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THE EDUCATOR’S GUIDE TO TEXAS SCHOOL LAW
sixth edition
THIS PAGE INTENTIONALLY LEFT BLANK
The Educator’s Guide
to Texas School Law

sixth edition

by Jim Walsh
Frank Kemerer
and Laurie Maniotis

University of Texas Press, Austin

Copyright © 2005
by the University of Texas Press
All rights reserved
Printed in the United States of America

Requests for permission to reproduce material from this work should be sent
to Permissions, University of Texas Press, Box 7819, Austin, TX 78713-7819.

䊊
⬁ The paper used in this publication meets the minimum requirements
of American National Standard for Information Sciences—Permanence
of Paper for Printed Library Materials, ansi z39.48-1984.

Library of Congress Cataloging-in-Publication Data

Walsh, Jim.
The educator’s guide to Texas school law / by Jim Walsh, Frank Kemerer,
and Laurie Maniotis.— 6th ed.
p. cm.
Kemerer’s name appears first on the previous edition.
Includes bibliographical references and index.
isbn 0-292-70662-6 (hardcover : alk. paper)—
isbn 0-292-70663-4 (pbk. : alk. paper)
1. Educational law and legislation—Texas. 2. Educators—Legal status,
laws, etc.—Texas. 1. Title: Guide to Texas school law. II. Kemerer,
Frank R. III. Maniotis, Laurie. IV. Title.
kft1590.k45 2005
344.764⬘07— dc22
2004020342
To Anne, Jenny, Sarah, Devin, Caroline, and Melody
THIS PAGE INTENTIONALLY LEFT BLANK
Contents

Preface xv

1. An Overview of Education Law, Texas

Schools, and Parent Rights 1
Sources of Law 1
Constitutional Law 1
Statutory Law 2
Administrative Law 3
Judicial Law 6
The Structure and Governance of the Texas
School System 13
Texas Legislature 13
State Board of Education and the Texas
Education Agency 13
Local School Districts 15
Charter Schools 17
Private Schools 25
School Administrators 26
District- and Campus-Level Decision-Making 28
How the U.S. Constitution and Federal Government
Affect Texas Schools 29
Key Provisions of the U.S. Constitution 29
Important Federal Statutes 32
School Finance 34
Parent Rights 40
Rights within Public Schools 40
Choosing Private Schools 43
Educating Children at Home 45
Summary 47

2. Student Attendance and the Instructional

Program 49
Attendance 49
Impermissible Discrimination 50
viii educator’s guide to texas school law

Residency and Guardianship 58

The Compulsory School Law 63
Absences 64
Maintaining a Safe School Environment 66
The Instructional Program 69
The Required Curriculum 69
Student Assessment 71
School District Accountability 75
The Effect of the No Child Left Behind Act 76
Removal of Objectionable Library
and Study Materials 79
Computers and the Internet 81
The Federal Copyright Law 83
Extracurricular Activities and the UIL 84
Addressing the Needs of Special Groups 88
At-Risk Children 88
Bilingual Children 89
Gifted Children 91
Abused and Neglected Children 91
Summary 94

3. Special Education 95
The Jargon of Special Education 95
Federal Legislation 97
Child Find 98
Evaluation 99
Eligibility 101
ARD Committee 102
Individualized Education Program 102
General Curriculum 103
NCLB and Statewide Assessments 104
Least Restrictive Environment 105
Procedural Safeguards 108
Attorneys’ Fees 110
FAPE 111
Related Services 114
Extended School Year Services 115
Unilateral Placements 115
Private-School Children 117
Discipline of Students with Disabilities 118
Section 504 of the Rehabilitation Act of 1973 122
Summary 125
 contents ix

4. The Employment Relationship 127

Constitutional Issues 127
Due Process of Law 127
How Much Process Is Due? 133
Types of Employment Arrangements 135
At-Will Employment 135
Non–Chapter 21 Contracts 136
Probationary Contracts 138
Term Contracts 140
Continuing Contracts 141
Third-Party Independent Contract Educators 144
Selection of Staff 144
Certification and the Role of SBEC 144
Nondiscrimination Laws 148
The Hiring Process 149
Criminal Records 150
The Impact of NCLB 151
Restrictions on Employment 153
Ending the Relationship 155
At-Will Employees 155
Non–Chapter 21 Contracts 157
Probationary Contracts 158
Term Contracts 159
Continuing Contracts 168
Third-Party Independent Contractors 170
The Independent Hearing System 171
A Few Final Thoughts on “Good Cause” 178
Constructive Discharge 179
Summary 180

5. Personnel Issues 181

Reassignment 181
Compensation Disputes 183
Teacher Appraisal 184
Employment Benefits 187
Planning and Preparation Period 187
Duty-Free Lunch 188
Personal Leave 188
Health Insurance 189
Assault Leave 190
Teacher Retirement 191
Temporary Disability Leave 191
x educator’s guide to texas school law

Family and Medical Leave Act 193

Miscellaneous Leave Policies 193
Wage and Hour Requirements 194
Workers’ Compensation and Unemployment
Compensation 195
Grievances and the Role of Employee Organizations 197
Employee Grievances: A Little History 197
Hearing Employee Grievances 201
The Role of Employee Organizations 208
Collective Bargaining on the National Scene 208
The Law in Texas 209
Summary 211

6. Expression and Associational Rights 213

Educator Rights of Expression 214
Expression outside the School 214
Expression within the School 220
Academic Freedom 227
Texas Whistle Blower Act 233
Educator Freedom of Association 236
Student Rights of Expression 238
Communication among Students on Campus 239
School-Sponsored Student Publications 243
Non-School-Sponsored Student Publications 245
Student Freedom of Association 249
Summary 251

7. Religion in the Schools 253

Legal Framework 253
No Government Establishment of Religion 253
Free Exercise of Religion 256
Contemporary Issues 260
The Pledge of Allegiance 260
School Prayer 261
School-Sponsored or Employee-Led Prayer 261
Silent Meditation 264
Invocations, Benedictions, and Religious
Speeches at Graduation 264
Baccalaureate Ceremonies 267
Student-Initiated Prayer at School,
Extracurricular Activities, and Athletic Events 267
Teaching Creation-Science 269
Secular Humanism and Pagan Religion 271
 contents xi

Religion in Classrooms, Choir Programs,

and Holiday Observances 273
Teaching about Religion 273
Student Papers and Presentations
on Religious Topics 276
Choir Programs 278
Holiday Observances 279
Clergy in the Schools 280
Distribution of Religious Literature 281
Wearing Religious Symbols 282
Student Religious Groups and the Equal
Access Act 283
Religious Exemptions 285
Assistance to Sectarian Private Schools 291
Summary 294

8. Student Discipline 296

Guidelines for Rule Making 296
Rules Must Have a Rational Purpose 297
The Meaning of Rules Must Be Clear 297
Rules That Relate to Protected Behavior Must
Be Carefully Developed 298
Rules That Apply Off Campus Must Be
Carefully Worded and Applied 300
Rules Must Be Consistently Enforced 301
Due Process Generally 302
Chapter 37: An Overview 306
Student Code of Conduct 306
Teacher-Initiated Removal 307
Suspension 308
Removal to a DAEP 309
At School 309
Off-Campus Conduct 309
Procedure 312
Life in a DAEP 313
Expulsion 314
Grounds 314
Procedures 316
Emergency Actions 319
Interaction with Law Enforcement 319
Initial Intervention Strategies 321
Corporal Punishment 321
Suspension from Extracurricular Activities 324
Summary 325
xii educator’s guide to texas school law

9. Privacy Issues: Community, Educators,

Students 326
The Legal Framework 326
The U.S. Constitution 326
Federal Statutes 327
State Law 327
The Texas Open Meetings and Public Information Acts 329
Texas Open Meetings Act 329
Texas Public Information Act 336
Educator Privacy Rights 343
Lifestyle Issues 343
Employee Drug Testing 346
Personnel Records and Employee References 347
School Computer Use 350
Student Privacy Rights 351
Student Personal Privacy 351
Student Records 353
Child Custody Issues 356
Student Dress and Grooming 357
Student Search and Seizure 361
Standards for Student Searches 361
Locker and Desk Searches 367
Use of Sniffer Dogs to Conduct Searches 368
Strip Searches 369
Student Drug Testing 370
Use of Magnetometers, Metal Detectors,
and Breathalyzers 373
Summary 375

10. Legal Liability 377

Identifying Areas of Legal Liability 377
State Torts 377
School District Immunity 377
Sovereign Immunity and Contract Cases 382
Qualified Immunity for Public School
Professional Employees 383
The Special Case of Corporal Punishment 391
Law and the School Counselor 395
Federal Civil Rights Liability 398
Governmental Liability 399
Personal Injuries and the Constitution 403
Individual Liability 407
Liability under Federal Statutory Law 412
Summary 414
 contents xiii

Appendixes
A. How to Find and Read a Court Case 415
B. Glossary of Legal Terminology 418
C. Reference Sources 424

Index of Cases 427

Index of Topics 447

Tables
1. Basic Components of Texas Education Law 10
2. Relationship of Law to Establishment
and Operation of Texas Public Schools 12
3. Overview of Texas Charter School Options 20
4. School Finance at a Glance 39
5. Major School Desegregation Decisions, 1954 –1995 52
6. Complying with Copyright Guidelines 85

Figures
1. The Overall Structure of Texas Administrative Law 7
2. Geographic Jurisdiction of U.S. District Courts in Texas 9
THIS PAGE INTENTIONALLY LEFT BLANK
Preface

c h a ng e s at t h e state and federal level continue to impact our edu-

cation system. Every time the Texas Legislature meets, portions of the
Texas Education Code are amended. Increasingly we also see the impact
of the U.S. Congress as it gets more deeply involved in efforts to improve
education. And the disputes over personnel issues, student discipline,
religion, and special education continue to make their way to the court-
house.
Thus, it is time for the Sixth Edition of The Educator’s Guide to
Texas School Law. This book is intended for all Texas school person-
nel, school board members, interested attorneys, parents, and taxpay-
ers. Our goal is to explain in lay language, and with occasional humor,
what the law is and what the implications are for effective school opera-
tions. We aim to help professional educators avoid expensive and time-
consuming lawsuits by taking effective preventive action. We believe
this book is an especially valuable resource for school law courses and
staff development sessions.
In this edition, the reader will note an increase in the federal role
in education. The No Child Left Behind Act, passed by the U.S. Con-
gress under the leadership of former Texas Governor George W. Bush, is
impacting virtually every aspect of school operations. We also include
more cases involving the use of emerging technology, along with up-
dates on everything from student uniforms to prayer in public schools.
In an effort to simplify the very complex area of personnel law, we have
split personnel issues into two chapters. Chapter 4 deals with consti-
tutional issues, contracts, and how the personnel relationship begins
and ends. Chapter 5 addresses all the legal issues that come up during
the employment relationship, from grievances to the role of employee
organizations, to various types of leave.
The book begins with a review of the legal structure of the Texas
school system. As Chapter 1 notes, education law is a complex inter-
weaving of state and federal constitutional, statutory, administrative,
and judicial law. It is important to understand the nature of the system
before reading other sections. Following the opening chapter, major top-
ics of education law are presented in some detail. Statute and case refer-
ences are kept as simple as possible; a complete index of case citations
is included for those readers who wish to consult the cases themselves.
xvi educator’s guide to texas school law

The appendices describe how case law is reported and where to find it
and contain a glossary of legal terms and a listing of other sources on
Texas school law.
We are delighted to add a third co-author to the mix for this Sixth
Edition. Laurie Maniotis is a licensed Texas attorney, a graduate of the
University of Texas School of Law, who has served as co-editor of The
Texas School Administrators’ Legal Digest since 1992. She brings a
great deal of experience in school law along with good writing skills.
Please note that this book is intended to provide accurate informa-
tion regarding the subject matter covered. It is published with the un-
derstanding that neither the authors nor the publisher is rendering legal
advice. If specific legal advice or assistance is required, the services of a
competent professional should be sought.
Both the University of Texas Press and we as authors are grati-
fied by the wide acceptance accorded the Educator’s Guide through the
years as an authoritative source on Texas school law. We hope the edu-
cation community will find this new Sixth Edition a valuable profes-
sional resource.

jim wa lsh
fr a nk k emer er
l au r ie m a n iotis
THE EDUCATOR’S GUIDE TO TEXAS SCHOOL LAW
sixth edition
THIS PAGE INTENTIONALLY LEFT BLANK
O N E

An Overview of Education Law,

Texas Schools, and Parent Rights
i n t h i s c h a p t e r , we examine the basic legal framework of school
law in Texas. We begin by discussing the sources of school law and then
describe the roles of the state and federal governments in the establish-
ment and operation of the Texas school system. We examine the func-
tioning of the State Board of Education, the Texas Education Agency,
local school districts, private schools, and charter schools. And we dis-
cuss the responsibilities of school administrators and the functioning of
site-based management. Later sections look at important federal laws
affecting the operation of Texas schools and review the long-running
controversy over the financing of Texas schools. The chapter ends by ex-
amining parent rights in the context of public schools, private schools,
and home schooling.

