A change from House Bill 3 is the addition of a new section of code, Tex. Edu. Code 28.0062. This new code places new requirements on charter schools in the areas of Reading Academies and Certification of Practices to TEA. There is also a new testing requirement for teaching certificates for Pre-K through 6th-grade teachers. This requirement is not applicable to charters unless they require a Texas certification for their teachers. Additionally, the new certification requirement is not retroactive, it will only apply to people who obtain a certificate after January 2021.
All teachers and administrators of kindergarten, first, second, or third-grade students will be required to attend a reading academy. TEA is in the process of creating guidelines and authorizing providers of this training. The list of authorized providers is expected by March of 2020 and trainings will begin in the summer of 2020. The training will be specialized for teachers and administrators and will be offered in two different manners. The comprehensive program is an in-person training and TEA expects the cost to be between $3000 and $6000 per person. The other option is a blended program that will combine in-person training with internet-based training. They expect this type of program to cost from $300 to $500 per person.
Certification to TEA
Each school will have to certify to TEA that they are
TEA will have a survey for schools to complete in order to certify these three requirements.
Paying for these Requirements
TEA suggests allocating funds from a number of different sources in order to pay for the reading requirements imposed in HB3. They suggest using funds from the early education allotment, the dyslexia allotment, the basic allotment, the bilingual education allotment, and the compensatory education allotment. Additionally, if schools choose to provide a stipend to the teacher to cover the cost of the reading academy, they may count those stipends as part of the required 30% compensation increase.
TEA has provided a webinar on this topic, which can be viewed here. As always, TCSA is happy to assist your charter in complying with these requirements. If you have any questions, please feel free to contact TCSA.
On February 27, the Texas Court of Criminal Appeals (the highest court in Texas for criminal matters), issued a ruling invalidating Section 551.143 of the Texas Open Meetings Act. That section had created a misdemeanor offence if members of the governing body “knowingly conspired to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations.”
Section 551.143 was designed to prevent “walking quorums.” Walking quorums happen when members of a board would meet in small groups outside of the official meeting and discuss public business.
The Court reasoned the language used in statute was unconstitutionally vague because a reasonable person should be able to know what conduct was prohibited in order to avoid it. Specifically, the Court explained, “[t]o pass constitutional muster, a law that imposes criminal liability must be sufficiently clear (1) to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) to establish determinate guidelines for law enforcement.” To emphasize this point, the Court created a few scenarios that would meet the legal requirements to punish someone for a violation of the law, but were not a violation of the spirit of the law. Because they could determine scenarios which fell outside of their requirements, the Court determined the statute was unconstitutional.
This ruling does not mean that a quorum is no longer necessary to conduct public business, merely that a violation is not a criminal offense. The legislature has already filed bills to address this ruling and reinstate a criminal offense, but with more definite language. In the House, HB2965, HB 3697, and HB 3402 have been filed. In the Senate, SB 1640 has been filed as a companion to HB 3402. TCSA is monitoring these bills to see if they pass. While we wait to see what the legislature passes, best practices would be to ensure you are still maintaining quorums when discussing public business.
Texas charters achieved a major victory on March 15th when the National Labor Relations Board (NLRB) upheld a June 2017 Administrative Law Judge (ALJ) decision dismissing a concerted activity claim by a former employee of Universal Academy on the grounds that the NLRB does not have jurisdiction over Texas public charter schools under the National Labor Relations Act (NLRA). As a result of this decision, the NLRA does not apply to Texas charter schools and public charter school employees are treated in the same manner as ISD employees for purpose of the NLRA. Click here to read the complete NLRB decision.
Tommy Fuller of the Fuller Law Group represented Universal Academy and successfully argued that charter schools are exempt from the NLRB’s jurisdiction because they qualify as political subdivisions for the purposes of the National Labor Relations Act. Two key factors appear to have persuaded the NLRB on the jurisdictional question: (1) the Texas Commissioner of Education’s ability to reconstitute the governing board of a charter school, including the power to make appointments to the board upon reconstitution; and (2) the power of reconstitution is unreviewable unless arbitrary or clearly erroneous.
