

To determine which U.S. constitutional rights apply in the state setting, we must look to the Fourteenth Amendment. For our purpose, two clauses from the first section of that amendment are important: nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. These two clauses, the due process clause and the equal protection clause, together with the federal laws that implement them, provide the basis for constitutional rights lawsuits against public education institutions and personnel.

A statute is a law enacted by a legislative body. Congress passed a statute after the Civil War to enforce the Fourteenth Amendment by enabling aggrieved people to pursue their claims in federal court. That statute, known as 42 U.S.C. Section 1983, is one of the major sources of litigation against both school districts and school personnel. The statute provides that Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress [in federal court]. As will be noted often in this book and particularly in the last chapter on legal liability, the consequences can be severe. At the same time, courts do not look kindly on people who use this venerable civil rights law to get trivial disputes into federal court.

One may wonder how schools can be affected by the Fourteenth Amendment, phrased as it is in terms of states. As the reader may know, local school districts legally are viewed as political subdivisions of the state. Therefore, the Fourteenth Amendment applies to public school districts and personnel, but not to private schools, since they are not state-related. Neither the Bill of Rights, the Fourteenth Amendment, nor most provisions of the Texas Education Code apply to private schools. This is an important point, for many educators assume they are entitled to the same rights in the private-school setting as in the public. In reality, the rights that a person has in private schools depend to a large extent on the wishes of the private school. For the private school, contract law is of great importance, since it defines not only the teacher-institution relationship, but also the relationship of the student to the school. Thus, it is important that contractual provisions be carefully developed and reviewed.

Over the years, the U.S. Supreme Court has held that almost all provisions of the Bill of Rights are binding on the states through the Fourteenth Amendment. In other words, the Supreme Court gradually has incorporated these rights into the Fourteenth Amendment, specifically through the liberty provision of the due process clause, thereby ensuring that neither the federal government nor the states can abridge them. Courts have differed, however, on the extent to which teachers and, particularly, students in public schools enjoy the same protections as do other persons.

Neither liberty rights nor property rights are without limits. They can be regulated, even denied, provided that the state or school follows due process: nor shall any State deprive any person of life, liberty, or property without due process of law, meaning that, if due process is followed, the curtailment of rights can occur. (Due process rights for employees and students will be discussed in some detail in later chapters.)

Behavior that is not constitutionally protected as a liberty or property right can be regulated relatively easily. For example, smoking and the possession and/or use of illegal drugs or alcohol fall into this category.

In sum, the Fourteenth Amendment protects persons from state government repression of basic civil liberties guarantees, such as those in the Bill of Rights of the U.S. Constitution. Because public schools are part of state government, the Fourteenth Amendment applies to them and to their employees, but not to private schools. (Constitutional rights of students and teachers in the public-school setting will be discussed in subsequent chapters.)

The Texas Education Code

The Texas Legislature, acting pursuant to the Tenth Amendment to the U.S. Constitution and Article VII of the Texas Constitution, is responsible for the structure and operation of the Texas public school system. Thus, those wanting to influence the way Texas education is structured and conducted are well advised to focus their efforts on the Texas Legislature. Both school districts and educators are becoming increasingly sophisticated in this regard.

Most of the statutes passed by the Texas Legislature that directly affect education are grouped together in the Texas Education Code (TEC). The Code is an important source of law because it applies to the daily operation of schools, detailing the responsibilities and duties of the State Board of Education (SBOE), the Texas Education Agency (TEA), school boards, charter schools, and school personnel.

Many other state statutes besides the TEC affect the activities of local schools, such as the Texas Open Meetings Act and Public Information Act, which will be discussed later in this chapter. One point worth emphasizing is that, despite their essentially local character, public school districts are governed by the state. The present system of some 1,000 Texas school districts and over 8,600 individual school campuses could be changed should the legislature desire, given the latter’s authority over public education under the Texas Constitution.

