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Fostering Connections to Success
and Increasing Adoptions Act of 2008, Pub. L. No. 110-351, § 204, 122 Stat. 3960 (2008)

Educational Stability

Foster child school placement

State and local education agency coordination

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U.S. Const. amend. XIV

The Equal Protection Clause

Amendment applies to children, born in a marriage or not

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The 14th Amendment of the U.S. Constitution

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SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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Smith-Barrow, D. (2018, December 1). Several colleges start programs to help foster youth earn degrees.

This article discusses Western Michigan University, specifically, and how it is one of several universities in the U.S. offering programs to help foster youth earn degrees.

This article also discusses the federal law requiring foster youth receive some preparation in life skills beginning at age 14.

Often times, this preparation is not well implemented which has led to foster care youth failing to become appropriately prepared to pursue higher education.

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The Hechinger Report is a national nonprofit newsroom that reports on one topic: education. Sign up for our weekly newsletters to get stories like this delivered directly to your inbox.

T his story about foster care and higher education was produced as part of a series, "Twice Abandoned: How schools and child-welfare systems fail kids in foster care," reported by HuffPost and The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for the Hechinger newsletter.

KALAMAZOO, Mich. - College students often decamp from their universities during the summer to intern, study abroad or just get a break from dining hall food. But for Kayla Mayes, it's a time to buckle down.

Her first semester at Western Michigan University, Mayes barely earned a 1.7 grade-point average. A class on the health effects of drug use felt overwhelming - "I wasn't used to such long lectures," she said - and pre-algebra was a struggle too. But good grades in reading and writing classes helped her finish the year with a 2.6 GPA and now she is hoping to lift it higher.

"I'm working on getting above a 3.0," said Mayes, now 19, one rainy afternoon earlier this year. She was sitting in the campus's Bernhard Center, which offers a mix of fast-food dining options, quiet places to work, a bookstore and other student resources. Later that day, she planned to study for her summer session classes, English and public speaking, and to meet with an advisor.

After that, she'd head back to the dorm, which stays open year-round for students like her. Later in the week, she might pop over to an office across the sprawling campus to chat with the employee who makes sure her financial aid is on track, or to see the coaches she visits regularly for help with coursework and other advice.

This support is available to Mayes because she's part of a select group of Western Michigan students known as the Seita Scholars. Her primary qualification for the program: being in foster care.

A fast talker with a polished look and cornrows that hang past her shoulders, Mayes entered the child welfare system when she was around 9 years old. Her mother is schizophrenic and in and out of hospitals; she never knew her father. She spent most of her childhood living in kinship placements with relatives, in sometimes unstable environments that made sticking to her studies difficult. Her first two years of high school, she cycled through three different schools. But, junior year, she was placed with a new foster mother who offered steady guidance and encouraged her to apply to Western Michigan.

Started in 2008, the Seita Scholars Program is one of several efforts at U.S. colleges to help students like Mayes. Nationally, just 50 percent of foster youth graduate high school by age 18, according to estimates, and 2 to 9 percent obtain a bachelor's degree. Too often young people who've spent time in foster care lack not only the money to apply and pay for college but also the direction from adults to fill out applications, secure financial aid and choose a school. Many have bounced among homes and schools, leaving them unprepared academically. They may not have anywhere to stay during summers and other college breaks, or anyone to turn to in a pinch.

By giving students from foster care up to $13,400 per year in scholarship money, plus academic and emotional support, Western Michigan administrators hope to overcome these challenges. Along with legislative changes, advocates say programs like this can make a dent in the achievement gap for foster youth. The percentage of Seita students to graduate from Western Michigan has ranged from 24 to 44 percent for cohorts that started between 2008 and 2013, according to university administrators. That's lower than Western Michigan's overall graduation rate, 54 percent, but significantly higher than the national figure for foster care youth.

Jennifer Pokempner, director of child welfare policy at Juvenile Law Center, a legal advocacy group in Philadelphia, said the Seita program is "seen as a model." Ensuring that "youth in the child welfare system are positioned to have the same choices that youth outside of the system" have is critically important, she said, and programs like Seita help level the playing field.
Related: The opioid crisis took their parents. Now foster kids left behind are being failed again
Western Michigan, a suburban public university with more than 18,000 undergrads, started the Seita Scholars Program after some of its faculty and staff attended a conference in 2007 on the educational challenges facing foster youth. Today the program serves about 125 students per year.

Students who've spent time in foster care can apply to Seita once they're admitted to Western Michigan, and nearly all are accepted, Hamilton said. Scholars are invited to campus the summer before their freshman year for a special transition program designed to introduce them to one another and to mentors and other staff. They are required to live on campus during their time at Western Michigan and take a first-year seminar together. "We are really intentional about creating and building a community," Hamilton said.