This victory for Texas charter schools also provides a pathway for other states to follow regarding the NLRB’s jurisdiction over public charter schools. On April 5, 2018, the Fifth Circuit Court of Appeals will hear oral arguments on a NLRA case involving a Louisiana charter school. Last year, TCSA and the Louisiana Association of Public Charter Schools filed an Amicus Curiae in support of the Louisiana charter school’s claims. We hope the decision from the NLRB in the Universal Academy case will persuade the Court to rule in favor of exempting Louisiana public charter schools from the NLRB’s jurisdiction and a consistent standard for all charter schools will be applied across the Fifth Circuit.
As always, do not hesitate to contact TCSA Legal for more details about the case or other legal matters important to the charter school movement.
TCSA files Amici Curiae Brief to Texas Supreme Court
On Friday, January 5th, TCSA submitted an Amici Curiae brief in support of the charter school petitioners in the case currently before the Texas Supreme Court challenging the constitutionality of the revocation procedures for charter revocations under the state’s “three strikes” law enacted by Senate Bill 2 of the 83rd Texas Legislature. Prepared on behalf of TCSA by Tommy Fuller of the Fuller Law Group, TCSA argued in support of the charter petitioners that the Commissioner did not provide the charter holders with any meaningful due process, as required by the Texas Constitution. TCSA highlighted for the high court that not once in the arc from the first negative performance rating to final revocation by the Commissioner and review by SOAH are the charter holders provided meaningful due process. In particular, TCSA argued that the Court of Appeals erred in finding due process in the revocation procedures, as there is, is no meaningful opportunity for the charter holder at the performance rating level (the Commissioner limits review to data or calculation errors on behalf of TEA or the Commissioner), and that the review of the Commissioner’s revocation decision by the State Office of Administrative Hearings (SOAH) should have included a review of the underlying evidence. The Texas Supreme Court heard oral argument on the case on Wednesday, January 10, 2018. The high court could issue a decision at any time, as it does not have any particular deadline by which to issue a decision in the matter. Stay tuned for this very important decision regarding charter school revocations and due process rights!
TCSA Comments on Proposed SB 1882 District-Partnership Rules
On behalf of our members, TCSA recently submitted public comments on the proposed rules concerning district-charter partnerships under Senate Bill 1882 enacted by the 85th Texas Legislature. TCSA’s main comment regarding the proposed district partnership rules was that the Commissioner does not have the rule-making authority under SB 1882 to impose additional eligibility and performance requirements on partnerships between districts and open-enrollment charter schools. TCSA commented that the purpose and intent of SB 1882 was to incentivize and increase the occurrence of district-charter partnerships. By constraining the flexibility of ISDs and open-enrollment charter schools, the proposed rules will impose greater risk to charter schools considering a district-charter partnership and will likely limit the participation of charter schools in such partnerships. Instead, the Commissioner and TEA should be less prescriptive and create resources, guidance documents, or sample contracts for ISDs and open-enrollment charter schools to develop a partnership that meets their individual needs. Read TCSA’s comments to the Commissioner in full here.
Do not forget your free legal assistance from the dynamic duo of Texas Charters Schools Association’s (TCSA) Legal Team: Lindsey Gordon, General Counsel and Christine Nishimura, Deputy General Counsel. As members of TCSA, each school’s administration, board of directors, and human resource specialists have access to free legal assistance on all your pressing questions. TCSA Legal is here to assist you through the ever-changing state and federal charter school laws.
In addition to legal assistance, TCSA Legal provides a voice for member schools by submitting comments to the Texas Education Agency (TEA) and School Board of Education (SBOE) as it relates to regulations impacting charter schools. TCSA Legal also works closely with TCSA Advocacy to review, draft and analyze legislation that strengthens the Texas charter movement and supports TCSA Legislative priorities, such as achieving facilities funding this past legislative session.