Administrative Law

A third, often overlooked source of law is administrative law, which consists of the rules, regulations, and decisions that are issued by administrative bodies to implement state and federal statutory laws. Special education personnel, for example, are familiar with the extensive regs accompanying the Individuals with Disabilities Education Act (IDEA), as developed by the U.S. Department of Education. These regulations are designed by the implementing agency to apply the law to the realities of day-to-day schooling. Regulations must be quite detailed in order to eliminate as much ambiguity as possible. The length of a statute’s regulations often exceeds that of the statute itself.

Administrative law also includes the rules and regulations that state agencies establish to carry out their responsibilities. When promulgating rules, administrative agencies are said to be acting in a quasi-legislative capacity. In the education context, this responsibility lies with the SBOE and the Texas Commissioner of Education. The rules that they enact appear in volume 19 of the Texas Administrative Code (TAC).

The State Board of Education

The State Board of Education (SBOE) is an elected body of fifteen members that is limited to performing only those duties assigned to it by the state constitution or by the legislature. While many of its functions have shifted in recent years to the Texas Commissioner of Education, the SBOE is still a powerful entity. Among its designated duties, as set forth in TEC Section 7.102, are establishing a state curriculum and graduation requirements, determining the standard for satisfactory student performance on assessment instruments, adopting and purchasing or licensing instructional materials, and investing the permanent school funds. The SBOE is required to broadcast its open meetings over the Internet and to archive video and audio broadcasts of prior meetings on TEA’s website (TEC §7.106).

The Texas Education Agency

The Texas Education Agency (TEA) is headed by the Texas Commissioner of Education and supported by agency staff. Like the state board, TEA can perform only those duties specifically assigned to it by the legislature. The legislature’s disenchantment with top-down control is clearly evident in the wording of TEC Section 7.003: An educational function not specifically delegated to the agency or the board [of education] under this code is reserved to and shall be performed by school districts or open-enrollment charter schools. TEC Section 7.021 assigns specific educational functions to TEA. Among them are monitoring district compliance with federal and state programs, conducting research to improve teaching and learning, developing a teacher recruitment program, and maintaining an electronic information transfer system. TEA also is authorized to enter into agreements with federal agencies regarding such activities as school lunches and school construction. In addition, TEA administers the capital investment fund established by the legislature to provide grants to school districts for improving student achievement (TEC §7.024).

Other than the legislature, the most powerful state-level player is the Texas Commissioner of Education, whom the governor appoints and removes with the advice and consent of the Texas Senate. Like the governor, the commissioner serves a four-year term. The only qualification for serving as commissioner is U.S. citizenship. The legislature designates the commissioner as the educational leader of the state. The commissioner also serves as the executive officer of TEA and executive secretary of the SBOE. Among some forty responsibilities the legislature has assigned to the commissioner are adopting an annual budget for the Foundation School Program, reviewing school district waiver requests, adopting rules for optional extended-year programs, performing duties in connection with the public school accountability system, and reviewing school district audit reports (TEC §7.055). Other sections of the Code give the commissioner added responsibilities, e.g., imposing interventions and sanctions for low-performing campuses and school districts. Several of the commissioner’s current responsibilities previously belonged to the state board, such as adopting a recommended state appraisal process for teachers and administrators, performing duties associated with the guaranteed bond program, and approving and monitoring charter schools.

Operating under the oversight of the commissioner, twenty regional education service centers assist school districts in improving student achievement and increasing the efficiency of school operations (TEC §8.002). Their core services include teacher and program training, assistance to low-performing school districts and campuses, site-based management training, and assistance in complying with state law and administrative rules.

While the state provides some funding for education service centers through the Foundation School Program and state appropriations, the majority of their funding comes from grant supports and services provided to the school districts. Each service center is governed by a seven-member board as established under rules developed by the commissioner of education. The commissioner also approves the selection of service center executive directors and conducts evaluations of service center operations. Regional service centers and employees are subject to or exempt from taxation in the same manner as school districts and school district employees (TEC §8.005). Service center employees and volunteers are entitled to the same immunity protections under state law as are school district professional employees and volunteers (TEC §8.006). (School district and employee liability issues will be discussed in chapter 10.)

