KBS Reference Desk: Counting Days for FMLA

Q: Several employees in my District are currently on FMLA leave. Is it permissible to count the two (2) weeks the District is closed for Winter Break against the employees’ FMLA leave?

A:  No. When a school district closes for Winter Break, it may not count the days it is closed for business against an employee’s FMLA leave, unless the employee is scheduled to work during the closure.

The Family Medical Leave Act (FMLA) permits eligible employees to take up to 12 workweeks of leave in a single 12-month period. Whether a particular holiday may be counted against an employee’s FMLA leave depends on a few factors. However, in the above example—where the district is closed for one, multi-week holiday period during the winter—the district is prohibited from counting any of the days it is closed for business against an employee’s FMLA leave, unless the employee was otherwise scheduled to work during the closure, such as a security guard or maintenance staff.

For other holidays, the answer will depend on a few factors, such as the incremental frequency of an employee’s FMLA leave or the length of time the district is closed for a given holiday. For example, if an employee is using FMLA leave in increments of a week or longer, the fact that the district is closed for one day during a week will have no effect—the entire week is counted against the employee’s FMLA leave. On the other hand, “if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.” For specific questions about calculating FMLA leave, please contact your local school attorney.  

KBS Reference Desk: Nepotism & Reassignment

Q:        Our Superintendent’s wife is currently employed as a teacher. She worked at the District for several years before the Superintendent was hired. The Superintendent’s wife has now obtained principal certification and the Superintendent would like to reassign her from the position of teacher to assistant principal. Would this reassignment violate nepotism laws?

A:        No, a Superintendent is not considered a “public official” for purposes of             nepotism statutes when making decisions concerning employee assignments.

Board Policy DBE (LEGAL) provides that a public official may not appoint a person to a position that is compensated by public funds if the person is related to the public official within the third degree or by marriage within the second degree. A school superintendent is a “public official” subject to nepotism provisions only when making a decision pursuant to authority delegated by the Board to select district personnel, not for purposes of evaluation or assignment. Texas Education Code section 11.201 provides the Superintendent “administrative authority and responsibility for the assignment . . . of all personnel of the District.” Therefore, the Superintendent possesses reassignment authority in his own right, rather than by delegation from the board, rendering nepotism laws inapplicable to decisions concerning assignment. See Tex. Att’y Gen. Op. GA-0910. Also note, a similar analysis applies to relatives of board members. Because a school board has no authority to assign personnel, board members are not public officials for purposes of nepotism laws with regard to reassignment. See Tex. Att’y Gen. Op. GA-0123. Thus, unless prohibited by local policy, the Superintendent can assign all school employees without fear of violating nepotism provisions.   This is true even when the reassignment results in a promotion.

KBS Reference Desk: CPS Interviews on Campus

Q: Recently, a CPS investigator came to our elementary campus unannounced and requested to interview a student in a private room. The investigator would not give campus administrators any details. The principal knows that the family has had domestic troubles and was concerned with letting CPS talk to the child without parental notification. In the future, can my principals call parents to notify them that CPS is interviewing their child?

A: Yes, but only if the CPS investigator consents to such notification.

Texas Family Code §261.302 provides that CPS may interview/examine children who are the subject of a report of abuse or neglect “at a reasonable time and place, including the child’s home or the child’s school.” Investigators can make unannounced visits to school campuses for purposes of conducting these interviews and must make their identity and credentials available to campus administrators when they arrive. While investigators are expected to identify themselves and work with campus staff to obtain the interview with minimal disruption, CPS is still given wide access to children at school under the law. To that end, the Family Code provides for legal consequences (and in some cases criminal penalties) for anyone who interferes with a CPS investigation. Should a campus not allow a CPS investigator access to a child for an interview, the investigator can obtain a court order requiring the school to present the child for examination. When an investigation into suspected abuse/neglect is underway, courts often work fast to ensure that the investigation can move forward; thus, a court order (and possible sanctions) is likely to follow should a school refuse access to the child.

Often, CPS investigators are on campus because of suspected abuse/neglect by a parent. Thus, TASB recommended local policy at GRA (LOCAL) leaves the discretion with CPS to determine whether or not the parent is notified in advance of the interview, and campus administrators must comply with their request. The policy provides that the principal “ordinarily shall make reasonable efforts to notify the student’s parent or other person having lawful control of the student. If the interviewer raises what the principal considers to be a valid objection to the notification, the parent shall not be notified." This policy provision anticipates that the principal discuss with the investigator the possibility for parent notification before actually contacting the parent. Typically, the investigator’s reason for denying a request to notify the parent will be due to the parent’s alleged involvement in (or knowledge of) the suspected abuse or neglect. We advise complying with the investigator’s request and documenting that consent to notify the parent was denied, along with an explanation of the investigator’s reason. Acting under a lawful request by CPS will insulate the district and its employees from any challenge later by a parent concerning lack of notification. On the other hand, refusing to comply with the investigator’s request (and notifying the parent anyway) could subject the district and/or individual employee involved to legal consequences, including criminal penalties, for interference with the investigation and potentially subject the child to continued abuse by the perpetrator.

Documentation of the investigator’s visit to campus will be key to ensuring that the district has cooperated with CPS. We advise making copies of the investigator’s driver’s license (or other ID), as well as the investigator’s CPS credentials. Should the investigator raise an objection to notifying the parent, document the investigator’s reply and proffered reason. Take comfort in the fact that CPS is required by law to notify the parent within 24 hours after speaking with their child. Anticipate subsequent questions; however, explain to parents that all concerns they have regarding CPS, including the Agency’s presence on campus and communication with the parent’s child, are to be directed to the Department of Family and Protective Services.