SOURCES OF LAW

Constitutional Law
Since power over education is not specifically delegated to the federal
government by the U.S. Constitution, it is a state function. The Tenth
Amendment to the Constitution declares that all powers not delegated
to the federal government are reserved to the states. This amendment
gives state governments their traditional power over schools. Viewing
the school as an important socialization device, states gradually ex-
panded public education in the nineteenth century. By 1918 all states
had compulsory school laws.
It is important to note that states do not have to set up public school
systems. The U.S. Supreme Court decided in a 1973 case, San Antonio
I.S.D. v. Rodriguez, that education is not a fundamental right available
to all persons. When a state decides to provide public education, as all
the states have done, it has established an important benefit, which, as
we will see later, it cannot take away from students without following
due process procedures.
Consistent with the Tenth Amendment, the Texas Constitution of
1876 establishes the legal basis for a public school system in the state.
2 educator’s guide to texas school law

Section I of Article VII reads: “A general diffusion of knowledge being

essential to the preservation of the liberties and rights of the people, it
shall be the duty of the legislature of the State to establish and make
suitable provision for the support and maintenance of an efficient sys-
tem of free public schools.” The long-running Texas school finance
case, Edgewood I.S.D. v. Kirby, centered on whether a finance system
resulting in substantial interdistrict disparities is “efficient” within the
meaning of this constitutional provision.
Since the mid-1960s, the Bill of Rights and the Fourteenth Amend-
ment to the U.S. Constitution also have furnished a basis for litigation
against public schools. 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 Constitution. The Bill of Rights of the Texas Constitution, which
protects many of these same civil liberties, also is being asserted more
frequently in litigation against schools. Constitutional law at both the
federal and state levels thus is an important source of education law.

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 (TEC). The Code is an impor-
tant source of law because it applies to the daily operation of schools,
detailing the responsibilities and duties of the State Board of Educa-
tion (SBOE), the Texas Education Agency (TEA), school boards, charter
schools, and school personnel.
Beginning in the early 1980s, the Texas Legislature began taking an
increasing interest in improving an educational system that it regarded
as deficient. The result has been a plethora of reform laws. At first, the
reforms were top-down in nature. For example, the legislature in 1981
mandated that all schools offer a well-balanced curriculum consisting of
specifically designated subjects and in 1984 passed House Bill 72, a mas-
sive reform package that changed much of the operation of Texas public
schools. By the late 1980s, the legislature began shifting authority and
responsibility back to school districts and district personnel in the face
of evidence that top-down mandates were having only marginal effects
on increasing educational quality. Indeed, some commentators argued
that the mandates were having a negative effect. In 1995 the legislature
embarked on a complete reworking of the Texas Education Code—the
first major overhaul since 1949. Not only did the legislature produce a
more systematic, readable code, it took the opportunity to change, and
in some cases streamline, many features of the Texas schooling system.
Thus, the legislature significantly downsized TEA, gave local districts
and school personnel more independence, and provided parents with
 an overview 3

more authority over the education of their children. It also expanded

parent options through the establishment of charter schools.
Many other state statutes besides the Texas Education Code affect
the activities of local schools, and we will discuss them in the suc-
ceeding chapters. One point worth emphasizing now is that, despite
their essentially local character, public school districts are governed by
the state. The present system of some 1,045 Texas school districts and
nearly 6,200 individual school campuses could be changed should the
legislature desire, given the latter’s authority over public education un-
der the Texas Constitution.
Federal statutes also have significant influence over the operation
of public schools in the state. Some of the more important are described
later in this chapter. Since the power to establish and operate schools
is not one that the U.S. Constitution delegates to the federal govern-
ment, most federal laws affecting education are passed pursuant to the
Congress’s power to collect taxes and spend for the general welfare. As
the late Supreme Court Justice William O. Douglas noted in a famous
case, Lau v. Nichols (1974), “the Federal Government has power to
fix the terms on which its money allotments . . . shall be disbursed”
(p. 569). Thus, these laws contain the “strings” the federal government
attaches to the use of its money. Schools receiving direct or indirect
federal assistance must comply with the conditions the government
attaches. Good examples are Section 504 of the Rehabilitation Act of
1973, which prevents discrimination on the basis of disability in any
program “receiving federal financial assistance,” and the more recent
No Child Left Behind Act of 2001, which, in an effort to raise student
achievement levels, imposes strict accountability standards on schools
located within states, including Texas, that receive Title I funds from
the federal government.

Administrative Law
A third, often overlooked, source of law is administrative law, which
consists of the rules, regulations, and decisions that are issued by ad-
ministrative bodies to implement state and federal statutory laws. Spe-
cial education personnel, for example, are familiar with the extensive
“regs” accompanying the Individuals with Disabilities Education Act,
as developed by the administering agency, the Office of Special Edu-
cation Programs. These regulations are designed by the implementing
agency to apply the law to the realities of day-to-day schooling and of
necessity must be quite detailed in order to eliminate as much ambigu-
ity as possible. The length of a statute’s regulations often exceeds that
of the statute itself.
Administrative law also includes the rules and regulations that
state agencies establish to carry out their responsibilities. When pro-
4 educator’s guide to texas school law

mulgating rules, administrative agencies are said to be acting in a quasi-

legislative capacity. In the education context, this responsibility lies
with the State Board of Education and the Texas Commissioner of Edu-
cation. The rules that they enact are grouped together in volume 19 of
the Texas Administrative Code (TAC). As a result of the downsizing of
the Texas Education Agency in 1995 and the recodification of the Texas
Education Code, the state board rules previously adopted had to be re-
adopted or deleted in areas where state board authority was curtailed.
The policy manuals and handbooks developed by local school dis-
tricts are excellent close-to-home examples of administrative law. TEC
§11.151(d) provides that school trustees “may adopt rules and bylaws
necessary to carry out [their] powers and duties.” Board policies and
administrative directives represent the law of the district, and it is a
condition of employment that all personnel observe them.
Administrative law also has a quasi-judicial character. State law
provides that anyone aggrieved by the school laws of the state or ac-
tions 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 em-
ployment contract, causing possible monetary harm to the employee,
may appeal in writing to the commissioner of education (TEC §7.057).
Prior to 1995, this section was more broadly worded, but the legislature
sought to reduce the number of appeals flowing beyond local school
boards. As presently worded, the section applies neither to student dis-
ciplinary actions nor to the termination or nonrenewal of professional
employee contracts. These matters have their own appeal procedures, as
we will note in Chapters 8 and 4, respectively.
In recent years, the commissioner has defined his jurisdiction
narrowly under the terms of §7.057. For example, the commissioner
has ruled that he has no jurisdiction over the following types of com-
plaints:

• Code of ethics violations (Mike D. v. Tomball I.S.D., 2002;

Williams v. Port Arthur I.S.D., 2003);
• Violations of school board policies (Martinez v. Harlandale
I.S.D., 1998; Mike D. v. Tomball I.S.D.; Williams v. Port Arthur
I.S.D.);
• Violations of constitutional rights (Martinez v. Harlandale I.S.D.;
Marshall v. Garland I.S.D., 2002; Kennion v. Edgewood I.S.D.,
2003; McCulley v. San Benito C.I.S.D., 2004) [Note: In Kennion,
the statute alleged to have been unconstitutional was §7.057, the
commissioner’s jurisdiction statute];
• Violations of the various discrimination laws (e.g., prohibiting
race, sex, and age discrimination) (Cara K. v. Wallis-Orchard
I.S.D., 1997; Rios v. Pharr–San Juan–Alamo I.S.D., 2003);
 an overview 5

• Violations of the Texas Government Code (McCulley v. San

Benito C.I.S.D.);
• Violations of the Family Educational Rights and Privacy Act
(FERPA) (T.M. v. Cypress-Fairbanks I.S.D., 2003);
• Whistle-blower claims (Rodriguez v. Laredo I.S.D., 2000);
• Retaliation for filing a Workers Comp claim (Van I.S.D. v. Mc-
Carty, 2003);
• Disputes over student grades, including class rank and graduation
honors (Tidmore v. Mineral Wells I.S.D., 2001; Charles B.S. v.
Elysian Fields I.S.D., 2002);
• Denial of student transfer request (which is directly appealable to
state court under TEC §§25.033–.034, 26.003(a)(1)) (Michael S. v.
Northeast I.S.D. Board of Trustees, 2002); and
• Personal injury claims (appropriate remedy is Workers Compensa-
tion Act) (Merla v. San Antonio I.S.D., 2002).

There are limited exceptions to these general rules. For instance, in a

1999 decision the commissioner ruled that he does have jurisdiction
over Texas and U.S. Constitutional claims if they are implicated in
a written contract dispute, since a violation of a constitutional right
could constitute a violation of the contract, causing monetary harm
to the employee (Barborak v. Oakwood I.S.D.). When federal and state
laws are incorporated into a written employment contract, the commis-
sioner will defer to the enforcement mechanisms in place for those laws
(e.g., discrimination claims under the Texas Commissioner on Human
Rights Act) (Lang v. Grand Prairie I.S.D., 2000; Vela v. Waco I.S.D.,
2002; Rios v. Pharr–San Juan–Alamo I.S.D.).
If a material district policy has been incorporated into the contract,
the claimant must identify the specific policy and allege how it was vio-
lated. Plus, the individual must allege what monetary harm results or
would result. Lost earning capacity and damage to reputation claims are
not sufficient to support the appeal. Further, the claimant must identify
what specific section of the Education Code or rule adopted under the
Code has been violated (Williams v. Port Arthur I.S.D.). While com-
plaints involving teacher termination and evaluations do involve the
school laws of the state, the complainant must exhaust administrative
remedies required at the local level before appealing to the commis-
sioner (Harlandale I.S.D. v. Rodriguez, 2003). Further, the commis-
sioner has found jurisdiction over claims involving TEC §1.002, which
guarantees equal opportunities in education (Amber B. v. Brazosport
I.S.D., 1998), and TEC §33.081, the no pass–no play law (Mike D. v.
Tomball I.S.D.).
Before appealing to the commissioner, the person first must ex-
haust administrative remedies within the school district. As the courts
6 educator’s guide to texas school law

and the commissioner have noted on numerous occasions, this includes

seeking redress before the school board (Havel v. Gonzales I.S.D., 1992;
JaMer H. v. North Forest I.S.D., 2002; Harlandale I.S.D. v. Rodriguez,
2003). When the commissioner hears an appeal against an action or de-
cision by a school district, the commissioner most often reviews the
written record of the school district hearing to determine if there was
substantial evidence to support the board’s decision. In some instances,
the commissioner conducts an evidentiary hearing and has much the
same authority as a state district judge to issue subpoenas, take deposi-
tions, and order production of documents in an effort to determine the
facts. However, unlike those of a judge, the powers of the commissioner
are limited to directing districts to comply with state law. The commis-
sioner cannot issue restraining orders, assess fines, or order contested
items removed from a personnel file. Also, unlike a judge, the com-
missioner does not hear the cases personally. Rather, licensed attorneys
acting as TEA hearing officers conduct the hearings and draft decisions
for the commissioner to review and sign.
The commissioner has developed a set of rules governing these
hearings and appeals in the interest of efficiency and fairness. Both the
rules and the hearing decisions from the local board on up are classified
as administrative law. Figure 1 illustrates the overall structure of Texas
administrative law.
It also should be noted that school districts, like other governmen-
tal entities in the state, now have the option under state law of seeking
to resolve disputes through what is called “alternative dispute resolu-
tion” (ADR). This process involves a trained impartial third party who
works with the parties in conflict to reach agreement short of litigation.
The details are spelled out in Chapter 2009 of the Local Government
Code.

