Common Legal Issues in Revising Update 120 Local Policies
Policy Service provides a variety of tools to help districts develop and implement board policies and statutory requirements.
CKC(LOCAL) — Safety Program/Risk Management: Emergency Plans
Policy CKC covers several emergency management issues. At this code, many school boards include provisions to authorize certain school employees or board members to carry firearms on school property, at school events, and at board meetings. While this is a permissible policy choice, we recommend that boards adopt such a policy only on the advice of counsel. For more information, see TASB Legal Services’ article School Marshals and Other School District Personnel Carrying Firearms.
FNG(LOCAL) — Student Rights and Responsibilities: Student and Parent Complaints/Grievances
If you depart from the TASB model language regarding grievances and appeals, be sure to work closely with your school attorney. Your policy needs to include key components, such as the process to file a complaint or grievance, documentation of the grievance and the district’s response, timelines for filing and appealing, and the announcement, if any, of the board’s decision at the conclusion of the process.
The following are some common concerns we have observed with locally adopted grievance policies. Please note that the terms “complaint” and “grievance” have the same meaning here.
Limited Subject Matter of Complaints
- COMMON ISSUE: Local policy limits the topics that can be appealed through the grievance process.
Many districts would like their grievance policies to either exclude whole topics or provide that the decision of an administrator is “final and cannot be appealed.” Both the federal and state constitutions provide that all citizens have a right to petition the government for redress of grievances. U.S. Const. amend. I; Tex. Const. art. I, § 27. We generally understand the powers of government in a public school district to rest with the school board. A dissatisfied individual should be permitted to appeal through one of the district’s policies — namely, for employees at DGBA(LOCAL), for students and parents at FNG(LOCAL), and for all others at GF(LOCAL). Each of these processes terminate with a hearing at the board level, typically called “Level Three.”
Reasonable restraints on the number, length, and frequency of presentations to the board are permissible, but the board cannot refuse to listen to a person who has followed the required procedures for getting a matter before the board. If a person has not followed the policy by exhausting administrative channels before appearing before the board, the board may direct the person to follow the proper procedure first; however, a member of the public who has exhausted administrative remedies must be heard. See, e.g., Brown v. DeSoto Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 128-R1-698 (Aug. 12, 1999) (finding decision to deny grievance arbitrary and capricious because grievant was denied a hearing); Adams v. Flour Bluff Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 115-R10-598 (Aug. 6, 1999) (deciding district must allow grievance regarding termination of probationary contract).
Note that the Texas Education Code allows parent or student appeals to be limited to the district administration in two specific instances:
- Disciplinary placement other than expulsion: “If school district policy allows a student to appeal to [a designee of the board of trustees] a decision of the campus behavior coordinator or other appropriate administrator, other than an expulsion under Section 37.007, the decision of … the board's designee is final and may not be appealed.” Tex. Educ. Code § 37.009(a).
- Extracurricular activities: “The board of trustees of a school district is not required by [this section or Texas Education Code chapter 11] to address a complaint that the board receives concerning a student's participation in an extracurricular activity that does not involve a violation of a right guaranteed by [Texas Education Code chapter 26]. This subsection does not affect a claim brought by a parent under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) or a successor federal statute addressing special education services for a child with a disability.” Tex. Educ. Code § 26.011(b).
Even with these statutory limitations on appeal, however, TASB Legal Services recommends allowing dissatisfied parents to appeal their concerns to the board of trustees. Allowing appeal to the board avoids meritless arguments about whether a grievance falls under one of these provisions or has some other basis in law. Allowing appeal all the way to the board also reduces the likelihood that parents will feel that their concerns were not considered adequately, which may contribute to their inclination to file a lawsuit.
- LEGAL TIP: Do not adopt policies that restrict a person’s constitutional right to appeal grievances to the board of trustees.
Administrative Dismissal of Complaints
- COMMON ISSUE: Local policy allows complaints to be dismissed before a complainant has the opportunity to be heard by the board of trustees.
Many districts would like to adopt grievance policies that allow the district administration to dismiss complaints for procedural errors, e.g., the appeal notice was not timely, the complainant did not use the proper form, the complaint was frivolous or incomplete, or the grievant failed to appear at a designated meeting time. Although a district may set and enforce procedural rules through policy, we caution against dismissing complaints outright without first hearing from the grievant. The commissioner of education has concluded that a board’s failure to allow a presentation by a grievant due to a procedural violation denied the grievant a fair opportunity to present the grievance to the board. Morgan v. Denton Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 099-R8-0811 (Dec. 19, 2013) (determining that denial of grievance due to lateness without opportunity to present evidence or argument to the board was arbitrary and capricious). Moreover, a board may not delegate final authority to hear or deny a grievance in order to insulate its actions from review by the commissioner. Mata v. Edcouch-Elsa Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 021A-R10-1202 (Aug. 2, 2004). Even when a grievant apparently fails to comply with district filing procedures, the district should permit the grievant to argue that the complaint was properly filed while preserving its legal defenses in the record. For example, the commissioner has ruled that a grievant is entitled to a board determination of whether the grievance is timely. Halpin v. Mansfield Indep. Sch. Dist., Tex. Comm’r of Educ. Decision Nos. 119-R10-698 & 155-R10-798 (Aug. 6, 1999).
In addition, it is important to have a board hearing so that the district has adequate evidence of the local grievance proceedings in the event of an appeal to the commissioner. For a more complete discussion of this issue, see the paragraphs below at Documentation of Level Three Hearing.