KBS Reference Desk: Post-Election Procedures

Q: We held an election for school board members in the November 2018 elections. We had one incumbent win and one newly elected trustee. What are the proper steps moving forward to swear in the new and re-elected board members?

A: Good news! The procedures are the same regardless of whether the board members are re-elected incumbent trustees or newly elected trustees. There are four main steps that must occur after the election before the board members may assume the duties of office: (1) canvass the election results, (2) issue a certificate of election, (3) file a statement of officer, and (4) administer the oath of office.

Satisfaction of these steps is called “qualifying for office.” First, the election must be canvassed at a properly-posted open meeting. The canvass is the final step of the election which finalizes the results. For the November 2018 election, the canvass for school board elections must occur between the third and fourteenth day after the election—in other words, November 9 through November 20. Tex. Elec. Code § 67.003. If a recount is requested, the canvass continues, but the canvassing authority must make note of the request, and the recount petition will delay the next step and thus the qualification for office. Second, after the results are canvassed, the presiding officer will issue a Certificate of Election to each of the newly-elected (and/or re-elected) officers. The certificate will contain the name of the candidate and the position to which s/he is elected, the date of the election, a statement that the term is unexpired, and the signature of the officer preparing the certificate along with any District seal. Tex. Elec. Code § 67.016. The certificate may be issued at the same meeting in which the votes are canvassed. This certificate shows that the candidate has in fact been elected to the position. Third, the newly elected (and/or re-elected) officers must file a Statement of Officer declaring that s/he did not pay, offer, or promise to pay money or other consideration for votes, as required by the Texas Constitution. Tex. Const. art. XVI, § 1(b). Once these three steps have been completed, the newly elected (and/or re-elected) members may take the Oath of Office. The Oath of Office may be administered by anyone with the authority to administer an oath in Texas. The full list of those authorized to administer oaths can be found at Chapter 602 of the Texas Government Code, and includes notary publics, a judge, retired judge, or senior judge, a justice of the peace, a clerk of a court record, and a legislator or retired legislator, among others. Additionally, although many candidates often wait until a board meeting or special ceremony to be sworn in, they are not required to wait and can be sworn in at any time after the other three requirements have been met, so long as it is by someone authorized to administer an oath in Texas.

As a final note, once all candidates have been qualified for office and sworn in, the members must organize at the next meeting by selecting a board president, secretary, and other officers and/or committees the board deems necessary. Tex. Educ. Code § 11.061. Once these events have occurred, the school board is ready to move forward with the newly elected trustees.

KBS Reference Desk: Social Media Post by Principal

Q: One of our campus principals recently made a post on his private Facebook account regarding the migrant group traveling from Central America to the United States that has been interpreted by some to be derogatory. The post received several comments from parents, mostly negative, and was eventually taken down. Before the post was removed, however, a screenshot was circled among members of the community and ultimately sent to the superintendent’s office. Is the principal’s social media post protected as free speech under the First Amendment?

A: Likely, no. The comment will probably not be considered protected speech given its context and the fact that it was published by the highest ranking campus official—the school principal—and was received negatively by the community, thereby impacting his effectiveness.

Whether an employee may be disciplined for a social media post or comment depends on the context of the publication, the role of the employee within the school district and the impact the speech has on the employee’s ability to be effective in his or her position. In the current example, the speech would generally be considered speech by a private citizen (personal FB account, off duty post) on a matter of public concern (immigration). However, because in this instance the private citizen is also a government employee, the school district, as employer, may intervene to the extent the district’s interests outweigh the interests of the employee. In short, this requires application of the balancing text articulated by the U.S. Supreme Court in Pickering v. Bd. of Ed., to determine whether the speech is protected. 391 U.S. 563, 568 (1968). The district must strike a balance between the interests of the principal, as a citizen, in commenting upon matter of public concern and the interests of the school district, as an employer, in promoting the efficiency of the public services it performs through its employees (i.e., maintaining order and respect among staff, parents and students). The position the employee holds for the district, the amount of publicity the post received and the depth of negative feedback all play a critical role in the analysis. In the present hypothetical, a court would likely consider the balance to weigh in favor of the school district since the post was disruptive to the school environment as gleaned from the negative reaction of the community, as well as the fact that it was published by the leader of a school campus, as opposed to, for instance, a school janitor.

For more information on your district’s ability to discipline employees for off campus speech, look to policy DH (LOCAL) and your Employee Handbook. Both should contain language pertaining to an employee’s personal use of technology and the potential for discipline. See also policy DFBB (LOCAL) for reasons supporting the nonrenewal of a term contract pertaining to off-campus conduct and loss of effectiveness. Employees should be reminded of these provisions on a frequent basis.

KBS Reference Desk: Educator Political Advertising

Q: Our high school government teacher wore a “Vote Beto” button to school on Monday. She says it is to encourage her students over the age of 18 to vote. Is this permissible?

A: Likely no. The Texas Ethics Commission has determined that campaign buttons are political advertising for purposes of the Election Code. As such, a teacher wearing a candidate-specific button while in the course and scope of her duties represents an expenditure of public funds “advocating the election of a candidate,” which is prohibited by statute.