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.
With certain exceptions, as previously noted, when a person wants to
contest a school board decision that violates the school laws of the state
or the terms of a written employment contract, the person has a statu-
tory right of appeal to the commissioner. If, after appeal to the commis-
sioner, the matter still is not resolved to the appellant’s satisfaction,
that person may appeal to a district court in Travis County, Texas (TEC
§7.057(d)).
Courts generally refuse to become involved until all administra-
tive remedies are exhausted. The reason for the exhaustion require-
 an overview 7

Figure 1. The Overall Structure of Texas Administrative Law

ment is obvious. Administrative agencies are staffed by persons familiar

with the educational setting and, theoretically, are more qualified than
judges to arrive at satisfactory and workable solutions to disputes that
arise within that setting. In fact, judges are not educators and, generally,
will be the first to admit that the resolution of educational disputes is
best left to educational professionals. Further, the exhaustion require-
ment has the effect of channeling and resolving most conflicts before
they reach the judiciary. Only approximately 10 percent of the cases
filed with the Texas Commissioner of Education are appealed to state
district court.
Regardless of whether litigation is filed initially in a state district
court or as an appeal from a decision of the commissioner, the state
court system plays an important role in the resolution of educational
disputes. Therefore, it is important to review the composition of the
Texas judiciary. District courts are the major trial courts in the state
8 educator’s guide to texas school law

judicial system, having jurisdiction over major criminal and civil mat-
ters. From a district court, an appeal goes to one of the fourteen courts
of appeal located throughout the state and, finally, to the Texas Supreme
Court. An appeal from a Travis County district court goes to the Third
Court of Appeals in Austin. The Third Court, by virtue of its jurisdic-
tion over appeals from the district courts of Travis County, has great
influence over the development of educational and other public law
matters. Only the Texas Supreme Court, however, can speak for the
entire state in civil matters. For criminal matters, the highest court is
the Texas Court of Criminal Appeals. Thus, in Texas, we have two su-
preme courts, one concerned with civil matters and one with criminal
matters.
Although the Texas judicial system provides a theoretically effi-
cient structure for adjudicating disputes, frivolous lawsuits present a
generally recognized problem. In an effort to deal with this problem, the
legislature enacted two provisions providing that a person who files a
frivolous lawsuit under state law against a school district or an officer or
employee of the district who is pursuing official duties may be liable for
court costs and the defendant’s attorneys’ fees (TEC §§11.161, 22.055).
It is important to note, however, that state law provides specific pro-
tection for persons who report suspected violations of law. The Texas
Whistle Blower statute is discussed at some length in Chapter 6.
If the matter in dispute involves a federal question, individuals of-
ten can avoid administrative law procedures and state courts altogether
and go directly to a federal district court in the state. Federal questions
are those involving some provision of the U.S. Constitution (e.g., free-
dom of speech), a federal statute, or a federal treaty. Since many dis-
putes involve federal constitutional or statutory rights, the number of
disputes going directly to the district courts in Texas’s four federal ju-
dicial districts continues to increase. Figure 2 illustrates the geographic
jurisdictions of the four Texas federal judicial districts.
The most important function of federal courts is to adjudicate dis-
putes arising under the Constitution and statutes of the United States.
As a general rule, disputes arising under state law must be tried in state
courts. Decisions of the Texas federal district courts are appealable to
the U.S. Court of Appeals for the Fifth Circuit in New Orleans, one
of thirteen circuit courts in the nation. The present jurisdiction of the
Fifth Circuit encompasses Louisiana, Mississippi, and Texas. On occa-
sion, a decision of the Fifth Circuit will be reviewed by the U.S. Supreme
Court in Washington, D.C., which, of course, has the last word for the
entire country. Unlike most other courts, the U.S. Supreme Court has
the authority to decide which cases it wishes to hear. From as many as
eight thousand cases filed annually for review, the Justices will select
fewer than two hundred for a full hearing. Thus, most federal questions
are resolved by the U.S. courts of appeals. For this reason, the precedents
 an overview 9

Figure 2. Geographic Jurisdiction of U.S. District Courts in Texas

established by the U.S. Court of Appeals for the Fifth Circuit are par-
ticularly important in the context of Texas schooling.
One might assume that state and federal case law has relatively
little impact on Texas public education, compared with state statutes
and administrative rules and regulations. Up until the last thirty years
or so, this generally was true. Since the late 1960s, however, courts have
been increasingly involved in a maze of litigation involving the day-to-
day management of schools. The rulings they hand down have become
an important part of school law and are ignored at one’s peril.
Other sources of law besides the four primary types discussed above
also have an impact on education law. For example, contract law plays
an important role in the context of employment. For our purposes, how-
ever, separating school law into the four previously discussed types—
constitutional, statutory, administrative, and judicial—will help us un-
derstand how the system works. Table 1 provides an outline of the four
types, and Table 2 shows how they interrelate.
Table 1: Basic Components of Texas Education Law

Types of Law Source Impact on Texas Schooling

Constitutional Tenth Amendment to U. S. States that “the powers not delegated to the United States by the
Constitution Constitution, nor prohibited by it to the States, are reserved to the
States respectively . . .’’ Since education is not delegated to the
federal government, it is a power reserved to the states.
The Bill of Rights and the Protects certain civil liberties of employees and students in the public schools.
Fourteenth Amendment to
the U. S. Constitution
Texas Constitution of 1876, Authorizes the state legislature to support and maintain an efficient system of
Art. 7, §1 and Bill of Rights public free schools and provides for individual civil liberties.
Statutory Acts of the U. S. Congress Acts of Congress guarantee various civil rights and establish the conditions
upon which states and political subdivisions may receive federal funds.
Acts of Texas Legislature; most Sets up the State Board of Education and the Texas Education Agency to carry
pertaining to education are found out limited educational functions. Actual operation of schools is left to school
in the Texas Education Code districts. School districts and school personnel are a part of the state.
Administrative Federal administrative regulations Both TEA and local school districts must comply with the regulations
promulgated by federal educational agencies implementing federal statutes.
Policies and rulings by school Boards of trustees develop policies to be utilized in operating their schools.
boards, Texas Commissioner State board and commissioner have the authority to establish rules that
of Education, and State Board govern school district activity in areas designated by the legislature. Any
of Education person aggrieved by the school laws of Texas or actions of school districts
involving school laws or impairing employment contracts can appeal to
the commissioner. Policies, rules, and appeal decisions are classified as
administrative law.
Judicial Decisions of state courts Any aggrieved person can appeal an adverse administrative ruling from
the commissioner into state courts. Highest state court (civil) is the Texas
Supreme Court, which has the last word on matters of state law, subject,
of course, to the ultimate authority of the U. S. Supreme Court to review
questions of state law in light of federal statutes and the U. S. Constitution.
Decisions of federal courts Any person alleging state interference with a right granted by the U. S. Consti-
tution or federal law can bring an action in a federal court. The lowest federal
court is the district court. There are thirteen intermediate appellate federal
courts (ours is the U. S. Court of Appeals for the Fifth Circuit). At the top is
the U. S. Supreme Court, which has the last word on matters of federal law.
The U. S. Constitution provides that any state action, law, or constitutional
provision that conflicts with the Constitution or a federal law is null and void.
Table 2: Relationship of Law to Establishment and Operation of Texas Public Schools

Constitutional Law
Judicial Law

U.S. Constitution (Tenth Amendment)

Leaves education to the
(State)
(Federal)

states Texas Supreme Court U.S. Supreme Court
1876 Texas Constitution, Art. VII

Appeals
Requires legislature to
Appeals
establish an efficient
U.S. Court of Appeals

system of free public schools Commissioner of education Texas Court of Appeals (5th Circuit)



Appeals Appeals


Texas District Court U.S. District Court
Appeals (Texas)
Statutory Law
Texas Legislature sets

up public schooling

system and details its
Local school board decisions
operation.

Administrative Law
State Board of Education
Complaints to

and Texas Commissioner
local boards
of Education enact rules
Local school districts

enact board policies and

administrative regulations Note: Some school board decisions such as those

involving student discipline can be appealed directly

to state district court. U.S. constitutional rights

Parents, students,
disputes and some matters involving federal law

Parents, students,
teachers, taxpayers
teachers, taxpayers can be taken directly to federal courts. Hence the

dashed lines above.
 an overview 13

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 respon-
sible 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 educa-
tion. Thus, those wanting to influence the way Texas education is struc-
tured and conducted are well advised to focus their efforts on the Texas
Legislature. Both school districts and educators are becoming increas-
ingly sophisticated in this regard. However, TEC §7.103(c) prevents a
person who registers as a professional lobbyist from serving as a school
board member or acting as the general counsel to the board.

State Board of Education and the Texas Education Agency

Formerly the policy-making body of the Texas Education Agency (TEA),
the State Board of Education was separated from TEA by the Texas Leg-
islature 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 leg-
islature. While many of its functions have shifted in recent years to the
Texas Commissioner of Education, the SBOE is still a powerful entity.
Among its designated duties as set forth in TEC §7.102 are establishing
a state curriculum and graduation requirements, determining the stan-
dard for satisfactory student performance on assessment instruments,
adopting and purchasing state textbooks, and investing the permanent
school funds. The board also is charged with granting charters for open-
enrollment schools, a subject to be discussed later in the chapter.
Occasionally, a dispute will arise whether the SBOE has the author-
ity to act in certain situations. Such occurred several years ago when
the board asked the Texas Attorney General whether the authority of
the board to adopt and purchase textbooks under TEC §7.102(b)(23) in-
cludes adopting rules prescribing the contents of the books. The matter
had become the subject of considerable in-fighting in 1996 among SBOE
members. The attorney general advised that the board does not have
the authority to establish general textbook guidelines. Further, the at-
torney general advised that the board’s authority over textbooks relates
only to state-funded textbooks. Local districts are free to use local funds
to purchase any book or ancillary materials they wish (Att’y. Gen. Op.
DM-424, 1996).
14 educator’s guide to texas school law