In sum, automatic administrative dismissal of grievances, rather than reducing the district’s burden, may actually lead to further litigation. A district wishing to reduce the time and resources spent on hearing Level Three appeals should consider less restrictive policy changes. For example, as long as the district makes the required record, a board may satisfy its obligation to hear grievances by receiving all appeals in writing. Eller v. Beaumont Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 194-R10-393 (Sept. 24, 1993). In the alternative, when an appeal appears to have a procedural flaw, the board may exercise its discretion, in accordance with board operating procedures, to limit the time a grievance is permitted and limit the presentation to whether the appeal was properly filed.
Consequently, TASB Legal Services recommends that policies set clear expectations but allow grievants an opportunity to be heard before their complaints are dismissed on procedural grounds.
- LEGAL TIP: Do not adopt policies that allow the district to dismiss a complaint before the opportunity for a board hearing.
Documentation of Level Three Hearing
- COMMON ISSUE: Local policy does not require grievance appeals to be listed as part of the board’s agenda or recorded by audio, video, or court reporter.
TASB Legal Services recommends that school boards schedule appeals to the school board (“Level Three” appeals) as posted agenda items. Commissioner of education decisions have suggested that grievances that did not appear on a board agenda, and therefore on which the board could not act, did not receive due consideration by the board. Brown v. DeSoto Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 128-R1-698 (Aug. 12, 1999). See also Adams v. Flour Bluff Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 115-R10-598 (Aug. 6, 1999) (deciding that public comment did not allow fair opportunity to grieve termination of a probationary contract).
In addition, the board should make a recording of the individual’s presentation to the board, the administration’s response, and any announcement of the board’s final decision in order to show substantial evidence to support the board’s decision. The Texas Education Code provides that when a grievance is appealed to the commissioner of education, the commissioner will issue a decision based on the review of the record developed at the district level under a substantial evidence standard of review. Tex. Educ. Code § 7.057(c). According to TEA regulations, it is the responsibility of the school district to make a local record, including a tape recording or transcript of the hearing at the local level, for the commissioner’s review in the event of an appeal of the board’s decision. 19 Tex. Admin. Code § 157.1073(d). The commissioner may automatically reverse or remand a decision of a school board involving a Level Three grievance proceeding that was not recorded. Madigan v. Victoria Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 072-R10-06-2014 (Feb. 5, 2014); Castaneda v. Robstown Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 101-R10-702 (Apr. 6, 2004). Even though most student complaints will not be appealable to the commissioner, we recommend that the district audio record all grievance proceedings before the board.
- LEGAL TIP: Adopt a policy requiring grievance appeals to the board to be listed on the board’s agenda and recorded in order to ensure adequate documentation of the district’s grievance proceedings.
Complaints Beginning at Level Three
- COMMON ISSUE: Local policy allows a grievance to begin at the board level, without administrative review.
Typically, grievance policies call for complaints to be filed at the campus level. Occasionally, however, a grievance concerns a decision made by the school board. If a complaint concerns a decision or action by the school board, the TASB model grievance policies are structured so that the complaint is considered and an administrative hearing record is created prior to proceeding to the board of trustees (typically at “Level Three”). Beginning a grievance with the central administration may be more efficient in some instances. However, skipping the administration altogether leaves a gap as to the creation and review of a grievance record. Such a process also eliminates the opportunity for an administrative hearing to better evaluate the claims, prepare defenses and perhaps reach an agreeable resolution prior to a presentation to the board. We recommend that grievances to the board begin with the superintendent or designee, prior to a presentation to the board.
- LEGAL TIP: Adopt a policy providing for administrative review of complaints prior to a board hearing.
Board Discretion to Hear Oral Arguments
- COMMON ISSUE: Local policy allows the board to decide whether to hear oral arguments on a case-by-case basis.
Board policies should avoid having the board pick and choose whether to hear oral arguments regarding complaints. The commissioner of education has concluded that a board’s failure to allow an oral presentation by a grievant denied the grievant a fair opportunity to present the grievance to the board. Brown v. DeSoto Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 128-R1-698 (Aug. 12, 1999). In other commissioner’s decisions, however, the commissioner determined that a school board satisfies its obligation to hear grievances by receiving complaints in writing. Eller v. Beaumont Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 194-R10-393 (Sept. 24, 1993); Parents a/n/f Student. v. Eanes Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 037-R10-04-2020 (July 13, 2020); Doornwaard v. Socorro Indep. Sch. Dist., Tex. Comm’r of Educ. Decision No. 036-R10-05-2021 (Nov. 5, 2021). A policy that allows the board to select on a case-by-case basis whether to conduct a hearing with oral argument exposes the board to charges that it has exercised its discretion in a way that impermissibly discriminates against the viewpoint of a particular complainant. Discrimination on the basis of viewpoint in conducting a grievance proceeding could violate the First Amendment. Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747 (5th Cir. 2010). TASB Legal Services recommends that, rather than engage in case-by-case decision-making, the board adopt a procedure that permits all grievants to make oral presentations to the board or that requires all grievance appeals to be forwarded to the board only in writing. If the district wishes to maintain a policy that permits case-by-case decision-making, TASB Legal Services recommends that the district consult its school attorney.
- LEGAL TIP: Rather than allow for case-by-case decision-making, adopt a policy that permits all grievants to make oral presentations or requires all grievance appeals in writing.