The Educator's Guide to Texas School Law

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The Educator's Guide to Texas School Law

Seventh Edition

By Jim Walsh, Frank Kemerer, and Laurie Maniotis

Now thoroughly rewritten and updated throughout—the standard legal resource for Texas educators, which has sold more than 70,000 copies.

2010

$60.00$40.20

33% website discount price

Hardcover

6 x 9 | 510 pp. | 2 figures, 6 tables

ISBN: 978-0-292-72292-7

$26.95$18.06

33% website discount price

Paperback

6 x 9 | 510 pp. | 2 figures, 6 tables

ISBN: 978-0-292-72293-4

Much has changed in the area of school law since the first edition of The Educator's Guide was published in 1986. In this new seventh edition, the authors have streamlined the discussion by pruning older material and weaving in new developments. The result is an authoritative source on all major dimensions of Texas school law that is both well integrated and easy to read.

Intended for Texas school personnel, school board members, interested attorneys, and taxpayers, the seventh edition explains what the law is and what the implications are for effective school operations. It is designed to help professional educators avoid expensive and time-consuming lawsuits by taking effective preventive action. It is an especially valuable resource for school law courses and staff development sessions.

The seventh edition begins with a review of the legal structure of the Texas school system. Successive chapters address attendance and the instructional program, the education of children with special needs, employment and personnel, expression and associational rights, the role of religion in public schools, student discipline, open meetings and records, privacy, search and seizure, and legal liability under both federal and Texas law. In addition to state law, the book addresses the growing role of the federal government in school operation through such major federal legislation as the Americans with Disabilities Act, the Individuals with Disabilities Education Act, and the No Child Left Behind Act.

  • Preface
  • Acknowledgments
  • 1. An Overview of Education Law, Texas Schools, and Parent Rights
    • Sources of Law
      • Constitutional Law
      • Statutory Law
      • Administrative Law
      • Judicial Law
    • The Structure and Governance of the Texas School System
      • Texas Legislature
      • State Board of Education and the Texas Education Agency
      • Local School Districts
      • Charter Schools
      • Private Schools
      • School Administrators
      • District and Campus-Level Decision-Making
    • How the U.S. Constitution and Federal Government Affect Texas Schools
      • Key Provisions of the U.S. Constitution
      • Important Federal Statutes
    • School Finance
    • Parent Rights
      • Rights within Public Schools
      • Choosing Private Schools
      • Educating Children at Home
    • Summary
  • 2. Student Attendance and the Instructional Program
    • Attendance
      • Impermissible Discrimination
      • Residency, Guardianship, and the Right to Attend a District's Schools
      • The Compulsory School Attendance Law
      • Kindergarten and Prekindergarten Programs
      • Absences
    • Maintaining a Safe School Environment
    • The Instructional Program
      • The Required Curriculum
      • Student Assessment
      • School District Accountability
      • The Effect of the No Child Left Behind Act
      • Removal of Objectionable Library and Study Materials
      • Technology at School: Computers, the Internet, and Cell Phones
      • The Federal Copyright Law
    • Extracurricular Activities and the UIL
    • Addressing the Needs of Special Groups
      • At-Risk Children
      • Bilingual Children
      • Gifted Children
      • Abused and Neglected Children
    • Summary
  • 3. Special Education
    • The Jargon of Special Education
    • Federal Legislation
      • Child Find
      • Evaluation
      • Eligibility
      • Response to Intervention (RtI)
      • ARD Committee
      • Individualized Education Program
      • General Curriculum
      • NCLB and Statewide Assessments
      • Least Restrictive Environment
      • Procedural Safeguards
      • Attorneys' Fees
      • FAPE
      • Related Services
      • Extended School Year Services
      • Unilateral Placements
      • Private-School Children
    • Discipline of Students with Disabilities
      • Expulsion
      • Stay Put
      • Change of Placement
      • Ten Days
      • Manifestation Determinations
    • Section 504 of the Rehabilitation Act of 1973
    • Summary
  • 4. The Employment Relationship
    • Constitutional Issues
      • Due Process of Law
      • How Much Process Is Due?
    • Types of Employment Arrangements
      • At-Will Employment
      • Non-Chapter 21 Contracts
      • Probationary Contracts
      • Term Contracts
      • Continuing Contracts
      • Third-Party Independent Contract Educators and Retire/Rehire
    • Selection of Staff
      • Certification and the Role of SBEC
      • Nondiscrimination Laws
      • Protected Activity
      • The Hiring Process
      • Criminal Records
      • The Impact of NCLB
      • Restrictions on Employment
    • Ending the Relationship
      • At-Will Employees
      • Non-Chapter 21 Contracts
      • Probationary Contracts
      • Term Contracts
        • Contract Nonrenewal
        • Contract Termination
        • Suspension without Pay
        • Professional Capacity
        • Dual-Assignment Contracts
        • Remedies
        • Reduction in Force
      • Continuing Contracts
      • The Independent Hearing System
      • A Few Final Thoughts on "Good Cause"
      • Constructive Discharge
    • Summary
  • 5. Personnel Issues
    • Reassignment
      • The Constitutional Issues
      • Same Professional Capacity
      • Compensation Issues
      • Duties and Schedule
      • The Commissioner's Jurisdiction
      • Reassignment of the Superintendent
    • 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
      • USERRA
      • Miscellaneous Leave Policies
    • Wage and Hour Requirements
    • Workers' Compensation and Unemployment Compensation
    • Grievances and the Role of Employee Organizations
      • Employee Grievances: A Little History
      • Hearing Employee Grievances
      • The Role of Employee Organizations
        • Collective Bargaining on the National Scene
        • The Law in Texas
    • Summary
  • 6. Expression and Associational Rights
    • Educator Rights of Expression
      • Expression outside the School
      • Expression within the School
      • Electronic Communication
      • Academic Freedom
      • Texas Whistle Blower Act
    • Educator Freedom of Association
    • Student Rights of Expression
      • Communication among Students on Campus
      • School-Sponsored Student Publications
      • Non-School-Sponsored Student Publications and Materials
      • Electronic Communication
    • Student Freedom of Association
    • Summary
  • 7. Religion in the Schools
    • Legal Framework
      • No Government Establishment of Religion
      • Free Exercise of Religion
    • Contemporary Issues
      • The Pledge of Allegiance
      • School Prayer
        • School-Sponsored or Employee-Led Prayer
        • Silent Meditation
        • Invocations, Benedictions, and Religious Speeches at Graduation
        • Baccalaureate Ceremonies
        • Student-Initiated 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
        • 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
  • 8. Student Discipline
    • Constitutional Concerns: Due Process
    • Other Constitutional Issues
      • Overbreadth
      • Protected Areas
      • Void for Vagueness
    • Chapter 37: An Overview
      • Student Code of Conduct
      • Teacher-Initiated Removal
      • Suspension
      • Removal to a DAEP
        • Mandatory Placements
        • Discretionary Placements
        • Procedure
        • Life in a DAEP
      • Expulsion
        • Grounds
        • Procedures
      • Emergency Actions
      • Interaction with Law Enforcement
    • Other Disciplinary Practices
      • Corporal Punishment
      • Suspension from Extracurricular Activities
    • Summary
  • 9. Privacy Issues: Community, Educators, Students
    • The Legal Framework
      • The U.S. Constitution
      • Federal Statutes
      • State Law
    • The Texas Open Meetings and Public Information Acts
      • Texas Open Meetings Act
        • Committees
        • Meetings and Quorums
        • Notice
        • Emergency Meetings
        • Closed Sessions
        • Tape Recordings and Certified Agendas
        • Meetings by Telephone and Video Conference Call
        • Internet Broadcast
        • Violations
        • Criminal Provisions
      • Texas Public Information Act
        • Items That Must Be Disclosed
        • Personal Information
        • Criminal History Information, Witness Statements, and Investigative Reports
        • Inter or Intraagency Memoranda
        • Student Records
        • Miscellaneous Provisions
        • Production of Records
    • Educator Privacy Rights
      • Lifestyle Issues
      • Employee Drug Testing
      • Personnel Records and Employee References
      • Search of School Computer Files
      • Search of File Cabinets
    • Student Privacy Rights
      • Student Personal Privacy
      • Student Records
        • Parent Rights
        • Education Records
        • Disclosure of Records
        • Recordkeeping
        • Violations
      • Child Custody Issues
      • Student Dress and Grooming
    • Student Search and Seizure
      • Standards for Student Searches
      • Strip Searches
      • Use of Magnetometers, Metal Detectors, and Breathalyzers
      • Locker and Desk Searches
      • Search of Cell Phone
      • Use of Sniffer Dogs to Conduct Searches
      • Student Drug Testing
    • Summary
  • 10. Legal Liability
    • Identifying Areas of Legal Liability
    • State Torts
      • School District Immunity
      • Sovereign Immunity and Contract Cases
      • Qualified Immunity for Public School Professional Employees
      • The Special Case of Corporal Punishment and Physical Force
      • Law and the School Counselor
    • Federal Civil Rights Liability
      • Governmental Liability
      • Personal Injuries and the Constitution
        • A Federally Protected Right
        • The District Itself Is Responsible
        • More Than Negligence
        • A New Theory
      • Individual Liability
      • Liability under Federal Statutory Law
    • Summary
  • Appendixes
    • A. How to Find and Read a Court Case
    • B. Glossary of Legal Terminology
    • C. Reference Sources
  • Index of Cases
  • Index of Topics

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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, private schools, and charter schools. And we discuss the responsibilities of school administrators and the functioning of site-based management. Later sections look at important federal laws affecting the operation of Texas schools and review the long-running controversy over the financing of Texas schools. The chapter ends by examining parent rights in the context of public schools, private schools, and home schooling.

