Common Legal Issues in Revising Update 118 Local Policies

EHBC(LOCAL)—Special Programs: Compensatory/Accelerated Services

Local Criteria for At-Risk Students

  • COMMON ISSUE: Local policy includes district-developed criteria for at-risk students.

If a district adds a locally developed definition of “at-risk student” into local policy, the district may risk exceeding the number of students set by law. Although the board can adopt local eligibility criteria so that a student who satisfies the local eligibility criteria may receive instructional services as a student at risk of dropping out of school, the number of students receiving services under local eligibility criteria during a school year may not exceed ten percent of the number of students identified under the statutory list who received services from the district during the preceding school year. Tex. Educ. Code § 29.081(d), (g).

If a district defines “at-risk student” broadly, the district will need to ensure that the number of students receiving services under the district’s local eligibility criteria do not exceed this statutory limit.

  • LEGAL TIP: The district must ensure that the number of students receiving services under the district’s definition of at-risk student does not exceed the legal limit.

EIE(LOCAL)—Academic Achievement: Retention and Promotion

Standards for Mastery Unclear

  • COMMON ISSUE: Requirements for promotion for students are not clear.

If a local policy is unclear in stating promotion requirements for certain students, it may not comply with state law. Note that Texas Education Code section 28.021(d) indicates that, by the start of the school year, a district must make public the requirements for student advancement. Tex. Educ. Code § 28.021(d). A local policy should provide sufficient notice to parents and students of the standards for mastery. Therefore, if the district would like to maintain the option to retain students, the policy must either specify or incorporate by reference specific standards for mastery, including all the potential alternate assessment methods.

  • LEGAL TIP: Local policy should include specific standards for mastery for relevant grade levels.

FEA(LOCAL)—Attendance: Compulsory Attendance

Withdrawal after Five Days

  • COMMON ISSUE: Local policy allows for withdrawal of a student after five consecutive days of nonattendance.

Local policy should not provide that a district may initiate withdrawal of a student under a certain age for nonattendance if the student has been absent for five consecutive days, even if attempts to locate the student have been unsuccessful. Although the withdrawal date for a student who has not initiated the withdrawal is a local decision, the district may find that a longer timeline is more effective. The TASB model policy language for FEA(LOCAL) uses a ten-day timeline. In light of the district’s obligation to adopt and apply truancy prevention measures, we do not recommend unilaterally withdrawing a student for unexcused absences unless the absences are consecutive, for a significant number of days, and the district’s documented attempts to contact the student and parent were unsuccessful.

  • LEGAL TIP: Local policy should not authorize withdrawal for fewer than ten consecutive absences.

FEC(LOCAL)—Attendance: Attendance for Credit

Required Attendance Higher Than 90 Percent

  • COMMON ISSUE: Local policy sets required attendance for class credit.

If a district has set a minimum attendance for credit in local policy, it may conflict with state law on attendance for credit. Texas Education Code section 25.092 states that a student may not receive credit for a class unless the student is in attendance at least 90 percent of the days the class is offered, subject to exceptions in law. State law also requires that promotion must be based on content mastery. Tex. Educ. Code § 28.021. Consequently, class credit should not be denied to a student who has demonstrated academic proficiency, except for the 90-percent rule in state law.

  • LEGAL TIP: Local policy should not create an attendance requirement stricter than state law.

FL(LOCAL)—Student Records

District Does Not Designate Categories of Directory Information

  • COMMON ISSUE: Local policy designates no or almost no directory information.

A local policy may lawfully designate no or almost no directory information. However, strictly limiting directory information may have unintended consequences. Under the Family Educational Rights and Policy Act (FERPA), parents are entitled to notice of the categories of directory information in the district’s annual FERPA notice. As a result, districts may not add categories of directory information midyear. Instead, the district must obtain specific parental permission before releasing any identifiable information. For example, the district won’t be able to share the names of student athletes or honor graduates with the local newspaper. Most districts would find this overly restrictive.

  • LEGAL TIP: If local policy limits directory information, understand the implications of this local decision.

Policy Disallows Release of Directory Information to Certain Requestors

  • COMMON ISSUE: Local policy lists requestors not authorized to receive directory information.

Under Texas Education Code section 26.013, school districts may designate directory information for use only for limited school-sponsored purposes, such as student directories, yearbooks, or school district publications. If any such purpose has been designated by a district, the directory information remains otherwise confidential and may not be released under the Texas Public Information Act (PIA). Districts may also designate directory information for all other purposes. Based on this law, school districts have the opportunity in local policy to designate directory information by purpose.

On the other hand, TASB Legal Services advises that local policy should not limit the release of directory information based on the identity of the requestor. Student records that are not directory information or are designated as directory information only for school-sponsored purposes are not subject to the PIA. Nevertheless, we consider it noteworthy that under the PIA, districts are prohibited from inquiring into reasons for requested information or treating requesters differently. Tex. Gov’t Code §§ 552.222–.223.

  • LEGAL TIP: Local policy should not include provisions conditioning release on the identity of the requestor.