The policy manuals and handbooks developed by local school districts are excellent close-to-home examples of administrative law. TEC Section 11.151(d) provides that school trustees may adopt rules and bylaws necessary to carry out [their] powers and duties. Board policies and administrative directives represent the law of the district, and all personnel must observe them as a condition of employment. The Texas Association of School Boards (TASB) is a private organization that provides a host of comprehensive services to school boards, including model school board policies that most districts have adopted. TASB also is influential in the legislative arena on behalf of its members and provides financial support to districts embroiled in expensive litigation.

Administrative law also has a quasi-judicial character. State law provides an appeal to the commissioner of education for anyone aggrieved by the school laws of the state, defined as Titles I and II of the Education Code and the rules adopted thereunder, or by actions or decisions of any school district board of trustees that violate the school laws of the state or that violate a provision of a written employment contract, causing possible monetary harm to the employee (TEC §7.057). (The commissioner’s jurisdiction to hear complaints by parents and employees is discussed in later chapters.)

Judicial Law

A fourth source of law is composed of state and federal court decisions. When disputes arise under constitutions, statutes, and administrative law, some authority must have final say. The courts serve this function. With certain exceptions, when a person wants to contest a school board decision that the person believes violates the school laws of the state or the terms of a written employment contract, the person has a statutory right of appeal to the commissioner. If, after appeal to the commissioner, the matter still is not resolved to the person’s satisfaction, that person may appeal to a district court in Travis County, Texas (TEC §7.057(d)).

Courts generally refuse to become involved until all administrative remedies are exhausted. Administrative agencies are staffed by people familiar with the educational setting and, theoretically, who are more qualified than judges to arrive at satisfactory and workable solutions to disputes that arise within that setting. In fact, judges are not educators and, generally, will be the first to admit that the resolution of educational disputes is best left to educational professionals. Further, the exhaustion requirement has the effect of channeling and resolving most conflicts before they reach the judiciary.

Regardless of whether litigation is filed initially in a state district court or as an appeal from a decision of the commissioner, the state court system plays an important role in the resolution of educational disputes. Therefore, it is important to review the composition of the Texas judiciary. District courts are the major trial courts in the state judicial system, having jurisdiction over major criminal and civil matters. From a district court, an appeal goes to one of the fourteen courts of appeals located throughout the state and, finally, to the Texas Supreme Court. An appeal from a Travis County district court goes to the Third Court of Appeals in Austin. The Third Court, by virtue of its jurisdiction over appeals from the district courts of Travis County, has great influence over the development of educational and other public law matters. Only the Texas Supreme Court, however, can speak for the entire state in civil matters. For criminal matters, the highest court is the Texas Court of Criminal Appeals. Thus, in Texas, we have two supreme courts, one concerned with civil matters and one with criminal matters.

Although the Texas judicial system provides a theoretically efficient structure for adjudicating disputes, frivolous lawsuits often arise. In an effort to deal with this problem, the legislature enacted two statutes holding a person potentially liable for court costs and attorneys’ fees for filing a frivolous lawsuit against a school district or an officer or employee of the district who is pursuing official duties (TEC §§11.161, 22.055). State law also provides specific protection for individuals who report suspected violations of law. (The Texas Whistleblower Act is discussed in chapter 7.)

Figure 1. The overall structure of Texas administrative law

If the matter in dispute involves a federal question, individuals often can avoid administrative law procedures and state courts altogether and go directly to a federal district court in the state. Federal questions involve some provision of the U.S. Constitution (e.g., freedom of speech), a federal statute, or a federal treaty. Because many disputes involve federal constitutional or statutory rights, the number of disputes going directly to the district courts in Texas’s four federal judicial districts continues to increase. Figure 2 illustrates the geographic jurisdictions of the four Texas federal judicial districts.

The most important function of federal courts is to adjudicate disputes arising under the Constitution and statutes of the United States. As a general rule, disputes arising under state law must be tried in state courts. Decisions of the Texas federal district courts are appealable to the U.S. Court of Appeals for the Fifth Circuit in New Orleans, one of thirteen circuit courts in the nation. The jurisdiction of the Fifth Circuit encompasses Louisiana, Mississippi, and Texas. On occasion, a decision of the Fifth Circuit will be reviewed by the U.S. Supreme Court in Washington, D.C. Unlike most other courts, the U.S. Supreme Court has the authority to decide which cases it will hear. From as many as ten thousand cases filed annually for review, the justices will select only about seventy-five to eighty for a full hearing. Thus, most federal questions are resolved by U.S. courts of appeals. For this reason, the precedents established by the U.S. Court of Appeals for the Fifth Circuit are particularly important in the context of Texas public education.