Texas Election Code section 255.003 is the governing statute, which prohibits direct or indirect expenditure of public funds for purposes of political advertising. Examples of indirect expenditures include use of personnel, equipment, email and facilities. While the teacher may argue she is providing civil instruction or that she has a right to free speech under the First Amendment, the State of Texas’ interest in maintaining a politically neutral educational environment outweighs a district employee’s interest in expressing his or her political views to students while the employee performs her job duties. As such, The Texas Ethics Commission, which is the state agency that oversees violations of the Texas Election Code, interprets the prohibition against political advertising broadly. According to the Commission, even conducting a meeting on public property involves an indirect use of public funds. In general, school districts should not allow employees to wear any item that advocates the approval or election of any candidate or measure, nor should a school district host political events or political speeches. In addition, any “rental” of district property should be in compliance with the district’s facility use policy, GKD (Local). Finally, note that noncompliance with the prohibition against political advertising is a Class A Misdemeanor.

KBS Reference Desk: Fall Festival

Q: We have our annual Fall Festival coming up, with one of the most popular attractions being our hay ride. We plan to have our Ag Teacher driving his tractor and pulling a trailer with groups of 10-15 kids at a time. A new board member has started asking questions about liability. Is this activity legally advisable?

A: Probably not. The hay ride will most likely be considered “use or operation of a motor vehicle,” as that term is used in the Texas Tort Claims Act, thereby subjecting the school district to potential liability for any injuries or damages stemming from negligence of the driver. We would recommend seeking outside sponsorship of the event by another organization, such as a PTA group, who should provide the driver and the tractor.

Sovereign immunity insulates public school districts and their employees from liability for almost all personal injury and property damage claims. One important statutory exception, known commonly as the Texas Tort Claims Act (TTCA), waives immunity for accidents and injuries that occur as the result of a school district employee’s negligent “use or operation of a motor vehicle.” Monetary damages are capped at $100,000 per plaintiff for personal injury, capped at $300,000 per incident, and $100,000 per incident for property damage. Because the tractor in the above scenario is a motor vehicle being driven by a school district employee, at a school sponsored event, it is almost certain that the school would be named in any litigation that followed should an accident or injury occur while on the hay ride.

To avoid risk involved with District employees operating motor vehicles in connection with school activities, it is generally recommended that the school district seek sponsorship of the event by a PTA or other similar organization. Sponsorship by an outside group will shift the liability away from the District, and put the onus on the PTA group to address potential liability, which may include obtaining parent permission slips or waivers prior to letting minors participate in the hay ride. To document outside sponsorship and sufficiently distant the school district, it is critical that all publications advertising the event reflect the identity of the sponsoring organization and that the organization completes your district’s Facilities Use Agreement, acknowledging their awareness of policies and procedures concerning use of District property, and that they remit rental fees as applicable. The Facility Use Agreement could then be used as an exhibit in litigation on behalf of the school district when arguing against application of the TTCA waiver. As this issue can be extremely fact specific, any questions you have regarding your District’s event or liability in general, should be addressed with your school district’s attorney.

KBS Reference Desk: Parent Notice of Teacher Qualifications

Q: We have a few teachers at one of our high school campuses who are certified to teach middle school but are not certified to teach high school. Do we have any state or federal obligations to notify parents?

A: Yes. Both state and federal laws have notification requirements in the event an educator is uncertified or improperly certified.

The Every Student Succeeds Act (“ESSA”) is the federal law regarding district obligations to notify parents of teacher (or substitute teacher) qualifications. Districts receiving Title I funds must provide parents two types of notices. The first is that a district is required to notify parents that the parents may request information regarding the qualifications of their students’ teachers and substitute teachers. You’ll generally see a notation about this in the Student Handbook. If a parent submits a request, the district is required to disclose that information in a timely manner. While “timely manner” is not defined in the statute, a reasonable interpretation would be in not event later than 30 days from the assignment. The second federal notification requirement kicks in if a student has been assigned or taught for four consecutive weeks or more by a teacher or substitute teacher who does not meet state certification requirements for that grade level and subject matter. In such an instance, the district is required to notify the parent(s) of each student of the teacher’s qualifications, also in a timely manner (without definition). This second notification does not require any prompting or request by the parents.

The state law works very similar to the federal law. Section 21.057 of the Texas Education Code requires districts to notify parents in writing when it “assigns an inappropriately certified or uncertified teacher to a classroom for more than 30 consecutive instructional days.” To be clear, the notice must be sent no later than the 30th instructional day after the first date of the assignment. Additionally, this law requires the district to make a good-faith effort to provide the notice in a bilingual form for parents whose primary language is not English. One caveat to this state law is that if the district has already provided notice to parents as required under ESSA, (the federal law above), such notice will satisfy the district’s responsibility to send a state notice. However, the reverse is not true – meaning, state notification does not alleviate a district’s responsibility to also send the federal notice. Sample notification form letters can be located in the TASB HR Library.

KBS Reference Desk: Cheerleader Religious Speech

Q: Our varsity cheerleaders decided to wear overalls to our homecoming pep rally and decorated them with school spirit and other personal messages in paint and patchwork. Some of the cheerleaders have decorated their overalls with small crosses and scripture messages. Are the cheerleaders’ decorated overalls considered protected speech under the First Amendment?

A: Yes. A school district’s ability to restrict religious speech is dependent upon both the content and the context of the message itself. In the above example, without evidence of disruption, and because the painting was entirely student initiated, the speech is likely to be considered permissible private student speech.

It is well-settled that students in public school maintain their constitutional rights to freedom of speech while attending school or school-sponsored events. However, the rights of students in a public school setting are not completely equal to the rights of individuals in other private arenas. Courts continue to analyze the extent of public school students’ free speech rights under the standard first adopted by the U.S. Supreme Court in the famous Vietnam protest armband case, Tinker v. Des Moines Indep. Comm. School. Since the time of Tinker, student-led school speech has typically fallen into one of three categories: (1) government speech (e.g., student delivering principal-written morning announcements over PA system); (2) school-sponsored speech (e.g., student expression in school-sponsored newspaper); or (3) private speech.