Another limitation on the authority of the SBOE has occurred in

the area of the Academic Excellence Indicator System. In 2003 the attor-
ney general declared that the SBOE could not require that a high school
completion rate replace the annual dropout rate in the accountability
rating system. TEC §39.051(b) specifically requires that academic ex-
cellence indicators include “dropout rates, including dropout rates and
district completion rates for grade levels 9 through 12.” Thus, the SBOE
had no authority to require that such rates be computed based upon
district completion rates alone. Further, the legislature removed the au-
thority of the SBOE under TEC §39.051(b) to adopt additional academic
excellence indicators.
The Texas Education Agency now is composed of the Texas Com-
missioner of Education and the agency staff. Like the state board, TEA
can perform only those duties specifically assigned to it by the legisla-
ture. The legislature’s disenchantment with top-down control clearly
is evident in the wording of TEC §7.003: “An educational function not
specifically delegated to the agency or the board [of education] under this
code is reserved to and shall be performed by school districts or open-
enrollment charter schools.” TEC §7.021 lists fourteen educational
functions that TEA is to perform. Among them are monitoring district
compliance with federal and state programs, conducting research to im-
prove teaching and learning, developing a teacher recruitment program,
and maintaining an electronic information transfer system. TEA also
is authorized to enter into agreements with federal agencies regarding
such activities as school lunches and school construction. In addition,
TEA administers the capital investment fund established by the legisla-
ture to provide grants to school districts for improving student achieve-
ment (TEC §7.024).
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 the Texas Senate. Like the
governor, the commissioner serves a four-year term. The only qualifica-
tion for serving as commissioner is U.S. citizenship. The legislature des-
ignates the commissioner to be the educational leader of the state. The
commissioner also serves as the executive officer and executive secre-
tary of the State Board of Education. Among some forty responsibilities
the legislature has assigned to the commissioner are adopting an annual
budget for the Foundation School Program, reviewing school district
waiver requests, adopting rules for optional extended-year programs,
performing duties in connection with the public school accountability
system, and reviewing school district audit reports (TEC §7.055). Other
sections of the Code give the commissioner added responsibilities,
e.g., imposing sanctions against low-performing campuses and school
districts, including closure (campuses) and annexation (districts) (TEC
§§39.131–.132). Several of the commissioner’s current responsibilities
 an overview 15

previously belonged to the state board, such as adopting a recommended

state appraisal process for teachers and administrators and performing
duties associated with the guaranteed bond program.
A necessary adjunct to the activities of the Texas Education Agency
is the twenty Regional Education Service Centers located throughout
the state. Operating under the oversight of the Texas Commissioner
of Education, the service centers assist school districts in improving
student achievement and increasing the efficiency of school operations
(TEC §8.002). Their core services include teacher and program training,
assistance to low-performing school districts and campuses, site-based
management training, and assistance in complying with state law and
administrative rules. School districts are free to purchase services from
the service center in their region or any other service center but are not
required to do so.
Funding for the service centers is provided by the state through the
Foundation School Program and state appropriations. The centers may
offer additional services requested and purchased by school districts and
may seek grant support for various purposes. Each service center is gov-
erned by a seven-member board as established under rules developed by
the commissioner of education. The commissioner also approves the
selection of service center executive directors and conducts evaluations
of service center operations. Regional service centers and employees are
subject to or exempt from taxation in the same manner as school dis-
tricts and school district employees (TEC §8.005). Service center em-
ployees and volunteers are entitled to the same immunity protections
under state law as are school district professional employees and vol-
unteers (TEC §8.006). School district and employee liability issues are
discussed in Chapter 10.

Local School Districts

The governance of schools clearly is left to local boards of trustees. Sec-
tion 11.151 of the Texas Education Code states that “the trustees as a
body corporate have the exclusive power and duty to govern and oversee
the management of the public schools of the district. All powers and du-
ties 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, levy and collect taxes, sell minerals and property be-
longing to the district, and condemn property for securing school sites.
While the school board also has the authority to make employment de-
cisions, the board by policy must accord the superintendent the sole au-
thority to make recommendations to the board regarding the selection
16 educator’s guide to texas school law

of all personnel other than the superintendent (TEC §11.163). The board
may delegate final authority for hiring to the superintendent. Taken to-
gether, these provisions give the local school board a status very similar
to that of a municipality.
TEC §11.157 allows districts to contract with a public or private
entity to provide educational services for the district. In 1995 Sher-
man I.S.D. became the first Texas school district to contract for a time
with the Edison Project to operate one of its elementary schools. Dallas
I.S.D. later followed suit. The Edison Project, now known as the Edison
Schools, is a for-profit corporation started by entrepreneur-business-
man Chris Whittle in an effort to revolutionize the schooling process
through a rigorous curriculum, increased time in school, and the inno-
vative use of technology. When a district contracts with a private vendor
to provide educational services, the district must ensure that the vendor
complies with state statutory requirements applicable to public school
districts (Att’y. Gen. Op. DM-355, 1995). The Texas Attorney General
noted that nothing in the contracting statute exempts the private ven-
dor from complying with these statutory requirements, nor denies to
participating students the benefits the statutes provide.
TEC §11.158 allows school boards to charge fees for a number of
activities such as membership dues in voluntary student organizations,
security deposits for return of materials, parking, and educational pro-
grams outside school hours for making up lost instruction due to ab-
sences. The board may not charge fees for textbooks, school lockers,
required field trips, and library books, to name a few such items. TEC
§11.162 allows school boards to require the wearing of school uniforms,
provided that the uniforms are furnished free of cost to the “education-
ally disadvantaged.” The term “educationally disadvantaged” is confus-
ing. Could the legislature have meant “economically disadvantaged”?
Children of parents who have a religious or philosophical objection to
the requirement are exempted upon written parental request or are enti-
tled to transfer to a school where uniforms are not required. See Chapter
9 for a discussion of student dress codes and uniform policies.
One of the more interesting provisions of the Code is TEC §11.160,
which allows the board of trustees to change the name of the district. All
kinds of interesting name changes have been proposed in jest, such as
“Way Above Average I.S.D.,” “Schools-R-Us I.S.D.,” and “The Fiercely
Independent School District.”
The majority of Texas school districts elect their board members
in at-large elections. Increasingly, however, minority voters are assert-
ing 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
 an overview 17

district. TEC §§11.052–11.053 govern the changing of an at-large sys-

tem to a single-member system. A single-member system must be sub-
mitted to the U.S. Justice Department for approval under the 1965 Vot-
ing Rights Act.
Litigation continues in Texas on the single-member-district option.
In order to show that an at-large election system violates the Voting
Rights Act and should be replaced with a single-member system, mi-
nority residents need to establish that the minority group is sufficiently
large and geographically concentrated to constitute a majority in a pro-
posed single-member district, that the group is politically cohesive, and
that the white majority generally votes as a bloc to defeat the minor-
ity group’s preferred candidate. This is not an easy test, and minority
groups have had a hard time in recent years meeting it (Perez v. Pasa-
dena I.S.D., 1999; Valdespino v. Alamo Heights I.S.D., 1999).
School board trustees serve a term of three or four years (TEC
§11.059). Elections for trustees with three-year terms are held annually,
with one-third expiring each year. Elections for trustees with four-year
terms are held biennially, with one-half expiring each biennium. The
staggered terms assure continuity to school board functioning. A person
must be an eligible voter to be qualified for office as a trustee. Trustees
serve without compensation. The state board is required to provide a
training program for school board members through the regional service
centers. Other training programs are offered through professional asso-
ciations such as the Texas Association of School Boards (TASB). TASB is
a comprehensive organization that provides a host of services to school
boards, including model school board policies that most districts have
adopted. TASB also is influential in the legislative arena on behalf of its
members and provides financial support to districts embroiled in expen-
sive litigation.

Charter Schools
School choice has become one of the most controversial school reform
measures in recent years. Driven largely by concerns about the abil-
ity of the “one-size-fits-all” public school to provide a high-quality and
safe education to all children, the school choice movement has gained
steam across the country. The fastest-growing form of school choice is
the charter school. A charter school in effect is a newly created pub-
lic school that operates relatively free of state regulation. The charter
usually 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 revo-
cation. While the number of charter schools is comparatively low, it
has grown rapidly since the first charter school opened in Minnesota
in 1992.
18 educator’s guide to texas school law

In Texas, George W. Bush was a major backer of school choice in his

1994 campaign for governor. The Texas Legislature also was intrigued with
the idea. Three forms of charter schools emerged from the 1995 legisla-
tive session: home-rule school district charters, campus charters, and
open-enrollment charters. Their key features are outlined in Table 3.
Home-rule school district charters allow school districts to free
themselves from most state requirements. A school district is required
to appoint a fifteen-member charter commission if at least 5 percent of
the registered voters of the district sign a petition or two-thirds of the
school board members adopt a resolution. The charter developed by the
commission must address such matters as the educational program to
be offered, the governance structure of the district and campuses, ac-
ceptable levels of student performance, and the budgeting process (TEC
§12.016). If the secretary of state determines that the proposed charter
changes the governance structure of the district, the charter must be
submitted to the U.S. Justice Department or the U.S. District Court
for the District of Columbia for preclearance under the 1965 Voting
Rights Act. The charter also has to be submitted to the commissioner
of education for a legal review. The proposed charter becomes effective
if adopted by majority vote in an election where at least 25 percent of
the registered voters in the district participate. The 25 percent require-
ment remains a significant hurdle for many districts to overcome. The
State Board of Education is given authority for revoking or placing on
probation a home-rule district charter. Other provisions in the Texas
Education Code describe the process for voter amendment or rescission
of the charter.
TEC §12.012 provides that home-rule districts are subject only
to those state laws and administrative rules that specifically apply to
them. Thus, for example, since neither Texas educator employment law
nor student discipline law specifically mentions home-rule districts,
home-rule districts appear to be exempt from these provisions. In addi-
tion, home-rule school districts may determine their own curriculum.
However, home-rule districts are not autonomous. In addition to federal
law requirements for such matters as special education and nondiscrim-
ination, TEC §12.013 sets forth a list of state requirements that must
be followed. Included are those pertaining to educator certification, stu-
dent admissions and attendance, high school graduation requirements,
class size restriction for low-performing schools, public school account-
ability, state purchasing, and accreditation sanctions.
Under the second charter option, a school district board of trustees
or governing body of a home-rule school district may grant a charter to
parents and teachers to operate a campus or campus program free from
most regulation, including district instructional and academic require-
ments, if presented with a petition signed by the majority of parents and
 an overview 19

teachers at the school (TEC §12.052). Cooperative charters involving

two or more campuses also may be approved. A school board may not
arbitrarily deny approval of a charter. This means that, while boards
have discretion in approving proposed campus charters, they can only
reject a charter for cause.
The proposed campus charter must describe the educational pro-
gram, acknowledge that continuation of the charter is dependent upon
satisfactory student performance, specify the conditions under which
the charter may be placed on probation or revoked, prohibit various
forms of discrimination, describe the governing structure, specify health
and safety measures, and provide for an annual audit (TEC §12.059). The
governing body of the campus or program is subject to the provisions of
the Texas Open Meetings and Public Information Acts. These statutes
are discussed in Chapter 9. While the campus charter school has a good
deal of autonomy within the district, the school board retains legal re-
sponsibility for its activities.
Campus charter schools and programs remain public and are sub-
ject to federal law and to those state statutes that specifically apply
to them. Among matters specified by the latter are compliance with
the Public Education Information Management System (PEIMS), high
school graduation requirements, special education and bilingual educa-
tion requirements, prekindergarten programs, extracurricular activity
provisions, and health and safety measures (TEC §12.056). But campus
charter schools are exempt from most other provisions of the Code.
TEC §12.065 provides that geography and residence are to be given first
priority in student admissions, thus preserving the concept of the neigh-
borhood school. Age, grade level, and academic qualifications are sec-
ondary considerations.
Each school district must adopt a campus charter and a campus
program charter policy, specifying the process for applying for a charter
from the local district, the statutory requirements with which a charter
must comply, and items that must be included in the charter application
(TEC §12.058). How responsive campus parent bodies and teachers will
be to the opportunity campus charters afford for innovative approaches
to schooling remains to be seen. For some time, the annual Gallup Poll
of Education has shown that most parents give high marks to the public
schools their children attend, even if they also express dissatisfaction
with public schooling in general.
Open-enrollment charter schools constitute the third charter option
and to date are the most popular. Initially restricted to granting 20 open-
enrollment charters, the State Board of Education today has authority to
grant up to 215 open-enrollment charters (TEC §12.101). The SBOE can
grant a charter to a public or private institution of higher education, a
tax-exempt organization, or a governmental entity, and the school may
Table 3: Overview of Texas Charter School Options