Sources of Law

Constitutional Law

Since 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 centered on whether a finance system resulting in substantial interdistrict disparities is "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 thus is an important source of education law.

Statutory Law

A statute is a law enacted by a legislative body. 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.

Beginning in the early 1980s, the Texas Legislature began taking an increasing interest in improving an educational system that it regarded as deficient. The result has been a plethora of reform laws, which initially were top-down in nature. By the late 1980s, the legislature began shifting authority and responsibility back to school districts and district personnel in the face of evidence that top-down mandates were having only marginal, if not negative, effects on increasing educational quality. In 1995 the legislature embarked on a complete reworking of the Texas Education Code the first major overhaul since 1949. Not only did the legislature produce a more systematic, readable code, it took the opportunity to change, and in some cases streamline, many features of the Texas schooling system. The legislature significantly downsized TEA, gave local districts and school personnel more independence, and provided parents with more authority over the education of their children. It also expanded parent options through the establishment of charter schools.

Many other state statutes besides the Texas Education Code affect the activities of local schools, and we will discuss them in the succeeding chapters. One point worth emphasizing now is that, despite their essentially local character, public school districts are governed by the state. The present system of some 1,045 Texas school districts and nearly 6,200 individual school campuses could be changed should the legislature desire, given the latter's authority over public education under the Texas Constitution.

Federal statutes also have significant influence over the operation of public schools in the state. Some of the more important are described later in this chapter. Since the power to establish and operate schools is not one that the U.S. Constitution delegates to the federal government, most federal laws affecting education are passed pursuant to the Congress's power to collect taxes and spend for the general welfare. As the late Supreme Court Justice William O. Douglas noted in a famous case, Lau v. Nichols (1974), "the Federal Government has power to fix the terms on which its money allotments . . . shall be disbursed" (p. 569). Thus, these laws contain the "strings" the federal government attaches to the use of its money. Schools receiving direct or indirect federal assistance must comply with the conditions the government attaches. Good examples are Section 504 of the Rehabilitation Act of 1973, which prevents discrimination on the basis of disability in any program "receiving federal financial assistance," and the more recent No Child Left Behind Act of 2001, which, in an effort to raise student achievement levels, imposes strict accountability standards on schools located within states, including Texas, that receive Title I funds from the federal government.

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, as developed by the Department of Education. These regulations are designed by the implementing agency to apply the law to the realities of day-to-day schooling and of necessity 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 State Board of Education and the Texas Commissioner of Education. The rules that they enact are grouped together in volume 19 of the Texas Administrative Code (TAC).

The policy manuals and handbooks developed by local school districts are excellent close-to-home examples of administrative law. TEC §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.

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 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). In recent years, the commissioner has defined his jurisdiction narrowly under the terms of §7.057. For example, the commissioner has ruled that he has no jurisdiction over the following types of complaints:

  • Code of ethics violations (Williams v. Port Arthur I.S.D., 2003);
  • Violations of school board policies (Williams v. Port Arthur I.S.D.);
  • Violations of constitutional rights, unless implicated in a contract dispute (Barborak v. Oakwood I.S.D., 1999);
  • Violations of other statutes, e.g., the Texas Government Code (McCulley v. San Benito C.I.S.D., 2004), the Family Educational Rights and Privacy Act (FERPA) (T.M. v. Cypress-Fairbanks I.S.D., 2003), whistle-blower protections (Rodriguez v. Laredo I.S.D., 2000), and discrimination laws (Rios v. Pharr-San Juan-Alamo I.S.D., 2003);
  • Disputes over student grades, class rank, graduation honors, or transfer requests (Tidmore v. Mineral Wells I.S.D., 2001; Charles B.S. v. Elysian Fields I.S.D., 2002; Michael S. v. Northeast I.S.D. Board of Trustees, 2002);
  • Claims for lost earning capacity, damage to reputation, and lost future contracts (Padilla v. McAllen I.S.D., 2006); and
  • Violations of Education Code statutes that do not place a specific duty on a school district (Rectenwald v. Waco I.S.D., 2006).

The complaining party must identify what specific section of the Education Code or rule adopted under the Code allegedly has been violated (Williams v. Port Arthur I.S.D.) and must allege the statute that provides the basis for the commissioner's jurisdiction (Nassar v. Hurst-Euless-Bedford I.S.D., 2008). As presently worded, §7.057 applies neither to student disciplinary actions nor to the termination or nonrenewal of professional employee contracts, since those matters have their own appeal procedures, as noted in Chapters 8 and 4, respectively. When federal and state laws are incorporated into a written employment contract, the commissioner will defer to the enforcement mechanisms in place for those laws (Rios v. Pharr-San Juan-Alamo I.S.D.). If a material district policy has been incorporated into the contract, the claimant must identify the specific policy and allege how it was violated. Plus, the individual must allege what monetary harm results or would result. If an individual's complaint arises from a law that is referenced but not contained in Title I of the Education Code, the individual is not required to present the claim to the commissioner before filing suit but may choose to do so.

Before appealing to the commissioner, the person first must exhaust administrative remedies within the school district. As the courts and the commissioner have noted on numerous occasions, this includes seeking redress before the school board (Tijerina v. Harlandale I.S.D., 2006), and filing grievances, where appropriate (see Chapter 5). A Texas court of appeals has noted several exceptions to the exhaustion requirement, including where: (1) the aggrieved party will suffer "irreparable harm" and the administrative agency is unable to provide relief, (2) the claims are for a violation of a constitutional or federal statutory right, (3) the cause of action involves pure questions of law and the facts are not disputed, (4) the commissioner lacks jurisdiction over the claims, (5) the administrative agency acts without authority, or (6) the claims involve parties acting outside the scope of their employment with the school district (Dotson v. Grand Prairie I.S.D., 2005).

When the commissioner hears an appeal against an action or decision by a school district, the commissioner most often reviews the written record of the school district hearing to determine if there was substantial evidence to support the board's decision. In some instances, the commissioner conducts an evidentiary hearing and has much the same authority as a state district judge to issue subpoenas, take depositions, and order production of documents in an effort to determine the facts. However, unlike those of a judge, the powers of the commissioner are limited to directing districts to comply with state law. The commissioner cannot issue restraining orders, assess fines, or order contested items removed from a personnel file. Also, unlike a judge, the commissioner does not hear the cases personally. Rather, licensed attorneys acting as TEA hearing officers conduct the hearings and draft decisions for the commissioner to review and sign. The commissioner has 180 days to hold a hearing and issue a decision after an appeal is filed (TEC §7.057).

The commissioner has developed a set of rules governing these hearings and appeals in the interest of efficiency and fairness. Both the rules and the hearing decisions from the local board on up are classified as administrative law. Figure 1 illustrates the overall structure of Texas administrative law. School districts, like other governmental entities in the state, now have the option under state law of seeking to resolve disputes through what is called "alternative dispute resolution" (ADR). This process involves a trained impartial third party who works with the parties in conflict to reach agreement short of litigation. The details are spelled out in Chapter 2009 of the Local Government Code.

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, as previously noted, when a person wants to contest a school board decision that 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 appellant'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. The reason for the exhaustion requirement is obvious. Administrative agencies are staffed by persons familiar with the educational setting and, theoretically, 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 appeal 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 under state law against a school district or an officer or employee of the district who is pursuing official duties (TEC §§11.161, 22.055). State law, however, provides specific protection for persons who report suspected violations of law. The Texas Whistle Blower statute is discussed at some length in Chapter 6.

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 are those involving some provision of the U.S. Constitution (e.g., freedom of speech), a federal statute, or a federal treaty. Since 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 present 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., which, of course, has the last word for the entire country. Unlike most other courts, the U.S. Supreme Court has the authority to decide which cases it will hear. From as many as eight thousand cases filed annually for review, the Justices will select fewer than two hundred for a full hearing. Thus, most federal questions are resolved by the 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 schooling.

One might assume that state and federal case law has relatively little impact on Texas public education, compared with state statutes and administrative rules and regulations. However, since the late 1960s, courts have been increasingly involved in a maze of litigation involving the day-to-day management of schools. The rulings they hand down have become an important part of school law and are ignored at one's peril.

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.

The Structure and Governance of the Texas School System

Texas Legislature

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. The nearly continuous flow of reform legislation since 1980 makes it readily apparent that the legislature is the biggest player in Texas education. 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. However, TEC §7.103(c) prevents a person who registers as a professional lobbyist from serving as a school board member or acting as the general counsel to the board.