Over the years, she said, the program has learned that students from foster care are most likely to drop out because of insufficient preparation for college-level work, poor money management and mental health struggles, and it has zeroed in on these challenges.

Seita scholars are assigned a campus coach, a full-time staff person who plays the role of social worker, parent and superhero. Coaches help students stay on track academically and work through personal and emotional challenges.

Edward Lara started as a campus coach in July of 2017 and works with about 22 students. On any given day, he helps students with homework, drives them to the bus station to catch a ride home for the weekend or shows them how to get a refill for a prescription. "A lot of our students, they've never done that for themselves," Lara said.

Other times, he may accompany students to their first intake session with a new therapist or even to court if they've had a run-in with the law. Seita scholars also receive one-on-one help with money management and financial planning. "It's very easy for new students to go out and start spending," he said.
Related: 'A child is not a revolving door'
Mayes has enjoyed working with a number of coaches - Mallory, Elise and Peter. She aspires to work in broadcast journalism after graduation and says Seita's nurturing environment has been key to turning around her first-semester grades. Peter, a math whiz, tutored her in pre-algebra; Mallory and Elise helped with her writing assignments. "There's a lot of support," she said.

Federal law requires that foster youth receive some preparation in life skills beginning at age 14. But it's difficult to track the success of these efforts, said Pokempner, and whether or not young people get this support often depends on their individual circumstances. Group homes may have too few staff and not enough time to teach basic life skills, she said, and foster families may fear legal liability and keep kids away from perceived dangers, even basic activities like using the stove and learning to cook. Federal legislation passed in 2014 aimed to reduce barriers to foster youth working after-school jobs, playing sports and participating in other activities, but implementation has been uneven.

"I think we're setting them up to have a much harder time," Pokempner said.

In recognition of the challenges facing many young people who've spent years in foster care, the University of Pennsylvania's Field Center for Children's Policy, Practice and Research has partnered with a handful of colleges in the state to help them offer more academic and financial support to foster youth. The Foundling, a New York nonprofit, runs a two-year-old project with the city's child welfare agency to provide current and former foster youth enrolled in the City University of New York college system with coaches who live alongside them on campus. KVC Health Systems, a child welfare organization based in Kansas, plans to open a college specifically for foster youth in the coming months.

Government programs have also freed up some financial support. For example, a federal program introduced in 2002 helps states make available up to $5,000 a year to help current and former foster students pay for postsecondary education. And since federal legislation in 2008 enabled states to extend the age of foster care to 21, about two dozen states, including Michigan, have done so. Youth who remain in the child welfare system until age 21 have more time to access federal financial aid and assistance from social workers.

On Capitol Hill, politicians are lobbying for more changes to increase foster youth's resources and put a dent in how much they have to spend on higher education. Bills introduced in the House and Senate since last fall would streamline financial aid for foster and homeless youth, require universities to keep dorms open for these students during holiday breaks and ensure they have a point of contact on campus to assist them, among other steps. Some proposed legislation would make foster youth eligible for food stamps.
Related: Institutions for foster kids aren't doing enough to educate them
The Seita program continues to try to close the gaps between campus and government resources. The office collaborates closely with Michigan's Department of Health and Human Services to ease the transition to college for foster youth. DHHS staff work from the Seita office to help students access state grants and to provide other support.

The university is also trying to do more for students from foster care who don't apply to or qualify for Seita, which has a limited budget and a small staff. Two years ago, the university extended career mentorship and other support to all of its students who've spent time in foster care.

Seita's office is located in a cozy space in a big building near the entrance to Western Michigan. There are photos everywhere of students smiling, laughing - and graduating. Near the Seita director's office, alongside inspirational messages from people like poet Maya Angelou, inspirational speaker Zig Ziglar and Seita alumni, is a photo collage of students who've made the dean's list. Among them is Ali Tinai.

Now a junior, Tinai is one of thousands of youth from abroad (currently 1,300 still in homes) who have been in foster care. He fled his home country of Eritrea as a teen to avoid being conscripted into the military. Because of its repressive government and harsh national service requirements, which compel people to serve in roles likened to slave labor for indefinite periods of time, thousands leave the East African country each year.

Tinai migrated to Sudan and then to Egypt, where he applied for asylum and was transferred to the United States. In 2014 he was resettled in the small town of Bath, Michigan, through a federal foster program for refugee children. But he didn't get along with his foster family and was relocated to a new foster home in Lansing. He graduated from JW Sexton High School, a STEM-focused magnet school, in 2016.
Related: Teachers are first responders to the opioid crisis
His foster dad managed government housing for refugees and wanted Tinai to help him out at work while attending nearby Lansing Community College. But Tinai, who wants to move to D.C. or New York after graduation and work in international affairs, had heard that Western Michigan offered extra assistance for foster care students. He applied and was accepted.

