Blog | Leasor Crass, P.C

March 4, 2021 By LeasorCrass

Party On?! Chapter 21 and the First Amendment

Believe it or not, contract season is right around the corner. And, as you are no doubt aware, Texas Governor Abbott recently issued Executive Order GA-34. The Order, which goes into effect on March 10, 2021, removes the state-wide operating limits and mask mandate that have been (depending on your perspective) keeping the spread of COVID in check and/or trampling personal liberties since last July. The alignment with upcoming St. Patrick’s Day and Spring Break is almost astronomical in nature. What could possibly go wrong?

While we sincerely hope public school district employees make good choices over the next several months, we thought this might be a good time to address some common questions about employees behaving badly.

Can public school employees be disciplined for off-campus behavior?

Yes. While public school employees do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”, courts have long recognized that the First Amendment protections enjoyed by a public employee must be balanced with the public employer’s interest in an efficient, disruptive-free workplace. While an entire semester could be spent on the nuances of this area of law, a very simplified distillation is as follows:

Is the employee speaking/acting pursuant to their official duties?
1. If so, the speech is not protected.
2. If not, move to the second step.
Is the employee speaking as a citizen on a matter of public importance?
1. If not, the speech is not protected.
2. If so, move to the third step.
Does the employee’s interest in free speech outweigh the school’s interest in maintaining an efficient, disruptive-free workplace?
1. If so, the speech is protected.
2. If not, the employee may be disciplined.

By way of example, imagine that an employee travels to South Padre Island for Spring Break and ends up on a local news broadcast. If the resulting video depicts the employee giving her thoughts on the wisdom of the Governor lifting the mask mandate, that speech (pro or con) would likely be protected. However, video of the employee doing a keg stand on the beach while drunkenly singing “Danny Boy” would support disciplinary action.

Termination or nonrenewal? What’s the difference?

If Spring Break shenanigans should result in employment action, it will become important to weigh the options for termination vs nonrenewal. Simply put, termination means ending a contract before the contract expires according to the terms that have been agreed upon. Nonrenewal means refusing to renew a contract for another term. With respect to Chapter 21 Contracts:

Continuing Contracts aren’t subject to renewal because they…um…continue. Consequently, Continuing Contracts must be terminated for good cause.
Term Contracts may be ended during the contract period for good cause. However, by their nature, Term Contracts end after a set amount of time, typically one or two years. State law requires that these contracts be renewed for another term unless the school district takes action by determining that one or more established policy reasons for nonrenewal exist. These reasons are typically set out in District Board Policy DFBB(LOCAL).
By law, a Probationary Contract may not be for a term exceeding one school year. A Probationary Contract may be ended during this contract period for good cause. However, the law also allows a district to terminate the employment of an employee on a probationary contract at the end of this one-year contract period if the Board determines that such termination will serve the best interests of the District.

All three types of Chapter 21 contracts may be terminated for good cause during the contract period (importantly, Term Contracts have a different legal standard for “good cause” than Probationary or Continuing Contracts.) Additionally, all three types of contracts require notice and an opportunity for a hearing before termination can occur. The specific notice and hearing requirements are statutorily defined and must be followed precisely to ensure that the termination is legal.

Term and Probationary Contracts may be nonrenewed at the end of the contract period. Probationary Contracts only require that notice of the Board’s decision to terminate employment be given in accordance with specific statutory requirements.

Term Contracts provide the employee with more due process. The Board must meet specific statutory requirements regarding notice of the decision to propose nonrenewal, an opportunity for a hearing, and then notice of the actual decision to nonrenew. Consequently, any action to nonrenew a Chapter 21 Contract is, at a minimum, a two-step process that requires multiple meetings.

At this time of year, it is typically more financially prudent to initiate nonrenewal proceedings than to engage in termination. This is due in part to the more stringent good cause standard and the requirement that a termination hearing be held before an independent hearing examiner, while a nonrenewal hearing may be conducted by the school board. Of course, nonrenewal may not be an option if the employee is in the midst of a multi-year contract.

Our sincerest hope is that everyone will continue to behave in a safe and responsible manner. However, should the confluence of personal freedom, green beer, and Spring Break result in poor choices, districts will need to be prepared to act swiftly to address personnel issues in accordance with the legal protections afforded by Chapter 21. The education lawyers at Leasor Crass, P.C. are ready to help ensure that these legal mandates are followed.