State Board of Education and the Texas Education Agency

Formerly the policy-making body of the Texas Education Agency (TEA), the State Board of Education (SBOE) was separated from TEA by the Texas Legislature in 1995 and given a reduced role in the public school system. An elected body of fifteen members, the state board 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 §7.102 are establishing a state curriculum and graduation requirements, determining the standard for satisfactory student performance on assessment instruments, adopting and purchasing state textbooks, and investing the permanent school funds. The board also is charged with granting charters for open-enrollment schools, a subject to be discussed later in the chapter. The SBOE now 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).

Occasionally, a dispute will arise whether the SBOE has the authority to act in certain situations. The attorney general has advised that the state board is not free to establish general content standards for textbooks as a condition of board approval (Att'y. Gen. Op. GA-0456, 2006). Instead, the board must identify the Texas Essential Knowledge and Skills (TEKS) standards by which textbooks must be judged, then review the books for factual errors and physical specifications (TEC §§28.002, 31.023). From there, the board places the books on either a conforming or nonconforming list. In addition, the SBOE now is required to adopt and place on a conforming or nonconforming list open-source textbooks, i.e., online electronic textbooks that can be downloaded at no charge to a student, which are submitted by certain universities or public technical institutes subject to conditions outlined in the statute (TEC §31.0241). Further, the commissioner may issue a request for proposal to purchase a state-developed open-source textbook pursuant to TEC §31.071. In adopting textbooks, the board must "foster the continuation of the tradition of teaching United States and Texas history and the free enterprise system." The board may regulate textbook content only to the extent of these specific statutory powers. Districts now may choose electronic textbooks and other instructional materials from a list adopted by the commissioner in consultation with the SBOE (TEC §31.0231). Each year the district must certify to the SBOE that all textbooks and materials selected cover the TEKS for each subject in the foundation curriculum (TEC §31.004).

The Texas Education Agency now is composed of the Texas Commissioner of Education and the 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 clearly is evident in the wording of TEC §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 §7.021 lists fourteen educational functions that TEA is to perform. 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 and executive secretary of the State Board of Education. 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 (TEC §§39.102-.103). 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 and performing duties associated with the guaranteed bond program.

Operating under the oversight of the Texas Commissioner of Education, the twenty Regional Education Service Centers located throughout the state 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.

Funding for the service centers is provided by the state through the Foundation School Program and state appropriations. The centers may offer additional services requested and purchased by school districts and may seek grant support for various purposes. 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 are discussed in Chapter 10.

Local School Districts

The governance of schools 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 those 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, including academic and fiscal performance goals; establish district and campus-level decision-making processes; publish an annual educational performance report; adopt an annual budget and tax rate; monitor finances and publish a yearly financial report; conduct elections; adopt a grievance process through which personnel, students, parents, and the community may present complaints to administrators and the board; make contract termination and nonrenewal decisions; issue bonds and levy, pledge, assess, and collect taxes; enter contracts; adopt an employment policy; employ and evaluate the superintendent; and ensure that the superintendent achieves results, strives to meet performance goals, and implements appropriate programs and procedures in major areas of district operations (TEC §§11.051, 11.1511, and 11.1513).

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 together to promote community support for high student achievement; provide educational leadership; and support professional development of principals, teachers, and staff (TEC §11.512).

TEC §11.157 allows districts to contract with a public or private entity to provide educational services for the district. If it does so, the district must ensure that the vendor complies with state statutory requirements applicable to public school districts (Att'y. Gen. Op. DM-355, 1995).

TEC §11.158 allows school boards to charge fees for a number of activities, such as membership dues in voluntary student organizations, security deposits for return of materials, parking, and educational programs outside school hours for making up lost instruction due to absences. The board may not charge fees for textbooks, school lockers, required field trips, and library books, to name a few such items. However, TEC §31.104 permits a district to fine a student who fails to return in satisfactory condition all textbooks and technological equipment issued to the student. The student is not eligible for future books or equipment until the fine is paid, but the district may waive the fee for low-income families. TEC §11.162 allows school boards to require the wearing of school uniforms, provided that the uniforms are furnished free of cost to the "educationally disadvantaged." Children of parents who have a religious or philosophical objection to the requirement are exempted upon written parental request or are entitled to transfer to a school where uniforms are not required. See Chapter 9 for a discussion of student dress codes and uniform policies.

The law clarifies that unless so 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 board must allow the superintendent to present an oral or written recommendation concerning any item up for a vote at a meeting.

The majority of Texas school districts elect their board members in at-large elections. Increasingly, however, minority voters are asserting that single-member districts should replace the at-large system. 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 at least one trustee who is from that area and represents the special concerns or needs of that election district. TEC §§11.052-11.053 govern the changing of an at-large system to a single-member system. A single-member system must be submitted to the U.S. Justice Department for approval under the 1965 Voting Rights Act.

Litigation continues in Texas on the single-member-district option. In order to show that an at-large election system violates the Voting Rights Act and should be replaced with a single-member system, minority residents need to establish that the minority group is sufficiently large and geographically concentrated to constitute a majority in a proposed single-member district, that the group is politically cohesive, and that the white majority generally votes as a bloc to defeat the minority group's preferred candidate. This is not an easy test, and minority groups have had a hard time meeting it (Perez v. Pasadena I.S.D., 1999; Valdespino v. Alamo Heights I.S.D., 1999). However, a federal judge ruled in July of 2009 that the City of Irving's at-large method of electing members to the city council violated §2 of the Voting Rights Act by "weighing heavily" against the ability of Hispanic voters to elect their candidate of choice, and he ordered the parties to agree upon a new election system or come up with separate proposed plans (Benavidez v. City of Irving, 2009).

School board trustees serve without compensation for a term of three or four years (TEC §11.059). Elections for trustees with three-year terms are held annually, with one-third expiring each year. Elections for trustees with four-year terms are held biennially, with one-half expiring each biennium. The staggered terms assure continuity to school board functioning. With limited exceptions, trustee elections must be held jointly with either municipalities, counties, or in certain instances hospital districts, in either May or November, as appropriate. Districts must share common polling locations with the other political subdivision and have a written joint election agreement (TEC §11.0581). A person must be an eligible voter to be qualified for office as a trustee. The SBOE is required to provide a training program for school board members through the regional service centers. Other training programs are offered through professional associations such as the Texas Association of School Boards (TASB). TASB is a comprehensive private organization that provides a host of 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.

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 relatively free of state regulation. The charter usually is granted either by a local school district or state agency and describes the school's mission, educational program, and accountability requirements. Failure to conform to the charter can result in its revocation. Three forms of charter schools emerged from the 1995 legislative session: home-rule school district charters, campus charters, and open-enrollment charters. Their key features are outlined in Table 3.

Home-rule school district charters allow school districts to free themselves from most state requirements. TEC §12.012 provides that home-rule districts are subject only to those state laws and administrative rules that specifically apply to them. TEC §12.013 sets forth a list of state requirements that, in addition to the mandates in federal laws on such matters as special education and nondiscrimination, must be followed. These include the laws pertaining to educator certification, student admissions and attendance, high school graduation requirements, class size restriction for low-performing schools, public school accountability, state purchasing, and accreditation sanctions.

If at least 5 percent of the registered voters of a school district sign a petition or two-thirds of the school board members adopt a resolution, the district is required to appoint a fifteen-member commission to develop a charter. The charter must address such matters as educational programming, governance structure, acceptable levels of student performance, and the budgeting process (TEC §12.016). The proposed charter becomes effective if adopted by majority vote in an election where at least 25 percent of the registered voters in the district participate. The 25 percent requirement remains a significant hurdle for many districts to overcome, and to date there are no home-rule district charter schools in Texas.

Under the second charter option, a school district board of trustees or governing body of a home-rule school district may grant a charter to parents and teachers to operate a campus or program free from most regulation, including district instructional and academic requirements, if presented with a petition signed by the majority of parents and teachers at the school (TEC §12.052). Cooperative charters involving two or more campuses also may be approved. A school board may not arbitrarily deny approval of a charter. This means that, while boards have discretion in approving proposed campus charters, they can only reject a charter for cause.

The proposed campus charter must describe the educational program, acknowledge that continuation of the charter is dependent upon satisfactory student performance, specify the conditions under which the charter may be placed on probation or revoked, prohibit various forms of discrimination, describe the governing structure, specify health and safety measures, and provide for an annual audit (TEC §12.059). The governing body of the campus or program is subject to the provisions of the Texas Open Meetings and Public Information Acts. These statutes are discussed in Chapter 9. While the campus charter school has a good deal of autonomy within the district, the school board retains legal responsibility for its activities.

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 (TEC §12.056). But campus charter schools are exempt from most other provisions of the Code. TEC §12.065 provides that geography and residence are to be given first priority in student admissions, thus preserving the concept of the neighborhood school. Age, grade level, and academic qualifications are secondary considerations. Each school district must adopt a campus charter and a campus program charter policy, outlining the approval process, statutory requirements, and items to include in the application (TEC §12.058).