At Western Michigan, Tinai is studying international and comparative politics and has a 3.91 GPA. He's a member of the school's Arabic club, the Refugee Outreach Collective and the College Democrats. He lives on campus in a bedroom strewn with baseball caps for sports teams like Manchester United and books on topics including immigration policy and Chinese politics.

Tinai says the Seita program has been a support system for him from day one. His campus coach has been especially helpful in guiding him, he said: "If I'm struggling in school, that's the first person that I go to." Freshman year, when his grades in algebra began to sag, his coach helped him find a tutor. He ended up with a B in the course.
This story about foster care and higher education was produced by The Hechinger Report Join us today. , a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for the Hechinger newsletter.
For her part, Mayes likes the Seita office so much that she sometimes visits four days a week. She's never there to study, but instead enjoys chatting with various staff who've cultivated a homey environment. One of her favorite people to "bother" is LaToya McCants, a liaison with the Department of Health and Human Services. "She's kind of like a mother figure," Mayes said.

As September approached, Mayes was gearing up for the new semester. She'd passed her English and public speaking classes with a B average and had signed up for algebra, communications and a handful of other fall courses. She also planned to juggle two jobs: one in catering and another as a front desk assistant at the Bernhard Center.

That won't leave much time for extracurriculars, she said, but she plans to purchase a camera soon to start honing her journalism skills. She appreciates Seita's support - but recognizes that getting a degree is ultimately up to her.

"If I just think positive, I just keep on pushing forward and put my foot forward," she said, "all good things should come to me."

The Hechinger Report provides in-depth, fact-based, unbiased reporting on education that is free to all readers. But that doesn't mean it's free to produce. Our work keeps educators and the public informed about pressing issues at schools and on campuses throughout the country. We tell the whole story, even when the details are inconvenient. Help us keep doing that.

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Several colleges start programs to help foster youth earn degrees

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The Hechinger Report is a national nonprofit newsroom that reports on one topic: education. Sign up for our weekly newsletters to get stories like this delivered directly to your inbox.

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Sparks, S. D. (2018, March 6). The gifted child in foster care: Lost in the shuffle.

This article discusses how poverty, trauma, and high rates of mobility can prevent foster care youth from the appropriate academically rigorous courses and programs.

Personal connections with even one to two adults in school who can encourage a student's academic potential can greatly improve their achievement and success long term.

This is especially important for school counselors to understand as it is their duty to ensure foster care youth are receiving appropriate services through the school.

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Poverty, trauma, and high rates of mobility keep bright children in the fostercare system from finding their way into academically rigorous courses and programs

For George Garcia, academically challenging courses and participation in student government were more than just a path to college.

They also provided an escape.

"Because while my home life was shifting so much, I felt a sense of stability at school and something to concentrate on," said Garcia, who was in the foster-care system from age 10, when he and his four siblings were removed from home, to when he became legally emancipated at age 18. While he cycled through 10 home placements in four years of high school, Garcia stayed at the same Los Angeles school and said being surrounded with "academically ambitious" classmates and teachers in college-prep courses "challenged me to invest a lot of my time in something I could control."

Garcia ultimately was elected vice president of his class twice at Summit High School, graduated with honors in 2012, and became a foster-mentor with the Guardian Scholars program at the University of California, Riverside. Looking back, Garcia, now an administrative coordinator at U.C. Riverside's National Foster Youth Institute, said his time in foster care deepened his own sense of resilience and academic determination.

Yet Garcia's experience, while hopeful, is far from the norm for students with high potential in foster care, according to experts. Trauma, schooling instability, poverty: Any one of those challenges can make it harder for gifted children to be found and to show their strengths, and students in the foster-care system often have all of those disadvantages and then some.

"We get these kids over and over who are so eager to learn, but they have so many challenges against them, so they don't look like they are achieving because they are struggling with all the trauma going on in their lives," said Kathleen Casper, the gifted-education director at Solid Rock Community School near Tampa Bay, Fla., and an active foster parent for temporary placements.

The number of children in the foster-care system has been quietly ticking up after years of decline, from about 397,000 in 2012 to more than 437,000 in 2016, according to the most recent data from the U.S. Administration on Children, Youth, and Families. Experts attribute the rise to a wide variety of factors, from poverty and housing instability after the 2008 recession to the opioid epidemic. There are no national numbers on how many foster students participate in gifted education or advanced coursework in high school, but a recent California study found that only 2 percent of students in foster care in that state were identified as eligible for gifted and talented education services, compared with 6 percent of low-socioeconomic students generally and 9 percent of the state's total student population.