The cheerleader’s overall decorations will most likely be considered private speech because the markings are not a message made by or on behalf of the school district (overalls purchased by students and no direction given on content of decoration), nor do the decorations reflect a message that the school district affirmatively promotes. Instead, courts would view the markings as speech that the district merely tolerates. In such circumstances, a school may restrict the content of private speech only if the district reasonably forecasts that the speech: (1) will lead to substantial disruption of or material interference with school activities, (2) will impinge upon the rights of other students, or (3) is offensive to the school environment, such as vulgar language or speech that advocates illegal/criminal activity.

An example of disruption sufficient to allow the school district to restrict student speech might be an overtly offensive religious message, such as “Jesus Hates Gays.” In such a scenario, the district could prohibit the speech based on its desire to avoid disruption caused by opposing views and/or to prevent violence resulting from the hate speech. In contrast, here, the cheerleaders’ clothing decorations consisted of scripture and religious emblems only. Further, the messages/images were displayed by only a handful of cheerleaders, for presumably one school event and in small enough detail as not to be seen by the majority of the student population. Finally, the context of the decorations is clearly personal to each cheerleader – that is, each cheerleader’s overalls are different and personal to them (rather than a team-mandated theme). Taken together, the markings are clearly private speech that is non-offensive and not likely to impinge upon the rights of other students. This conclusion follows the well-known Kountze cheerleader case, in which a Texas appeals court (on remand from the Texas Supreme Court) upheld the Kountze High School cheerleaders’ right to create and decorate banners with religious messages and scripture for use during football games. The crux of the Court’s opinion focused on the fact that there was no “substantial disruption or material interference with school activities” sufficient to allow the school to restrict the speech. In August 2018, the Texas Supreme Court denied the school district’s request for review of the case, upholding the case in favor of the cheerleaders.

To conclude, most cases of student speech will be analyzed under the private speech factors, requiring a fact-intensive inquiry dependent upon both content and context and a significant fear of substantial disruption. Accordingly, for specific questions, administrators should contact their local school attorney.

KBS Reference Desk: Electioneering with Email Account

Q: I was just copied on an email from one of our board members sent to the local Chamber of Commerce listserv from the board member’s school email account advocating support for our upcoming bond election. Is use of the school’s email permitted for this purpose?

A: No. A school district employee or official may not use his or her school email account, nor any other public resource, to advocate, to any degree, for or against a particular political candidate or position.

Texas law prohibits school employees and officials from using public resources to distribute messages advocating support for or against a particular candidate, party, or ballot measure. Although not defined in any statute or judicial order, the Texas Ethics Commission has issued opinions rebuking government officials for the use of email to conduct political advertising and/or electioneering. The Texas Legislature has defined political advertising as any published communication supporting or opposing a political position. Similarly, electioneering means to work for the election of a candidate or party or distribute political literature designed to influence voters.

The Commission has held that when a school district employee or official distributes a message via his or her school email account, the act of clicking “send” is considered the equivalent of using school-funded postage stamps and envelopes to distribute physical letters via U.S. mail. If the content of these letters (or email) contains a message that constitutes political advertising or electioneering, then a knowing violator could be charged criminally with a Class A misdemeanor. The same would apply to a post made on a school social media account or a presentation given in one’s official capacity.

School district employees and officials are also prohibited from using school equipment to advocate for or against a specific political position. For example, a district employee is prohibited from using a school-issued laptop to create and send political fliers promoting a particular political candidate or position, regardless of whether the individual is creating and sending the fliers on his own time and at his own house. The inverse is true as well; that is, a school district employee may not use a private device or email account to send messages promoting a political position during that individual’s working hours. This ensures that public resources intended for education are not diverted to promoting political agendas.

As the line between permitted advocacy and prohibited electioneering and/or advertising can be murky, particularly for superintendents in school districts with bond elections pending, we recommend consultation with counsel and careful review of Texas Ethics Commission guidance.

KBS Reference Desk: Trustee Training Deficiency Reporting

Q: My Board has already participated in a training session on evaluating and improving student outcomes (SB 1566) through our local service center; however, two of our board members were not able to attend. I understand that the deadline for completion of this training was September 1, 2018. Are there any consequences for failing to obtain the training by the deadline that the board members should be aware of?

A: Yes, sort of. The consequence identified in the law is that a deficient board member must be specifically named in the board meeting minutes for the last meeting before a trustee election. This pertains not just to 1566 training, but for all continuing education hours. For schools with upcoming November elections, this designation must be made in your October minutes; for May 2019 elections, this will be on your April minutes.

Texas Education Code §11.159(c) was added during the 2017 legislative session and requires that trustees complete three hours of training every two years on “evaluating student academic performance.” TEA developed a curriculum for this training so that “authorized providers” would be able to offer the required training to school boards across the state. This training has come to be known as the “Evaluating & Improving Student Outcomes” training (EISO), or simply the Senate Bill 1566 training. The law requires that any new trustee must complete the training within 120 days after election or appointment, while current trustees were required to complete the training by September 1, 2018.