Open-enrollment charter schools constitute the third charter option and to date are the most popular. Initially restricted to granting 20 open-enrollment charters, the State Board of Education today has authority to grant up to 215 (TEC §12.101). The SBOE can grant a charter to a public or private institution of higher education, including a junior college, a tax-exempt organization, or a governmental entity, and the school may operate in the facility of such an eligible entity (TEC §§12.101, 12.151). Charter schools operating at universities and junior colleges do not count toward the cap of 215. While for-profit organizations may not receive charters, they may subcontract with organizations that do.

{Insert Table 3 here}

The law requires that each application for an open-enrollment charter school describe the governance structure of the school, including information about officer positions and their selection and removal. No person convicted of a felony or a misdemeanor involving moral turpitude may serve on the governing board. Charter schools must file with the SBOE a copy of the school's bylaws; names, addresses, and phone numbers of board members; and information about any board member compensation. All this information is available to parents and to the media. Further, open-enrollment charter schools must prepare an annual financial statement and make it available under the Public Information Act.

Like the other two forms of charter school, open-enrollment charters are exempt from most state laws and rules other than those specified in the Education Code. The governing boards of open-enrollment charter schools specifically 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 State Board of Education), 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 §12.104 (similar to the list for the other forms of charter), which now also includes the accelerated instruction and high school graduation requirements. Open-enrollment charter schools also must offer the state-required curriculum.

The components of the charter also are similar, with the addition of such items as specification of grade levels, qualifications of professional employees (state teacher certification is not required), facilities to be used, and enrollment criteria. An open-enrollment school's charter also must specify the manner in which the school will notify parents of the qualifications of professional employees. The minimum qualification is a high school diploma. Further, the charter school operators must obtain criminal history information for all employees and volunteers.

Open-enrollment charter schools may attract students either from within a school district or across district lines in competition with existing public and private schools. They may not admit students until the school has published a notice in a local newspaper that it is accepting applications. 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, they may reject students who have committed criminal offenses or who have a history of disciplinary problems. They can provide instruction at one or more elementary or secondary grade levels contingent upon satisfactory student performance. Open-enrollment charter schools may not charge tuition and must provide transportation on the same basis as existing school districts. 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.

Restrictions on who can serve on charter school boards have been tightened up. Thus persons who have a substantial interest in a management company selected to operate the school, employees of the company, and members of its governing board are barred from being school board members. Members of the governing body of a charter school or a charter holder must undergo board member training pursuant to 19 TAC §100.1102.

To relieve concern about liability, an open-enrollment charter school, its employees, and its volunteers are entitled to the same immunity from lawsuits as traditional public schools and their personnel (TEC §12.1056). This immunity also extends to employees of charter holders (i.e., organizations that operate charter schools) where those employees are engaged in "matters related to the operation of an open-enrollment charter school" (Rosencrans v. Altschuler, 2004). Board members are immune from liability to the same extent as public school district trustees.

Several provisions have been enacted relating to a private management company selected by the charter recipient to run the charter school. Among other things, the records relating to the school must be kept separate from other records of the company. The company may not loan money to the school. If the company fails to function effectively, the commissioner of education has the authority to terminate the contract between the company and the school. The company can be liable for any damages incurred by the state as a result of mismanagement.

The power for modifying, placing on probation, revoking, or nonrenewing an open-enrollment charter has been shifted from the SBOE to the commissioner of education. The commissioner can impose a range of sanctions for schools that (1) violate their charters (including failing to satisfy accountability provisions), (2) fail to satisfy generally accepted accounting standards of fiscal management, (3) fail to comply with applicable laws, or (4) fail to protect the health, safety, or welfare of their students. For example, one charter school was closed for violating numerous state and federal laws, failing to comply with Generally Accepted Accounting Principles (GAAP), and engaging in conflicts of interest. The charter school had significantly overstated its average daily attendance to the tune of $1.3 million in overpayments by the state, had overreported the number of free or reduced-price meals it had served at an overpayment of $83,000 by the state, and had failed to provide special education services, among numerous other violations (Texas Education Agency v. Open-Enrollment Charter of Prepared Table, Inc., 2002). The commissioner determined it was in the best interests of the students that the school not reopen for the following school year. The commissioner also may temporarily suspend funding for a deficient school and may audit the records of the school, its charter holder, and a company selected to manage the school. However, the commissioner may conduct only one financial or administrative audit of a charter school in a fiscal year, absent specific cause to conduct more (TEC §12.1163).

Given that charter schools have no taxing authority, the legislature recognized that such schools have been seriously handicapped by a lack of start-up funding and training. To help in this area, the legislature has given charter schools the opportunity to issue revenue bonds for the acquisition, construction, repair, or renovation of educational facilities. Further, a municipality that has a charter school now 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). Any property purchased or leased with public money is public property. Charter schools also are entitled to receive state funding pursuant to Chapter 42 of the Education Code. Moreover, charter schools now have access to the same level of services from regional service centers as school districts and may be represented on service center boards. Where at least one open-enrollment charter school is operating within the boundaries of a Regional Education Service Center, the commissioner must appoint a representative of the schools in the region to serve as a nonvoting member of the board of directors (19 TAC §53.1002). In addition, the commissioner may permit charter schools to participate in any state program open to traditional public schools, such as a purchasing program.

Private Schools

In a seminal 1925 decision, the U.S. Supreme Court ruled that the states cannot require all children to attend public schools only (Pierce v. Society of Sisters). Such a requirement, the Court held, would deprive private school operators of their constitutionally protected property right to operate a business and would interfere with the rights of parents. In upholding the right of private schools to coexist with public schools, the high court noted that "No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare" (p. 534).

States have relied on this passage for years to set standards for private schools encompassing such matters as compliance with health and safety regulations, length of the school year, and enrollment reporting. Less frequently, states have included certification of teachers and curricular specifications. In 1996 the U.S. Court of Appeals for the Sixth Circuit upheld adding state student testing to the list (Ohio Association of Independent Schools v. Goff). While there have been challenges to state regulation on the basis of unreasonableness and unconstitutional interference with First Amendment freedoms, especially freedom of religion, states generally prevail.

State regulation of private schools in Texas has not generated very much litigation over the years. The reason is that the Texas Education Agency ceased accrediting private schools in 1989. Instead, the commissioner of education has endorsed the accreditation decisions of a consortium of private school accreditation associations called the Texas Private School Accreditation Commission (TEPSAC), located in San Antonio. The commissioner recognizes the standards for accreditation of private schools by TEPSAC as being comparable to those applied to public schools. Consequently, student credit earned in TEPSAC-accredited schools is transferable to Texas public schools, and teacher service has been recognized for salary increment purposes in public schools. Though not required to do so, many private schools seek TEPSAC accreditation as a means of demonstrating the quality of their programs and facilitating entry of their graduates into Texas public colleges and universities. While private schools are not required to follow the state curriculum and student assessment program or employ certified teachers and administrators, they are not exempt from basic health and safety laws passed by local, state, and federal governments.

Private schools also are subject to selected federal civil rights laws such as Title VII of the 1964 Civil Rights Act, which outlaws discrimination in employment, though exemptions may apply for very small schools and those with religious affiliation. Most private schools are not subject to the federal laws that require receipt of federal funding to be applicable. Statutes falling into this category include the Individuals with Disabilities Education Act, Title IX of the 1972 Education Amendments (forbidding sex discrimination), and the No Child Left Behind Act.

In 1976 the Supreme Court ruled that private schools cannot discriminate in admissions on racial grounds, under another federal statute that we will discuss later in this chapter, 42 U.S.C. §1981 (Runyon v. McCrary). This decision had great significance for the so-called freedom schools, or "white academies," established during the desegregation of public schools in the South. The Runyon case did not involve private religious schools that refuse to admit minority children for religious reasons. That issue arose in a 1983 Supreme Court ruling, Bob Jones University v. United States, involving the Internal Revenue Service's curtailing tax-exempt status to discriminatory schools. In an 8-1 decision, the Court upheld the IRS. Writing for the majority, Chief Justice Warren Burger rejected the contention that racial discrimination could be justified by religious doctrine, a view espoused by Bob Jones University and Goldsboro Christian Schools, another institution involved in the suit. "The government has a fundamental, overriding interest in eradicating racial discrimination in education. . . . [T]hat governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs" (p. 604).

School Administrators

The superintendent is the chief operating officer of the public school district, responsible for implementing the policies of the board. TEC §11.201 lists eleven superintendent duties. Among them are responsibility for the operation of the educational programs, services, and facilities of the district and appraisal of the staff; assigning and evaluating personnel; and making personnel recommendations to the school board. The superintendent also is responsible for managing district operations, developing and administering a budget, organizing the district's central administration, consulting with district-level committees, ensuring adoption and enforcement of the student code of conduct and other disciplinary rules, submitting required reports, and providing joint leadership with the board (TEC §11.201(d)).