Other sources of law besides the four primary types discussed above also have an impact on education law. For example, contract law plays an important role in the context of employment. For our purposes, however, separating school law into the four previously discussed types—constitutional, statutory, administrative, and judicial—will help us understand how the system works. Table 1 provides an outline of the four types, and table 2 shows how they interrelate.

Figure 2. Geographic jurisdiction of U.S. district courts in Texas

Table 1. Basic components of Texas education law

Table 2. Relationship of law to establishment and operation of Texas public schools

SCHOOL FINANCE

School finance is a complex subject, generally beyond the scope of this book. As previously noted, the 1876 Texas Constitution left to the legislature the duty to establish an efficient system of public education. In recent years, the issue of equalization in school finance has been the focus of a dramatic struggle between the Texas judicial and legislative branches of government.

Nine lawsuits have challenged the Texas school finance system. The first one was decided by the U.S. Supreme Court, which ruled that our system was inequitable and badly in need of repair but did not violate the U.S. Constitution. In addition, the Court held that education was not a fundamental right protected by the U.S. Constitution and urged the Texas Legislature to fix the problem. That was in 1973 (San Antonio I.S.D. v. Rodriguez).

The scene then shifted to the state courts. Eight cases have advanced all the way to the Texas Supreme Court, each one asserting that the system was inequitable and broken to the point that it violated the Texas Constitution. In half of those cases, the court found the system to be unconstitutional and ordered the legislature to fix the problem. The legislature always responded to those orders, but many deemed the response as inadequate.

The most recent lawsuit involved two-thirds of the school districts in the state, including both rich and poor. After a state trial court found the school finance system unconstitutional, the commissioner, Texas Comptroller, SBOE, and state filed a direct appeal to the Texas Supreme Court. The court reversed most aspects of the trial court’s ruling, declaring that the school finance system was constitutional. The court found that the legislature had provided a system that met the minimum constitutional requirements of adequacy, suitability, and financial efficiency. The court said, [t]he State’s duty to provide equal access to funding applies only to the amounts necessary to provide for a general diffusion of knowledge. Once that standard is met, local property owners may supplement their educational resources through an additional property tax. The court concluded that any additional property tax did not constitute a statewide ad valorem tax because the decision to impose the tax for optional enrichment purposes was left entirely to local authorities and required voter approval (Morath v. Texas Taxpayer and Student Fairness Coalition, 2016).

The court’s unanimous 100-page opinion made clear, once and for all, that those who wish to reform school finance in Texas should look to the legislative process rather than litigation. The school finance case was well funded, well argued, well researched, and well organized and involved over half the districts in the state. The fact that it failed says more about the politics of the state than about the law. Many advocates for public education have observed that the best chance for meaningful reform is encouraging citizens to vote for leaders who support public education.

In 2019 the Texas Legislature enacted sweeping reforms to the Texas school finance system through House Bill 3, which, among many other changes, increased teacher compensation and compressed school district tax rates. The 87th Legislature in 2021 appropriated funds to TEA to address deficits for special education programs and other funds related to the challenges posed by the global COVID-19 pandemic. Again, the response was deemed inadequate by many.

CHARTER SCHOOLS

School choice has become one of the most controversial school reform measures in recent years. Driven largely by concerns about the ability of the one-size-fits-all public school to provide a high-quality and safe education to all children, the school choice movement has gained steam across the country. The fastest-growing form of school choice is the charter school. A charter school in effect is a newly created public school that operates free of some state regulation. The Texas Legislature authorized charter schools in 1995. Since that time, state lawmakers in every legislative session have tightened restrictions in an effort to ensure high standards. The four forms of charter schools addressed in Chapter 12 of the Education Code are home-rule charters, university charters, campus charters, and open-enrollment charters.