The Every Student Succeeds Act requires school districts to understand a lot more about both academically advanced students and those in foster care than they have in the past. Districts must now break out performance data, including academic achievement and graduation rates, for foster students, and they must show the percentage of those students performing at both "proficient" and "advanced" levels on state tests. Districts that better identify and support gifted students in the foster system could see better long-term achievement and school engagement for this group over time, experts say.

Keeping Track

The traditional process for identifying academically gifted students, including teacher referrals coupled with standardized assessments, may miss a quarter to half of gifted students, particularly those from low-income or other disadvantaged backgrounds, estimates research from the National Association for Gifted Children.

Common school assessments such as the Cognitive Abilities Test focus on verbal reasoning and spoken language, which also can be delayed in children who have experienced trauma, said Michael Postma, the executive director of the group Supporting the Emotional Needs of the Gifted. "The school would have to understand different characteristics of giftedness-not just the IQ piece-creativity, leadership, critical thinking," he said. "They might have missed schooling; you'll need to look beyond achievement to fluidity, speed of growth. You really have to look for contextual clues for these kids."

Another obstacle, said James Webb, a gifted-education researcher and author, is that "most school districts do not start [gifted] programs until 3rd grade, and by then, [a foster child's] idea of the world is pretty set, and they are less likely to be the teacher-pleaser kind of child who is more likely to be nominated by a teacher for the gifted program."

Last fall, for example, Casper, the gifted director at Solid Rock, temporarily took in a 6-year-old girl who had left her kindergarten after two months when she entered foster care. She was identified and referred for an evaluation based on her academic potential in her new school, but had not had the final paperwork signed when she was moved again, this time to live with a relative in another school district.

"So this child has now had to go to three different kindergartens. She has to fit into a new classroom, learn a new curriculum, get into the process of being identified, and then start all over again, with no guarantee that this relative will follow up on it, or even see the value of gifted education," Casper said. "Even if you advocate for this child in the period of time they are in your care, a lot of times the process takes so long that by the time the kid's moved, nothing has been done."

Jonathan Plucker, a professor of education and talent development at Johns Hopkins University's Center for Talented Youth, found highly mobile gifted students can be more resilient than students on average would be to changes because they are more likely to be naturally curious and good problem-solvers. But if their academic environments vary significantly from one placement to another, "that sends you very mixed messages about your value and talents," Plucker said.

Garcia recalled he was not tapped for gifted programs in middle school-and in fact cared little about his schoolwork when so much was going on outside of school. Instead of being identified for advanced programs through the school, he said that in high school, his friends convinced him to seek out more advanced coursework.

In Washington state, Treehouse, an advocacy group focused on getting foster students on a college-bound track, helps those transitioning into high school align their foster placements with their academic goals. Education specialists like Merissa Humes meet with students weekly to help them set goals, apply to colleges and for scholarships, and plan for life after both high school and the foster-care system.

Collectively, Treehouse and everyone in the community who supports the organization weave together the middle-class safety net youth in foster care need.

Judges and caseworkers generally decide placements by looking for a safe, stable home for a student, but the details of the student's school situation may not be at the forefront, said Angela Griffin, the chief program officer for Treehouse.

"We validate that, but it's also important for them to have the academic support they need ... that they are able to complete courses, work in similar programs," Griffin said.

One high school senior, for example, was a straight-A student who was about to be moved to a school five districts away that did not have the Advanced Placement courses he was taking. Treehouse eventually helped arrange transportation for the student to remain at his current school, even though it meant a 90-minute bus ride to and from a relative's house each day. "The student was willing to do it, and we were there to provide social and emotional support," until the student graduated, she said.

The support has dramatically improved foster students' graduation rate in the state. The five-year graduation rate for foster students participating in Treehouse is 89 percent, 7 percent higher than the overall graduation rate statewide and 40 percentage points higher than the state graduation rate for foster students.

Sometimes, Griffin said, advocates also have to persuade schools to look differently at a student with mediocre grades or behavior problems. "That happens quite a bit, because the trauma and instability they experience ... can sometimes mask the academic ability they have," she said.

Today, for example, Jordon Marshelle Barrett has earned mostly A's in her junior and senior years at Kentridge High School in Kent, Wash. But her grades were in a tailspin in 10th grade at a prior school, when she left one foster placement and ended up being shuttled among seven shelters and group homes, losing months of class in the process. Finally, with help from a new foster family and from Humes, she transferred to the more academically rigorous Kentridge and retook her sophomore classes, but worried that the repeated grade would be a black mark on her college applications.

Humes helped Barrett get a meeting with her preferred college, the University of Washington, Tacoma, to explain her transcript and press her determination to study psychology and law, to eventually become a homicide detective.

