TASB LEGAL ASSISTANCE FUND

The Honorable Ken PaxtonATTN: Opinion CommitteeAttorney General of TexasP.O. Box 12548Austin, TX 78711

Sent via Email and US Mail

Re: Whether the Superintendent of Forth Worth Independent School District had theauthority to adopt Transgender Student Guidelines without adoption by school boardvote and without public comment? (RQ-0107-KP)

Dear General Paxton:

On May 31, 2016, Texas Lieutenant Governor Dan Patrick wrote your office to ask about thelegality of Fort Worth Independent School District’s Transgender Student Guidelines.Specifically, the Lieutenant Governor asked: (1) whether the “policy” violated Chapter 26 of theTexas Education Code, or any other law, in keeping student information from parents, and (2)whether the Superintendent had the authority to adopt the “policy” unilaterally withoutadoption by school board vote and without public comment.

The Texas Association of School Boards Legal Assistance Fund (“TASB LAF”)’ writes to addressonly the second question regarding the adoption of the guidelines. We write because Texas lawspecifically charges public school superintendents with the establishment of administrativeregulations. Widespread school district policy and practice reflects state law by authorizingsuperintendents to adopt administrative regulations, including “guidelines,” and thousands ofsuch regulations are in place around the state. We write to provide background about thisstatewide reality and to ask that your opinion not cast into doubt the legality of the thousandsof unrelated administrative regulations and guidelines currently guiding operations in theschool districts of Texas.

Generally speaking, the Texas Education Code charges school district boards of trustees withthe adoption of policy (to say “what” the district should do), and superintendents with theestablishment of administrative regulations (to say “how” the district should accomplish the

Nearly 800 public school districts in Texas are members of the TASB LAF, which advocates the interest of schooldistricts in matters with potential statewide impact. The TASB LAF is governed by three organizations: the TexasAssociation of School Boards, Inc. (“TASB”), the Texas Association of School Administrators (“TASA”), and the TexasCouncil of School Attorneys (“CSA”), TASB is a nonprofit corporation whose members are the 1,029 public schoolboards in Texas. As locally elected boards of trustees, TASB’s members are responsible for the governance of Texaspublic schools, TASA represents the state’s school superintendents and other administrators responsible for carryingout the education policies adopted by their local boards of trustees. CSA is comprised of attorneys who representmore than ninety percent of the public school districts in Texas.

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board’s policies). Administrative regulations, commonly called guidelines, are the responsibilityof administrative staff, not the school board, Regulatory documents commit standard practicesto writing in order to give staff adequate notice of expectations and to create consistency inadministrative practices. Administrative regulations are enforceable within the local schooldistrict to the extent they are aligned with board policy.

These common practices have their root in Texas law (emphasis added throughout):

Texas Education Code section 11.011. ORGANIZATION. The board of trustees of anindependent school district, the superintendent of the district, the campusadministrators, and the district- and campus-level committees established underSection 11.251 shall contribute to the operation of the district in the manner providedby this code and by the board of trustees of the district in a manner not inconsistentwith this code.

Texas Education Code section 11.051. GOVERNANCE OF INDEPENDENT SCHOOLDISTRICT; NUMBER OF TRUSTEES. (a) An independent school district is governed by aboard of trustees who, as a body corporate, shall:

(1) oversee the management of the district; and

(2) ensure that the superintendent implements and monitors plans, procedures,programs, and systems to achieve appropriate, clearly defined, and desiredresults in the major areas of district operations.

Texas Education Code section 11.1512. COLLABORATION BETWEEN BOARD ANDSUPERINTENDENT. (a) In relation to the superintendent of the school district, the boardof trustees of the district has the powers and duties specified by Sections 11.1511(b)and (c). The superintendent shall, on a day-to-day basis, ensure the implementation ofthe policies created by the board.

Texas Education Code section 11.201. SUPERINTENDENTS. (a) The superintendent is theeducational leader and the chief executive officer of the school district.