The consequence for failing to participate in the training is found within TEA’s regulations, at 19 TAC §61.1, and applies equally to all aspects of continuing education requirements. The regulations state that “at the last regular meeting of the board of trustees before an election of trustees,” the current Board President must announce the name of each board member who has completed their required training, has exceeded the requirements, or is deficient in meeting their required continuing education as of the anniversary of each board member’s election/appointment to the board. The Board President’s announcement must align with particular wording identified in the statute; specifically, the Board President must state that “completing the required continuing education is a basic obligation and expectation of any sitting board member under State Board of Education rule.”

After this meeting and announcement, the minutes must reflect whether each trustee has met or is deficient in meeting the training required. If the minutes reflect that a trustee is deficient, the district is required to post the meeting minutes on the District’s website within 10 school business days of the meeting and must maintain that posting until the trustee meets the requirements. Practically, this means that your minutes will need to be posted more quickly than usual and will likely not allow time for board approval of the minutes prior to posting.

Bottom Line: If you have November 2018 trustee elections, we would advise urging your board members who have not yet completed the SB 1566 training, to do so before your October regular board meeting so as to avoid any public posting regarding deficiencies. Trainings can be completed on line, through your local service center, by your school district’s attorney (if an authorized provider), or at the upcoming TASA/TASB Convention in Austin on September 28-29.

KBS Reference Desk: School Uniforms

Q: Our district is considering adopting a school uniform policy, but want to start with only our elementary campuses. Can we require uniforms on some campuses but not all?

A: Yes. State law allows a board of trustees to adopt a uniform or dress code policy on any one or more of its District campuses. Note, however, that the board must first determine that the uniforms would improve the learning environment on those campuses selected for uniforms.

Texas Education Code §11.162 provides that a board of trustees may adopt rules requiring students at a school in the district to wear school uniforms if the board determines that such rules would improve the learning environment at that school. While there is legal authority for adopting a uniform policy, such rules can be difficult to apply equitably. The following are several commonly asked questions that each district and board should understand when considering whether a school uniform policy is appropriate for their district:

1. What is a “school uniform?” – The Education Code does not define this term. The Commissioner of Education, however, has provided guidance when, in a particular case, he was called to distinguish school uniforms from dress codes, finding that the former (true uniforms) are “ensembles by which an observer could conclude that the student belonged to a particular group or attended a particular school – based solely on his/her dress.” Even with this definition, the term is still broad and may need further regulations to address the specific uniform requirements and any accessory prohibitions to be observed.

2. What if a student can’t afford the uniforms? – The Education Code specifically requires that the board designate a specific source fund for providing uniforms to economically disadvantaged students. (TEC 11.162(b)). Specific regulations must be put in place to determine eligibility for the uniform stipend, and teachers/administrators should take care to publicize the funding and identify students in need without causing unnecessary embarrassment.

3. What if a parent refuses? – The law explicitly allows a parent to request an exemption from a uniform policy in writing, or request that their child be transferred to a different school in the district that does not have a uniform policy. Such request must specifically site a “bona fide religious or philosophical objection” to the policy. The board has the ultimate discretion whether or not to grant the exemption request. Any decision of the board is final and may not be appealed.

4. What about gender-specific clothing? – A District wanting to impose a gender-specific uniform (e.g., girls must wear skirts/dresses) must be aware of certain legal implications that could arise from a student complaint. So far, Texas courts have generally allowed school districts to adopt dress codes and uniforms which apply differently on a gender basis. However, courts in other jurisdictions applying federal law have found that disciplining a student for dressing as their preferred gender constituted an improper restriction on student expression; other courts have found it gender discrimination. One way to avoid these claims is by allowing gender-neutral options for both boys and girls (i.e., girls may wear skirts, dresses, or pants).

KBS Reference Desk: Administrator Deny Entry

Q: A parent verbally attacked our coaches during the Friday night football game last week. The police officer on duty instructed the parent to calm down, but insults continued. If the parent behaves inappropriately at the game this week, what option do we have to remove him without issuing criminal trespass warnings or getting law enforcement involved?

A: School administrators have the authority to eject or deny entry to a visitor who presents a substantial risk of harm or behaves in a manner inappropriate for a school setting.

Under Texas Education Code section 37.105, a school administrator, school resource officer, or school district peace officer may refuse to allow a person to enter on or may eject a person from property under the district’s control if the individual is verbally warned that his behavior may result in removal and the individual persists in the inappropriate action. If the person poses a substantial risk of harm, he can be ejected or denied entry without issuance of a verbal warning.

Commissioner rules went into effect on August 26, 2018 that provide greater guidance on application of this fairly new statute. At the time the individual is refused entry or ejected, he must be provided written notice of his right to appeal the removal through the district’s grievance process adopted in board policy FNG for parents and GF for community members. If the individual files a grievance, he must be provided the opportunity to address the board within 90 days. This means the appeal process may need to be expedited in order to allow the employee to appeal to the highest level within the 90 day period, should the grievance remain unresolved at a lower level. In addition, the District must maintain a written record of each verbal warning issued, including the name of the person to whom the warning was issued and the date of issuance. Finally, notice of the District’s authority to eject or refuse entry under this section must be posted on the district’s website. TASB model forms for internet notice and notice to the person who is being refused entry are available at GKA (Exhibit). You will need to utilize TASB Regulations Resource Manual to access policy Exhibit forms.

The statute provides that the length of time a person may be refused entry for any one violation may not exceed two years. Also note, a parent’s right to participate in his child’s education does not grant him access to school property if he is excluded for disruptive or criminal conduct. However, the parent must be allowed to participate in his child’s admission, review, and dismissal (ARD) committee or in the child’s 504 team, in accordance with federal law. 19 Tex. Admin. Code § 103.1207.