The school 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 seven major functions, as listed in TEC §11.202. Based on criteria developed in consultation with the faculty, they have approval power for teacher and staff appointments to the campus from a pool of applicants selected by the district or who meet the district's hiring requirements, but they can be overridden by the superintendent regarding teacher placement resulting from enrollment shifts or program changes. Principals set campus education objectives through the planning process, develop budgets, and are responsible for student discipline. They also assign, evaluate, and promote campus personnel, as well as make recommendations to the superintendent regarding suspension, nonrenewal, and termination of personnel.

The certification requirements for principals developed by the State Board for Educator Certification (addressed in more detail in Chapter 4) 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). Further, qualifications for certification as a superintendent or principal must allow the substitution of management training and experience for part of the educational requirements. 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 principals to be the persons with 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 §21.354). The appraisal of a school principal must include consideration of the performance of the campus on the student achievement indicators set forth in TEC §39.053 and on the campus objectives established under TEC §11.253. The legislature appears particularly serious about administrator appraisal. School district funds cannot be used to pay an administrator who has not been appraised in the preceding fifteen months. In addition, TEC §39.307 provides that the campus performance report assembled each year by school districts shall be a primary consideration of superintendents in evaluating principals. Likewise, the district performance report is to be a primary consideration of school boards in evaluating school superintendents. These reports will be discussed in more detail in Chapter 2. With increased responsibility also comes increased liability. For example, principals must be familiar with employment law in order to carry out their personnel responsibilities effectively and without legal liability. The general topic of liability is discussed in some depth in Chapter 10.

District and Campus-Level Decision-Making

Despite the authority given to local school boards, the Texas Legislature since 1990 increasingly has sought to "flatten the decision-making pyramid" by involving others in district and campus governance. Over the years, these requirements have become more complex. TEC §11.251 requires the establishment of committees at the district and campus level to participate in establishing and reviewing educational plans, goals, performance objectives, and major classroom instructional programs. The committees are to include professional staff, parents, community members, and business representatives. The latter need not reside in the district. In partnership with the district-level committee, the board also is required to delineate the roles of those involved in planning, budgeting, curriculum, staffing, staff development, and school organization at both the district and campus level.

TEC §11.251 requires each board to have a procedure for the nomination and election of professional staff representatives to the district-level committee (two-thirds must be classroom teachers; one-third must be other campus and district-level professional staff) and to establish procedures for selecting the other members and for holding meetings periodically with the board or board designee. The statute stipulates that the committee process is not intended to limit the power of the board to manage and govern the schools and is not to be construed as a sanction for collective bargaining. Nor is the statute intended to restrict the board from conducting meetings with teacher groups or receiving input from students, paraprofessional staff, and others.

A companion statute, TEC §11.253, requires that the school principal regularly involve the campus committee in planning, budgeting, curriculum, staffing, staff development, and school organization. Otherwise advisory, the committee does have approval power over the portion of the improvement plan addressing staff development. The membership of the campus committee and its selection are similar to those of the district-level committee. Like the district-level process, campus-level decision-making is not to be construed as any form of collective bargaining.

Using the deliberative processes set forth in these statutes, school boards and campus administrators are required to engage in an annual planning and improvement process linked to student achievement. Each district's improvement plan is to encompass such matters as a comprehensive needs assessment addressing student performance on the student achievement indicators set forth in TEC §39.053, performance objectives, and strategies for improving student achievement. Among the strategies to be discussed are those relating to the need for special programs, dropout reduction, integration of technology in instructional and administrative programs, discipline management, and staff development (TEC §11.252). Each campus's improvement plan must assess every student's performance using the student achievement indicators, identify how campus goals will be met, determine the resources and staffing needed, set timelines, and establish a periodic assessment process (TEC §11.253). The campus improvement plan also must include goals and methods for preventing and intervening in campus violence, as well as a program for encouraging parental involvement. Every campus-level committee must hold at least one public meeting per year, after receiving the annual campus rating from TEA, to discuss campus performance as well as the campus performance objectives.

How the U.S. Constitution and Federal Government Affect Texas Schools

Key Provisions of the U.S. Constitution

Until recently, the role of Congress and the federal courts in education matters was 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 rights law has evolved. The changes have been significant and are discussed in detail in subsequent chapters, but here we will provide an overview.

We begin with the Bill of Rights of the U.S. Constitution. Most of our basic civil liberties are included among its provisions. The First Amendment is particularly important, for 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 what U.S. Constitutional rights we enjoy 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 suits against public educational institutions and personnel.

Congress passed a statute after the Civil War to enforce the Fourteenth Amendment by enabling aggrieved persons to pursue their claims in federal court. That statute, known as 42 U.S.C. §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 persons who use this venerable civil rights law to get trivial cases into federal court. A case in point involves the parents of a freshman band student in College Station I.S.D. who had numerous complaints about the high school band director. Among them were allegations that the band director lacked discipline, insisted their son play only the B-flat clarinet, failed to distribute band rules in a timely fashion, yelled at their son, and walked into the girls' locker room. The trial court dismissed the claims, and the U.S. Court of Appeals for the Fifth Circuit affirmed. Wrote the appellate judges in an unsigned opinion, "a constitutional violation does not occur every time someone feels that they have been wronged or treated unfairly." The appellate court viewed the case as frivolous and ordered the parents to prove why they should not be required to pay attorneys' fees and double costs to the school district and school officials as damages (Shinn v. College Station I.S.D., 1996).

One may wonder how schools can be affected by the Fourteenth Amendment, phrased as it is in terms of states. As we already have noted, 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 the 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 will be discussed in some detail in Chapter 4 and those for students in Chapter 8.

Behavior that is not constitutionally protected as a liberty or property right can be regulated relatively easily. Smoking and the possession and/or use of hallucinogenic drugs or alcohol fall into this category. The legislature has banned smoking by all persons at school-related or school-sanctioned activities on or off campus (TEC §38.006) and has made student possession or use of hallucinogenic drugs an expellable offense (TEC §37.007). Moreover, the use of alcohol is banned at all school-related or school-sanctioned events on or off school property (TEC §38.007).

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. Since public schools are part of state government, the Fourteenth Amendment applies to them and to their employees, but not to private schools. Exactly what constitutional rights students and teachers have in the public-school setting will be discussed in subsequent chapters.

A second major source of constitutional litigation in the public-school setting relates to the Fourteenth Amendment equal protection clause: "nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws." This clause, coupled with civil rights laws designed to enforce it, has furnished the grounds for antidiscrimination suits against schools.

Important Federal Statutes

There are a number of federal statutes that directly affect the day-to-day operation of Texas public schools. Several also apply to private schools. The most important are briefly set forth here and will be referred to periodically in later chapters.

42 U.S.C. §1981 accords all persons the right to make and enforce contracts free of racial discrimination in both the public and private sectors. This law applies to discrimination occurring during the contract term as well. Thus, a minority child subject to discrimination after being admitted to a private school would have a cause of action. Penalties include both injunctive relief and compensatory damages.

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42 U.S.C. §1983 allows suits for injunctive relief and compensatory damages against public school districts that through policy or practice deprive persons of U.S. constitutional and federal statutory rights. Public employees also are subject to suit under this statute. This law is very important in the enforcement of federal rights under the Fourteenth Amendment and will be discussed in some depth in Chapter 10.

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Title VI of the 1964 Civil Rights Act prohibits intentional discrimination with respect to race, color, or national origin in federally assisted programs. Injunctive relief and monetary damages are available. This law was instrumental in the desegregation of schools during the 1960s and '70s. The law provides exemptions for small businesses and religious entities.

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Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of race, color, religion, sex, or national origin in all aspects of public and private employment. In addition to equitable relief such as back pay and reinstatement, this law allows money damages for intentional discrimination.

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Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against individuals age forty or over unless age is a bona fide qualification reasonably necessary to carry out job responsibilities. While an employer always has the right to terminate an employee who is not performing satisfactorily, with few exceptions, there no longer is a permissible mandatory retirement age. The law applies to both public and private employers. Penalties for violating the Act are similar to those for Title VII.

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Americans with Disabilities Act of 1990 (ADA) accords persons with disabilities meaningful access to the programs and facilities of public and private schools as well as most businesses in the country. The statute also prohibits discrimination against persons with disabilities in public and private employment and requires employers to make reasonable accommodation to enable them to perform the job. Money damages are available for intentional discrimination. The ADA Amendments Act of 2008 expands coverage by broadening the interpretation of "disability."

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Individuals with Disabilities Education Act (IDEA) requires public schools to identify children with disabilities and provide them a free, appropriate public education in the least restrictive environment. Together with §504 of the 1973 Rehabilitation Act, IDEA provides a comprehensive legal framework for serving children with disabilities. Both statutes will be discussed in detail in Chapter 3.

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Title IX of the 1972 Education Amendments prohibits discrimination against persons on the basis of sex in any federally assisted education program. Penalties against school districts under this statute can encompass compensatory damages, as well as termination of federal funding. Title IX has gained major significance in the context of student and employee sexual harassment. For example, the school district can be liable when an administrator sexually harasses a teacher or when a principal fails to act when a student complains about unwelcome sexual advances from a teacher or another student. Liability under this statute is discussed in Chapter 10.