"Even though [Humes] was sick, she was texting me before the meeting: Ok, remember to tell them this and this ..." Barrett said. "Marissa took the time to really learn me and connect with me. ... Going through the shelters, you feel like you have nobody; it's really lonely. ... Not only did Treehouse help me with material things ... they helped me by giving me somebody I can talk to."

Response to Trauma

There has been very little study of gifted students in foster care, but researchers have looked at how intellectually advanced students respond to mobility, family instability, and trauma.

Jean Peterson, a Purdue University education professor emerita who for the past 25 years has tracked academic and emotional changes among gifted students who experienced trauma, found that intellectually advanced students who experienced abuse were at a higher risk of post-traumatic stress.

A former psychologist at the Children's Medical Center in Dayton, Ohio, Webb agreed. Common traits of giftedness, such as questioning adults and showing heightened sensitivity, can turn negative in children who have unstable or abusive home lives, he said.

"You have a class discussion, and the teacher says, 'Tell me about your family.' The student thinks, 'Which family?' Being in a foster system implies by definition that there is some family disruption. You can expect quite a reaction to this-which may or may not be verbalized," Webb said.

Garcia, the foster child who is now a college mentor for foster students, agreed, noting that few of his teachers or peers knew about his home situation, even though he changed placements 10 times in four years. "I feel like there's a barrier in understanding," he said. "You might have to talk in school about a lot of things you might not have really worked through, and it can be kind of retriggering, retraumatizing."

Both Peterson and Garcia said being in foster care can also heighten academic stress and the perfectionism that gifted students often struggle with. Garcia recalled staying up late to study for a test the next day in U.S. history. "I passed out and woke up covered in hives from the stress," he said. "I think stress management is one of the biggest challenges-and self-care."

Better coordination among education systems, social services, and other child-welfare agencies could help, researchers and advocates say, but personal connections with even one or two adults in school who understand and encourage a student's academic potential can greatly improve his achievement and success long term.

"A lot of kids in the system don't have a sense of themselves as 'bright.' Their intelligence might be put to simply surviving-getting groceries, taking care of younger siblings," said Peterson, a co-author of the 2018 book Counseling Gifted Students. "Educators need to point out to them, 'You have not had the easiest life, but look at all you've done.' "

Published in Print: March 7, 2018, as Lost in the Shuffle: Gifted Foster Children

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The Gifted Child in Foster Care: Lost in the Shuffle

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For George Garcia, academically challenging courses and participation in student government were more than just a path to college. They also provided an escape. "Because while my home life was shifting so much, I felt a sense of stability at school and something to concentrate on," said Garcia, who was in the foster-care system from age 10, when he and his four siblings were removed from home, to when he became legally emancipated at age 18.

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American School Counselor Association. (2018) The school counselor and supporting students in foster care.

School counselors must recognize that foster care youth may require additional support in obtaining resources, social/emotional care, academic planning and college/career guidance.

It is the duty of the school counselor to be knowledgeable about legislation, resources and needs for students in foster care.

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Requirements for Enrollment, TEC § 25.002g

Immediate enrollment of students under the care of the Department of Protective and Regulatory Services

Granted 30 days to provide records to the school district

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EDUCATION CODE



TITLE 2. PUBLIC EDUCATION



SUBTITLE E. STUDENTS AND PARENTS



CHAPTER 25. ADMISSION, TRANSFER, AND ATTENDANCE



SUBCHAPTER A. ADMISSION AND ENROLLMENT



Sec. 25.001. ADMISSION. (a) A person who, on the first day of September of any school year, is at least five years of age and under 21 years of age, or is at least 21 years of age and under 26 years of age and is admitted by a school district to complete the requirements for a high school diploma is entitled to the benefits of the available school fund for that year. Any other person enrolled in a prekindergarten class under Section 29.153 is entitled to the benefits of the available school fund.


(b) The board of trustees of a school district or its designee shall admit into the public schools of the district free of tuition a person who is over five and younger than 21 years of age on the first day of September of the school year in which admission is sought, and may admit a person who is at least 21 years of age and under 26 years of age for the purpose of completing the requirements for a high school diploma, if:


(1) the person and either parent of the person reside in the school district;


(2) the person does not reside in the school district but a parent of the person resides in the school district and that parent is a joint managing conservator or the sole managing conservator or possessory conservator of the person;


(3) the person and the person's guardian or other person having lawful control of the person under a court order reside within the school district;


(4) the person has established a separate residence under Subsection (d);


(5) the person is homeless, regardless of the residence of the person, of either parent of the person, or of the person's guardian or other person having lawful control of the person;


(6) the person is a foreign exchange student placed with a host family that resides in the school district by a nationally recognized foreign exchange program, unless the school district has applied for and been granted a waiver by the commissioner under Subsection (e);


(7) the person resides at a residential facility located in the district;


(8) the person resides in the school district and is 18 years of age or older or the person's disabilities of minority have been removed;


(9) the person does not reside in the school district but the grandparent of the person:


(A) resides in the school district; and


(B) provides a substantial amount of after-school care for the person as determined by the board; or


(10) the person and either parent of the person reside in a residence homestead, as defined by Section 11.13(j), Tax Code, that is located on a parcel of property any part of which is located in the school district.


