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Parental Rights in Texas Public Schools

Does in loco parentis still have meaning?

Written by Miles T. Bradshaw

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In simpler times, when a parent raised a legal issue involving his or her child in a Texas public school setting, the immediate starting point was to look toward the oft-cited legal doctrine of in loco parentis. For well over a century, the Latin phrase meaning standing “in the place of a parent” provided the basic foundation of almost any legal analysis involving the school district’s authority to act as the parent of the child in the school setting. As one might guess, in the 19th century and through about half the 20th century, the doctrine served the time well because of the simple fact that children practically had no legal rights. Because parents had almost complete control over their children, the application of in loco parentis transferred that control to school officials during any period the child was in their care. For example, years ago the doctrine supported a principal’s authority to paddle misbehaving students for any reason tied to maintaining order and promoting discipline in schools. It meant that public school teachers and administrators had nearly unfettered authority to discipline and supervise students with little concern for exposure to legal liability. Times have changed.

This article is not about liability exposure in public schools. Such an article would quickly become a chapter, then a book, and eventually a book with many volumes. Rather, this article is intended to give parents of Texas public school students a primer on some commonly used “parental rights” available by law in a school setting. This article is also not about parental rights in schools related to COVID-19, kneeling at football games, or wearing a “Make America Great Again” hat to school. This fall will likely provide multiple opportunities to test the bounds of individual rights in schools related to each one of these novel areas of societal debate. Until then, this article will touch on some of the basics in parental rights in public schools.

 

Texas Parent’s Bill of Rights and Responsibilities
It seems appropriate to highlight the Texas Parent’s Bill of Rights and Responsibilities because the law’s 25th anniversary is September 1, 2020. In 1995, as part of the school reform movement, the Texas Legislature passed Senate Bill 1, which included a virtual rewrite and consolidation of many laws applicable to school districts. SB 1 included a Parent’s Bill of Rights.1 The bill of rights is codified as Chapter 26 of the Texas Education Code with some amendments over the years. As one might gather from its moniker, the Parent’s Bill of Rights provides a basic framework of parental rights to assist parents and teachers with the common goal of educating our youth.

The bill of rights first notes “parents are partners with educators, administrators, and school district boards of trustees in their children’s education.” It requires school boards to establish complaint procedures to consider allegations that a parent’s rights under the law have been denied. It further requires that school boards will cooperate in the establishment of at least one parent-teacher organization at each school in the district.2

As to academic programs, a parent is specifically given the right to petition the school board to request a particular campus for his or her child.3 This doesn’t mean a parent is automatically granted such a request—chaos would certainly ensue. In fact, particularly in urban districts, the procedures, policies, and local school district rules on enrollment at a particular campus can be complicated and sometimes unforgiving. For example, it is not unheard of for a student otherwise zoned to a certain campus to actually lose his or her seat at that campus if the student fails to attend classes on the first day of school. It is situations such as these that Chapter 26 is intended to address to ensure that schools operate fairly and that parents are ultimately allowed to bring any complaints before the school board. Chapter 26 even entitles parents to “request, with the expectation that the request will not be unreasonably denied” things such as (1) the addition of a specific academic class if enough interest is shown, (2) that the parent’s child be allowed to attend a class for credit above his or her grade level, or (3) that a child be allowed to graduate early, including attending that year’s graduation ceremony, if the child completes courses required for graduation.4

One of the most innovative portions of the Parent’s Bill of Rights, added in 2007 and amended in 2013, is the section on rights related to the Texas Virtual School Network, or TxVSN. While there are numerous conditions and eligibility requisites, the program generally allows online courses for credit via a network of approved providers established by the Texas Education Agency. The general structure of the program is established by the laws in Chapter 30A of the Texas Education Code. The law requires that school districts inform parents of the online options that may be available to their child at both the middle and high school levels.5 The bill of rights generally supports a parent’s right to enroll his or her child in these online courses with some exceptions, such as the course is not consistent with the student’s graduation plan or is already available in person at the local campus. Interestingly, a rarely used provision of the law gives a parent the right to appeal a denial of a request for a TxVSN online course to the commissioner of education.6