January 12, 2021 By LeasorCrass

Student Trustees Would Be Mandatory Under Senate Bill 272

Here at Leasor Crass, we are keeping a close eye on the bills being filed for the upcoming Texas legislative session which will either directly affect or have some impact on our clients.

Filed on December 30, 2020, Senate Bill 272 really caught our attention. It requires a school district board of trustees to create a nonvoting student trustee position on the board. The text of SB 272 can be found here.

SB 272 seeks to repeal Texas Education Code section 11.0511 which gives the board of trustees of a district with a school operating under a campus turnaround plan the option to create a nonvoting student trustee position. TEC 11.0511 states that such a student trustee may not participate in board meeting closed sessions when issues related to personnel matters are considered. Further, if a board chooses to create this student trustee position, the board must adopt a policy regarding how the student trustee will participate in board deliberations and ensuring that the student trustee’s access to information, documents and records is consistent with the Family Educational Rights and Privacy Act (“FERPA”).

Unlike TEC 11.0511, SB 272 requires all school districts to have a nonvoting student trustee. Further, SB 272 does not provide any mechanism for addressing how the student trustee will participate in deliberations, what kind of access the student trustee will have to confidential student or personnel information, or contain a prohibition for participating in closed session when personnel matters are involved.

Under SB 272, the Commissioner must develop an application for the position of student trustee. Each year, starting with the 2021-2022 school year, high school principals must solicit applicants for the position using the Commissioner’s form application and then select three applicants to recommend to the board of trustees. The board president will then select two or more applicants from those recommended by the high school principal(s). The board, by majority vote, appoints one of the finalists chosen by the board president to serve a one-year term. During the term, the student trustee must remain enrolled in school and maintain at least a 2.5 GPA. SB 272 states that the student trustee is not a member of the board, but “has the same powers and duties as a member of the board, including the right to attend and participate in meetings” with the exception of having the right to vote and to be counted when determining whether a quorum exists for a board meeting. The student trustee is also “entitled to reimbursement for actual expenses incurred by the student in attending meetings of the board,” subject to the board president’s approval.

Students serving in an advisory capacity to school boards is relatively common now and being part of the governance process can provide invaluable civics lessons to students. In a few rare cases, students have even served as fully participating school board members who vote on nearly all board matters. The two links below share additional information on this topic.

https://www.edweek.org/leadership/students-on-school-boards-balancing-representation-and-fairness/2019/06

https://www.edweek.org/leadership/few-student-board-members-can-vote-should-that-change/2019/06

However, in the rare cases found in the links, there was no legislative mandate to create these student trustee positions.

We will be watching SB 272 to see whether it makes progress during the upcoming legislative session. If you have questions about SB 272 or any other proposed legislation and how it might affect your school district, please do not hesitate to contact any of the Leasor Crass attorneys.

December 4, 2020 By LeasorCrass

To Lease or Not to Lease, That is the Question

On October 20, 2020 Attorney General Ken Paxton opined on the ability of school districts to enter into long-term leases with private entities. More specifically, the Tarrant County Criminal District Attorney asked Attorney General Paxton whether an independent school district may enter into a long-term ground lease with a private entity that intends to develop the district’s surplus property for non-educational purposes that are expected to yield financial benefits to the district exceeding the current value of a sale of the property. Tex. Att’y Gen. Op. No. KP-0338 (2020).

The opinion reiterates that provisions in Chapter 11 of the Texas Education Code authorize a school district’s board of trustees to dispose of surplus property and sell property held in trust for district use. However, there is no statutory provision expressly authorizing a school board to lease district property to another entity.

Case law helped fill in the statutory gap in Royse Indep. Sch. Dist. v. Reinhardt and River Rd. Neighborhood Ass’n v. S. Tex. Sports. The Royse court determined that a school board had implied authority to lease district property to another entity. Ultimately, the court concluded the specific use of the property was “not so inconsistent with the purposes to which the property has been dedicated or set apart as renders the contract . . . illegal or unauthorized.” Later attorney general opinions relying on the Royse ruling have recognized that school boards have implied authority to permit private entities to lease school property so long as the lease does not interfere with the property’s school purpose.

In contrast, the court in River Rd. held that a district’s board of trustees lacks authority to enter into a long-term lease which relinquishes the board’s authority to control the property’s use. As a result, a board of trustees may lease a district’s real property, but may not divest itself of the right to manage and control the property and a lessee’s use must not interfere with the property’s use for district purposes.

