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Chapter 1

Public School Law

William Allan Kritsonis, PhD

Chapter 1
An Overview of Education Law,
Texas Schools, and Parent Rights

This chapter explores the basic legal framework of school law in

The following subjects are discussed:

the roles of the state and federal governments in the

establishment and operation of the Texas school system
how the State Board of Education, the Texas Education
Agency, local school districts, private schools, and charter
schools all function.

the sources of school law

the responsibilities of school administrators and the

functioning of site-based management.
important federal laws affecting the operation of Texas
schools and review the long-running controversy over the
financing of Texas schools.

Sources of Law
Constitutional Law
Statutory Law
Administrative Law
Judicial Law

Constitutional Law
The Tenth Amendment to

Consistent with the Tenth Amendment, the Texas

the Constitution declares

Constitution of 1876 established the legal basis

that all powers not

delegated to the federal
government are reserved to
the states. This amendment
gives state governments
their traditional power over

for a
public school system in the state. Section I of
Article VII reads:
"A general diffusion of knowledge being essential
the preservation of the liberties and rights of the
people, it shall be the duty of the legislature of

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

State to establish and make suitable provision for
support and maintenance of an efficient system of
free public schools."

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

Beginning in the early 1980s, the Texas

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.
Despite their essentially local

character, public school districts

governed by the state. The present

Texas school districts and

campuses could

nearly 6,200 individual school

be changed should the legislature desire, given

the latter's authority over public education


system of some 1,045

under the Texas

Administrative Law
Administrative law consists of the rules, regulations, and decisions that are issued by
administrative bodies to implement state and federal statutory laws. The policy manuals
handbooks developed by local school districts are excellent close-to-home examples of
administrative law. 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
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).

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. 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. The most important function of
federal courts is to adjudicate disputes arising under the Constitution and statutes of the
United States.

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. 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.

State Board of Education

and the Texas Education
Formerly the policy-making body of the Texas Education Agency (TEA), the State Board of Education
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. Occasionally, a
dispute will arise over whether the SBOE has the authority to act in certain situations. The attorney
has advised that the state board is not free to establish general content standards for textbooks as a
condition of board approval. Like the state board, TEA can perform only those duties specifically
assigned to
it by the legislature. 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
Texas Senate. Like the governor, the commissioner serves a four-year term. The only qualification for
as commissioner is U.S. citizenship.

Local School Districts

The governance of schools is left to local boards of trustees. 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. 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.

School board trustees serve without compensation for a term of three or four years (TEC
1I.o59). Elections for trustees with three-year terms are held annually, with one-third
each year. Elections for trustees with four-year terms are held biennially, with one-half
each biennium. The staggered terms assure continuity to school board functioning. With
limited exceptions, trustee elections must be held jointly with either municipalities,
or in certain instances hospital districts, in either May or November, as appropriate.
TASB is a comprehensive private organization that provides a host of services to school
including model school board policies that most districts have adopted. TASB also is
in the legislative arena on behalf of its members and provides financial support to
embroiled in expensive litigation.

Charter Schools
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
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.
Home-rule school district charters allow school districts to free themselves from most state
requirements. Campus charter schools and programs remain public and are subject to federal
law and to those state statutes that specifically apply to them. Open-enrollment charter
schools constitute the third charter option and to date are the most popular. Initially
to granting 20 open-enrollment charters, the State Board of Education today has authority to
grant up to 215.

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
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.

Private Schools
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. In a seminal 1925 decision, the
U.S. Supreme Court ruled that the states cannot require all children to attend public schools
only. 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. 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.

School Administrators
The superintendent is the chief operating officer of the public school district, responsible for
implementing the policies of the board. Other responsibilities are the operation of the
educational programs, services, and facilities of the district and appraisal of the staff;
and evaluating personnel; and making personnel recommendations to the school board.
Managing district operations, developing and administering a budget, organizing the
central administration, consulting with district-level committees, ensuring adoption and
enforcement of the student code of conduct and other disciplinary rules, submitting
reports, and providing joint leadership with the board.
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 set campus education objectives through the planning process, develop budgets,
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. Principals must be familiar with employment law
order to carry out their personnel responsibilities effectively and without legal liability.

District-and CampusLevel Decision-Making

Despite the authority given to local school boards, the Texas Legislature since 1990
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.
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
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.

How the U.S.

Constitution and the
Federal Government
affect Texas Schools

Key Provisions of the

U.S. Constitution
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. 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.
To determine what U.S. Constitutional rights we enjoy in the state setting, we must look to the
Fourteenth Amendment. Congress passed a statute after the Civil War to enforce the
Fourteenth Amendment by enabling aggrieved persons to pursue their claims in federal court.
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]."

the Fourteenth Amendment protects persons from state government repression of basic
liberties guarantees, such as those in the Bill of Rights of the U.S. Constitution. Since
schools are part of state government, the Fourteenth Amendment applies to them and to
employees, but not to private schools. Exactly what constitutional rights students and
have in the public-school setting will be discussed in subsequent chapters. A second
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

Important Federal
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. These are a few:
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.
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.
Title VI of the 1964 Civil Rights Act prohibits intentional discrimination with
respect to race, color, or national origin in federally assisted programs.
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
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.
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.

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
Title IX of the 1972 Education Amendments prohibits
discrimination against persons on the basis of sex in any federally
assisted education program.
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.
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
system and remains contentious. As previously noted, the I976 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. With the growth of population centers, the
imbalance between urban and rural districts created by reliance on local property taxation
became increasingly apparent. 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.

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).
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.

Rights within Public

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."
Parents have the following rights:
are entitled to be represented by an attorney when they present a grievance to
the school board on behalf of their children.
have the 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.
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.
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.
right to request placement of their child in a class above the child's grade level,
the right to have their child graduate early if all course requirements have been
completed and 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
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
Under the public education grant program, a low-performing school is defined as one having
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. Children
attending these schools are eligible to attend another school in the district that is not lowperforming or to receive a public education grant ("PEG") to attend a school in another
(TEC 29.201-29.202). This provision is a watered-down version of a voucher plan that did
pass in the 1995 legislative session. Districts have the right not to accept students from
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
status. This essentially leaves lack of available space as the basis for refusal. The PEG law
requires the commissioner of education to notify each school district by January i of its lowperforming schools (TEC 29.204). The district, in turn, must notify parents of students
attending those schools by February i that their child is eligible for a PEG.

Choosing Private Schools

The state cannot require all children to attend public school. This 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.
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.

Educating Children at

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
subject to certain conditions.
The court further held that TEA lacked the authority to enforce a more restrictive
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.Since the case was brought as a class
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.

In 1992 the commissioner of education upheld a school district's refusal to enroll a homeschooled girl in a one-period choir class based on the district's need to maintain discipline
supervision, obtain state funding, and avoid violating UIL rules concerning choir
However, school districts must permit students who are home-schooled to participate in
Preliminary Scholastic Aptitude Test (PSAT), the National Merit Scholarship Qualifying Test
(NMSQT), and college advanced placement (AP) tests offered by the district at the same
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.
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 gradelevel
placements of home-schooled children.

Jim Walsh;Frank Kemerer;Laurie
Maniotis. The Educator's Guide
to Texas School Law: Seventh