Legal Issues in Schools
FERPA and Parental Rights
A parent's right to access their child's information and the child themselves under FERPA is not terminated by separation or divorce.
This right is only limited by a court order, such as a child custody order or a restraining order.
If parents make such requests, involve campus administrators (AP or principal) in the conversation.
The response should be that unless there is a court order limiting the other parent's access, their rights must be honored.
Always inform your supervisor to ensure you are not making these claims alone.
Basic Rules Regarding Custody Orders
Confirm with parents that the campus has the most recent custody order.
Unless parental rights are terminated or limited, both parents maintain the right to access their child and their information.
Do not comply with demands from one parent to limit the other's access without a court order.
Ensure administrative staff are aware of custody issues.
Be prepared to be subpoenaed to attend trial; forward any subpoena to administration and supervisor, which will then go to the district's attorney.
Properly served subpoenas are court orders that must be obeyed to avoid being held in contempt.
Standard Rights Under Texas Law (Divorce)
Pages 25-26 of the handout contain standard rights under Texas law in a divorce as it relates to a child.
These rights are from a standard custody order, but it's important to note that not every custody order is standard, and there may be unique circumstances.
Liability Issues
Cartoon about a science experiment gone wrong serves as a cautionary tale, emphasizing that legal advice should be taken seriously.
Lawyer Disclaimer
Questions asked during the meeting and answered are not legal advice but suggestions based on hypotheticals.
Immunities for Teachers
A teacher is not personally liable for actions within the scope of their duties that involve judgment or discretion.
This is a standard affirmative defense in lawsuits and often leads to the dismissal of cases against teachers.
Similar provisions exist under federal law (Coverdell Act).
A district cannot require a teacher to waive this immunity.
Immunity Regarding Medication
If a district has policies on administering medication to students that comply with legal requirements, a teacher who follows these policies is immune from liability for resulting injuries.
This has been litigated in cases involving federal law claims, such as a case involving a student's death from an asthma attack.
Immunity for Reporting Suspected Drug Use
A teacher is not liable for civil damages for reporting a student suspected of using, passing, or seeking marijuana, controlled substances, or alcohol on school property, even if the suspicion is inaccurate, provided it's done in good faith.
Reporting is necessary if a student is believed to be under the influence, as it is a code of conduct violation.
Report to campus administration (AP or principal).
Marijuana is treated separately under state law from other controlled substances, which are categorized into four schedules under the Texas Health and Safety Code.
General Liability
Teachers can be liable for using excessive force when disciplining a student or for negligence resulting in bodily injury to students.
There is no immunity for the use, operation, or maintenance of a motor vehicle.
Taking students in personal cars is highly discouraged and often against district policy.
The district is liable for injuries sustained by students on school district vehicles, which is why insurance is maintained.
The district's insurance covers district employees operating the vehicle within the course and scope of employment.
Excessive Force
Cases involving excessive force are hotly contested.
The standard favors the teacher, considering whether the teacher acted reasonably under the circumstances.
Most cases involving physical engagement between a teacher and student resulting in injury fall in favor of the teacher due to the fact-intensive analysis of reasonableness.
Breaking Up Fights
Teachers are generally obligated to break up fights between students.
If a teacher is injured while breaking up a fight, they are eligible for assault leave under Texas law, which is paid leave.
If a student is injured in the process, the teacher can assert professional immunity, provided their actions were within the scope of their employment.
Special Education and Restraint
In special education, teachers may sustain injuries while restraining a child.
Professional immunity can be asserted in cases of injury to a child, but teachers must pay close attention to training and follow IEPs (Individualized Education Programs) and BIPs (Behavioral Implementation Plans).
A story of an aide using an unapproved "tickle method" on a child, leading to bruising and consequences for the aide, underscores the importance of proper training and adherence to specific techniques for each child.
Teachers do not have the right to hit a child.
Appropriate restraint techniques must be followed, and emphasis should be on containing the child, not punishing them.
Rely on training and seek help in difficult situations, never going on the offensive.
The focus should be on containing the child, not punishing the student.
Limits on Liability
If found liable while acting within the course and scope of employment, damages are capped at .
A lawsuit cannot be filed against a teacher unless the person has exhausted the complaint procedures in the district, but this exhaustion of remedies does not apply to federal claims.
Crimes and Immunity
There is no immunity for teachers found guilty of a crime, such as abuse, indecency with a child, improper relationship between an educator and student, weapons on campus, or failure to report child abuse.
