Spring 2014

Advertising in Schools

In October 2013, the Superintendent of Lubbock ISD denied a request by Little Pencil, LLC, to advertise on the jumbotron at the district’s football stadium.  The requested advertisement consisted of an image of a tattooed Jesus Christ and the website address jesustattoo.com.  Little Pencil claimed that the district’s denial was impermissible viewpoint discrimination against its religious message. The company sued the district in federal district court alleging that the school district’s policies and practices violated its First Amendment rights to freedom of speech and free exercise of religion and denied it due process and equal protection of the law.  The district asserted that its jumbotron was not intended as a public forum, and it reserved the right to refuse to run any advertisement.  The district defended its decision by pointing out that tattoos are illegal for minors and a violation of both the student dress code and employee handbook.

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Common Core

In 2013, the Texas Legislature enacted House Bill 462, effective June 14, 2013, which relates, in part, to a school district’s use of the national curriculum standards developed by the Common Core State Standards Initiative, commonly known as “Common Core.”  The bill added subsection (b-3) to Texas Education Code 28.002, which states that “[a] school district may not use common core state standards to comply with the requirement to provide instruction in the [Texas Essential Knowledge and Skills or TEKS].”

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Whistleblower

Anna Luisa Kell was employed as a high school assistant principal by El Paso ISD.  An investigation into former Superintendent Lorenzo Garcia produced evidence that Kell was involved in manipulation of grade placements at her high school as part of the scheme that resulted in Garcia’s felony conviction. The El Paso ISD board of trustees notified Kell that her contract was proposed for termination, and Kell never requested the appointment of an independent hearing examiner by TEA. Thirty days after providing Kell notice of her proposed termination, the board voted to terminate her contract.

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Drainage Fees

State Senator Royce West of Dallas has requested an opinion from the attorney general asking whether a school district is exempt from the assessment of a municipal drainage fee under the Municipal Drainage Utility Systems Act (Texas Local Government Code chapter 552, subchapter C). In general, the Act gives municipalities the authority to: establish a municipal drainage utility system; provide rules for the use, operation, and financing of the system; assess, levy, and collect fees to fund the system; and provide exemptions of certain persons from its rules.

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Exhaustion of Administrative Remedies

Are home school parents who allege a violation of the school laws of the state required to exhaust administrative remedies before filing suit against a school district and its employees?

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Paperwork Reduction Act

Does requiring a teacher to write a report as part of a growth plan violate Texas Education Code section 11.164, which limits the paperwork a teacher can be required to prepare? Ortiz v. Plano Indep. Sch. Dist., Docket No. 014-R10-10-2012 (Tex. Comm’r of Educ. Proposal for Decision, May 10, 2013). LAF’s Attorney: Kelli H. Karczewski, Karczewski | Bradshaw, L.L.P., Nacogdoches.

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Drought Rules

Does the Texas Commission on Environmental Quality (TCEQ) have the authority to adopt and implement rules relating to “Suspension or Adjustment of Water Rights During Drought or Emergency Water Shortage?” Tex. Comm’n on Envtl. Quality v. Tex. Farm Bureau, No. 13-13-00415-CV (Thirteenth Court of Appeals—Corpus Christi—Edinburg) LAF’s Attorney: Amy M. Emerson, Lloyd Gosselink Rochelle & Townsend, P.C., Austin.

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Attorney-Client Privilege

Does a TEA monitor’s presence in closed board meeting discussions with a school board’s attorney destroy the attorney-client privilege or affect the confidentiality of attorney-client discussions? El Paso Educ. Initiative, Inc. d/b/a Burnham Wood Charter Sch. Dist. v. Tex. Educ. Agency, No. D-1-GN-13-001234 (Travis County District Court). LAF’s Attorney: William C. Bednar, of Counsel, Powell & Leon, LLP, Austin

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Nonrenewal and Use of Physical Force

If a teacher’s use of physical force is one of several reasons for nonrenewal, does the immunity under Texas Education Code section 22.0512 (immunity for use of physical force against a student) protect her from all other reasons for nonrenewal unrelated to her use of force? Black v. Williams & Hart Indep. Sch. Dist., No. 07-13-00192-CV, Seventh Court of Appeals—Amarillo. LAF’s Attorney: Randall J. Cook, Hardy Cook & Hardy, P.C., Tyler.

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Failure to Exhaust Administrative Remedies

Can parents sue a school district under state law for failing to equally and equitably fund different campuses without first exhausting administrative remedies?  Herrera v. Clint Indep. Sch. Dist., No. 08-13-00092-CV (Eighth Court of Appeals—El Paso).  LAF’s Attorney: Carole Callaghan—Carole Callaghan Law, Austin

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Maintenance of Effort

LAF submitted comments to the U.S. Department of Education (DOE) concerning the application of the maintenance of effort (MOE) obligations under the Individuals with Disabilities Education Act (IDEA) in response to the DOE’s Notice of Proposed Rule Making (NPRM) and its proposed changes to the regulations found in 34 C.F.R. Part 300.  U.S. DOE NPRM for 34 C.F.R. § 300 [Docket ID ED-2012-OSERS-0020] RIN: 1820-AB65 Assistance to States for the Education of Children with Disabilities.  LAF’s Attorney: Chris Borreca—Thompson & Horton, LLP, Houston

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