Home-Rule District Charter Campus Charter Open-Enrollment Charter

TEC §§ 12.011–12.030 TEC §§ 12.051–12.065 TEC §§ 12.101–12.151

Type Allows existing districts to recon- Allows a campus or campus program New public schools that operate in a
stitute themselves as locally con- to operate free of most state and dis- commercial or public facility and that
trolled systems free from most state trict requirements, including district attract students within or across district
requirements, including curriculum, instructional and academic provisions. lines. Entitled to state funding, access to
employment, and student discipline. regional service centers, and participation in
state programs, e.g., purchasing. May not
charge tuition but may charge student fees.
Must provide transportation. Operate free
from many state requirements but must
provide state-required curriculum.
Charter • Educational program Same as home-rule except: Same as home-rule with these additions:
Components • Charter continuation dependent on • No discrimination in admissions • Charter duration
student performance and district • Budgeting process not included • Level of acceptable student performance
accountability • No discrimination in admissions, including
• Charter probation/revocation student achievement and athletic prowess
• Governance structure • Grade levels
• Health and safety measures • Governing board procedures
• Budgeting process • Facility description
• Auditing and PEIMS participation • Geographic area served
• Other necessary provisions • Enrollment criteria
• Notification procedures to parents
concerning qualifications of professional
employees
Laws That • Federal law • Federal law Same as campus charter with these additions:
Apply • Court orders related to special and • Teacher Retirement System • Local government records laws
bilingual education • Criminal offense provisions • Public purchasing and contracting laws
• Teacher Retirement System • Immunity (unless otherwise approved by SBOE)
• Criminal offense provisions • PEIMS • Conflict of interest laws
• Immunity • Criminal history records • Nepotism laws
• PEIMS • High school graduation requirements • Municipal zoning ordinances governing
• Educator certification and • Open Meetings and Public public schools
associational rights Information Acts • Restrictions on governing body
• Criminal history records • Special and bilingual education membership and private company
• Student admissions and attendance • Prekindergarten management
 • Student transfers • Extracurricular activities • Code of conduct required
• 22:1 ratio for low-performing campus • Health and safety
• High school graduation requirements • Public school accountability NOTE: Required to file bylaws and detailed
• Special and bilingual education information about officers and governing
• Prekindergarten NOTE: Priority in student admissions body members. Also required to prepare
• Transportation safety for geography and residency. Second- annual financial statement and make it
• School finance ary consideration to include age, grade available under Public Information Act.
• Extracurricular activities level, and academic credentials as Subject to federal disability law, as is
• Health and safety related to program. a traditional public school. May admit
• Public school accountability students only after publishing in local
• Equalized wealth newspapers a notice that school is
• Bond or tax rate limit accepting applications.
• Purchasing requirements
Approval • District appoints charter commission • Petition by majority of parents and • State Board of Education approval
Process if 5% of voters or two-thirds of school teachers • Number limited by law to 215
board requests • School board approval
• Secretary of State review
• Texas Commissioner of Education
legal review
• Adopted by majority in election with
at least 25% voter participation
Unique • Voter participation requirements are • Does not require principal approval • May be operated by universities, nonprofit
Features a major hurdle to charter adoption • School board must have a campus organizations, or a local governmental
charter policy entity
• School board may not arbitrarily deny • Commissioner of education has power
approval to modify, place on probation, revoke,
• Charter in form of a contract between or nonrenew a charter and can impose
school board president and campus/ sanctions for violation of charter, state
program CEO law, or general accounting standards.
• School board retains legal • Must follow state-mandated curriculum
responsibility • Charter in form of a contract between
State Board president and school CEO
• A municipality that has a charter school
may borrow funds, issue debt, and spend
funds to acquire land, construct facilities,
or expand and renovate facilities for the
charter school.
22 educator’s guide to texas school law

operate in the facility of such an eligible entity (TEC §12.101). While

for-profit organizations may not receive charters, they may subcontract
with organizations that do.
Several of the initial 20 open-enrollment charter schools expe-
rienced significant start-up problems. One school was given over
$240,000, though it never opened and enrolled no students. Another
had its charter revoked for financial mismanagement. In response to
abuses by some open-enrollment charter school operators and lacklus-
ter performance assessments, the Texas Legislature enacted extensive
regulatory measures during the 2001 session, in addition to earlier re-
forms that had been enacted during the 1999 session to improve charter
school performance. Known as House Bill 6, the legislation significantly
amended existing provisions of Chapter 12 of the Texas Education Code
and added new provisions. The legal requirements for open-enrollment
charter schools are outlined below.
The law requires that each application for an open-enrollment
charter school must describe the governance structure of the school,
including information about officer positions and their selection and
removal. No person convicted of a felony or a misdemeanor involving
moral turpitude may serve on a governing board. Charter schools must
file with the SBOE a copy of the school’s bylaws; names, addresses, and
phone numbers of board members; and information about any board
member compensation. All this information is available to parents and
to the media. Further, open-enrollment charter schools must prepare
an annual financial statement and make it available under the Public
Information Act.
Like the other two forms of charter school, open-enrollment char-
ters are exempt from most state laws and rules other than those speci-
fied in the Education Code. The governing boards of open-enrollment
charter schools specifically must comply with the state open meetings
and public information laws, local government records laws, public pur-
chasing and contracting laws (unless otherwise approved by the State
Board of Education), conflict of interest laws, nepotism laws, and mu-
nicipal zoning ordinances governing public schools. In addition, the
open-enrollment charter school must comply with a list of require-
ments in TEC §12.104, which is similar to the list of requirements for
the other forms of charter. Open-enrollment charter schools also must
offer the state-required curriculum.
The components of the charter also are similar, with the addition of
such items as specification of grade levels, qualifications of professional
employees (state teacher certification is not required), facilities to be
used, and enrollment criteria. An open-enrollment school’s charter also
must specify the manner in which the school will notify parents of the
qualifications of professional employees. The minimum qualification is
 an overview 23

a high school diploma. Further, the charter school operators must ob-
tain criminal history information for all employees and volunteers.
Open-enrollment charter schools may attract students either from
within a school district or across district lines in competition with ex-
isting public and private schools. Open-enrollment charter schools may
not admit students until the school has published a notice in a local
newspaper that it is accepting applications. Open-enrollment charter
schools can provide instruction at one or more elementary or secondary
grade levels as long as students perform satisfactorily. Open-enrollment
charter schools may not charge tuition and must provide transportation
on the same basis as existing school districts. However, the governing
board of an open-enrollment charter school may charge a fee that the
board of trustees of a school district would be entitled to charge.
Open-enrollment charter schools may not discriminate in admis-
sions on the basis of sex, national origin, ethnicity, religion, disability,
academic or athletic ability, or school district the student would other-
wise attend. However, they may reject students who have committed
criminal offenses or who have a history of disciplinary problems. One
charter school ran into trouble in 1999 when it failed to fulfill its obli-
gations under the Individuals with Disabilities Education Act (IDEA).
Claims involving IDEA violations initially are heard by impartial hear-
ing officers appointed by TEA. In this case, the hearing officer ruled that
the charter school failed to remove architectural barriers and provide
needed special education services to a wheelchair-bound student. The
hearing officer particularly was critical of the charter school’s lack of
good faith in meeting its statutory responsibilities under federal disabil-
ity law (Jason L. v. Seashore Learning Center Charter School).
Restrictions on who can serve on charter school boards have been
tightened up. Thus, persons who have a substantial interest in a man-
agement company selected to operate the school, are employees of the
company, or are members of its governing board are barred from being
school board members. The commissioner of education has been autho-
rized to adopt rules for the training of charter school board members. To
relieve concern about liability, an open-enrollment charter school, its
employees, and its volunteers now are entitled to the same immunity
from lawsuits as traditional public schools and their personnel. This
immunity also extends to employees of charter holders (i.e., organiza-
tions that operate charter schools) where those employees are engaged in
“matters related to the operation of an open-enrollment charter school”
(Rosencrans v. Altschuler, 2004). Board members also are immune from
liability to the same extent as public school district trustees.
Several provisions have been enacted relating to a private man-
agement company selected by the charter recipient to run the charter
school. Among other things, the records relating to the school must be
24 educator’s guide to texas school law

kept separate from other records of the company. The company may not
loan money to the school. If the company fails to function effectively,
the commissioner of education has the authority to terminate the con-
tract between the company and the school. The company can be liable
for any damages incurred by the state as a result of mismanagement.
The power for modifying, placing on probation, revoking, or nonre-
newing a charter has been shifted from the SBOE to the commissioner
of education. The commissioner can impose a range of sanctions for
schools that (1) violate their charters (including failing to satisfy ac-
countability provisions), (2) fail to satisfy generally accepted accounting
standards of fiscal management, (3) fail to comply with applicable laws,
or (4) fail to protect the health, safety, or welfare of their students. For
example, one charter school was closed for violating numerous state
and federal laws, failing to comply with Generally Accepted Account-
ing Principles (GAAP), and engaging in conflicts of interest. The charter
school had significantly overstated its average daily attendance to the
tune of $1.3 million in overpayments by the state, had overreported the
number of free or reduced-price meals it had served, at an overpayment
of $83,000 by the state, and had failed to provide special education ser-
vices, among numerous other violations (Texas Education Agency v.
Open-Enrollment Charter of Prepared Table, Inc., 2002). The commis-
sioner determined it was in the best interests of the students not to
reopen for the following school year.
The commissioner also may temporarily suspend funding for a defi-
cient school and may audit the records of the school, its charter holder,
and a company selected to manage the school. However, the commis-
sioner may conduct only one financial or administrative audit of a char-
ter school in a fiscal year, absent specific cause to conduct more (TEC
§12.1163).
Given that charter schools have no taxing authority, the legislature
recognized that such schools have been seriously handicapped by a lack
of start-up funding and training. To help in this area, the legislature
has given charter schools the opportunity to issue revenue bonds for
the acquisition, construction, repair, or renovation of educational facili-
ties. Further, a municipality that has a charter school now may borrow
funds, issue debt, and spend funds to acquire land, construct facilities,
or expand or renovate facilities for the charter school (TEC §12.131).
Any property purchased or leased with public money is public prop-
erty. Charter schools also are entitled to receive state funding pursuant
to Chapter 42 of the Education Code. Moreover, charter schools now
have access to the same level of services from regional service centers
as school districts and may be represented on service center boards. In
addition, the commissioner of education may permit charter schools to
participate in any state program open to traditional public schools, such
as a purchasing program.
 an overview 25