Sexual Harassment
Board policies FFH (Legal and Local) and DIA (Legal and Local) prohibit sexual harassment in public schools.
Hostile work environment claims, often involving jokes or emails, are more common than overt sexual harassment.
Be cautious about the content and recipients of emails, as not everyone shares the same sense of humor.
Sexual harassment includes unwanted conduct of a sexual nature that makes a person feel uncomfortable or unsafe, such as unwelcome advances, requests for favors, or physical conduct.
Examples include inappropriate touching, snapping bras, standing too close, bumping, hugging, kissing, and sexual jokes.
Teachers must not be deliberately indifferent to student reports of inappropriate sexual contact or conduct.
Teachers must not sexually harass students or have sexual relationships with students, regardless of the student's age, due to the criminal prohibition of improper educator-student relationships.
Teacher Sexual Harassment
Teachers are entitled to be free from sexual harassment in the workplace.
A teacher subjected to sexual harassment should contact the district personnel department and file a complaint.
If the harasser is a student, the teacher should report the behavior to the principal, assistant principal, and personnel department.
Maintain documentation of reporting harassment.
Complaints of sexual harassment should be made in good faith; the district must investigate, and cooperation is required.
Termination can result for the harasser.
Religion in Schools
Religion cases in public employment are very fact-specific, and court decisions can vary.
The Fifth Circuit is traditionally conservative, while the Ninth Circuit is typically more liberal.
It is challenging for students to disassociate a teacher's personal religious expression from the school's endorsement of that religion.
Students have the right to express their religion as long as it does not impede instruction.
Teachers have some rights to religious expression during personal time (e.g., lunchtime), but must be mindful of their role as a school official during class time.
It's complicated in smaller communities where teachers may be active in their church and have students from their church at school.
Advise students to discuss religious issues outside of school hours or at church events.
Students can pray individually or in groups, use religious materials in assignments, and form religious-based clubs.
Parents can decide the religion of their children, object to conflicting assignments, and take children out of school for religious observances.
Students can engage in religious expression without fear of ridicule from staff.
Teachers can engage in religious expression with limitations.
School personnel must remain neutral regarding religious expression with students while acting in their official capacities.
Litigated Cases
Examples of litigated cases include coaches praying with kids before football games, which is a violation of the Establishment Clause.
The Meet at the Pole event, where students pray at the flagpole, has raised concerns about district employees violating the Establishment Clause if they participate.
Campus Organizations
The question of whether a teacher violates the Establishment Clause by being a sponsor for a student religious group has not been litigated.
The argument can be made that if the policy requires a sponsor for every school group and the sponsor is not actively participating in religious activities, there is no violation.
Religious Beliefs on Content
If a parent asserts a religious exemption, it's necessary to find out the religion and the religious tenet that conflicts with the activity, course, or issue.
Districts will generally grant the request for mainstream religions.
However, if the religious belief is not established (e.g., Church of Body Modification), the request may be denied.
State Law Issues
Students have the right to religious expression at graduation and school-related ceremonies (FNA policy).
This is based on state law, but there are aspects that conflict with US Supreme Court case law.
Students can express religious beliefs, but if the district gives those students a platform, it could be viewed as a violation of the Establishment Clause.
Religious Photos in the Classroom
Putting religious leaders' photos in the classroom is a sensitive issue.
A lawsuit involved a district where administrators and teachers had crosses, serenity prayers, and angels in their offices and classrooms, leading to claims of endorsing a particular religious perspective.
If a teacher puts up a picture of Jesus Christ, it could be argued that the district is endorsing that picture.
Sacred Coral Music
Performing sacred choral music raises the possibility of someone claiming an Establishment Clause violation, but the context matters.
Moral Stories
Telling moral stories without identifying a particular religious source may be acceptable, depending on how the story is couched and how much religious description is provided.
Off-Campus Online Speech
Schools have broad abilities to discipline employees for on-campus verbal or electronic speech, or misconduct using district technology, under board policy and acceptable use policy.
Violations can lead to adverse employment action, including termination.
Off-Campus Speech Considerations
When speech occurs off-campus, school districts consider whether it's a public or private issue, and the focus is whether it impedes or adversely impacts the employee's ability to do their job.
Gather evidence such as parent complaints or inability to work with others to prove the adverse impact.
Governmental entities, like school districts, have to go through an analysis due to First Amendment concerns.
