Although the title sounds like that of a bad heavy metal song, it actually refers to three very recent news topics on the legal front that may affect your school district.

Guns: If your school is a polling location, the Election Judge can carry at your school.

In Opinion No. KP-0212, Attorney General Ken Paxton answers the question on whether sections 46.02 and 46.03 of the Penal Code apply to presiding election judges licensed to carry a handgun under chapter 411 of the Government Code.  Section 46.03 is the statute that prevents any licensed handgun carrier, other than law enforcement and certain other exceptions, from entering on to a school premise or attending a school related activity.

Because he can, the Attorney General opined that election judges who are licensed to carry may be on school premises with their handgun while performing their duties under the Election Code.  The Attorney General based his opinion on a case that is over 100 years old.  He stated that in performing their duties at the polling place, the Election Code gives presiding judges the power of a state district judge to enforce order and preserve the peace. More than 100 years ago, a Texas court addressed whether that statutory authority in a predecessor statute allowed presiding judges to carry arms to a polling location. See Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913). That court concluded that because a presiding election judge had the same power as a district judge to enforce order and keep the peace, and because a district judge could carry arms to a polling location, the presiding election judge likewise had authority to do so. Id.  Thus, in the event your school is used as a polling place, the official election judge may be armed.

Drugs: Epinephrine auto-injectors and defining “all hours the campus is open.”

The Texas Department of State Health Services has issued a new rule, effective August 1, 2018, that is causing concern and confusion.  Texas Education Code §38.208 states that a district that adopts a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district or school must ensure the policy requires that each campus have one or more school personnel members or school volunteers authorized and trained to administer an epinephrine auto-injector present during all hours the campus is open.  In the past, the District has been allowed to define “all hours the campus is open.”  However, the new rule defines all hours the campus is open to mean “at a minimum, during regular on-campus school hours, and when school personnel are physically on site for school-sponsored activities.”

Most districts have received this new language in the form of a new policy.  The new proposed FFAC (LOCAL) accurately reflects the regulations found in 25 TAC Sections 37.601 and 37.611, which went into effect on August 1, 2018.  Based on this new definition, here are some recommendations that you may want to follow:

1. The District could choose to discontinue the practice of unassigned epinephrine auto-injectors.
2. Although the District has been provided with a definition of “all hours the campus is open” in policy, it has not been provided with the definition of school-sponsored activity.  The District could draft a regulation that defines school-sponsored activity.
3. The regulation might also include where to place the injectors, notice to parents, and who has access.
4. It is my understanding that TASB will be issuing a model regulation this month that addresses this issue.  Additionally, TASB Legal Services is also in the process of creating guidance for districts on epinephrine auto-injectors that will address other requirements and considerations that stem from the finalized rules.

As written, this is a very onerous requirement.  However, you might define school-sponsored activity as any meeting or event on school campus that requires a certified staff member to be present during that meeting.  This might exclude PTAs and other groups.  By placing this in a regulation, you are able to define as you wish and better control the provisions of use.

Finally, it should be noted that a person who in good faith takes, or fails to take, any action related to the administration of epinephrine auto-injectors is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act.   See Texas Education Code §§38.215 and 22.052(a), (b).  Thus, if mistakes are made, then there is no liability for the District, only any publicity or political fallout.

Interlopers: Ejecting people from district property and their right to appeal.

 In a final piece of news, the Texas Education Commissioner has updated the rules regarding the ejection of unauthorized persons on school grounds.  Specifically, he has provided guidance on the appeal process, which was mandated by the legislature. The revised rule, 19 TAC §103.1207(h), requires a school district’s board of trustees to adopt a policy that uses the school district’s existing grievance process to permit a person refused entry to or ejected from property controlled by the school district to appeal such refusal of entry or ejection. The policy must permit a person appealing under this section to address the school district’s board of trustees in person within 90 days of the commencement of the appeal, unless the appeal is granted before the school district’s board of trustees considers the appeal.  Additionally, subsection (g) requires a school district to post on the district’s Internet website and any campus websites a notice regarding the provisions of this section, including the appeal process set forth in subsection (h) of this section.