(b-1) A person who is 21 years of age or older and is admitted by a school district for the purpose stated in Subsection (b) is not eligible for placement in a disciplinary alternative education program or a juvenile justice alternative education program if the person engages in conduct that would require or authorize such placement for a student under the age of 21. If the student engages in conduct that would otherwise require such placement, the district shall revoke admission of the student into the public schools of the district.


(b-2) A person who is 21 years of age or older who is admitted by a school district to complete the requirements for a high school diploma and who has not attended school in the three preceding school years may not be placed with a student who is 18 years of age or younger in a classroom setting, a cafeteria, or another district-sanctioned school activity. Nothing in this subsection prevents a student described by this subsection from attending a school-sponsored event that is open to the public as a member of the public.


(c) The board of trustees of a school district or the board's designee may require evidence that a person is eligible to attend the public schools of the district at the time the board or its designee considers an application for admission of the person. The board of trustees or its designee shall establish minimum proof of residency acceptable to the district. The board of trustees or its designee may make reasonable inquiries to verify a person's eligibility for admission.


(c-1) A person whose parent or guardian is an active-duty member of the armed forces of the United States, including the state military forces or a reserve component of the armed forces, may establish residency for purposes of Subsection (b) by providing to the school district a copy of a military order requiring the parent's or guardian's transfer to a military installation in or adjacent to the district's attendance zone.


(c-2) A person who establishes residency as provided by Subsection (c-1) shall provide to the school district proof of residence in the district's attendance zone not later than the 10th day after the arrival date specified in the order described by that subsection. For purposes of this subsection, "residence" includes residence in a military temporary lodging facility.


(d) For a person under the age of 18 years to establish a residence for the purpose of attending the public schools separate and apart from the person's parent, guardian, or other person having lawful control of the person under a court order, it must be established that the person's presence in the school district is not for the primary purpose of participation in extracurricular activities. The board of trustees shall determine whether an applicant for admission is a resident of the school district for purposes of attending the public schools and may adopt reasonable guidelines for making a determination as necessary to protect the best interests of students. The board of trustees is not required to admit a person under this subsection if the person:


(1) has engaged in conduct or misbehavior within the preceding year that has resulted in:


(A) removal to a disciplinary alternative education program; or


(B) expulsion;


(2) has engaged in delinquent conduct or conduct in need of supervision and is on probation or other conditional release for that conduct; or


(3) has been convicted of a criminal offense and is on probation or other conditional release.


(e) A school district may request that the commissioner waive the requirement that the district admit a foreign exchange student who meets the conditions of Subsection (b)(6). The commissioner shall respond to a district's request not later than the 60th day after the date of receipt of the request. The commissioner shall grant the request and issue a waiver effective for a period not to exceed three years if the commissioner determines that admission of a foreign exchange student would:


(1) create a financial or staffing hardship for the district;


(2) diminish the district's ability to provide high quality educational services for the district's domestic students; or


(3) require domestic students to compete with foreign exchange students for educational resources.


(f) A child placed in foster care by an agency of the state or by a political subdivision shall be permitted to attend the public schools in the district in which the foster parents reside free of any charge to the foster parents or the agency. A durational residence requirement may not be used to prohibit that child from fully participating in any activity sponsored by the school district.


(g) A student who was enrolled in a primary or secondary public school before the student entered the conservatorship of the Department of Family and Protective Services and who is placed at a residence outside the attendance area for the school or outside the school district is entitled to continue to attend the school in which the student was enrolled immediately before entering conservatorship until the student successfully completes the highest grade level offered by the school at the time of placement without payment of tuition. The student is entitled to continue to attend the school regardless of whether the student remains in the conservatorship of the department for the duration of the student's enrollment in the school.


(g-1) If a student who is in the conservatorship of the department is enrolled in a primary or secondary public school, other than the school in which the student was enrolled at the time the student was placed in the conservatorship of the department, the student is entitled to continue to attend that school without payment of tuition until the student successfully completes the highest grade level offered by the school at the time of enrollment in the school, even if the child's placement is changed to a residence outside the attendance area for that school or outside the school district. The student is entitled to continue to attend the school regardless of whether the student remains in the conservatorship of the department for the duration of the student's enrollment in the school.