TCSA Legal is here to assist schools and to ensure they are always in compliance. Member schools also receive discounted prices on Model Policy Subscriptions, the Model Personnel Handbook, and the Model Student Code of Conduct that reflect the current state and federal requirements.
Renew your membership today to ensure you continue to receive free legal assistance from TCSA!
Model Policy Updates
Model Policy subscribers can find more updates in the Quality Portal incorporating important changes made by the 85th Regular Session of the Texas Legislature. TCSA Legal updated 400.080 Required Instruction & Graduation to include changes to college readiness and vocational assessments. Section 400.120 Health now includes information about required lice notices and donating food. The School Marshal policy, 400.150, updated the minimum number of students needed per school marshal to 200 students instead of 400 students. Concerning the Texas Open Meetings Act, section 500.020 updated the minimum requirements to hold a video conference meeting, as well as updated the exceptions for closed meetings. Section 500.040 updated procedures to respond to a public information request under the Texas Public Information Act, including when a request may be considered withdrawn for failure to pay costs associated with the request.
For the convenience of subscribers, all updated legal authorities and policies clearly note which subsections within the policy have been updated.
Personnel Handbook Update
In early fall, the United States District Court for the Eastern District of Texas granted a permanent injunction against the Department of Labor’s proposed Fair Labor Standards Act (FLSA) rules. By issuing a permanent injunction, the exemption from overtime salary test will remain at $455 per week or $23,660 per year instead of the proposed $913 a week. The Personnel Handbook 2nd Edition has been updated to reflect this change. Additionally, for your convenience, the Commissioner approved pre-employment affidavits have been added to the Personnel Handbook folder in the Quality Portal.
As always, do not hesitate to contact Christine Nishimura with questions or for more information regarding the TCSA Model Policy Series.
In November, I went before the Texas Supreme Court on behalf of Neighborhood Centers, Inc. (Baker Ripley) to argue that public charter schools are not subject to the Texas Whistleblower Act. You can listen to the oral argument and learn more about the case here.
Our primary argument before the Texas Supreme Court focused on the legislative intent behind the 2015 amendments to Chapter 12 of the Education Code and the comprehensive statutory framework set forth by the state legislature for public charter schools in Texas. This framework preserves the fundamentally private nature of the non-profit corporate entities that operate charter schools, while allowing for treatment similar to that of governmental entities for purposes of some, but not all, specific statutes. Since Chapter 12 does not make an open-enrollment charter school a local governmental entity or a political subdivision for all purposes, or for the specific purposes of the Whistleblower Act, and since the Whistleblower Act does not by its own words apply to charter schools, it should not be subject to claims under the Whistleblower Act.
The First Court of Appeals in Houston initially reviewed these new amendments in Neighborhood Centers Inc. v. Walker, 499 S.W.3d 16 (Tex. App.—Houston [1st Dist.] 2016, pet. granted), and held that open-enrollment charter schools can be sued under the Whistleblower Act, because the Whistleblower Act waives immunity for claims against school districts. Neighborhood Centers appealed that decision to the Texas Supreme Court, which granted review.
By way of background, in 2013, the Fifth Court of Appeals in Dallas reversed an earlier decision by that court to hold that private, non-profit corporations that operate open-enrollment charter schools are subject to the Whistleblower Act. In response to this and other cases, the 2015 Texas Legislature enacted House Bills 1170 and 1171, which amended certain provisions of Chapter 12. Under the new law, Chapter 12 states that open-enrollment charter schools and charter holders are immune from suit and liability to the same extent as a school district, whereas they had only previously been immune from liability. Language was also added to clarify that an open-enrollment charter school is not considered to be a “local governmental entity” or a “political subdivision” unless a particular statute specifically says that it applies to charter schools.