Home-rule school district charters allow school districts to free themselves from most state requirements. In order to operate as a home-rule district, the proposed charter must be adopted by majority vote in an election where at least 25 percent of the registered voters in the district participate—a significant hurdle. Thus, to date, home-rule district charter schools in Texas exist only on paper.

Under the second charter option, the commissioner may grant a charter to a public college, university, or junior college for an open-enrollment charter school to operate on the campus of the college or university or another location (TEC §12.152). For most purposes, a charter school operated by a college or university is subject to the same laws as an open-enrollment charter school. However, a charter granted to a college or university is not considered for purposes of the limit on the total number of open-enrollment charters (TEC §12.156).

A school district board of trustees may grant a charter to petitioning parents and teachers to operate a campus or program free from much regulation, such as district instructional and academic requirements, if the petition is signed by the majority of parents and teachers at the school (TEC §12.052). The board or governing body must grant or deny the charter by public vote but may not arbitrarily deny a charter, meaning that it can be rejected only for cause.

Campus charter schools and programs remain public and are subject to federal law and to those state statutes that specifically apply to them. Among matters specified by the latter are compliance with the Public Education Information Management System (PEIMS), high school graduation requirements, special education and bilingual education requirements, and provisions regarding prekindergarten programs, extracurricular activities, and health and safety measures under Chapter 38 of the Education Code (TEC §12.056). But campus charter schools are exempt from most other provisions of the Code. TEC Section 12.065 provides that geography and residence are to be given first priority in student admissions. Age, grade level, and academic qualifications are secondary considerations. The governing body of the campus or program is subject to the provisions of the Texas Open Meetings and Public Information Acts (discussed later in this chapter). While the campus charter school has a good deal of autonomy within the district, the school board retains legal responsibility for its activities.

Open-enrollment charter schools have been the most popular charter school option. The cap on the number of open-enrollment charters that can be approved has risen gradually over the years. As of 2019, the commissioner may approve a total of 305 charters (TEC §12.101). The commissioner of education has the authority to grant, monitor, and revoke open-enrollment charter schools, while the SBOE has veto power. The commissioner can grant a charter to a public or private institution of higher education, a tax-exempt organization, or a governmental entity. In addition, the school may operate in the facility of an eligible entity, a commercial or nonprofit entity, or a school district. The commissioner also can grant a charter to a high-performing out-of-state applicant (TEC §§12.101, 12.115).

Charter schools are required to meet the same academic and financial accountability standards under Chapter 39 of the Education Code as independent school districts. A charter school that does not meet academic and/or financial standards for multiple years must face sanctions, which may include revocation.

In coordination with a member of the SBOE, the commissioner must determine whether an applicant can meet financial, governing, educational, and operational standards, is capable of carrying out the charter’s responsibilities, and is likely to operate a school of high quality. A charter will not be granted to an entity, or any related affiliate, that has had a charter revoked, denied, surrendered, or returned within the preceding ten years. Priority will be given to charters proposed in the attendance zones of schools with unacceptable performance ratings for two years. The SBOE has ninety days to reject a charter proposed by the commissioner (TEC §12.101).

Like other forms of charter schools, open-enrollment charters are subject to only those state laws and rules specified in the Education Code. The governing boards of open-enrollment charter schools must comply with the state open meetings and public information laws, local government records laws, public purchasing and contracting laws (unless the charter describes different procedures approved by the commissioner), conflict of interest laws, nepotism laws, and municipal zoning ordinances governing public schools. In addition, the open-enrollment charter school must comply with a list of requirements in TEC Section 12.104 (similar to the list for the other forms of charters), which includes the accelerated instruction and high school graduation requirements. Open-enrollment charter schools also must offer the state-required curriculum. Charter schools are required to follow the same guidelines as independent school districts in employing classroom teachers; however, the certification requirements do not apply to charters unless certification is required by federal law, such as in special education. A charter-school teacher or principal must hold a baccalaureate degree (TEC §12.129).

