TBJ MARCH 2023
The Business of Education
Why do school districts need lawyers?
Written by Sarah S. Flournoy
School districts are a business. They own and lease commercial-size buildings and other real estate; they employ hundreds, sometimes thousands, of employees; they provide services to thousands of customers each day; and they have multimillion-dollar budgets. Often, they are the largest employer in their geographic area. For example, Fort Worth ISD—one of the largest school districts in Texas—operates 140 campuses plus administrative facilities, employs over 10,000 individuals, educates almost 75,000 students daily, and manages an annual budget of more than $800 million.1 Like a business, school districts typically rely on lawyers to assist them in all these areas and more, including negotiating contracts, purchasing land, constructing buildings, addressing employee retention and discipline, and managing litigation. But unlike private businesses, school districts are also a governmental entity, the implications of which are not often readily understood. This article discusses some of the unique legal issues impacting school districts in their daily operations and how lawyers assist them.
School districts must comply with an array of federal and state laws, rules, and regulations. First and foremost is the U.S. Constitution. School districts are political subdivisions of the state and therefore, through the 14th Amendment, are subject to the restrictions imposed by the first eight amendments to the Constitution.2 For example, the Fourth Amendment prohibits student searches absent reasonable suspicion.3 The Fifth Amendment prohibits schools from requiring students to write letters of apology as a form of discipline or forcing employees to provide a written response to misconduct allegations absent a Garrity notice4 when criminal conduct is alleged.
The First Amendment is more pervasive. Schools may regulate student speech if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”5 That prohibition includes indecent, lewd, and offensive speech at a school-sponsored event during school hours. It does not include an off-campus social media post proclaiming: “[obscenity] school [obscenity] softball [obscenity] cheer [obscenity] everything.”6 Similarly, employee speech regarding matters of public concern is protected under the First Amendment. But speech that is purely personal job related is not. The First Amendment restricts compelled speech like saying the Pledge of Allegiance each day. But it also protects the freedom of inquiry that restricts schools from removing objectionable books from their libraries. The First Amendment protects students who wish to assemble and protest at school. But this protected activity often leaves administrators walking a thin line between protecting student safety and the education of others, while avoiding interference of protected speech or retaliatory discipline claims. Similarly, school board presidents are required to make split-second decisions regarding the constitutionality of public speech and audience behavior at school board meetings while attempting to maintain order and manage the business conducted at the meetings. Finally, schools are frequently at the crossroads where the free exercise and establishment clauses collide, as with a football coach praying in full athletic regalia at the 50-yard line immediately following a Friday night game or students gifting classmates candy canes with religious messages at a school Christmas party.7
While education is a power reserved to the states, the federal government exerts significant control over public schools through federal legislation. Federal discrimination laws apply to school districts, prohibiting the exclusion of any person from an educational program or activity on the basis of race, color, religion, sex, or national origin.8 Further, under Title I of the Elementary and Secondary Education Act of 1965, “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”9
The federal government often uses the spending clause of the U.S. Constitution to encourage or discourage certain behavior by schools.10 For example, the Individuals with Disabilities Education Act, or IDEA, “provides federal funds to assist state and local agencies in educating children with disabilities ‘and conditions such funding upon a State’s compliance with extensive goals and procedures.’”11 Schools and educational agencies must also comply with the Family Educational Rights and Privacy Act, or FERPA,12 which prohibits schools from releasing student records without parental consent except in limited situations.13 Federal law frequently conditions “receipt of federal education funds on a state’s waiver of Eleventh Amendment immunity.”14
Schools are governed by the Texas Constitution. The Texas Constitution, Article VII, Section 1, declares: “A general diffusion of knowledge being essential to the preservation of the liberties and rights of 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 system of public free schools.” This provision is the basis for nearly biannual lawsuits contesting the Legislature’s funding for public schools and challenging whether that funding meets the “suitable” threshold. Additionally, the Texas Constitution prohibits government entities from gifting public funds for private benefit.15 This provision hinders the ability of school districts to grant mid-contract raises or bonuses, dispose of obsolete property, make donations, and regift donations intended for students. For example, if a bad weather day prompts late arrival, exempt employees are paid, but paying non-exempt employees may constitute a gift of public funds.
Schools are governed by the Texas Education Code. Most education laws affecting K-12 school districts are found in Title 2. Subtitle C provides information on the organization of local school boards and the separation of powers between school boards, superintendents, and principals. For school district personnel employed under Chapter 21 contracts, Subtitle D Chapter 21 governs their certification requirements and the terms of their employment, including annual evaluation and termination. Chapter 21 provides complex due process procedures for mid-contract terminations that generally make it more cost effective for a school district to leave an employee on paid administrative leave for the remainder of the school year rather than pursue a mid-contract termination in January or later. Subtitle G Chapter 37 contains similar due process procedures for student discipline, though significantly less cumbersome and time consuming.
As a governmental entity, schools are also subject to both the Texas Open Meetings Act and the Texas Public Information Act. Every school board meeting must be preceded by a publicly posted agenda, must be open to the public, and must provide the public an opportunity to speak on a topic before it is considered by the board. The agenda must be specific enough to reasonably alert the public as to what the board is considering. Further, under the Public Information Act, the public is entitled to the records of the school district to gain a complete understanding of how the district operates and to hold public officials accountable. Exceptions to both acts are available in limited circumstances, but, at least with the Public Information Act, consent of the Texas attorney general is required.
Schools, with their lawyers, navigate a variety of other laws. For example, school districts hold elections, act as taxing authorities, and issue bonds. Campus administrators are routinely presented with family court orders for enforcement or called to testify in family court matters. Chapter 37 of the Education Code, under Subtitle G Safe Schools, addresses student discipline with a multitude of cross references both internal and to the Texas Penal Code. During the last legislative session, House Bill 1927 was signed into law, requiring a multi-page legal opinion for school district clients attempting to succinctly explain the resulting penal code provisions regarding whether and how school districts may regulate guns being brought onto their campuses.
Finally, like private businesses, schools may be subject to investigations by the Equal Employment Opportunity Commission, the Texas Workforce Commission, the Texas attorney general, and local law enforcement. Schools are also regularly investigated by the U.S. Department of Education Office for Civil Rights and the Texas Education Agency. Occasionally, the U.S. Department of Justice may also investigate. Complaints filed with state licensing agencies like the Board of Nursing and the Department of Licensing and Regulation also prompt investigations.
While all of these laws impact education, like business attorneys, school lawyers provide their legal expertise so their clients have the time and resources needed for their day job—educating students. TBJ
SARAH S. FLOURNOY
began practicing in the area of school law following six years as a secondary social studies teacher in a Title I school district and five years as a corporate attorney. She works primarily with both public and private K-12 educational entities on a broad range of legal issues including employment, student discipline, special education, contracts, procurement, policy development, elections, and open government. In addition to special education due process hearings, Flournoy has defended educational entities before state and federal agencies as well as before federal and state courts. Prior to joining Brackett & Ellis in Fort Worth, she served at Irving ISD as its in-house attorney for three years.