Tex. Att’y Gen. Op. No. GA-0321 (2005) recognized a relevant factor in the determination of whether a long-term lease would interfere with the property’s use for district purposes is the determination that the land at issue is not used by the school district. Further, determining that land is no longer necessary for a school district’s operation is a relevant factor in whether a lease divests a school board of its right to manage and control the property.

Attorney General Paxton ultimately concluded whether a specific lease satisfies the requirements of law is a question of fact and contract interpretation outside the purview of an attorney general opinion. However, he cautioned school districts to consider the Texas Constitution’s prohibition on gifts of public funds and whether such a lease would satisfy the three-part test iterated in Texas Municipal League Intergovernmental Risk Pool v. Texas Workers’ Compensation Commission. To do so, a district must ask: (1) is the expenditure’s, in this case a lease to use the district’s property, predominant purpose to accomplish a public purpose, rather than benefit private parties?; (2) will the district maintain sufficient control over the lease and property to ensure the public purpose is accomplished?; and (3) will the district receive a return benefit?

Attorney General Paxton clarifies the fact that the property is no longer necessary for the school district’s operation does not negate the Texas Constitution’s prohibition on gifts of public funds. However, the property’s necessity, or lack thereof, any reversion back to the district, and the long-term financial benefit are factors to be considered in the district’s evaluation.

If you would like to read the full opinion, click here.

If you have any additional questions about this opinion or any other issue, please do not hesitate to contact the attorneys at Leasor Crass.

November 9, 2020 By LeasorCrass

Understanding Compensatory Services

As schools continue to navigate the whitewater rapids of COVID-19, the issue of compensatory services has steadily started gathering more attention both locally and nationwide. While not unexpected given the massive disruption the pandemic has, and continues to, wreak on the provision of special education services, discussions regarding compensatory services are rarely welcomed. This can be attributed to compensatory services being stigmatized as adversarial and punitive. In fact, they are neither.

Compensatory services is not expressly defined in IDEA. Rather, the statute provides courts with the broad authority to “grant such relief as the court determines appropriate.” Consequently, when a violation of IDEA occurs, compensatory education may be awarded. It is very important that this be distinguished from some form of punitive damages. The purpose of compensatory education is not to punish a school for doing something wrong, instead, the remedy is available to enable the student to be placed in the same position he or she would have been but for the school district’s violation of IDEA.

Due to the lack of statutory clarity, the actual means of achieving this restoration can be confusing in and of itself. Generally speaking, courts are divided into two camps. The first is a one-to-one or direct calculation method. Under this scheme, the student is simply awarded the amount of service that has been denied. For example, if a student’s IEP required the school to provide five twenty-minute sessions of speech therapy during the first six-weeks of a school year and the pandemic prevented all five sessions from being provided, a court could award the student 100 minutes of compensatory speech therapy.

While this direct calculation method is straightforward, it becomes confusing when applied to less concrete services such as inclusion support and burdensome when applied to instructional services. Consequently, another doctrine has developed in which an attempt is made to calculate the actual amount of compensatory education needed to “right the wrong.” Importantly, this is the approach that the Texas Education Agency appeared to adopt in its May 2020 guidance “Considerations for Extended School Year and Compensatory Services for Students with Disabilities During and After Texas School Closures Due to COVID-19” (available here.)

In its guidance, TEA clarifies that compensatory services “should not be viewed as remedy for a failure on the part of the LEA, but rather as a means to mitigate the impact of the loss of critical skills or learning that might have occurred as a result of special education and related services that could not be provided during the pandemic.” Consequently, TEA advises ARD committees to make individualized decisions regarding each student’s need for compensatory services. This requires a review of data regarding past and current needs to determine whether, and/or to what extent, a student may have lost progress. If the data shows that a student has not lost progress, or that a minimal loss can be made up in a short time, TEA advises that the “ARD committee might determine that the student does not need compensatory services.”

However, if the data does document lost progress, TEA’s guidance requires ARD committees to “consider and, as applicable, include in the student’s IEP the type, location, duration, and frequency of the services the student needs to make up for the lost progress.” Importantly, TEA’s guidance expressly warns that this decision “should not be misconstrued to necessarily require an hour for hour or minute for minute makeup in services.”