The plaintiff’s attorney argued that any type of claim that can be brought against a school district should apply equally to charter schools, and that authorizing this personal cause of action for aggrieved employees is essential to protecting the public school students that make up a charter school’s enrollment.
Applying the Whistleblower Act to Texas charter schools would result in a significant increase in cost and risk to charter school operations. More importantly, ignoring the plain language of Chapter 12 would open the door to other types of claims that the Legislature never intended, and further erode the fundamentally private nature of the non-profit corporate entities that operate charter schools.
We expect the Texas Supreme Court to issue an opinion by the end of June 2018 that answers this important question for all charter schools throughout the state.
This past June my former 4th graders graduated high school, and though I couldn’t be there to celebrate with them, it was a very proud day for me. Eight years ago I was a founding member of the first middle school Aspire Public Schools opened in Los Angeles, branching out from Oakland, California. As many of you know, opening a new charter school has its challenges, but it is days like high school graduation that make you so proud of the work charter schools do every day.
I am excited to be a part of the charter school movement both as a former teacher and now as a legal advocate on your behalf. When I left the classroom to attend law school my goal was to be a part of the movement. I wanted to ensure that all students had access to excellent education regardless of where they live. Public charter schools provide enormous opportunity for success to children who need a learning environment other than a traditional public school. The work the Texas Charter Schools Association and our member schools do day-in and day-out is remarkable and deserves to be celebrated along the way.
After spending three years specializing in special education, I am looking forward to assisting our schools in their growth, answering your questions, and diving deep into charter school law. As the new Director of Legal and Policy Services, I am thrilled to a part of the TCSA team and advocating on behalf of our charter schools, students, and families. I look forward to hearing from you and learning more about your great work!
If you are a TCSA Member, please feel free to contact me with any of your legal questions. I can be reached at 512-584-8272 x306 or at firstname.lastname@example.org.
Director of Legal & Policy Services
Texas Charter Schools Association
By Dr. Paula Moeller, TCSA Director of Training
Got school board members?
But have they met their training requirements? Returning board members need six hours and new board members need 12 instructional hours of training this year!
TCSA has you covered with a six-hour Board Workshop on the Friday of the Texas Charter Schools Conference October 28-30 at the JW Marriott San Antonio Hill Country Resort and Spa. It's the perfect place for board members to satisfy these compliance training hours and meet the requirements outlined in the Texas Administrative Code §100.1102.
Board members who attend the entire three-day conference can receive up to 10 hours of training credit! View the full schedule by workshop or topic track by downloading the free TCSACon Mobile App.
The list of available topics and sessions include:
Accountability (reporting, student performance, human resources)
Health and Safety
TCSA is an approved provider of training credit hours and board members will receive a certificate of attendance after completing the training at the conference.
By Lindsey Gordon, TCSA Director of Policy and Legal Services
TEA released a change document that indicates certain changes that will be made to the forthcoming 2015-2016 Student Attendance Accounting Handbook based on House Bill 2610 (Rep. Ken King), the new law that changes the number of days a school district must operate from 180 days to 75,600 minutes.
House Bill 2610 does not apply to open-enrollment charters. However, based on the changes proposed to the 2015-2016 SAAH and conversations with TEA, TCSA member schools and charter hopefuls have concerns as to how FSP funding for charter schools with shortened or flexible school days might be impacted under the new minute based attendance accounting system.
TCSA received confirmation from TEA that for the 2015-2016 school year, charter schools that offer flexible school days may continue to do so and their full day funding will not be impacted. There is less clarity as to how charter funding may be impacted in the future. In the SAAH change document, TEA sets forth the following: ”Charter schools are not subject to the 75,600 minute requirement, however most charter schools typically offer 75,600 minutes of instruction.”
TCSA will continue to work with TEA staff to gain clarity on this issue and to ensure Texas charter schools’ missions and unique operational models remain uncompromised.