KBS Reference Desk: Medical Contract Abandonment

Q: Our district's Spanish teacher is on dialysis. Her request for intermittent Family Medical Leave has been approved and a schedule set to ensure that she can attend to her students and her health. On the third day of school, the teacher submitted her resignation stating she has been offered a job at a school district that will pay her more money and that is located closer to the facility that she receives her medical treatment. We are a rural school district and it is difficult to recruit qualified Spanish teachers. Is the District obligated to release the teacher from her contract? What if she stops coming to work?

A: No, the District is not obligated to release the teacher from her contract because the teacher resigned after the penalty free resignation date, which is 45 days before the first day of instruction, and therefore, acceptance and release from the contract is discretionary. If the school district does not accept the teacher’s resignation, SBEC has the authority to issue sanctions at the board of trustees’ request in accordance with Board Policy DFE (Legal).

Before SBEC will consider sanctions, it requires a board of trustees to issue findings under a properly-posted agenda that good cause did not exist for the employee to resign outside the penalty free resignation period. In determining good cause for abandonment, the board of trustees has wide discretion; however, the board’s action is not the final determination—the educator will be given the opportunity to present evidence to SBEC to overcome the board’s findings. While SBEC makes contract abandonment findings on a case-by-case basis, it consistently finds that getting a better job offer is not considered good cause. SBEC has not issued an opinion whether or not convenience of medical treatment warrants good cause.

In addition to finding no good cause, SBEC also requires the request for sanctions be addressed from the board, and submitted within 30 days of the first day the teacher ceased reporting to work. The correspondence must include 1) the employee’s resignation letter, 2) a copy of the employee’s contract, 3) any agreement concerning the effective date of separation of employment, if any, and 4) the board meeting minutes reflecting the board’s findings concerning good cause.

If the board does not have a meeting scheduled before the expiration of the 30 days, the Superintendent should send notice to SBEC of intent to seek sanctions and then supplement the notice with the board meeting minutes within 10 days of the date the board made its findings.

KBS Reference Desk: Use of Leave on First Day of School

Q: One of my high school teachers has requested a half-day of personal leave on the first day of school. Her request said that her only child is starting kindergarten on the same day and she would like to drop her off with her husband (missing only the first half of the day). She also stated that she does not have any "core" classes until the afternoon, just an elective class and her planning/prep period. We need all hands on deck on the first day and I can't afford not to have her there in the morning... can I deny this request even if she has days available?

A: Likely, yes. As long as your local leave policy either restricts use of leave on the first day of school, or reserves some administrator discretion in approval/denial, you can deny the teacher's request for leave.

Texas law entitles your employees to 5 days of state “personal leave” per year. Personal leave is just that - it is personal to each employee and a district may not restrict the reasons for taking personal leave, or even ask why the employee needs it. While a district cannot limit the reasons an employee may use their personal leave, it can limit the amount, dates and time that an employee may use leave. Personal leave can either be non-discretionary (similar to old sick leave, in that it is unexpected) or discretionary (leave for any other purpose - vacation, personal business, etc.). In this instance, we are dealing with discretionary personal leave.

Most all board policies at DEC (LOCAL) provide some limiting language for an employee’s use of discretionary personal leave. Some policies go as far as to specifically list out the days, by date, on which personal leave cannot be used. Common examples include state testing days, the days before/after school holidays, staff development days, and (importantly) the first day of instruction in a school year. Some limit the percentage of staff that can be absent on campus or in any department on a given day. If your policy has this language, you should deny the employee’s request in order to be consistent with your policy.

On the other hand, some policies provide more vague limitation language when it comes to an employee’s use of discretionary personal leave, leaving the decision to the discretion of the supervisor. A typical provision may state:

"In deciding whether to approve or deny state personal leave, the supervisor or designee shall not seek or consider the reasons for which an employee requests to use leave. The supervisor or designee shall, however, consider the effect of the employee’s absence on the educational program or District operations, as well as the availability of substitutes."

In the event your district has the foregoing language, it would be appropriate to consider the effect of the teacher’s absence on the educational program (why should kids start their first day of school with a sub, regardless of core or elective class?), as well as the effect on District operations (do you need the teacher outside directing the car or bus drop off line?) Under this limiting language, the discretion rests with the supervisor to determine if the employee’s absence will be detrimental to the work or educational environment. Keep in mind, though, that a denial of one employee’s request because it is the first day of instruction should result in a denial of all similar requests. Any inconsistency could result in a challenge due to the disparate treatment of the employees.

KBS Reference Desk: Parent Request for Class Assignment

Q: Can a parent request a particular teacher for their child because they like that teacher or because they want their child in a particular class with their friends?

A: Yes, under TEC 26.003(a)(2) a parent may make a request that their child be in a certain teacher’s classroom for the upcoming school year; however, that request is not required to be granted if there is a reasonable justification for denying the request.

As a general proposition, Chapter 26 of the Texas Education Code (commonly referred to as the Parental Rights Chapter) strongly encourages, and in some places mandates, parental involvement. Section 26.001 states that “Parents are partners with educators, administrators, and school district boards of trustees in their children’s education” and parental involvement and participation in the education process “shall be encouraged.” Applicable to the specific question posed is Section 26.003(a)(2), which states that parents are entitled to access to the appropriate administrator at a school to make a request to reassign the student to a different class or teacher. However, the parent is not entitled to having that request granted if the reassignment would affect another student’s assignment. To the extent a parent might grieve an administrator’s denial of a particular assignment request, the Education Code provides that a school board’s decision on an assignment issue is final. Practically, this means that a parent is entitled to speak to whomever has the ability to change their child’s schedule, and request that a change be made. The District may consider classroom makeup and whether the change would affect another student’s assignment when deciding whether to grant the parent’s request. If the request reaches the District Board of Trustees, any decision it makes is final and cannot be appealed to the Commissioner.