Open-enrollment charter schools may attract students either from within a school district or across district lines, within the geographical area to be served by the program, in competition with existing public and private schools. Open-enrollment charter schools may not discriminate in admissions on the basis of sex, national origin, ethnicity, religion, disability, academic or athletic ability, or school district the student would otherwise attend. However, these charter schools may reject students who have committed criminal offenses or who have a history of disciplinary problems. Open-enrollment charter schools may not charge tuition and must provide transportation to the same extent that transportation is required of a school district. The governing board of an open-enrollment charter school may charge a fee that the board of trustees of a school district would be entitled to charge.

Members of the governing body of a charter school or a charter holder must undergo board member training pursuant to 19 TAC Section 100.1102. Restrictions concerning who may serve on the governing board of a charter school are found in 19 TAC Sections 100.1101 et seq. Because open-enrollment charter schools have no taxing authority, the legislature has given charter schools the opportunity to issue revenue bonds for the acquisition, construction, repair, or renovation of educational facilities. An open-enrollment charter school also may apply for designation as a charter district that can receive bond guarantees from the permanent school fund (TEC §12.135). In addition, charter schools are entitled to receive state funding pursuant to Chapter 42 of the Education Code. A municipality to which a charter is granted may borrow funds, issue debt, and spend funds to acquire land, construct facilities, or expand or renovate facilities for the charter school (TEC §12.132).

Generally, property purchased or leased with public money is public property. However, the Texas Supreme Court in 2021 held that an open-enrollment charter school was not able to claim a property tax exemption for property that it subleased from a private owner (Odyssey 2020 Academy Inc. v. Galveston County Appraisal District). This decision put into question the constitutionality of House Bill 3610, a bill passed by the 87th Texas Legislature in 2021 that was intended to allow charters to claim tax exemptions on leased property. Based on the court’s holding, a constitutional amendment may be necessary in order to authorize a charter holder to claim a tax exemption on property that it leases but does not own.

Charter schools also have access to the same level of services from regional education service centers as school districts and must be represented on service center boards. The commissioner may permit charter schools to participate in any state program open to traditional public schools, and charter schools are entitled to a technology and instructional materials allotment. In addition, charter schools may participate in interlocal cooperation contracts, self-insurance, group benefits, and purchasing, similar to a school district, and officers and employees of open-enrollment charter schools may participate in state travel service contracts (Gov’t Code §2171.055). Finally, an open-enrollment charter school may accept charitable donations and may seek grant funding.

DISTRICTS OF INNOVATION

In 2015 the Texas Legislature added Chapter 12A to the Education Code to permit school districts to apply for designation as a district of innovation (DOI). This provision allows districts to adopt an innovation plan with much of the same flexibility available to open-enrollment charter schools. For example, a plan can exempt the district from requirements such as the site-based decision-making process, the uniform start date, minimum minutes of instruction, class size and student/teacher ratio, certain student discipline provisions, and certain matters pertaining to educators, including certification, contracts, benefits, and appraisal. Districts have responded to this concept with enthusiasm. Over half of the traditional independent school districts in Texas have designated themselves as districts of innovation.

The DOI chapter is very broad about the laws from which a district may exempt itself. Rather than spelling out all the permissible exemptions, Chapter 12A of the Education Code and TEA regulations specify what the district cannot exempt itself from. Notably, Chapter 21 of the Education Code, which establishes the rights of certified educators, is not included in the list of prohibited exemptions. Thus, theoretically, a school board could adopt a DOI plan exempting the district from Chapter 21, provided that the district continued to honor existing contracts. To date, districts have been cautious about this. Many districts have adopted a plan including exemptions from the certification requirement for certain positions. A number of districts have also opted to extend the period of a new teacher’s probationary employment. Hence, employee organizations are likely to push back against any plan that significantly curtails Chapter 21 legal protections. (These protections will be discussed in chapter 6.)

The process of becoming a DOI is initiated by either a board resolution or a petition signed by a majority of the district-level advisory committee and requires a public hearing. To receive this designation, school districts must adopt an innovation plan and submit it to the commissioner, in accordance with the requirements of TEC Chapter 12A and the commissioner’s rules (19 TAC §102.1301 et seq). The school district must receive confirmation that the district has met eligibility standards before submitting the plan for final board approval, which requires a two-thirds majority vote. To be eligible, the district’s most recent performance rating must reflect at least acceptable performance, and the district must meet academic performance and financial accountability standards adopted by the commissioner. A plan may last up to five years, but the commissioner may terminate the plan for failure to meet eligibility standards for two consecutive years. The DOI plan must be submitted to TEA no later than fifteen days after adoption and be clearly posted on the district’s website for the term of designation as a DOI.