(d) The duties of the superintendent include:

(5) managing the day-to-day operations of the district as its administrativemanager, including implementing and monitoring plans, procedures, programs,and systems to achieve clearly defined and desired results in major areas ofdistrict operations...

(7) preparing recommendations for policies to be adopted by the board oftrustees and overseeing the implementation of adopted policies;(8) developing or causing to be developed appropriate administrativeregulations to implement policies established by the board of trustees[.]

In accordance with this statutory framework, Fort Worth Independent School District BoardPolicy BP(LOCAL) provides:

T ADMINISTRATIVE REGULATIONS BPLOCAL

DEVELOPMENT The Superintendent and administrative staff shall be responsiblefor developing and enforcing procedures for the operation of theDistrict. These procedures shail constitute the administrative regulations of the District and shall consist of guidelines, handbooks,manuals, forms, and any other documents defining standard operating procedures.

The Superintendent or designee shall ensure that administrativeregulations are kept up to date and are consistent ‘with Board policy. The Superintendent or designee shall resolve any discrepancies among conflicting administrative regulations. In case of conflict between administrative regulations and policy, policy shallprevail.

NO BOARD ACTION Amnistratve reguiauons are suoject to Board review Out shah norbe adopted by the Board.

AVAILABILiTY All administrative regulations shall be made accessible to staff,

I students, and the public as required by law or Board policy.

Identical board policies are in place in approximately 965 school districts in Texas.

These widespread policies reflect the governance structure of Texas public school districts inwhich school boards “oversee” the management, rather than “manage,” school operations.School boards are informed, but not involved, in the establishment of administrativeprocedures. This structure is reflected in the State Board of Education’s Framework for SchoolBoard Development,2which provides: “The Board focuses its actions on policy making,planning, and evaluation, and restricts its involvement in management to the responsibility ofoversight.”

In April 2016, the administration of the Fort Worth ISD adopted a document entitledTransgender Student Guidelines, with directives to school employees regarding how to respondto certain requests for accommodation by transgender students. The document indicates thatguidelines were reviewed by members of the administration, including the district’s legalcounsel, and were in alignment with Board Policy FFH(LOCAL).

2 tea.texas.gov/Texas_SchooIs/SchooI_Boards/SchooI_8oardMember_Training/Framework_for_Schooi_Board_Development/

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While it is true that the guidelines were not submitted for a vote of the school board nor forpublic debate, the guidelines appear to have been adopted pursuant to the Board PolicyBP(LOCAL). If the school board disagreed, the board would have the authority, in its oversightcapacity, to direct the superintendent to make a change.

Moreover, the guidelines unquestionably touch on issues related to parental rights and studentprivacy. In school districts, many administrative issues relate to parental involvement andstudents’ rights, including regulations on admissions, health matters, special education, andmore. Administrative procedures are a matter of public record, and parents who object may filegrievances in accordance with school district policies. School districts do not, however, conductpublic hearings before establishing administrative guidelines.

The adoption of administrative guidelines is specifically delegated by law and policy to theSuperintendent. A school district board of trustees, acting as a body corporate, has theexclusive power and duty to govern and oversee the management of the public schools of thedistrict. Powers and duties not delegated by law to the Texas Education Agency or State Boardof Education are reserved for local school boards. Tex. Educ. Code § 11.151(b), (d).Consequently, unless the guidelines violate state law — which we understand to be the heart ofthe question before you — the establishment of administrative guidelines should be a matter oflocal control.

For these reasons, regardless of your conclusions regarding the application of state law to theFort Worth ISD guidelines, we ask that your opinion not call into question the validity of thethousands of administrative regulations in place in school districts around the state. Thank youfor your consideration.

Respectfully submitted,

I••4 4.•’/A

/ //zfoy Bakin

TASB Director of Legal Servicesand General Counsel to the Legal Assistance Fund

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