TEC Chapter 26 entitles parents to additional rights and responsibilities. Generally, Section 26.003 addresses parental rights concerning the academic programs the parent’s child will have access to. Parental rights under Section 26.003 include:

  • The right to petition a board of trustees regarding which school in the district the parent’s child will attend

  • The right to allow a parent’s child who graduates early to participate in graduation ceremonies at the time the child graduates

  • The right to request the addition of a specific academic class within the required curriculum, if economically practical

  • The right to request that the parent’s child be allowed to attend classes above the child’s grade level, unless the board expects the child cannot meet the academic expectations, and

  • The right that the parent’s child be allowed to graduate early from high school so long as the child completes the required courses for graduation. Section 26.003(a)(3) provides that the board must not “unreasonably deny” a request under this section.

Additional parental rights under TEC Chapter 26 include:

  • the right to enroll the parent’s child in a virtual school network under Chapter 30A

  • access to the parent’s child’s student records and to full information concerning the parent’s student

  • the right to require consent for certain activities, such as psychological examination, videotaping or voice recording of the child (except for safety purposes), among others

  • access to teaching materials and tests (after the tests are administered) distributed to their child

  • the right to remove the parent’s child from a class or school activity that conflicts with the parent’s religious or moral beliefs

  • the right to information concerning special education and education of students with learning difficulties

  • the right to supplemental educational services

  • access to state assessments (except as provided by TEC Section 29.023(e))

  • access to board meetings

  • the right to complain using the District’s grievance process

  • the right to request public information under Public Information Act, and

  • the right to student directory information, if such information is designated, in accordance with FERPA

School districts should keep these parental rights in mind as the school year begins, and remember that parental involvement is not only acceptable, it is statutorily encouraged. Documentation of these efforts, when applicable, is strongly advised.

KBS Reference Desk: Reporting Crimes Committed by Disabled Students

Q: A special education student at our school made a terroristic threat against the campus today. To what extent may we discipline the child, and is it permissible to report the child to the police?

A: The district may impose disciplinary measures against the child and report him to the appropriate authorities, so long as certain procedures are followed.

1. Reporting the crime and forwarding the child’s records.

Special education students have more protections than general education students when facing discipline at school. Nevertheless, the Individuals with Disabilities Education Act and its corresponding regulations explicitly provide that “[n]othing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.” 20 U.S.C. § 1415(k)(6)(a); 34 C.F.R. § 300.535(a).

If a crime is reported, the district reporting the crime must, to the extent permitted by FERPA, “ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.” 20 U.S.C. § 1415(k)(6)(b); 34 C.F.R. § 300.535(b).

2. Conducting the MDR and considering appropriate discipline.

When a disabled child violates the Student Code of Conduct at his or her current placement, such as by making a terroristic threat, the district may remove the child from their current placement for not more than 10 consecutive school days, so long as the removal is no more extensive than it would be for the child’s non-disabled peers. Multiple removals for separate incidents of misconduct in the same school year are permissible as long as those removals do not constitute a change in placement under federal law. 20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b).

A change in placement occurs if the removal is more than 10 consecutive school days or the child has been subjected to a series of removals in the same school year that constitute a “pattern” as defined by the federal regulation. See 34 C.F.R. § 300.536. Pursuant to Section 37.004(b) of the Texas Education Code, any disciplinary action regarding a disabled child “that would constitute a change in placement under federal law may be taken only after the student’s admission, review, and dismissal committee conducts a manifestation determination review (“MDR”) under 20 U.S.C. Section 1415(k)(4).”

Accordingly, the MDR must convene within 10 school days of the district’s decision to change the student’s placement. The MDR is made up of a committee composed of the child’s parents, as well as relevant members of the district and the child’s ARD Committee. The MDR must determine if the child’s misconduct was a manifestation of his or her disability or the direct result of the district’s failure to implement the child’s IEP. 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e). The policy reason for this is to ensure that a disabled child is not disciplined for behavior that is caused by, or has a direct and substantial relationship to, the child’s disability. If the behavior is a manifestation of the child’s disability, the child’s placement cannot be changed. Other measures may be put into place, however, to ensure the safety of students and staff, including, but not limited to:

  • required check-in at the front office each morning;

  • routine searches of the child’s belongings;

  • increased monitoring of the child on campus and at extra-curricular events;

  • communication with the student's parents regarding potential access to dangerous weapons or materials; and

  • notification to the campus resource officer that a threat has been issued.

If, however, the MDR Committee concludes that the child’s misconduct was the result of purposeful behavior, rather than an uncontrollable impulse (in other words, not a manifestation of his disability), and the district’s proposed change in placement exceeds 10 consecutive school days, then the district may apply the same relevant disciplinary procedures to the disabled child that are applicable to his or her non-disabled peers. 20 U.S.C. § 1415(k)(1)(C); 34 C.F.R. § 300.530(c). Where, as here, the student makes a terroristic threat, the district may discipline the student consistent with the district’s Student Code of Conduct and Texas law. See Tex. Educ. Code § 37.007(b)(1) (noting that a “Terroristic Threat” is a discretionary expellable offense). For more information regarding the specific requirements applicable to MDR meetings and discipline, please contact your district’s legal counsel.

KBS Reference Desk: Enrollment Minor Separate and Apart

Q: A 16 year old minor attempting to enroll in the District. He just moved into the District and is not living with his parents. Instead, he is currently residing with his girlfriend and her parents. Is the 16 year old minor eligible for enrollment?