THE ROLE OF THE LOCAL SCHOOL BOARD

The governance of school districts is left to local boards of trustees. Section 11.151(b) of the Texas Education Code states that the trustees as a body corporate have the exclusive power and duty to govern and oversee the management of the public schools of the district. All powers and duties not specifically designated by statute to the agency or to the State Board of Education are reserved for the trustees, and the agency may not substitute its judgment for the lawful exercise of those powers and duties by the trustees. Accordingly, the local school board may acquire and hold real and personal property, sue and be sued, receive bequests and donations, and sell real and personal property belonging to the district. In addition to these general powers, the legislature has outlined several specific responsibilities of the board of trustees, including to establish community relationships; adopt a vision statement and comprehensive goals; publish an annual educational performance report; adopt an annual budget and tax rate; monitor finances and publish a yearly financial report; adopt a grievance process for personnel, students, parents, and the community to present complaints to administrators and the board; make contract termination and nonrenewal decisions; issue bonds and collect taxes; enter contracts; adopt an employment policy; and employ and evaluate the superintendent (TEC §§11.051, 11.1511, and 11.1513). The board of trustees of an independent school district or the governing board of an open-enrollment charter school shall also provide oversight regarding academic achievement and strategic leadership for maximizing student performance (TEC §11.1515). On the request of a board of trustees, TEA shall create an Internet website that board members may use to review campus and district academic achievement data and compare performance with similar districts. The commissioner must develop a research-based improvement and evaluation tool designed to assist school boards with this task (TEC §11.182).

The law clarifies that unless authorized, a trustee may not act individually on behalf of the board (TEC §11.051(a-1)). A trustee may act only by majority vote at a lawful meeting where a quorum of the board is present and voting. As long as a quorum is present, a motion will pass by majority vote, even if a member of the quorum abstains (Att’y. Gen. Op. GA-0689, 2009).

The majority of Texas school districts elect their board members in at-large elections. However, at the urging of minority voters, many school districts have replaced the at-large system with single-member districts. In a single-member system, the school district is divided into five or more separate election districts, each with its own trustee position. Thus, each election district will be assured that at least one trustee is from that area and represents the special concerns or needs of that district. (TEC §§11.052–11.053 govern how to change an at-large system to a single-member system.)

In 2013 the U.S. Supreme Court struck down as unconstitutional the coverage formulas of the Voting Rights Act of 1965, which had been used since the 1960s to determine whether states required federal supervision prior to making changes in voting laws and procedures, such as changing from an at-large system to single-member districts. The case effectively abolished the requirement to obtain permission (known as preclearance) from the U.S. Justice Department prior to implementing a change until Congress develops updated formulas (Shelby County v. Holder, 2013).

School board trustees serve without compensation for a term of three or four years (TEC §§11.059, .061). Trustees are either elected by the voters in the school district or, in some cases, appointed to fill a vacancy. Elections for trustees with three-year terms are held annually, with one-third of the terms expiring each year. Elections for trustees with four-year terms are held biennially, with one-half of the terms expiring each biennium. The staggered terms assure continuity to school board functioning. Trustee elections must be held jointly with either the general election for state and county officers or the election for members of the governing bodies of municipalities, counties, hospital districts, or public junior college districts. To be an eligible candidate for, or elected or appointed to, the office of school board member, a person must be a U.S. citizen, be 18 years of age or older, have not been determined by a court to be totally mentally incapacitated or partially mentally incapacitated without the right to vote, have not been convicted of a felony or the offense of soliciting prostitution under Texas Penal Code section 43.021, have resided continuously in the state for twelve months and in the district for six months, and be registered to vote in the district (TEC §141.001(a); TEC §11.066). A person must be a qualified voter to be eligible for office as a trustee (TEC §11.061).