(h) In addition to the penalty provided by Section 37.10, Penal Code, a person who knowingly falsifies information on a form required for enrollment of a student in a school district is liable to the district if the student is not eligible for enrollment in the district but is enrolled on the basis of the false information. The person is liable, for the period during which the ineligible student is enrolled, for the greater of:


(1) the maximum tuition fee the district may charge under Section 25.038; or


(2) the amount the district has budgeted for each student as maintenance and operating expenses.


(i) A school district may include on an enrollment form notice of the penalties provided by Section 37.10, Penal Code, and of the liability provided by Subsection (h) for falsifying information on the form.


(j) For the purposes of this subchapter, the board of trustees of a school district by policy may allow a person showing evidence of legal responsibility for a child other than an order of a court to substitute for a guardian or other person having lawful control of the child under an order of a court.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1019, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 396, Sec. 2.08, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1055, Sec. 2, eff. June 20, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 164 (H.B. 25), Sec. 2, eff. May 27, 2005.


Acts 2005, 79th Leg., Ch. 920 (H.B. 283), Sec. 1, eff. June 18, 2005.


Acts 2007, 80th Leg., R.S., Ch. 850 (H.B. 1137), Sec. 1, eff. June 15, 2007.


Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 4.002, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 688 (H.B. 2619), Sec. 9, eff. September 1, 2013.


Acts 2015, 84th Leg., R.S., Ch. 142 (H.B. 4), Sec. 3, eff. May 28, 2015.


Acts 2015, 84th Leg., R.S., Ch. 944 (S.B. 206), Sec. 1, eff. September 1, 2015.


Acts 2019, 86th Leg., R.S., Ch. 262 (H.B. 1597), Sec. 1, eff. May 28, 2019.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 1.03, eff. June 10, 2019.


Acts 2019, 86th Leg., R.S., Ch. 823 (H.B. 2526), Sec. 1, eff. June 10, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.016, eff. September 1, 2019.


Sec. 25.0011. CERTAIN INCARCERATED CHILDREN. (a) For purposes of Section 25.001, a person is not considered to reside in a school district if:


(1) the person is incarcerated in a private juvenile detention facility in the district as a result of the order of a court in another state; and


(2) the person resided in another state or country immediately before incarceration in the facility.


(b) A school district may provide educational services to a person described by Subsection (a) if the district is fully compensated for the cost of the services through payment of tuition for the person by the operator of the juvenile detention facility or other person having lawful control of the person in an amount equal to the actual cost of educating the person.


(c) For purposes of this section, "private juvenile detention facility" means a juvenile detention facility that is not operated by a governmental entity.


Added by Acts 1999, 76th Leg., ch. 1477, Sec. 30, eff. Sept. 1, 1999.


Sec. 25.002. REQUIREMENTS FOR ENROLLMENT. (a) If a parent or other person with legal control of a child under a court order enrolls the child in a public school, the parent or other person or the school district in which the child most recently attended school shall furnish to the school district:


(1) the child's birth certificate or another document suitable as proof of the child's identity;


(2) a copy of the child's records from the school the child most recently attended if the child has been previously enrolled in a school in this state or another state; and


(3) a record showing that the child has the immunizations as required under Section 38.001, in the case of a child required under that section to be immunized, proof as required by that section showing that the child is not required to be immunized, or proof that the child is entitled to provisional admission under that section and under rules adopted under that section.


(a-1) Information a school district furnishes under Subsections (a)(1) and (2) must be furnished by the district not later than the 10th working day after the date a request for the information is received by the district. Information a parent or other person with legal control of a child under a court order furnishes under Subsections (a)(1) and (2) must be furnished by the parent or other person not later than the 30th day after the date a child is enrolled in a public school. If a parent or other person with legal control of a child under a court order requests that a district transfer a child's student records, the district to which the request is made shall notify the parent or other person as soon as practicable that the parent or other person may request and receive an unofficial copy of the records for delivery in person to a school in another district.


(b) If a child is enrolled under a name other than the child's name as it appears in the identifying document or records, the school district shall notify the missing children and missing persons information clearinghouse of the child's name as shown on the identifying document or records and the name under which the child is enrolled. The information in the notice is confidential and may be released only to a law enforcement agency.


(c) If the information required by Subsection (a) is not furnished to the district within the period provided by that subsection, the district shall notify the police department of the municipality or sheriff's department of the county in which the district is located and request a determination of whether the child has been reported as missing.


(d) When accepting a child for enrollment, the school district shall inform the parent or other person enrolling the child that presenting a false document or false records under this section is an offense under Section 37.10, Penal Code, and that enrollment of the child under false documents subjects the person to liability for tuition or costs under Section 25.001(h).


(e) A person commits an offense if the person enrolls a child in a public school and fails to furnish an identifying document or record relating to the child on the request of a law enforcement agency conducting an investigation in response to a notification under Subsection (c). An offense under this subsection is a Class B misdemeanor.