A: Most likely, YES! Texas Education Code section 25.001(b)(4) allows a student under 18 years of age to “establish a residence for the purpose of attending the public schools separate and apart from the [student’s] parent, guardian, or other person having lawful control of the [student] under a court order.” This would include the situation you have described above. It is important to note, however, that the student’s presence in the District may not be “for the primary purpose of participation in extracurricular activities.” Tex. Educ. Code § 25.001(d). Additionally, the District is not required to admit a student under section 25.001(b)(4) if the student:
1. has engaged in conduct or misbehavior within the preceding year that has resulted in:
A. removal to a disciplinary alternative education program (DAEP); or
B. expulsion;
2. has engaged in delinquent conduct or conduct in need of supervision and is on probation or other conditional release for that conduct; or
3. has been convicted of a criminal offense and is on probation or other conditional release.

See Tex. Educ. Code § 25.001(d). Note that these exceptions apply only if a student is living in a different district than the student’s parent, guardian, or other person with lawful control of the child under a court order. The exceptions cannot be used to prevent a student eligible for admission under a different provision of §25.001 from being enrolled, including homeless students.

KBS Reference Desk: TPIA and Security Information

Q: In light of recent tragic events, we are getting a lot of open records requests for our school and District safety plans, emergency operations, maps of the school, etc. How do we respond when we receive a request like this? Do we have to release this information?

A: The Texas Public Information Act (“TPIA”) excludes from disclosure many documents/records regarding a school’s safety operations plans and emergency response, protecting them as confidential under provisions of both the Texas Government and Education Codes.

Generally, the TPIA (Chapter 552 of the Texas Government Code) makes all government records subject to public disclosure under the general idea that a governmental entity, which serves the public, should be open and transparent in its operations. However, there are a number of exceptions to this rule.

The TPIA, in Section 552.101, states, “Information is excepted from [required public disclosure] if it is information considered to be confidential by law,” such as by statute. Two statutes that specifically make emergency/safety information of a public school district confidential include the Texas Homeland Security Act and certain provisions of the Texas Education Code.

The Texas Homeland Security Act, found in the Texas Government Code Chapter 418, protects a variety of government information, including information that would threaten the safety and security of governmental entities. It also protects certain information that is maintained by the government for the purpose of “preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity.” Similarly, the Texas Education Code Section 37.108 makes confidential a school’s Emergency Operations Plan (“EOP”) and any information “collected, developed or produced during a safety and security audit.”

Many of the safety and security documents maintained by a school fall into categories of information protected by either the Texas Homeland Security Act and/or the Texas Education Code. Examples of such safety sensitive information protected from public disclosure might include:

  • Multihazard Emergency Operations Plans

  • Maps of the interior and/or exists of any school or district building

  • Results of safety and security audits

  • Security videos which would show a school or district building layout

As is the case in all instances where a TPIA request is received for information the District believes to be confidential, the decision to withhold the information cannot be made by the school district alone. Instead, when a school district receives an open records request for documents that contain safety or security information about the District or one of its campuses, the District must request an Attorney General opinion within ten (10) business days of receipt of the request. It must then send additional briefing materials explaining the reasons for its request to withhold the information no later than fifteen (15) days after receipt of the request. Your school district’s legal counsel can assist in determining whether an Attorney General opinion is needed and help in drafting the requests for opinion citing the relevant legal authority.

KBS Reference Desk: Metal Detectors in Schools

Q: Our District is exploring options to increase security on our campuses, including (possibly) the use of metal detectors. We are looking at both walk through and hand-held detector “wands.” What are the legal risks for using metal detectors generally, and what issues should we be aware of?

A: Using either type of metal detector on school district property is considered a search under the Fourth Amendment and, thus, must be reasonable in light of the circumstances surrounding the search.

Under both the 4th Amendment to the U.S. Constitution and Article I, Section 9 of the Texas Constitution, students have the right to be free from “unreasonable” searches and seizures by government actors (i.e., public schools). School district searches can either be personal or administrative. “Personal” searches are conducted on a select student (or specific group of students) based upon “individualized suspicion” of wrongdoing. Alternatively, “administrative” searches are conducted objectively to an entire school, campus or classroom, or to a randomly-selected group of students based on a general policy or safety measure (e.g., random drug testing of all students who participate in extracurricular activities). Texas courts have yet to tackle the issue of metal detectors in public schools but have upheld their use as “administrative” searches in alternative learning centers based on the public entity’s “interest in maintaining a safe and disciplined learning environment in a setting at high risk for drugs and violence.”

The determinative factor to sustain legal challenge, therefore, will be the purpose of the search – not necessarily whether the metal detector is wand or stand alone. While a wand may appear more intrusive, if used with multiple students in the same fashion without regard to suspected misconduct, a wand search could, at least in theory, pass muster as an appropriate administrative search. Wands are typically used, however, as a supplement to a stand-alone machine (following an alert) or for personal searches when reasonable suspicion exists that the student possesses a prohibited (metal) item, such as a firearm or other weapon. As such, it is critical that district employees be specifically trained on the legal standards for “individualized suspicion,” which require that the search be both reasonable at its inception (i.e. actual evidence of possible policy violation) and reasonable in scope (i.e. metal detector will confirm violation) in order for the search to be considered constitutional.

If your district is considering the purchase and use of metal detectors on one or more of its campuses, we recommend that you work with your school attorney in development of administrative procedures, staff training and required amendments to policy FNF (LOCAL).