Private Schools
In a seminal 1925 decision, the U.S. Supreme Court ruled that the states
cannot require all children to attend public schools only (Pierce v. Soci-
ety of Sisters). Such a requirement, the Court held, would deprive pri-
vate school operators of their constitutionally protected property right
to operate a business. And it also would interfere with the rights of
parents. In upholding the right of private schools to coexist with public
schools, the high court noted that “No question is raised concerning
the power of the State reasonably to regulate all schools, to inspect, su-
pervise and examine them, their teachers and pupils; to require that all
children of proper age attend some school, that teachers shall be of good
moral character and patriotic disposition, that certain studies plainly
essential to good citizenship must be taught, and that nothing be taught
which is manifestly inimical to the public welfare” (p. 534).
States have relied on this passage for years to set standards for pri-
vate schools encompassing such matters as compliance with health and
safety regulations, length of the school year, and enrollment reporting.
Less frequently, states have included state certification of teachers and
curricular specifications. In 1996 the U.S. Court of Appeals for the Sixth
Circuit upheld adding state student testing to the list (Ohio Association
of Independent Schools v. Goff). While there have been challenges to
state regulation on the basis of unreasonableness and unconstitutional
interference with First Amendment freedoms, especially freedom of re-
ligion, states generally prevail.
State regulation of private schools in Texas has not generated very
much litigation over the years. The reason is that Texas does not re-
quire private schools to receive state accreditation. As a result, some
private schools in the state do not follow the state curriculum and
student assessment program or employ certified teachers and admin-
istrators. While the Texas Education Code contains an elaborate chap-
ter providing for the certification and regulation of private educational
institutions, the provisions do not apply to elementary and secondary
private schools (TEC §§132.002(a)(2) and (a)(10)). The Texas Education
Agency ceased accrediting private schools in 1989. Thereafter, the com-
missioner 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. The commissioner of education recognizes the standards for
accreditation of private schools by TEPSAC as being comparable to
those applied to public schools. Consequently, student credit earned in
TEPSAC-accredited schools is transferable to Texas public schools, and
teacher service has been recognized for salary increment purposes in
public schools. Though not required to do so, many private schools seek
TEPSAC accreditation as a means of demonstrating the quality of their
26 educator’s guide to texas school law

programs and facilitating entry of their graduates into Texas public col-
leges and universities. Whether accredited or not, private schools are
not exempt from basic health and safety laws passed by local, state, and
federal governments.
Private schools also are subject to selected federal civil rights laws
such as Title VII of the 1964 Civil Rights Act, which outlaws discrimi-
nation in employment, though there often are exemptions for very small
schools and for those that are religiously affiliated. However, most pri-
vate schools are not subject to a number of federal laws that require
receipt of federal funding to be applicable. Statutes falling into this cat-
egory are the Individuals with Disabilities Education Act, Title IX of the
1972 Education Amendments (forbidding sex discrimination), and the
No Child Left Behind Act.
In 1976 the Supreme Court ruled that private schools cannot dis-
criminate in admissions on racial grounds under another federal statute
that we will discuss later in this chapter, 42 U.S.C. §1981 (Runyan v.
McCrary). This decision had great significance for the so-called freedom
schools, or “white academies,” established during the desegregation of
public schools in the South. The Runyan case did not involve private
religious schools that refuse to admit minority children for religious
reasons. That issue arose in a 1983 Supreme Court ruling, Bob Jones
University v. United States, involving the Internal Revenue Service’s
curtailing tax-exempt status to discriminatory schools. In an 8-1 deci-
sion, the Court upheld the IRS. Writing for the majority, Chief Justice
Warren Burger rejected the contention that racial discrimination could
be justified by religious doctrine, a view espoused by Bob Jones Uni-
versity and Goldsboro Christian Schools, another institution involved
in the suit. “The government has a fundamental, overriding interest in
eradicating racial discrimination in education. . . . [T]hat governmental
interest substantially outweighs whatever burden denial of tax benefits
places on petitioners’ exercise of their religious beliefs” (p. 604).

School Administrators
The superintendent is the chief operating officer of the public school
district, responsible for implementing the policies of the board. TEC
§11.201 lists eleven superintendent duties. Among them are responsi-
bility for the operation of the educational programs, services, and facili-
ties of the district and appraisal of the staff; assigning and evaluating
personnel; and making personnel recommendations to the school board.
The superintendent also is responsible for developing a budget, organiz-
ing the district’s central administration, overseeing the development of
administrative regulations to implement board policies, and performing
other duties assigned by the board of trustees.
 an overview 27

The school principal is the frontline administrator, with statutory

responsibility under the direction of the superintendent for administer-
ing the day-to-day activities of the school. Principals have seven major
functions, as listed in TEC §11.202. Based on criteria developed in con-
sultation with the faculty, they have approval power for teacher and
staff appointments to the campus from a pool of applicants selected by
the district or of applicants who meet the district’s hiring requirements.
However, the superintendent or the superintendent’s designee can over-
ride the principal regarding teacher placement resulting from enrollment
shifts or program changes. Principals set campus education objectives
through the planning process, develop budgets, and have responsibility
for student discipline. They also assign, evaluate, and promote campus
personnel, as well as make recommendations to the superintendent re-
garding suspension, nonrenewal, and termination of personnel. Finally,
they perform other duties assigned by the superintendent.
The certification requirements for principals developed by the State
Board for Educator Certification (addressed in more detail in Chapter 4)
must be sufficiently flexible so that an outstanding teacher may sub-
stitute approved experience and professional training for part of the
educational requirements (TEC §21.046). Further, qualifications for
certification as a superintendent or principal must allow the substitu-
tion of management training and experience for part of the educational
requirements. The legislature increasingly has emphasized the impor-
tance of recruiting and retaining the highest caliber of personnel for
the principalship. School boards are required to institute multilevel
screening processes, validated comprehensive assessments, and flexible
internships with successful mentors to determine whether a candidate
for certification as a principal is qualified.
Believing principals to be the persons with the most responsibility
for school improvement, the legislature has given them more authority
than in the past to operate their schools. At the same time, principals
are held more accountable for their work through the appraisal process
(TEC §21.354). The appraisal of a school principal must include consid-
eration of the performance of the campus on the academic indicators set
forth in TEC §39.051 and on the campus objectives established under
TEC §11.253. The legislature appears particularly serious about admin-
istrator appraisal. School district funds cannot be used to pay an admin-
istrator who has not been appraised in the preceding fifteen months. In
addition, TEC §39.054 provides that the campus performance report as-
sembled each year by school districts shall be a primary consideration of
superintendents in evaluating principals. Likewise, the district perfor-
mance report is to be a primary consideration of school boards in evalu-
ating school superintendents. These reports will be discussed in more
detail in Chapter 2. With increased responsibility also comes increased
28 educator’s guide to texas school law

liability. For example, principals must be familiar with employment

law in order to carry out their personnel responsibilities effectively and
without legal liability. The general topic of liability is discussed in some
depth in Chapter 10.

District- and Campus-Level Decision-Making

Despite the authority given to local school boards, the Texas Legislature
since 1990 has increasingly sought to “flatten the decision-making pyr-
amid” by involving others in district and campus governance. Over the
years, these requirements have become more complex. TEC §11.251 re-
quires 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. The latter need not reside in the
district. In partnership with the district-level committee, the board also
is required to delineate the roles of those involved in planning, budget-
ing, curriculum, staffing, staff development, and school organization at
both the district and campus level.
TEC §11.251 requires each board to have a procedure for the nomi-
nation and election of professional staff representatives to the district-
level committee (two-thirds must be classroom teachers; one-third must
be other campus- and district-level professional staff) and to establish
procedures for selecting the other members and for holding meetings
periodically with the board or board designee. The statute stipulates
that the committee process is not intended to limit the power of the
board to manage and govern the schools and is not to be construed as
a collective bargaining statute. Nor is it to restrict the board from con-
ducting meetings with teacher groups or receiving input from students,
paraprofessional staff, and others.
A companion statute, TEC §11.253, requires that the school prin-
cipal regularly involve the campus committee in planning, budgeting,
curriculum, staffing, staff development, and school organization. Other-
wise advisory, the committee does have approval power over the portion
of the improvement plan addressing staff development. The member-
ship of the campus committee and its selection are similar to those
of the district-level committee. Like the district-level process, campus-
level decision-making is not to be construed as any form of collective
bargaining.
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 com-
prehensive needs assessment addressing student performance on the
 an overview 29

academic excellence indicators set forth in TEC §39.051, performance

objectives, and strategies for improving student achievement. Among
the strategies to be discussed are the need for special programs, drop-
out reduction, integration of technology in instructional and adminis-
trative programs, discipline management, and staff development (TEC
§11.252). Each campus’s improvement plan must assess each student’s
performance using the Academic Excellence Indicator System, identify
how campus goals will be met, determine the resources and staffing
needed, set timelines, and establish a periodic assessment process (TEC
§11.253). The campus improvement plan also must include goals and
methods for preventing and intervening in campus violence, as well as
a program for encouraging parental involvement. Every campus-level
committee must hold at least one public meeting per year, after receiv-
ing the annual campus rating from TEA, to discuss campus performance
as well as the campus performance objectives.
That the site-based decision process remains essentially advisory
appears clear both from the wording of the current statutes and from
earlier commissioner decisions. For example, in one of several 1995
decisions on site-based decision-making, the commissioner concluded
that the school board retained authority under its district decision-
making plan to reject the school committee’s block scheduling pro-
posal, which would have varied the schedules and instructional time at
the district’s two high schools. The commissioner noted that site-based
decision-making is not designed to limit the board’s governance author-
ity in such matters (Shoffner v. Goose Creek C.I.S.D.). In another deci-
sion the same year, the commissioner noted that school districts have
considerable discretion in deciding the role of the campus committee.
Since the committee had not been given a direct role in the selection of
a principal, the district did not violate its own policy by electing not to
consult the committee (Clear Creek Educators Association TSTA/NEA
v. Clear Creek I.S.D.).

HOW THE U.S. CONSTITUTION AND FEDERAL

GOVERNMENT AFFECT TEXAS SCHOOLS

Key Provisions of the U.S. Constitution

Until recently, 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. In the past thirty years, a
new generation of constitutional rights law has evolved. The changes
have been significant and are discussed in detail in subsequent chap-
ters. Nonetheless, the advent of a more conservative majority on the
30 educator’s guide to texas school law

Supreme Court, led by Chief Justice William Rehnquist, has tempered

the Court’s recent extension of constitutional protections to students
and school district employees. As a result, plaintiffs are beginning to
bring suits on these issues in state rather than federal court.
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 in-
herent in a democratic society: the right to be free from governmental
control in the exercise of speech, publication, religious preference, and
assembly. However, the First Amendment, like the other nine in the Bill
of Rights, applies only to the federal government (the first word in the
First Amendment is Congress).
To determine what U.S. Constitutional rights we enjoy in the state
setting, we must look to the Fourteenth Amendment. For our purpose,
two clauses from the first section of that amendment are important:
“nor shall any State deprive any person of life, liberty, or property with-
out due process of law, nor deny to any person within its jurisdiction
the equal protection of the laws.” These two clauses, the due process
clause and the equal protection clause, together with the federal laws
that implement them, provide the basis for constitutional rights suits
against public educational institutions and personnel.
Congress passed a statute after the Civil War to enforce the Four-
teenth Amendment by enabling aggrieved persons to pursue their claims
in federal court. That statute, known as 42 U.S.C. §1983, is one of the
major sources of litigation against both school districts and school per-
sonnel. The statute provides that “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Terri-
tory, 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].” As will be
noted often in this book and particularly in the last chapter, on legal
liability, the consequences can be severe. At the same time, courts do
not look kindly on persons who use this venerable civil rights law to
get trivial cases into federal court. A case in point involves the parents
of a freshman band student in College Station I.S.D. who had numer-
ous complaints about the high school band director. Among them were
allegations that the band director lacked discipline, insisted their son
play only the B-flat clarinet, failed to distribute band rules in a timely
fashion, yelled at their son, and walked into the girls’ locker room. The
trial court dismissed the claims, and the U.S. Court of Appeals for the
Fifth Circuit affirmed. Wrote the appellate judges in an unsigned opin-
ion, “a constitutional violation does not occur every time someone feels
that they have been wronged or treated unfairly.” The appellate court
 an overview 31