It is recommended that the appeal process link include the statement found in (h) and have links to Board Policies FNG (LOCAL) and GF (LOCAL).  Although TASB will probably introduce a revision to Board Policy GKA (LEGAL) and (LOCAL) soon regarding the 90 day time limit to hear the appeal, districts should be mindful of the time limit if an appeal is filed in the interim.

It is worth noting that the Commissioner authored 19 TAC §103.1207(h) pursuant to Texas Education Code §37.105.  This law has caused confusion and consternation among districts in that its requirements can be onerous and do not necessarily allow for immediate action.  However, under a District of Innovation plan, districts may choose to be exempt from this section.

If you have additional questions regarding these three new pieces of law, please do not hesitate to contact the attorneys at Leasor Crass on this or any other school law issue.

 

 

As detailed in a monitoring report released by the U.S. Department of Education’s Office of Special Education Programs (“OSEP”) last month, TEA’s use of the 8.5 percent special education representation indicator was determined to have contributed to a statewide pattern of practices that violated the Individuals with Disabilities Education Act (IDEA) child find requirements, resulted in a failure to make FAPE available to all eligible children with disabilities residing in the State, and demonstrated a failure on the part of TEA to fulfill its general supervisory and monitoring responsibilities under IDEA. TEA is now seeking “significant stakeholder engagement” regarding an initial draft of its plan to bring it back into compliance with IDEA.  Detailed information about opportunities available for providing feedback (including a link to an online survey and calendar of upcoming stakeholder meetings) is available online here.  This opportunity to provide input should not be ignored, as the plan has serious repercussions for public school districts.

Those wishing to review a full copy of OSEP’s 14 page monitoring report can access it here.  However, the critical issue identified by OSEP can be summarized as a perceived widespread confusion on the part of local school districts with respect to the obligation to refer students for evaluation under IDEA as required by 34 CFR §300.111.  Specifically, OSEP identified serious and systemic problems with how this “child find” mandate relates to Response to Intervention (“RtI”), Section 504, and the state’s dyslexia laws.  The report emphasizes OSEP’s position that supports being provided in the general education environment through these and other programs cannot serve as a basis to delay or deny the referral of a struggling learner who is suspected of having a disability and needing special education and related services.

School districts should be aware that TEA’s initial proposal for remedying this issue includes the following provision:

TEA will require every district and charter school to identify all students who were in RtI for 6+ months, only had a Section 504 plan, or were exclusively in a dyslexia or dyslexia-related program. Schools must connect with the parents of these identified students not yet in special education and notify them of the corrective action plan and opportunity for a special education evaluation. The cost of identifying and conducting assessments for students suspect of having a disability has always been the responsibility of the district, which will continue.

While well intentioned, implementing this proposal could prove problematic for local school districts.  First, the plan doesn’t address incidents in which a district might have legitimate reasons for refusing to conduct an evaluation.  Second, it doesn’t consider the logistical issues that might arise from attempting to complete a potentially massive number of evaluations within the statutorily imposed timeframe.  Finally, districts should recognize that the “costs of identifying and conducting assessments for students suspected of having a disability” includes costs associated with the procedural safeguards provided to the parents seeking those evaluations.  These costs include the obligation to provide an Independent Educational Evaluation (IEE) at public cost and/or the right to request a due process hearing in response to disagreements regarding the evaluation.

Despite its fundamental importance, Child Find has proved to be a deceptively complicated concept. While undeniably challenging, the potential benefit of developing clear, concise, and unambiguous guidance in response to OSEP’s findings should not be overlooked.  In the meantime, if you have questions about your district’s responsibilities under IDEA and/or participating in TEA’s efforts to address OSEP’s concerns, please do not hesitate to contact the school attorneys at Leasor Crass, P.C.