Given this information, there are a few important considerations districts should keep in mind regarding compensatory services:

Given Due to the extent of the disruption caused by the pandemic, it is likely not a matter of “if”, but “when” a claim for compensatory services will be made.
Compensatory services should be construed as remedial, not as some form of punishment.
Compensatory services are not “one-size fits all.” By its very nature, each student with an Individualized Education Program (“IEP”) has unique needs and should be considered to have been impacted by the pandemic uniquely.
The process for determining compensatory services is not necessarily adversarial. Rather, the best practice is to have the ARD committee work collaboratively to determine the need for and means of providing services.

Please do not hesitate to contact the attorneys at Leasor Crass, P.C. if you have additional concerns or questions regarding compensatory services.

September 3, 2020 By LeasorCrass

ACLU Dress-Code Letters

Many of you have received letters within the past few days from the ACLU concerning your district’s dress code. The ACLU’s basic position in these letters is that any gender-based distinctions in a student dress code violate the Equal Protection Clause of the U.S. Constitution and Title IX, and that a Texas federal court recently declared this to be so in a lawsuit currently pending against Barbers Hill I.S.D.

First, please note that this is not an accurate statement of the court’s ruling in the Barbers Hill decision. However, the court’s action in that case is one of several warning signals we have seen in recent times indicating that gender-based differences in dress codes may soon be declared unconstitutional or otherwise found to be in violation of federal law.

In the Barbers Hill case, which is currently pending in federal court in the Southern District of Texas, two male African-American students are challenging provisions in that district’s dress code that prohibit boys’ hair—and only boys’ hair—from extending below the eyebrows, ear lobes, or the top of a t-shirt collar at any time.

U.S. District Judge George Hanks recently granted one student’s request for a preliminary injunction to prevent the district from enforcing the policy against that student during the pendency of the case. In doing so, the court has not yet declared the dress code to be unconstitutional. To receive a preliminary injunction, a plaintiff must show, among other things, a substantial likelihood of prevailing on the merits of one or more claims. A preliminary injunction is temporary in nature and is designed to preserve the status quo and prevent irreparable harm until the rights of the parties can be determined at a trial on the merits.

In the Barbers Hill decision, the court found that the student met this test and had shown a substantial likelihood of prevailing on the merits of three of his claims: sex discrimination and race discrimination in violation of the Equal Protection Clause and violation of his right to free expression under the First Amendment.

It is important to note that the court’s decision turned on the specific facts at issue in that case. Judge Hanks granted the preliminary injunction because the district was unable to point to any data or peer-reviewed research showing that the hair length of male students had any impact or connection to the district’s claimed justifications for its hair policy: teaching grooming and hygiene, preventing disruption, avoidance of safety hazards, and teaching respect for authority.

Although the court has not yet officially declared the Barbers Hill policy to be unconstitutional, districts should treat the decision as a warning signal of a potential change in the law that may be coming in the near future. Of the various claims asserted in that suit, the claim for sex discrimination under the Equal Protection Clause will likely be the most problematic for districts. Decisions by the U.S. Supreme Court have evolved in such a way over the years to suggest that all government restrictions that impose different requirements on individuals based on their gender must survive the constitutional “intermediate scrutiny” test. Under that test, the government has the burden of showing “that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”

In Barbers Hill, the court determined that the district failed to show sufficient evidence at the preliminary injunction hearing that would meet this test. It is certainly possible that Barbers Hill I.S.D. may be able to do so at a later stage in the case. Note that whatever the final decision may be in the Barbers Hill case, that would only bind school districts within the geographic boundary of the Southern District of Texas. However, the issue is very likely to be before courts in other regions of Texas in the near future.

We cannot predict which way the courts will ultimately rule, but based on the evolution of the law, there is a distinct possibility that gender-based hair policies may soon be declared an unconstitutional violation of the Equal Protection Clause. Regardless of the ultimate outcome, we can say with a fair degree of certainty that the road to a binding court decision will undoubtedly be paved with numerous challenges, complaints, and lawsuits.

We recommend districts take the opportunity to evaluate how strongly you believe in and want to fight for any gender differences in your dress code. Districts that decide to keep gender-based distinctions should be prepared to justify their decision with “exceedingly persuasive” evidence to show that the gender-based provisions are “substantially related” to the achievement of “important governmental objectives” that the district actually relied on when it adopted the policy.

We would be glad to assist in the evaluation of your district’s policy and provide any other guidance to help you achieve your district’s objectives.

LEASOR CRASS, P.C.

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