An important theme of Chapter 26 of the Parent’s Bill of Rights is “access.” Parents are given access to all sorts of school records related to their child, including attendance records, test scores, grades, disciplinary records, health records, counseling records, student evaluations, and reports of behavioral patterns.7 A similar federal law gives parents broad access to their child’s “education records” with some notable exceptions.8 One exception for a parent to be aware of deals with counseling records. In 2002, the Texas attorney general addressed this issue in the context of the general edict in Chapter 26 giving a parent access to his or her child’s student records, including specifically “counseling records” and “psychological records.”9 The opinion concluded there are two narrow exceptions to a parent’s unrestricted access.

The first exception comes from federal law (Family Educational Rights and Privacy Act) and allows a school district to withhold the minor’s counseling records if the record is used only as the counselor’s personal memory aid and is not accessible or revealed to any other person except a temporary substitute for the counselor.10 In other words, those types of records were viewed as being the counselor’s records (such as a personal calendar) rather than the student’s education record. The second exception goes more to the heart of information that otherwise would be accessible by a parent under Chapter 26. The exception comes from state law and protects a minor’s psychological records held by a licensed mental health practitioner if the practitioner determines that the release of such records “would be harmful to the patient’s physical, mental, or emotional health.”11

Other types of access granted in Chapter 26 include allowing a parent to review teaching materials used in his or her child’s classroom, including a test taken by the child after it is administered to the child’s class. While these access provisions are broad, there may always be individual circumstances that may restrict the apparent unfettered right of access, such as copyright issues or the school’s ability to control the time and manner of access to review the materials. Section 26.005 even provides for specific access to a copy of each state assessment instrument administered to his or her child with some exceptions.12 Another rarely used provision of Chapter 26 addresses a parent’s right to insist on disciplinary action against a school employee who attempts to coerce a student to withhold information from his or her parents.13 Chapter 26 allows a parent to have his or her child removed “temporarily” from a class or other school activity that “conflicts with the parent’s religious or moral beliefs” if the parent provides a written statement authorizing such removal. However, the removal cannot be used to avoid a test or prevent the child from taking a subject for the entire semester.14 A common example might be a child temporarily removed from a health education class during objectionable discussions of sex.

Conclusion
The Texas Parent’s Bill of Rights and Responsibilities is a far cry from the raw legal concept of in loco parentis—that the school district steps entirely into the role of parent. Certainly, the concept still exists as an underlying general notion that schools must maintain responsibility for student safety and education in public schools. However, under the near countless school laws of the 21st century, without question parents have more rights related to curriculum, access, and many other areas as demonstrated in the Parent’s Bill of Rights. It seems fitting that, as we head into a new school year where the presence of COVID-19 will likely test the boundaries of parental rights in schools, we also celebrate the 25th anniversary of the Texas Parent’s Bill of Rights and Responsibilities. TBJ

 

Notes
1. The Texas Parent’s Bill of Rights and Responsibilities was authored by Scott Hochberg (D), Texas House of Representatives, 132nd and 137th Congressional Districts (1993-2013).
2. Tex. Educ. Code § 26.001.
3. Tex. Educ. Code § 26.003.
4. Id.
5. Tex. Educ. Code § 30A.007.
6. Tex. Educ. Code § 26.00031.
7. Tex. Educ. Code § 26.004.
8. The Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (“FERPA”).
9. Tex. Educ. Code § 26.004(b)(5)-(6); Tex. Att’y Gen. Op. JC-0538 (2002).
10. Citing to 34 C.F.R. § 99.3 (2011) (defining what is not an education record).
11. Tex. Health & Safety Code § 611.0045.
12. Tex. Educ. Code §§ 26.005, 39.023.
13. Tex. Educ. Code § 26.008.
14. Tex. Educ. Code § 26.010.



Miles BradshawMILES T. BRADSHAW
is one of the founding partners of Karczewski Bradshaw Spalding, a firm practicing primarily in school and municipal law, employment law, and litigation. The firm has offices in Houston, Austin, Nacogdoches, and the Beaumont area. For more information, go to KBSlawgroup.com.

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