viewed the case as frivolous and ordered the parents to prove why they
should not be required to pay attorneys’ fees and double costs to the
school district and school officials as damages (Shinn v. College Station
I.S.D., 1996).
One may wonder how schools can be affected by the Fourteenth
Amendment, phrased as it is in terms of states. As we already have
noted, local school districts legally are viewed as political subdivisions
of the state. Therefore, the Fourteenth Amendment applies to public
school districts and personnel, but not to private schools, since they
are not state-related. Neither the Bill of Rights, the Fourteenth Amend-
ment, nor most provisions of the Texas Education Code apply to private
schools. This is an important point, for many educators assume they are
entitled to the same rights in the private-school setting as in the public.
In reality, the “rights” that a person has in private schools depend to a
large extent on the wishes of the private school. For the private school,
contract law is of great importance, since it defines not only the teacher-
institution relationship but also the relationship of the student to the
school. Thus, it is important that contractual provisions be carefully
developed and reviewed.
Over the years the U.S. Supreme Court has held that almost all
provisions of the Bill of Rights are binding on the states through the
Fourteenth Amendment. In other words, the Supreme Court gradually
has incorporated these rights into the Fourteenth Amendment, specifi-
cally through the “liberty” provision of the due process clause, thereby
ensuring that neither the federal government nor the states can abridge
them. Courts have differed, however, on the extent to which teachers
and, particularly, students in the public schools enjoy the same protec-
tions as do other persons.
Neither liberty rights nor property rights are without limits. They
can be regulated, even denied, provided that the state or school follows
due process: “nor shall any State deprive any person of life, liberty, or
property without due process of law,” meaning that, if due process is
followed, the curtailment of rights can occur. Due process rights for
employees will be discussed in some detail in Chapter 4 and those for
students in Chapter 8.
Behavior that is not constitutionally protected as a liberty or prop-
erty right can be regulated relatively easily. Smoking and the posses-
sion and/or use of hallucinogenic drugs or alcohol fall into this category.
The legislature has banned smoking by all persons at school-related or
school-sanctioned activities on or off campus (TEC §38.006) and has
made student possession or use of hallucinogenic drugs an expellable
offense (TEC §37.007). Moreover, the use of alcohol is banned at all
school-related or school-sanctioned events on or off school property
(TEC §38.007). Of course, the fact that the U.S. Constitution does not
protect certain types of behavior does not mean that a state legislature
Another random document with
no related content on Scribd:
 ARTICLE XIII.
Meetings.

The annual meeting of this Society shall be held on

the third Wednesday in January. A field day of the
body shall be held during the summer of each year at
such time and place as the Executive Council shall
select, due regard being given to the convenience of
the greatest number, and, as far as possible, the
meeting place selected shall be one whose historical
associations are of interest to American citizens.
The annual meeting shall be for the purpose of
electing officers, hearing reports and transacting
such other business as may come properly before it.
Until otherwise ordered such meeting shall be held in
the city of Boston, Mass. There shall be four stated
meetings each year.
Special meetings may be called at any time by the
Executive Council.
 ARTICLE XIV.
Subsidiary Societies.

Chapters of the parent Society may be established

in any city or town in the United States upon the
petition of ten persons for a charter, and such charter
shall be issued upon payment of the sum designated
for such in the by-laws.
The President, Secretary, Treasurer, Librarian and
Historiographer of all subsidiary societies shall be
admitted to all meetings of the parent Society as
members during their term of office, with all the
privileges of membership except that of voting.
 ARTICLE XV.
Amendments.

Amendments to the Constitution shall be

submitted to the Executive Council through the
Secretary-General at least thirty days before the
meeting of the Society. A vote of two thirds of the
members present at the meeting shall be necessary
for the adoption of such amendments.
 BY-LAWS.

(1) The initiation fee shall be three dollars. The

annual membership fee shall be three dollars,
payable not later than the first day of February in
[1]
each year.
1. Amended so that annual membership fee is now $5.
(2) Payment of fifty dollars in advance at one time
shall constitute a life membership. Life members
shall be exempt from further dues.
(3) The Executive Council shall provide for each
regular meeting of the Society an address, essay or
paper dealing with some topic in the Society’s line of
work.
(4) A copy of all original productions read before
the Society shall be requested for deposit in the
Society’s archives.
(5) The annual field-day program shall include an
oration, poem and dinner. Other features of an
appropriate nature may be added.
(6) A fraternal spirit shall be cultivated with other
American historical bodies. The Society shall also
keep in touch with historical organizations in Ireland,
France and other countries.
 (7) Any person elected to membership in this
Society who fails to pay his initiation fee within one
year from the date of his election shall, having been
duly notified by the Secretary-General, be considered
as having forfeited his right to membership and his
election shall be cancelled.
(8) A member neglecting for two years to pay his
annual fee shall be notified of such omission by the
Secretary-General. Still neglecting for three months
to pay the dues such delinquent member shall be
dropped as no longer belonging to the Society.
(9) The stated meetings of the Society shall be held
in January, April, July and October. The President-
General, upon receiving a request in writing, signed
by ten members, asking for a special meeting, shall
cause the said meeting to be convened forthwith.
(10) Ten members shall constitute a quorum at any
meeting of the Society, except stated meetings, when
fifteen members shall be necessary.
(11) The general order of business at meetings of
the Society shall be as follows:

(a) Minutes of previous meeting.

(b) Report of Executive Council on candidates for
membership.
(c) Balloting on candidates for membership.
 (d) Reports of officers and committees.
(e) Unfinished business.
(f) New business.
(g) Adjournment.
(12) When not otherwise provided, Cushing’s
Manual shall be the authority on points of procedure
at meetings of the Society.
(13) No part of these by-laws shall be amended,
altered or repealed unless proposition is submitted in
writing covering the proposed amendment at least
thirty days before the meeting when it is to be acted
upon, when, if two thirds of the members present
and voting express themselves in favor of the change,
the same shall be made.
 MR. THOMAS HAMILTON MURRAY.

One of the Founders of the Society, and its First

Secretary-General, serving from 1897 until his decease
June 5th, 1908.
 It has been deemed necessary that a revision of the
above be made in order to make them conform to the
present needs of the Society, and a committee
consisting of Michael J. Jordan, Esq., Hon. Patrick J.
McCarthy, Joseph T. Ryan, Esq., John E. O’Brien,
Esq., and the Secretary-General, appointed by the
President-General at Washington, D. C., January 17,
1909, has the revision in charge.
GENERAL INFORMATION REGARDING THE
AMERICAN IRISH HISTORICAL SOCIETY.

The Society was organized on January 20, 1897, in

Boston, Mass., and now has members in nearly all
the states, the District of Columbia, one territory and
four foreign countries.
The object of the organization is to make better
known the Irish chapter in American history.
There are two classes of members—Life and
Annual. The life membership fee is $50 (paid once).
The fee for annual members is $5, paid yearly. In the
case of new annual members, the initiation fee, $5,
also pays the membership dues for the first year.
The government comprises a President-General, a
Vice-President-General, a Secretary-General, a
Treasurer-General, a Librarian and Archivist, a
Historiographer and an Executive Council. There are
also State Vice-Presidents.
The Society has already issued several bound
volumes and a number of other publications. These
have been distributed to members, public libraries,
historical organizations and universities. Each
member of the Society is entitled, free of charge, to a
copy of every publication issued from the time of his
admittance. These publications are of great interest
and value, and are more than an equivalent for the
membership fee.
The Society draws no lines of creed or politics.
Being an American organization in spirit and
principle, it welcomes to its ranks Americans of
whatever race or descent, and of whatever creed, who
take an interest in the objects for which the Society is
organized. Membership application blanks will be
furnished on request to the Secretary-General at his
office, 49 Westminster Street, Providence, R. I., or to
John J. Lenehan, Chairman of the Committee on
Membership, 71 Nassau Street, New York City. Blank
applications found at the end of this volume.
The membership includes many people of
prominence and occupies a position in the front rank
of American historical organizations.
The Society is a corporation duly organized under
the laws of the State of Rhode Island and is
authorized to take, hold and convey real and personal
estate to the amount of $100,000.
Gifts or bequests of money for the uses of the
Society are solicited. We depend entirely on our
membership fees and dues, and if we had a suitable
fund on hand its income would be most
advantageously used for historical research, printing
and issuing historical works and papers and adding
to our library. The following is a form of bequest
good in any state or territory:
“I give and bequeath to the American Irish
Historical Society —— dollars.”
If desired, a donor or testator may direct the
application of principal or interest of his gift or
bequest.
 A FEW OF THE INTERESTING PAPERS
READ BEFORE OR REPRINTED BY THE
SOCIETY.

“Irish Settlers in Pennsylvania.”

“Early Irish in St. Louis, Missouri.”
“Patriots Bearing Irish Names Who Were Confined
Aboard the Jersey Prison Ship.”
“Commerce Between Ireland and Rhode Island.”
“Some Irish-French Officers in the American
Revolution.”
“The Voyage of the Seaflower.”
“The Defense of Fort Stephenson on the
Sandusky.”
“Irish Settlers on the Opequan.”
“Irish Pioneers in Boston and Vicinity.”
“The Irish in America.”
“Goody Glover, an Irish Victim of the Witch Craze,
Boston, Mass., 1688.”
“Capt. Daniel Neill, an Artillery Officer of the
Revolution.”
“Richard Dexter, One of Boston’s Irish Pioneers.”
“The New Hampshire Kellys.”
 “Some Early Celebrations of St. Patrick’s Day in
New York City, 1762–1788.”
“Master John Sullivan of Somersworth and
Berwick and His Family.”
“Martin Murphy, Sr., an Irish Pioneer of
California.”
“Historical Notes of Interest.”
“Irish Ability in United States.”
“The Affair at Fort William and Mary.”
“Incident of an Expedition under Gen. John
Sullivan.”
“Irish Builders of White House.”
“Col. Francis Barber, a Soldier of the Revolution.”
“A Glance at Some Pioneer Irish in the South.”
“Walsh’s Irish Regiment of Marine Artillery,
French Army.”
“Irish Influence in the Life of Baltimore.”
“A Bit of New York History.”
“The Kelts of Colonial Boston.”
“The Battle of New Orleans.”
“Battles of Lexington, Concord and Cambridge.”
“Matthew Watson, an Irish Settler of Barrington,
R. I., 1722.”
 “Irish Emigration During the Seventeenth and
Eighteenth Centuries.”
“Some Pre-Revolutionary Irishmen.”
“Some Irish Settlers in Virginia.”
“The ‘Scotch-Irish’ and ‘Anglo-Saxon’ Fallacies.”
“Early Irish Settlers in Kentucky.”
“The Irish in South Carolina, Georgia, Alabama,
Louisiana and Tennessee.”
“Hugh Cargill, a Friend of Liberty.”
“The Irish Settlers of Pelham, Mass.”
“Thomas Fawcett, Irish Quaker, American
Pioneer.”
“Early New Hampshire Irish; Some Pre-
Revolutionary Dennises, Corneliuses, Patricks and
Michaels.”
“The United States Torpedo Boat O’Brien.”
“Daniel Morgan and the Battle of Cowpens.”
“Irish Schoolmasters in the American Colonies,
1640–1775.”
“The Irish at Bunker Hill.”
“David Hamilton, a Soldier of the American
Revolution.”
“Irish Pioneers in Texas.”
 “The Irish Chapter in the History of Brown
University.”
“Men of Irish Blood Who Have Attained Eminence
in American Journalism.”
“William Prendergast, a Pioneer of Chautauqua
County, N. Y.”
“The Battle of Rhode Island.”
“Rev. James MacSparran, Irishman, Scholar,
Preacher and Philosopher, 1680–1757.”
“Irish Pioneers and Builders of Kentucky.”
“Rev. James Caldwell, a Patriot of the American
Revolution.”
“Great Irishmen in New York’s History.”
“Life and Deeds of Major-General John Sullivan.”
“Irish Pioneers in New York.”
“Irish Pioneers of the West and Their
Descendants.”
“Advantages of Historical Research to Irish
Americans.”
PRESIDENTS-GENERAL OF THE SOCIETY.

1897. Rear Admiral Richard W. Meade, U. S. N.

1897–1898. Hon. Edward A. Moseley, Washington, D. C.
1899–1900. Hon. Thomas J. Gargan, Boston, Mass.
1901–1902 and Hon. John D. Crimmins, New York City.
1905.
1903–1904. Hon. William McAdoo, New York City.
1906–1907. Rear Admiral John McGowan, U. S. N.
(retired), Washington, D. C.
1908–1909. Francis J. Quinlan, M. D., LL. D., New York
City.
 HON. MICHAEL F. DOOLEY.