Yesterday, Attorney General Ken Paxton issued an opinion in response to Texas Senator Paul Bettencourt’s request regarding resolutions adopted by some school districts which were designed to encourage a culture of voting (the “Request”). Some of the resolutions referenced texaseducatorsvote.com and included the possibility of transporting employees and/or students to polling places. You can see the opinion here  (the “Opinion”).

Bettencourt’s Request was submitted on December 12, 2017, which provided Paxton until June 11, 2018, to issue an opinion. While it was anticipated that an opinion would be issued prior to the upcoming election season, some suspect that the quick response from Paxton indicates that the Opinion was predetermined.

Bettencourt’s Request asked the following two questions:

1. Does a school district providing or securing transportation for employees or students to and/or from polling places violate the Gift Clauses of the Texas Constitution?
2. What legal constraints exist regarding a school district’s ability to spend or authorize the spending of public funds for political advertising or communications designed to influence voters to vote for or against a particular measure or candidate?

The “circumstances” Bettencourt described to Paxton in the Request consisted of a narrative replete with political rhetoric, unsubstantiated allegations and conclusions unsupported by any set of specific facts.  Please peruse those for your own edification at the link to the Request here.

In summary, Paxton opined:

1. Absent “an educational purpose,” transporting students to polling locations would constitute a gift of public funds;
2. If a district employee does not have a “responsibility or duty to perform on behalf of the school district at the polling location,” then a court would likely conclude that transporting the employee to the polls serves no public purpose and would be a gift of public funds; and
3. Regarding the resolution, “the use of public funds to link to an Internet website promoting a specific candidate or measure is itself a communication supporting or opposing a candidate or measure in violation of this provision.”

The Opinion is not law. Further, while Courts have stated that Attorney General opinions are highly persuasive and are entitled to great weight, the ultimate determination of a law’s applicability, meaning or constitutionality is left to the courts.

Transportation

A school district must meet this three-part test to establish that an expenditure does not constitute a gift of public funds: (1) ensure that the predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public’s investment; and (3) ensure that the political subdivision receives a return benefit. Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Comp. Comm’n, 74 S.W.3d 377, 384 (Tex. 2002); Op. Tex. Att’y Gen. No. GA-0076 (2003).

The Opinion is not based upon any set of specific facts. Individual school districts must first decide whether an activity meets the above three-part legal analysis based upon facts specific to their districts. A school district’s decision could then be challenged in court and would be subject to judicial review.  An injunction from the court to prohibit the district from providing this service would most likely be the worst case scenario.

Political Advertising

Bettencourt only made vague allegations that the texaseduatorsvote.com website contains “links to other websites that are partisan in nature.” Bettencourt did not provide any facts to Paxton to establish that any link promoted a specific candidate or measure or that “political advertising” somehow occurred in connection with any school district’s resolution. The Texas Election Code defines “political advertising” as:

(16)  “Political advertising” means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:

(A)  in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television;  or

(B)  appears:

(i)  in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication;  or

(ii)  on an Internet website.

Tex. Elec. Code § 251.001(16) (emphasis added). A “measure” is defined as “a question or proposal submitted in an election for an expression of the voters’ will and includes the circulation and submission of a petition to determine whether a question or proposal is required to be submitted in an election for an expression of the voters’ will.” Tex. Elec. Code § 251.001(19).

The Texas Education Code, Texas Election Code, and the Texas Ethics Commission Rules, guides, and Texas Ethics Advisory Opinions provide the legal constraints that exist regarding a school district’s ability to spend or authorize the spending of public funds for political advertising. The Texas Ethics Commission’s Sworn Complaint process and imposition of fines, as well as criminal prosecution, are the enforcement mechanisms for specific violations.

If you have questions about Paxton’s Opinion or your school district’s efforts to promote a culture of voting, please do not hesitate to contact any of the attorneys at Leasor Crass.