Mister Spider-Man Case
A teacher with a MySpace page under the name Mister Spider-Man, who befriended students and had pictures of naked men with inappropriate comments, was non-renewed by the district.
The court ruled that the speech was not protected by the First Amendment because it was disruptive to school activities and violated school officials' expectations to maintain professional relationships with students.
Moral of the story: Pictures of naked men plus students equals fired.
The Blogger Case
An instructional coach who wrote a blog complaining about her supervisor and fellow teachers (without mentioning names but identifying positions and characteristics) was transferred to a regular teaching position after teachers refused to work with her.
The court ruled that the teacher's free speech rights did not outweigh the legitimate administrative interests of the school district.
Her off-campus speech negatively affected coworker relations and the performance of her duties.
The school district could make a reasonable prediction of workplace disruption.
School Marshal Law
The Protection of Texas Children Act, or school marshal law, addresses guns on school grounds.
Board policy must allow individuals with concealed gun licenses to bring guns onto campus.
The school marshal law requires specific training and a psychological exam for school marshals.
There are logistical requirements for how the gun is held and stored.
Most districts rely on technology, architecture (Sandy Hook-inspired designs), agreements with local law enforcement (school resource officers), or creating their own police departments to maintain school safety.
FERPA and Parental Rights
Unless limited by a court order, both parents retain rights to access their child's information, regardless of separation or divorce. Involve administrators in related discussions and always inform your supervisor.
Basic Rules Regarding Custody Orders
Ensure the campus has the latest custody order. Parental rights are maintained unless terminated or limited by court order. Do not restrict a parent's access without a court order. Alert administrative staff to custody issues and be prepared for subpoenas, forwarding them to administration and your supervisor.
Standard Rights Under Texas Law (Divorce)
Standard custody orders outline parental rights, but orders can vary.
Liability Issues
Legal advice should be taken seriously.
Lawyer Disclaimer
Meeting discussions are not legal advice but suggestions based on hypotheticals.
Immunities for Teachers
Teachers are not liable for actions within their duties involving judgment or discretion, a defense districts cannot waive. Federal law (Coverdell Act) offers similar protection.
Immunity Regarding Medication
Immunity from liability exists for teachers following district policies on medication administration.
Immunity for Reporting Suspected Drug Use
Teachers are not liable for reporting suspected student drug use made in good faith. Report to campus administration.
General Liability
Teachers can be liable for excessive force, negligence causing injury, or motor vehicle incidents. Transporting students in personal vehicles is discouraged. The district covers injuries in district vehicles.
Excessive Force
Excessive force cases are decided based on the reasonableness of the teacher's actions.
Breaking Up Fights
Teachers are obligated to break up fights and are eligible for assault leave if injured. Professional immunity applies if a student is injured, provided actions were within the scope of employment.
Special Education and Restraint
In special education, adhere to training, IEPs, and BIPs when restraining children. Focus on containment, not punishment.
Limits on Liability
Liability is capped at when acting within the scope of employment. Lawsuits require exhaustion of district complaint procedures, except for federal claims.
Crimes and Immunity
There is no immunity for criminal acts.
Sexual Harassment
Policies prohibit sexual harassment. Be cautious about email content. Sexual harassment includes unwanted conduct making a person uncomfortable or unsafe. Teachers must report student reports of inappropriate sexual conduct and avoid sexual relationships with students.
Teacher Sexual Harassment
Teachers have a right to a harassment-free workplace and should report harassment to the personnel department and administration. Complaints must be made in good faith.
Religion in Schools
Religion in public employment is fact-specific. Students can express religion if it doesn't impede instruction. Teachers have limited rights to religious expression during personal time but must remain neutral with students during class time.
Litigated Cases
Cases like coaches praying with students violate the Establishment Clause.
Campus Organizations
Sponsoring student religious groups may not violate the Establishment Clause if the sponsor doesn't actively participate in religious activities.
Religious Beliefs on Content
Religious exemptions are generally granted for mainstream religions.
State Law Issues
State law allows religious expression at graduation but may conflict with US Supreme Court case law.
Religious Photos in the Classroom
Displaying religious leaders' photos can be seen as endorsing a religion.
Sacred Coral Music
Performing sacred choral music may raise Establishment Clause concerns.
Moral Stories
Telling moral stories without religious identification may be acceptable.
Off-Campus Online Speech
Schools can discipline employees for on-campus verbal or electronic speech or misconduct using district technology.
Off-Campus Speech Considerations
For off-campus speech