Mike Morath handed down a decision ruling Texas Education Code §37.105 “does not limit the right of a school board to exclude individuals from school property.”
This controversy started with Mr. Santiago Salinas, a member of the Webb Consolidated Independent School District’s Board of Trustees during the 2016-2017 school year and the father of a child enrolled in the district. In November 2016, the school board voted to ban Mr. Salinas from any district property for a period of one year due to alleged inappropriate behavior in a school setting, resulting in Mr. Salinas only being allowed on district property for legitimate business, including board meetings and parent/teacher conferences. After a subsequent violation of this order in June 2017, the board voted to extend this prohibition for another year and censure Mr. Salinas.
Following the extension and censure, Mr. Salinas filed a complaint against the District arguing Section 37.105 limits the authority of the school board to exclude a person from district property. The District, in reply, argued §11.151 gives school boards the same property rights as any other owner of real property. Therefore, a school board is allowed to exclude individuals from its property just as any owner of real property may exclude individuals. See Salinas v. Webb Consol. Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 034-R10-08-2017 (July 6, 2018)
Section 11.151 sets forth the authority, powers, and duties of school boards, including the power to acquire and hold property. Additionally, this section provides that the trustees are vested with “all rights and titles to the school property of the district.” Tex. Educ. Code Ann. §11.151(c). Therefore, based on Section 11.151, it would seem school boards generally have the right to ban anyone from school property. This law, however, would have potentially been in conflict with the previous version of Section 37.105 that limited the authority of the board to exclude only those without legitimate business or to eject those who refused to leave peaceably upon request.
Section 37.105 was amended in 2017, so these two sections are now consistent. The amended Section 37.105(a)(1)-(2) states a school administrator, resource officer, or district peace officer may prevent a person from entering school property or eject a person from school property if the person refuses peaceably upon request and the person poses a substantial risk of harm or behaves in an inappropriate manner. Notably missing from the current version of the rule is any mention of the school board or the board of trustees. The Commissioner interpreted this absence to mean the Texas Legislature decided not to limit the authority of school boards to exclude an individual. Therefore, without this limitation, the school board does not have to consider whether an individual is objectionable, acting inappropriately, or has legitimate business to be on school property.
Based on this ruling, the board of trustees generally has the exclusive right to prohibit anyone from school property, with or without reason, including its own members. One of the few limitations to this exclusion power are likely individuals who have a statutory right to be on district property, such as students. It should be noted, however, that this authority rests with the board and §551.102 of the Government Code requires any final action, decision, or vote on a matter deliberated in a closed meeting be voted on in open session.
District staff must follow local board policies when excluding or ejecting a person from school property. For example, §37.105 states a school administrator may refuse someone entry or eject someone from school property if the person refuses to leave peaceably and they pose a substantial risk of harm or the person behaves in an inappropriate manner for a school setting. If the person is behaving inappropriately, the school administrator must first issue a verbal warning to the person advising them that their behavior is inappropriate and may result in ejection or refusal of entry. The person must continue the behavior before the administrator is allowed to either eject the person or refuse them entry.
Additionally, the school district should maintain a record of all verbal warnings issued containing the name of the person given the warning and the date it was issued. At the time a person is refused entry or ejected from school property, the person must be given written information regarding the appeal process. If the person excluded is a parent or guardian of a child enrolled in the district, the district must make accommodations so the parent or guardian can participate in the child’s admission, review, and dismissal committee or in the child’s team under Section 504. Lastly, the term in which a person is excluded from school property may not exceed two years. The district must post notice of the provisions in §37.105 on the district’s website and on each campus’s website, including the applicable appeal process. See Tex. Educ. Code §37.105(a)-(h). Please note that a new rule issued by the Commissioner requires that a person appealing an exclusion from school property must be able to address the board in person within 90 days of filing the appeal/grievance. This means that even though a district can still require the person to go through the various appeal levels of the grievance process, there is now an ultimate deadline for a school board to hear this type of appeal.
When a school board uses a process that conforms with §11.151, such as a vote to exclude in open session, the additional provisions that other school employees have to comply with under §37.105(a)-(h) do not apply. Thus, this freedom, when used appropriately, allows the District, through its Board of Trustees, much greater power to police entry onto District property.
If you have additional questions regarding this ruling, please do not hesitate to contact the attorneys at Leasor Crass on this or any other school law issue.