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No Child Left Behind Act (NCLB), an amendment to the Elementary and Secondary Education Act of 1965, attempts to raise student achievement levels by holding states and school districts to strict accountability standards. Each state must ensure that students make adequate yearly progress toward performing at grade level by the year 2013-2014. Sanctions are imposed for low-performing Title I schools, and all schools are subject to a "safe schools" option. Read more about NCLB in Chapters 2, 3, and 4.

In addition to these, there are other important federal laws that will be discussed in subsequent chapters. Among them are the Equal Access Act and the Family Educational Rights and Privacy Act (Buckley Amendment).

School Finance

School finance is a complex subject, generally beyond the scope of this book. However, it is important to have an overview of the subject since it is central to the operation of the school system and remains contentious. 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.

As previously noted, the 1876 Texas Constitution left to the legislature the duty to establish an efficient system of public education. That same year the Texas Legislature established the Available School Fund, which consisted of revenue from an endowment and from designated state taxes. Funding was to be provided on a per capita basis, though for many years the amounts distributed were meager. Most of the funding for public education originated at the local level.

With the growth of population centers, the imbalance between urban and rural districts created by reliance on local property taxation became increasingly apparent. But it wasn't until the enactment of the Gilmer-Aikin Bill in 1949 that substantial reform occurred. The Gilmer-Aikin Bill later became the focus of the San Antonio I.S.D. v. Rodriguez equalization lawsuit filed in federal court in the late 1960s. The bill established a Minimum Foundation Program (MFP), through which state funds for personnel and operations were distributed via a complicated economic index that established a basic minimum below which no district could go. The MFP involved both local and state contributions to a special fund. Eighty percent of the funding came from the state, with the rest coming from local districts on an ability-to-pay basis. Thus, each local district had to levy a property tax to support its contribution. But inequities continued because local districts remained free to enrich contributions to their schools beyond the MFP local fund assignment. At the time of the San Antonio I.S.D. suit, all districts did so, though the amounts raised varied considerably. For example, in 1967-1968, Edgewood I.S.D., one of the parties to the suit, contributed $26 per student above its MFP local fund assignment at a property tax rate of $1.05 per $100 of valuation. Alamo Heights I.S.D., serving an affluent portion of San Antonio, was able to raise $333 per student above its local fund assignment at a tax rate of $0.85 per $100 of valuation. Similar interdistrict differences occurred elsewhere in Texas and, indeed, throughout the nation.

The plaintiffs in the San Antonio I.S.D. v. Rodriguez lawsuit tried to convince the courts that this system of educational finance violated the equal protection clause of the Fourteenth Amendment. While the three-judge federal district court agreed, the U.S. Supreme Court did not. In a 5-4 decision, the Court ruled that the plan had a rational purpose, did not deprive anyone of a fundamental constitutional right, and did not discriminate against any particular group in violation of the Fourteenth Amendment equal protection clause. The high court noted that, while not perfect, the Texas MFP program did alleviate some of the vast differences in school finance among districts. For example, Alamo Heights I.S.D. derived almost thirteen times as much money from local property taxes as Edgewood did in 1967-1968, but the MFP reduced the ratio to approximately 2:1.

While ruling against the plaintiffs, the majority on the Court urged the Texas Legislature to end the glaring discrepancies between rich and poor districts. Despite some legislative attempts to improve the existing system of educational finance after 1973, significant inequities remained and, in fact, increased. These inequalities persisted despite the passage of House Bill 72 during the special session in the summer of 1984. House Bill 72 fundamentally changed the school finance system by establishing a basic allotment for each student in the state and by introducing other mechanisms intended to foster equalization.

After Rodriguez, the next episode in the Texas equalization fight was Edgewood I.S.D. v. Kirby, filed in state district court in Travis County. The property-poor districts, having failed to find an enforceable right under the U.S. Constitution in Rodriguez, sought to find such a right under the Texas Constitution in Edgewood. In 1987 Judge Harley Clark declared the existing system of school finance in Texas unconstitutional. Judge Clark ruled that, because education is a fundamental right and because wealth is a suspect classification under provisions of the Texas Constitution, disparities between property-rich and property-poor districts violate the equal rights provision of the Texas Constitution, Article I, §3. Judge Clark enjoined state officials from enforcing the challenged school finance statutes but "stayed" the injunction until September 1, 1989, to give the 1989 legislature an opportunity to enact a constitutional school finance system. The defendants appealed the district court decision to the Texas Third Court of Appeals in Austin. In December 1988, the court of appeals, closely following the reasoning of the U.S. Supreme Court majority in Rodriguez, reversed Judge Clark's district court decision. With this development, the legislature was off the hook and, predictably, failed to address equalization in any significant manner.

The plaintiffs, having won in the district court and lost in the court of appeals, filed a further appeal in the Texas Supreme Court. The Supreme Court handed down a decision reversing the Third Court of Appeals on October 2, 1989. The court noted in Edgewood I.S.D. v. Kirby(Edgewood I) that "if the system is not 'efficient' or not 'suitable,' the legislature has not discharged its constitutional duty." The Texas Supreme Court mandated that the state legislature remedy the inefficiencies in the Texas school financing system by May 1, 1990, although the court purposely provided no guidelines as to how this should be achieved. Finding the present system in violation of the Texas Constitution, the court did make this observation:

Efficiency does not require a per capita distribution, but it also does not allow concentrations of resources in property-rich school districts that are taxing low when property-poor districts that are taxing high cannot generate sufficient revenues to meet even minimum standards. There must be a direct and close correlation between a district's tax effort and the education resources available to it; in other words, districts must have substantially equal access to similar revenues per pupil at similar levels of tax effort. . . . Certainly, this much is required if the state is to educate its populace efficiently and provide for a general diffusion of knowledge statewide.

The Texas Legislature struggled mightily to address the court's objections in enacting yet another finance plan during the sixth called special session in the summer of 1990. In January 1991, the Texas Supreme Court once again unanimously declared the plan unconstitutional because it did not correct the deficiencies noted in Edgewood I. The court suggested in Edgewood II that the legislature could effect systemic change by consolidating school districts, thus removing duplicative administrative costs, and by consolidating tax bases. The justices reinstated the injunction against continued state funding of education but delayed the order until April 1, 1991.

Shortly thereafter, the high court was faced with a motion for rehearing filed by property-poor districts. The motion asked the court to overrule its 1931 Love v. City of Dallas decision holding that local property taxes could not be used to educate students outside the district. The property-poor districts argued that since local districts are creatures of the state, local property revenue could be considered a state tax and thus could be used to fund other school districts. In an order of February 25, 1991 (known as Edgewood II½ and appended to the court's published Edgewood I.S.D. II decision), the court refused to overrule Love, noting that tax base consolidation could be achieved through the creation of new districts with the authority to generate local property tax revenue for all of the other districts within their boundaries.

But then, interestingly, five members of the court went further. Noting that property-rich districts as defendants had filed a brief in which they urged the court to clarify whether unequalized local enrichment was still possible under the state constitution, Chief Justice Thomas R. Phillips responded, for the five, in the affirmative. "Once the Legislature provides an efficient system in compliance with Article VII, §1, it may, so long as efficiency is maintained, authorize local school districts to supplement their educational resources if local property owners approve an additional local property tax." This comment set off a scathing attack by Justice Lloyd Doggett, with whom two other members concurred. Doggett accused the five of responding to newspaper editorials decrying the effect of equalization on wealthy districts, which would see their locally generated revenues siphoned off for use elsewhere.

The Texas Legislature once again tried to reform the system by enacting Senate Bill 351 in the 1991 regular session. That measure sought to consolidate school district tax bases by creating 188 county education districts (CEDs) to levy, collect, and disburse property taxes in a way to minimize interdistrict disparities. But in January of 1992 the Texas Supreme Court declared Senate Bill 351 unconstitutional in Carrollton-Farmers Branch I.S.D. v. Edgewood I.S.D. (Edgewood III). The central problem was that the county education districts violated constitutional provisions requiring local voter approval of local property taxes and prohibiting a state property tax. The court, however, did allow the county education district plan to operate for the 1992-1993 school year and gave the legislature until June 1, 1993, to reform the finance system. After that date, all state funding for education would cease.

Now expressing considerable frustration and uncertainty, the Texas Legislature opted to let the voters have a chance to pass a constitutional amendment upholding the CED plan, which effectively would moot the Supreme Court decision. The voters rejected that measure in the spring of 1993, along with two others designed to help financially strapped districts. With time running out before the June 1 deadline, the legislature passed Senate Bill 7. The law required school districts above a certain wealth level (now known as "Chapter 41 districts") to engage in tax base reduction by transferring wealth to poorer school districts. This is what has become known as the "Robin Hood" approach. Five options for school districts were listed: (1) consolidate with one or more districts, (2) detach and transfer territory to another district, (3) purchase attendance credits from the state, (4) contract to educate nonresident students, or (5) consolidate tax bases with other districts. The last three options required voter approval. No sooner was the ink dry than lawsuits were filed by both property-poor and property-wealthy school districts. Finally, in 1995, the Texas Supreme Court upheld Senate Bill 7 as constitutional "in all respects" (Edgewood I.S.D. v. Meno [Edgewood IV]). The court found that the plan provided an efficient system of education. However, the court cautioned that "Our judgment in this case should not be interpreted as a signal that the school finance crisis in Texas has ended."