The SBOE is required to provide a training program for school board members through the regional education service centers. In turn, the SBOE requires trustees to complete continuing education in multiple areas, including local district orientation, orientation to the Education Code, three hours of training every two years on evaluating student academic performance, and one hour of training every two years on identifying and reporting abuse and trafficking (19 TAC §61.1(b)). Local school districts can offer some types of training, such as orientation to the district’s policies and procedures for new trustees. Other training programs are offered through professional associations such as the Texas Association of School Boards (TASB).

THE SUPERINTENDENT

The superintendent is the educational leader and chief executive officer of a school district, responsible for implementing the board’s policies and vision (TEC §11.201(a)). Every school district needs a superintendent. It is commonly said that the superintendent is the board’s only direct employee; the superintendent is the chief supervisor of all the district’s other employees.

The board by policy must accord the superintendent the sole authority to make recommendations to the board regarding the selection of all personnel other than the superintendent and may delegate final authority for hiring to the superintendent (TEC §11.1513(a)(2)). The board and superintendent shall collaborate to accomplish specific goals set out in statute, such as promoting community support for high student achievement, providing educational leadership, and supporting professional development of principals, teachers, and staff (TEC §11.512).

The Education Code also enumerates duties assigned to the superintendent. Among them are responsibility for the operation of the educational programs, services, and facilities; assigning and evaluating personnel; making personnel recommendations to the board; preparing recommendations for policies to be adopted by the board and overseeing implementation of adopted policies; and ensuring a student code of conduct is adopted and enforced. The superintendent also is responsible for managing district operations, developing and administering a budget, and organizing the district’s central administration (TEC §11.201(d)). A candidate for certification as a superintendent may substitute management training or experience for part of the educational requirements.

School district funds cannot be used to pay an administrator who has not been appraised in the preceding fifteen months (TEC §21.354(d)). A board shall appraise its superintendent annually using either the commissioner’s recommended appraisal process and criteria or an appraisal process and performance criteria developed by the district in consultation with district- and campus-level committees and adopted by the board (TEC §21.354(c)).

THE PRINCIPAL

The campus principal is the frontline administrator, with statutory responsibility under the direction of the superintendent for administering the day-to-day activities of the school. Principals have six major functions, as listed in TEC Section 11.202. Based on criteria developed in consultation with the faculty, they have general approval power for teacher and staff appointments to the campus from a pool of qualified applicants. Principals set campus education objectives, develop budgets, and administer student discipline. They also assign, evaluate, and promote campus personnel and make recommendations regarding suspension, nonrenewal, and termination.

The certification requirements for principals developed by the State Board for Educator Certification must be sufficiently flexible so that an outstanding teacher may substitute approved experience and professional training for part of the educational requirements (TEC §21.046). The legislature increasingly has emphasized the importance of recruiting and retaining the highest caliber of personnel for the principalship. School boards are required to institute multilevel screening processes, validated comprehensive assessments, and flexible internships with successful mentors to determine whether a candidate for certification as a principal is qualified.

Believing that principals bear the most responsibility for school improvement, the legislature has given them more authority than in the past to operate their schools. At the same time, principals are held more accountable for their work through the appraisal process (TEC §21.3541). Principals must be appraised annually, using either a locally developed system or the commissioner’s recommended system, currently the Texas Principal Evaluation and Support System (T-PESS). The standards under T-PESS include demonstrating instructional and executive leadership designed to improve student learning, ensuring high-quality teachers, establishing a culture of high expectations, and implementing strategic operations designed to align with the school’s vision and improve quality of instruction (19 TAC §149.2001). In addition, TEC Section 39.307 provides that when evaluating principals, superintendents shall give primary consideration to the campus performance report assembled each year by school districts. Likewise, school boards shall give primary consideration to the district performance report in evaluating superintendents. With increased responsibility comes the risk of increased liability. For example, principals must be familiar with employment law in order to carry out their personnel responsibilities effectively and lawfully. (The topic of liability will be discussed in chapter 10.)

DISTRICT- AND CAMPUS-LEVEL DECISION-MAKING

Despite the authority given to local school boards and administrators, the Texas Legislature increasingly has sought to flatten the decision-making pyramid by involving others in district