President of the National Exchange Bank of

Providence, R. I. and Treasurer-General of the Society.
 TENTH ANNUAL MEETING AND
BANQUET OF THE AMERICAN
IRISH HISTORICAL SOCIETY AT
HOTEL MANHATTAN, NEW YORK
CITY, JANUARY 29, 1908.

In accordance with a vote of the Executive Council

at a meeting held in Providence, R. I., the date and
place of the tenth annual meeting and banquet of the
Society was fixed for January 29, 1908, at Hotel
Manhattan, New York City. President-General
McGowan caused notice to be sent each member as
follows:
 THE AMERICAN IRISH HISTORICAL
SOCIETY.

Notice of the Annual Meeting and Dinner.

Dear Sir: The annual meeting and dinner of the American Irish
Historical Society will take place at the Hotel Manhattan, Madison
Avenue and Forty-Second Street, New York City, on Wednesday
evening, January 29, 1908.
A reception will begin at 5.00 p. m., to be followed at 6.30 p. m. by
a business meeting. The line will be formed for dinner at 7.30 p. m.
The reception committee as designated by the Executive Council of
the Society comprises: T. P. Kelly, John F. Doyle and T. Albeus
Adams of New York; P. F. Magrath, Binghamton, N. Y.; James L.
O’Neill, Elizabeth, N. J.; John F. O’Connell, Providence, R. I.; Hon.
Thomas J. Gargan, Boston, Mass.; D. H. Tierney, Waterbury, Conn.;
James O’Sullivan, Lowell, Mass.; Hon. William Gorman,
Philadelphia, Pa.; Hon. P. T. Barry, Chicago, Ill.; Hon. Thomas Z.
Lee, Providence, R. I.; Hon. John Hannan, Ogdensburg, N. Y., and D.
J. McGillicuddy, Lewiston, Me.
Tickets for the dinner are now ready at $3.50 each. They can be
obtained by addressing T. P. Kelly, Esq., chairman of the Dinner
Committee, 544 West Twenty-Second Street, New York City. Make
checks payable to the American Irish Historical Society, and forward
to Mr. Kelly at the address given.
Music will be furnished at the dinner by an orchestra and by a
vocal quartet. There will be other features of an entertaining nature
designed to make the occasion one of more than ordinary interest.
Members are at liberty to invite personal guests, and a large
attendance is cordially desired. Kindly inform us as soon as possible
whether you intend to be present on the twenty-ninth.
 Fraternally,
John McGowan,
President-General,
Washington, D. C.

T. H. Murray,
Secretary-General,
911 Boylston Street, Boston, Mass.

A goodly number of members responded to the

notice, and the sale of tickets gave evidence that a
large gathering would be present.
The Reception Committee was early in attendance
and rendered much valuable service. It greatly
assisted the Secretary-General, who was ill, in the
performance of his duties, introduced the new
members as they appeared and arranged the seatings
of members for the banquet.
At 6.30 p. m. the annual meeting was called to
order by Hon. Thomas Z. Lee, in the absence of the
President-General and Vice-President-General, and,
upon being elected President-General pro tem,
presided throughout the business meeting.
Treasurer-General Dooley announced through the
Chairman that the funds of the Society were
deposited in the Union Trust Company, Providence,
R. I., at the time of its suspension, and that a plan for
its reorganization had been suggested, but not yet
adopted. The funds were therefore not available for
our use and he could not tell when they would be. In
order that the Society might have its funds subject to
its disposal and not be obliged to await a more or less
indefinite reorganization of the Union Trust
Company, Mr. Dooley had drawn his personal cheque
for the total amount of our detained funds and
deposited same to the credit of the Society. He asked
that we give him an assignment of our money in the
Union Trust Company in order that he instead of us
might do the waiting and take the chances of being
repaid.
Mr. Dooley’s generous offer was most cordially
accepted, and a committee appointed by the
Chairman for that purpose immediately executed the
assignment of our detained funds as requested.
Upon motion of Mr. Dennis H. Tierney, a vote of
thanks was extended Treasurer-General Dooley for
the transaction above mentioned, and remarks of a
most complimentary nature were made by several
previous to the adoption of the vote.
The annual report of the Secretary-General was
read and it was ordered that the same be received
and placed on file.
The annual report of the Treasurer-General
showing receipts, disbursements and balance on
hand was read, and it was ordered that the same be
received and placed on file.
A number of new members were elected, some of
whom were present later at the banquet.
The election of officers for the ensuing year was
called for, and the following gentlemen, having the
unanimous endorsement of the Executive Council,
were by ballot duly elected to the following offices:
President-General,
Francis J. Quinlan, M. D., LL. D.,
New York City.

Vice-President-General,
Hon. Franklin M. Danaher,
Albany, N. Y.

Secretary-General,
Thomas Hamilton Murray,
Seaview, Plymouth County, Mass.

Treasurer-General,
Michael F. Dooley,
Providence, R. I.

Librarian and Archivist,

Thomas B. Lawler,
New York City.
 EXECUTIVE COUNCIL

The foregoing and

Hon. John D. Crimmins, New York City.
Hon. William McAdoo, New York City.
Hon. Thomas J. Gargan, Boston, Mass.
Patrick F. Magrath, Binghamton, N. Y.
Rev. John J. McCoy, LL. D., Worcester, Mass.
Thomas Addis Emmet, M. D., LL. D., New York
City.
Edward J. McGuire, New York City.
John F. O’Connell, Providence, R. I.
James L. O’Neill, Elizabeth, N. J.
Stephen Farrelly, New York City.
Cyrus Townsend Brady, LL. D., Toledo, O.
Hon. Thomas J. Lynch, Augusta, Me.
Gen. Phelps Montgomery, New Haven, Conn.
Hon. Thomas Z. Lee, Providence, R. I.
Hon. Patrick Garvan, Hartford, Conn.
Major John Crane, New York City.
Col. John McManus, Providence, R. I.
Hon. William Gorman, Philadelphia, Pa.
Col. C. C. Sanders, Gainesville, Ga.
John F. Doyle, New York City.

STATE VICE-PRESIDENTS.
Maine—James Cunningham, Portland.
New Hampshire—Hon. James F. Brennan,
Peterborough.
Vermont—John D. Hanrahan, M. D., Rutland.
Massachusetts—M. J. Jordan, Boston.
Rhode Island—Thomas A. O’Gorman,
Providence.
Connecticut—Dennis H. Tierney, Waterbury.
New York—Joseph I. C. Clarke, New York City.
New Jersey—John F. Kenah, Elizabeth, N. J.
Pennsylvania—Hugh McCaffrey, Philadelphia.
Delaware—John J. Cassidy, Wilmington.
Virginia—James W. McCarrick, Norfolk.
West Virginia—John F. Healy, Thomas, Tucker
County.
South Carolina—W. J. O’Hagan, Charleston.
Georgia—Capt. John Flannery, Savannah.
Ohio—John Lavelle, Cleveland.
Illinois—Hon. P. T. Barry, Chicago.
Indiana—Very Rev. Andrew Morrissey, C. S. C.,
Notre Dame.
Iowa—Rt. Rev. Philip J. Garrigan, D. D., Sioux
City.
Montana—Rt. Rev. M. C. Lenihan, D. D., Great
Falls.
Minnesota—Hon. C. D. O’Brien, St. Paul.
Kentucky—John J. Slattery, Louisville.
Kansas—Patrick H. Coney, Topeka.
Utah—Joseph Geoghegan, Salt Lake City.
Texas—Gen. A. G. Malloy, El Paso.
California—James Connolly, Coronado.
 MR. JOHN J. LENEHAN,

Of New York City.

A Life Member of the Society and Chairman of the

Committee on Membership, under whose intelligent
 efforts nearly 300 new members have been admitted to
the Society since June, 1908.

OTHER VICE-PRESIDENTS.
District of Columbia—Hon. Edward A. Moseley,
Washington.
Oklahoma—Joseph F. Swords, Sulphur.
Canada—Hon. Felix Carbray, Quebec.
Ireland—Dr. Michael F. Cox, Dublin.

Mr. Willis B. Dowd spoke at length concerning our

next annual meeting and banquet and then moved
that it be held in Washington, D. C. Mr. T. Vincent
Butler seconded the motion and spoke in support of
Mr. Dowd’s views. The motion was unanimously
adopted.
The new President-General, Francis J. Quinlan,
having arrived, the Chairman appointed Rev. John J.
McCoy, LL. D., T. Vincent Butler, Esq., and S. J.
O’Sullivan, Esq., to wait upon the incoming
President-General and escort him to the chair.
The Committee retired and presented Doctor
Quinlan, who thanked the Society in a few well
chosen words and immediately began his duties.
 At 7.30 p. m. the line was formed for the banquet,
and a large number of members and guests took seats
at the tables.
President-General Quinlan presided and grace was
said by Rev. Dr. John J. McCoy.
Music was furnished by a male quartet and an
orchestra, and throughout the evening they led the
Society in patriotic American and Irish songs.
The tables were handsomely decorated with plants
and flowers and presented a pretty picture. During
the evening a flashlight photograph of the diners was
obtained with satisfactory results. The menu was all
that could be desired.

ANNUAL DINNER

OF THE

American-Irish Historical Society.

Hotel Manhattan, New York. Wednesday Evening,

January 29, 1908.

Cape Cod Cocktail

Cream of Celery
 Celery Nuts Olives

Planked Whitefish, Manhattan

Cucumbers Potatoes, Parisienne

Filet of Beef, Cheron

French Peas Stuffed Artichokes

Kirsch Punch

Roast Stuffed Squab, Jelly

Salad, Excelsior

Cafe Parfait Fancy Cakes

Coffee

Cigars Cigarettes

Apollinaris
There were present:
Rev. Fr. Curtain; Michael F. Dooley, Providence, R.
I.; John F. Kehoe, Newark, N. J.; Hon. P. T. Barry,
Chicago, Ill.; John F. O’Connell, Providence, R. I.;
Hon. Patrick Garvan, Hartford, Conn.; John J.
Rooney, New York City; Hon. Joseph F. Daly, New
York City; P. H. Garrity, Waterbury, Conn.; J. J. Daly,
New York City; James O’Sullivan, Lowell, Mass.;
Dennis H. Tierney, Waterbury, Conn.; David Healy,
New York City; T. P. Kelley, New York City; Dr. M. F.
Sullivan, Lawrence, Mass.; John F. MacDonnell,
Holyoke, Mass.; Joseph Geoghegan, Salt Lake City; T.
Vincent Butler, New York City; James L. O’Neill,
Elizabeth, N. J.; William T. Cox, Elizabeth, N. J.;
John F. Kenah, Elizabeth, N. J.; Hon. Patrick J.
Ryan, Elizabeth, N. J.; Hon. Matthew P. Breen, New
York City; Henry J. Breen, New York City; John Jay
Joyce, New York City; Nathaniel Doyle, New York
City; T. H. Murray, Boston, Mass.; Hon. Thomas Z.
Lee, Providence, R. I.; J. Duncan Emmet, M. D., New
York City; Stephen Farrelly, New York City; S. J.
O’Sullivan, New York City; Dr. Bryan DeF. Sheedy,
New York City; Judge Lorenz Zellar, New York City;
Judge James J. Walsh, New York City; Michael F.
Farley, New York City; Philip Bloch, New York City;
William Crowley, New York City; Roswell D.
Williams, New York City; M. F. Laughman, New York
City; Col. Charles F. Crowley, New York City; William
Cahill, New York City; Peter J. Crotty, New York City;
Sidney Williams, New York City; J. A. Lyons, New
York City; William H. Breen, New York City, and
many others.