Several districts later claimed that the state's property tax cap of $1.50 per $100 of assessed valuation amounted to an unconstitutional state property tax because the districts had to tax at the maximum rate to provide an education to their students. In effect, the state cap had become both a floor and a ceiling, thus eliminating any local discretion. The Texas Supreme court found the plaintiffs had stated a valid claim and returned the case to the trial court to determine whether the current school finance system violated the Texas Constitution's prohibition against a state ad valorem tax (West Orange-Cove C.I.S.D. v. Alanis, 2003).

In 2004 a Travis County district court declared the school finance system unconstitutional but gave the legislature an opportunity to address the problems. When the legislature failed to reach consensus in a special session, the state appealed directly to the Texas Supreme Court. The court determined that the school finance system complied with the constitutional requirement to provide students with a "general diffusion of knowledge" in that it provided reasonable access to a quality education and a meaningful opportunity to acquire the essential knowledge and skills presented in the state's curriculum. The system was "efficient" for constitutional purposes in that it provided "substantially equal access to similar revenues per pupil at similar levels of tax effort." Disparities among district facilities did not render the system inefficient. The court, however, concluded that the state's cap on local property tax rates had become a prohibited statewide property tax in violation of article VIII, section 1-e of the Texas Constitution in that districts could not raise the rates, but also could not lower them and still provide a constitutionally adequate education. The court gave the legislature until June 1, 2006, to solve the problem (Neeley v. West Orange-Cove C.I.S.D., 2005).

At the third called special session in 2006 the legislature changed the laws governing school finance in response to the Texas Supreme Court's ruling. The five-part package lowered property taxes for school operations by one-third over two years in an effort to provide districts meaningful discretion in setting tax rates and determined the Tier 1 basic allotment, Tier 2 guaranteed yield level, and Chapter 41 equalized wealth level based on school district tax effort. The legislation increased state funding by imposing additional taxes on businesses and the sale of tobacco products and used cars. A Texas appeals court later upheld an award of $4.2 million in legal fees to the Texas school districts that successfully challenged the school finance system (Neeley v. West Orange-Cove C.I.S.D., 2007).

The 2009 legislature brought more changes to school finance. While the specific provisions of the laws are far too complex to detail here, a brief summary is provided. New legislation reduces recapture and increases equity among school districts, using a formula-driven system that ties funding to statewide increases in property value. The legislation also provides for more flexibility concerning adoption of the tax rate, more support for bond guarantees, and salary increases in school districts and at open-enrollment charter schools for full-time teachers, librarians, counselors, nurses, and speech pathologists. See Table 4 for a brief history of the school finance controversy in Texas.

Parent Rights

In 1923 the U.S. Supreme Court observed that parents have a constitutionally protected right to control their children's upbringing (Meyer v. Nebraska). However, its extent in the education context is limited. Thus the parent who was arrested after she insisted upon sitting in on her child's classes in the Livingston I.S.D. against the wishes of the teacher was unsuccessful in arguing that the arrest violated her parental rights to direct her son's upbringing (Ryans v. Gresham, 1998). Similarly, parents in Oregon were unsuccessful in 1999 in claiming that a state-mandated student testing program forced their children to learn beliefs and attitudes the parents found objectionable. The federal appeals court rejected the lawsuit as without foundation (Tennison v. Paulus).

While constitutional law generally does not support parent rights in public schooling, Texas statutory law provides significant support for parents. Indeed, the first objective of the public education system, as specified in the state education code, is that "Parents will be full partners with educators in the education of their children" (TEC §4.001). In recent years, the legislature has sought to expand the role of parents. We begin this section by examining in what way Texas law enfranchises parents with rights in public schools. We then discuss the right of parents to choose private schools or to educate their children at home.

Rights within Public Schools

In the recodification of Texas school law in 1995, the legislature added Chapter 26, entitled "Parental Rights and Responsibilities," to the Texas Education Code. The first section of that chapter, §26.001, recognizes parents as partners in the educational process and encourages their participation in "creating and implementing educational programs for their children." To that end, the statute requires boards of trustees to support the establishment of at least one parent-teacher organization in each school of the district and to establish a parent complaint procedure. Further, parents are entitled to be represented by an attorney when they present a grievance to the school board on behalf of their children (James N. v. Sinton I.S.D., 1999). The term "parent" means anyone standing in a parental relationship to a child. Excluded are individuals whose parental rights have been terminated or who do not have access to or possession of a child under court order.

While TEC §25.031 gives school officials the authority to assign students to particular schools and classrooms within a district, parents have a right to petition the board to have their child placed at a different school or to contest the assignment to a given school under TEC §25.033. Section 26.003 of the Code also gives parents the right to ask the school principal to have the child reassigned from a particular class or teacher within a school if the change would not affect the assignment of another student. Parents have a right to request, with the expectation that the request will not be unreasonably denied, the addition of an academic class to the curriculum if it would be economical to do so, the right to request placement of their child in a class above the child's grade level, and the right to have their child graduate early if all course requirements have been completed. If the child graduates early, the child has a right to participate in graduation ceremonies. The board's decision in these matters is final and nonappealable. This curtails the ability of parents to enforce the statutory provisions against a recalcitrant school board unless they can convince the commissioner or a judge that the board has acted illegally for example, by engaging in illegal discrimination. In this sense nothing is ever truly "final and nonappealable."

Children attending low-performing schools are eligible to attend another school in the district that is not low-performing or to receive a public education grant ("PEG") to attend a school in another district (TEC §§29.201-29.202). This provision is a watered-down version of a voucher plan that did not pass in the 1995 legislative session. The voucher would have enabled parents to choose private, as well as public, schools. Under the public education grant program, a low-performing school is defined as one having 50 percent or more of the students performing less than satisfactorily on state assessment tests for any two of the preceding three years or one that failed to meet any performance standard adopted by the commissioner under §39.054 in any of the three preceding years. The PEG program is funded through the traditional Foundation School Program. A PEG student is counted in the average daily attendance (ADA) of the receiving district rather than the home district. The receiving district is eligible for additional state aid per PEG student. Districts that receive a number of PEG students equal to at least 1 percent of the district's ADA for the preceding year also receive money for facilities assistance. The financial aspects of the program are detailed in TEC §29.203.

Districts have the right not to accept students from other districts under the PEG program, but they may not refuse to accept them for reasons of race, ethnicity, academic achievement, athletic abilities, language proficiency, sex, or socioeconomic status. This essentially leaves lack of available space as the basis for refusal. Where a school district uniformly rejects all applicants due to expanding enrollment and limited facilities, the district does not discriminate when it denies a transfer to a PEG student (Michael H. v. Eagle Mountain I.S.D., 1996). If a district does accept PEG transfers and there are more applicants than places, the law provides that the district must select by lottery, giving preference, first, to choosing students from the same family or household and then to at-risk students. The residential district is required to provide transportation to the school the child would have attended. The parent is responsible for transportation beyond that point.

The PEG law requires the commissioner of education to notify each school district by January 1 of its low-performing schools (TEC §29.204). The district, in turn, must notify parents of students attending those schools by February 1 that their child is eligible for a PEG. The grant can continue for a student attending school outside the district even if the student's former school no longer is low-performing. Note that the NCLB also permits school choice for students at low-performing schools, unsafe schools, and schools where the student has been the victim of a violent crime (see Chapter 2).

Texas law reinforces federal law in giving parents access to all written records concerning their child, including attendance records, test scores, disciplinary records, psychological records, and teacher and counselor evaluations (TEC §26.004). Under federal law, the parent rights in this context transfer to the student when the student turns eighteen or is attending a postsecondary institution, though parents do not lose their right of access if they claim their child as a dependent. The federal Family Educational Rights and Privacy Act (FERPA) is discussed in Chapter 9. In addition, parents have a right to see state assessment instruments administered to their children, with the exception of questions that are being field-tested and that are not used to compute a student's score.

Parents also have a right to review all classroom teaching materials and tests previously administered to their child. School districts are required to make these materials readily available to parents and may charge a reasonable copying fee. TEC §26.007 reinforces the right of parents to attend school board meetings and requires that meetings be open to the public and held within the boundaries of the district, with limited exceptions.

