Common Legal Issues in Revising Update 119 Local Policies
Policy Service provides a variety of tools to help districts develop and implement board policies and statutory requirements.
Educational Philosophy References Religion
- COMMON ISSUE: Local policy includes reference to religion in educational philosophy.
If a policy states that spiritual growth or the spiritual development of a student is part of the district’s educational philosophy, there may be a legal concern. Federal courts have consistently upheld the separation of church and state in matters involving public schools, even if the reference is nondenominational. Lee v. Weisman, 505 U.S. 577 (1992). Therefore, TASB Legal Services recommends references to church or spirituality not be included in policy.
- LEGAL TIP: To protect against First Amendment claims, a district’s educational philosophy should not include spiritual growth or other references to religion.
CPC(LOCAL)—Office Management: Records Management
Identification of Records Management Officer
- COMMON ISSUE: The superintendent or designee serves as records management officer.
A policy that provides that the superintendent or a superintendent’s designee shall serve as the records management officer, without specifying an individual, office, or position, may not meet legal standards. Section 203.025 of the Texas Local Government Code requires that the board designate an individual, office, or position as the records management officer. In addition, the name, office, or position of the records management officer must be entered in the board minutes. If the board intends to designate as the records management officer an individual, office, or position other than the office of superintendent, the designation must identify a specific individual, office, or position, rather than an unspecified “designee,” and be recorded in the board minutes.
- LEGAL TIP: Local policy should identify a specific individual, office, or position as the records management officer.
EIF(LOCAL)—Academic Achievement: Graduation
Students with Disabilities
- COMMON ISSUE: Local policy includes graduation requirements for students with disabilities.
If a policy includes provisions relating to the graduation of students with disabilities, this information may not be necessary. The EIF(LEGAL) policy adequately addresses the circumstances under which students with disabilities may graduate from high school, and TASB Legal Services recommends these provisions not be included in local policy.
- LEGAL TIP: Local policy should include specific standards for mastery for relevant grade levels.
Changing Graduation Requirements Mid-Stream
- COMMON ISSUE: Local policy changes graduation requirements for currently enrolled students.
When implementing changes to this policy, the district should not change its requirements for graduation for currently enrolled students. To minimize the risk of legal challenge, TASB Legal Services recommends that new requirements not be added midway through a student’s high school career.
- LEGAL TIP: Changes to graduation requirements in local policy should be implemented prospectively.
FDA(LOCAL)—Admissions: Interdistrict Transfers
Transfer Based on Academic Performance
- COMMON ISSUE: Local policy allows for the acceptance or revocation of a transfer student based on academic performance or academic standing.
If the district bases either the acceptance or revocation of transfer students on academic performance, this could result in discrimination claims by students with disabilities. Under federal law, a qualified student with a disability cannot be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in any district service, program, or activity on the basis of disability. 42 U.S.C. § 12132; 29 U.S.C. § 794; 34 C.F.R. § 104.4(a). Some factors considered in a transfer application, while not obviously discriminatory, could be viewed as a proxy for discrimination. For example, the U.S. Department of Education, Office for Civil Rights, found that denying a nonresident student with a disability admission into the district based on the cost of providing services amounted to imposing an additional criterion solely for students with disabilities, thus treating those students differently. Tuslaw (OH) Sch. Dist., 114 LRP 48993 (OCR 2014).
Because of the likelihood that a student’s academic standing will be linked to the student’s eligibility for special education, TASB Legal Services recommends that the district not consider academic performance in deciding whether to accept or revoke a transfer student. At a minimum, we recommend that the district seek legal advice from an attorney regarding nondiscriminatory application of the district’s policy.
- LEGAL TIP: Local policy should not authorize academics as a basis of transfer acceptance or revocation.
Midyear Revocation of Transfer Agreement
- COMMON ISSUE: Local policy allows for midyear revocation of transfer agreement.
The commissioner of education has ruled that Texas Education Code section 25.036 requires that a transfer must be for a period of one year and therefore a transfer agreement cannot be terminated midyear. Child b/n/f Parents v. Skidmore-Tynan Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 026-R5-1110 (Aug. 7, 2013). Accordingly, TASB Legal Services recommends that the policy reflect that transfer agreements are granted on an annual basis under state law.
- LEGAL TIP: Unless your district has exempted itself from Texas Education Code section 25.036, transfers cannot be revoked midyear absent a lack of tuition payment.
Tuition Higher Than Actual Expenses
- COMMON ISSUE: Local policy establishes tuition fees for transfer students.
If local policy establishes tuition fees for transfer students, note that Texas Education Code section 25.038 limits the amount of tuition a district may charge a transfer student. The district may charge no more than the difference between the amount of state aid per student and the district’s actual expenditure per student. In addition, Texas Education Code section 29.203(e) prohibits the district from charging tuition to a student attending school in the district under a public education grant. The formula set in policy should comply with these statutes.
- LEGAL TIP: Local policy should not charge more than allowed by statute.