With the exception of child abuse reporting (discussed in Chapters 2 and 10), parents have a right to all information concerning the activities of their child at school. School employees who encourage or coerce a child to withhold information from the child's parents are subject to contract termination or suspension without pay. TEC §26.009 requires school employees to obtain written parental consent before conducting a psychological examination, test, or treatment unless such tests are related to child abuse reporting requirements or required by law for children with disabilities. In addition, the district must obtain written parental consent before referring a student to an outside counselor, must tell the parent about any relationship between the district and the counselor, and must provide the parent information about other sources of treatment in the area. Referral also requires approval of appropriate school personnel in order to prevent collusion between districts and outside counselors (TEC §38.010). Written consent also is required under TEC §26.009 before making a videotape of a child or recording the child's voice unless for safety purposes in common areas of the school or on school buses, for cocurricular or extracurricular activities, for classroom instruction, or for media coverage. Videotape and audiotape recordings that contain personally identifiable information about students constitute protected records under FERPA and cannot be revealed to third parties without parental consent (see Chapter 9). TEC §33.004 requires districts to retain signed consent forms in the student's permanent record.

Under TEC §26.010, a parent is entitled to a temporary exemption for his or her child from a class or activity that conflicts with the parent's religious or moral beliefs upon written request to the teacher. This provision may not be used to avoid a test, to prevent the child from taking a subject for the entire semester, or to exempt a child from satisfying grade-level or graduation requirements.

Choosing Private Schools

The right to control a child's upbringing identified by the U.S. Supreme Court in the 1923 Meyer decision does not restrict the state from requiring all children to attend school. However, the state cannot require all children to attend public school. Such a law, the high court noted in its unanimous 1925 Pierce v. Society of Sisters ruling, "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." For this reason, the Texas compulsory public school attendance law provides an exemption if the child "attends a private or parochial school that includes in its course a study of good citizenship" (TEC §25.086). This right extends to children of public school teachers and administrators, as well. In one Fifth Circuit case, a teacher was denied the position of assistant principal because she refused to remove her children from private school and enroll them in public school. The Fifth Circuit determined that the woman had a constitutional right to educate her children in the private school and that the district could not take adverse employment action against her for exercising that right unless it "materially and substantially" affected the district's interest. The woman's constitutional right to choose a private school for her children outweighed the district's interest in preserving public confidence (Barrow v. Greenville I.S.D., 2003).

The parents' right to direct their child's upbringing, however, does not confer a constitutional right to control every aspect of their child's education. Parents who choose private schools for their children may be forced to give up certain rights available to children in public schools. For instance, in 2009 the Fifth Circuit upheld the University Interscholastic League's refusal to allow a private school to participate in UIL athletic competition. The private school was ineligible according to UIL rules, and the UIL's enforcement of its rules did not violate the parents' right to practice their faith or to enroll their child in a private, religious school (Cornerstone Christian Schools v. University Interscholastic League).

In the past several years, private schooling has received considerable attention from educational reformers who view the public school system as too resistant to change to be successfully improved. These commentators urge the adoption of some type of voucher system whereby public money, rather than being provided directly to public schools, goes to parents, who then choose a public or private school for their children. Not only would such a system stimulate healthy competition within the educational system, proponents assert, it also would give parents a greater stake in their children's education. Critics assert that a voucher system would destroy the common learning experience fostered by the public schools and would be both economically and racially discriminatory. They also point out that private schools likely would experience an increase in state regulation.

In a major decision, the U.S. Supreme Court ruled 5-4 in June 2002 that the publicly funded voucher program in Cleveland, Ohio, does not violate the establishment clause of the First Amendment. That program channeled money to families whose children attended the Cleveland city schools so they could attend out-of-district public schools or religious or nonreligious private schools. The fact that nearly all students chose to attend religious private schools did not trouble the majority. Participating parents had many options from which to choose, and program benefits were available without reference to religion (Zelman v. Simmons-Harris).

The voucher debate now shifts to states. Voucher measures have been unsuccessful in recent Texas legislative sessions. During the 2009 session, a rider was attached to SB 1 specifically prohibiting a voucher program using federal or state funds to pay private school tuition, with the exception of students with disabilities or receiving other special services authorized by law. Article I, Section 7 of the Texas Constitution precludes appropriations "for the benefit of any sect, or religious society, theological, or religious seminary," while Article VII, Section 5 prohibits use of the permanent and available school fund "for the support of any sectarian school." How these provisions would apply to a state voucher program that provides funding to parents who then select schools for their children is not known, since there is no interpretive case law.

Educating Children at Home

The word school in the Texas compulsory education statute is not defined. This uncertainty led to the dispute surrounding what generally is called "home schooling." A state district judge ruled in 1987 that in Texas a home in which students are instructed qualifies as a private school, subject to certain conditions. Chief among them are that students actually are taught by parents or those standing in parental authority, that there is a specific curriculum consisting of books and other written materials, and that the curriculum is designed to meet the basic educational goals of reading, spelling, grammar, mathematics, and a study of good citizenship. The court further held that TEA lacked the authority to enforce a more restrictive interpretation of the compulsory education law previously adopted by the State Board of Education. The decision was affirmed by the Texas Supreme Court in 1994 (Texas Education Agency v. Leeper). The high court recognized that TEA has the authority to set guidelines for enforcement of the compulsory attendance law, including requesting achievement test results to determine if students are being taught "in a bona fide manner." To date, the State Board of Education has not promulgated rules relating to home schooling.

Since the case was brought as a class action lawsuit, the holding applies in all Texas public school districts. Attendance officers are prohibited from initiating charges against parents simply because they are instructing their children at home. The trial court did recognize, however, the legitimate need of attendance officers to make reasonable inquiry of parents to determine whether a child is in attendance in a home school that meets the requirements approved by the court. Thus, information can be requested about the students, the curriculum being offered, and student test scores, if they exist.

In 1992 the commissioner of education upheld a school district's refusal to enroll a home-schooled girl in a one-period choir class based on the district's need to maintain discipline and supervision, obtain state funding, and avoid violating UIL rules concerning choir competition (Michelle S. v. Beeville I.S.D.). The U.S. Court of Appeals for the Tenth Circuit ruled similarly in a high-profile case in 1998, rejecting parent arguments that such a policy denied their child equal protection of the laws and interfered with both religious and parental rights (Swanson v. Guthrie I.S.D.). However, school districts must permit students who are home-schooled to participate in the Preliminary Scholastic Aptitude Test (PSAT), the National Merit Scholarship Qualifying Test (NMSQT), and college advance placement (AP) tests offered by the district at the same cost that students in the district pay. The district must post notice on its website or in a local newspaper of the testing dates and the eligibility of home school students to participate (TEC §29.916).

When home-schooled students seek to return to the public school, placement decisions are left to the school. There is no requirement that school districts recognize the previous grade-level placements of home-schooled children. In 1998, a federal district court rejected a complaint concerning Buffalo I.S.D.'s policy that required a transfer student to take a proficiency test for each course in order to receive credit. The student who filed the lawsuit had attended an unaccredited Christian school prior to transferring to the district, and the girl claimed that the policy violated her right to the free exercise of religion. The court found no evidence that the policy interfered with religious freedom. The policy applied to all students who transferred from unaccredited or home schools, not to just those transferring from religious schools (Hubbard v. Buffalo I.S.D.).

Summary

In this chapter we have reviewed the several sources of education law and their relationship to the structure and operation of the Texas public school system. It is apparent that local school districts have considerable authority to operate schools. Included in this authority is the right to develop local policy manuals and handbooks. School employees are required to follow these rules and regulations as they go about their assignments. At the same time, both federal and state law impose restraints on school boards and personnel by requiring compliance with certain constitutional and statutory provisions.

Education reform has been a central concern of the Texas Legislature since the early 1980s. At first, the legislative focus was on establishing state-level mandates that all districts and personnel had to follow. More recently, the legislature has sought to return greater decision-making authority to local districts and educators. At the same time, the legislature has recognized the need for innovation in schooling. A system of charter schools was enacted in 1995 to give local communities, campuses, and entrepreneurs the opportunity to develop new educational approaches and thereby stimulate reform across the education landscape. While the U.S. Supreme Court has ruled that interdistrict disparities in per-pupil expenditures do not violate the federal constitution, the issue of school finance generated years of litigation under the Texas Constitution. The matter seems to have been resolved for the time being.

Parent rights have increasingly come to the forefront of the policy-making agenda. The Texas Legislature has given parents more influence over the schooling of their children, including the right to request exemptions from programs and activities they find objectionable on religious or moral grounds. Further, parents with children in low-performing schools can take advantage of a public education scholarship to enroll their children in the schools of another district. Constitutional law gives private schools the right to exist and accords parents the right to choose them for their children, though the state has no obligation to finance the choice. Texas law affords parents the right to educate their children at home, but does not impose many regulations on either home or private schooling. In short, the trend in Texas is decentralization of the educational enterprise, together with parental empowerment.

By Jim Walsh, Frank Kemerer, and Laurie Maniotis

Jim Walsh is an attorney with the law firm of Walsh, Anderson, Brown, Gallegos, and Green, P.C., in Austin and also managing editor of the Texas School Administrators' Legal Digest.

Frank Kemerer is Regents Professor Emeritus at the University of North Texas and currently Professor-in-Residence in the School of Law and the School of Leadership and Education Sciences at the University of San Diego.

Laurie Maniotis is former coeditor of the Texas School Administrators' Legal Digest and currently an attorney in private practice in Fort Worth.

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