(f) Except as otherwise provided by this subsection, for a child to be enrolled in a public school, the child must be enrolled by the child's parent or by the child's guardian or other person with legal control of the child under a court order. A school district shall record the name, address, and date of birth of the person enrolling a child.


(g) A school district shall accept a child for enrollment in a public school without the documentation required by Subsection (a) if the Department of Protective and Regulatory Services has taken possession of the child under Chapter 262, Family Code. The Department of Protective and Regulatory Services shall ensure that the documentation required by Subsection (a) is furnished to the school district not later than the 30th day after the date the child is enrolled in the school.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 575, Sec. 34, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1514, Sec. 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 234, Sec. 2, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 164 (H.B. 25), Sec. 3, eff. May 27, 2005.


Sec. 25.0021. USE OF LEGAL SURNAME. In each public school a student must be identified by the student's legal surname as that name appears:


(1) on the student's birth certificate or other document suitable as proof of the student's identity; or


(2) in a court order changing the student's name.


Added by Acts 2001, 77th Leg., ch. 1300, Sec. 1, eff. Sept. 1, 2001.


Sec. 25.0022. FOOD ALLERGY INFORMATION REQUESTED UPON ENROLLMENT. (a) In this section, "severe food allergy" means a dangerous or life-threatening reaction of the human body to a food-borne allergen introduced by inhalation, ingestion, or skin contact that requires immediate medical attention.


(b) On enrollment of a child in a public school, a school district shall request, by providing a form or otherwise, that a parent or other person with legal control of the child under a court order:


(1) disclose whether the child has a food allergy or a severe food allergy that, in the judgment of the parent or other person with legal control, should be disclosed to the district to enable the district to take any necessary precautions regarding the child's safety; and


(2) specify the food to which the child is allergic and the nature of the allergic reaction.


(c) A school district shall maintain the confidentiality of information provided under this section, and may disclose the information to teachers, school counselors, school nurses, and other appropriate school personnel only to the extent consistent with district policy under Section 38.009 and permissible under the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).


(d) Except as provided by Subsections (e) and (f), information regarding a child's food allergy, regardless of how it is received by the school or school district, shall be retained in the child's student records but may not be placed in the health record maintained for the child by the school district.


(e) If the school receives documentation of a food allergy from a physician, that documentation shall be placed in the health record maintained for the child by the school district.


(f) A registered nurse may enter appropriate notes about a child's possible food allergy in the health record maintained for the child by the school district, including a notation that the child's student records indicate that a parent has notified the school district of the child's possible food allergy.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1276 (H.B. 742), Sec. 1, eff. June 17, 2011.


Sec. 25.003. TUITION FOR CERTAIN CHILDREN FROM OTHER STATES. (a) Notwithstanding any other provision of this code, a school district shall charge tuition for a child who resides at a residential facility and whose maintenance expenses are paid in whole or in part by another state or the United States.


(b) A tuition charge under this section must be submitted to the commissioner for approval.


(c) The attendance of the child is not counted for purposes of allocating state funds to the district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 396, Sec. 2.09, eff. Sept. 1, 1999.


Sec. 25.0031. TUITION FOR STUDENTS HOLDING CERTAIN STUDENT VISAS. (a) Notwithstanding any other provision of this code, if a student is required, as a condition of obtaining or holding the appropriate United States student visa, to pay tuition to the school district or open-enrollment charter school that the student attends to cover the cost of the student's education provided by the district or charter school, the district or charter school shall accept tuition for the student in an amount equal to the full unsubsidized per capita cost of providing the student's education for the period of the student's attendance at school in the district or at the charter school.


(b) The commissioner shall, for purposes of Subsection (a), develop guidelines for determining the amount of the full unsubsidized per capita cost of providing a student's education. A school district or open-enrollment charter school may not accept tuition in an amount greater than the amount computed under the commissioner's guidelines unless the commissioner approves a greater amount as a more accurate reflection of the cost of education to be provided by the district or charter school.


(c) Notwithstanding any other provision of this code, the attendance of a student for whom a school district or open-enrollment charter school accepts tuition under this section is not counted for purposes of allocating state funds to the district or charter school.


Added by Acts 2013, 83rd Leg., R.S., Ch. 523 (S.B. 453), Sec. 1, eff. June 14, 2013.


Sec. 25.004. TUITION FOR CERTAIN MILITARY DEPENDENTS PROHIBITED. A school district may not charge tuition for the attendance of a student who is domiciled in another state and resides in military housing that is located in the district but is exempt from taxation by the district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 526, Sec. 1, eff. Sept. 11, 2001.


Sec. 25.005. RECIPROCITY AGREEMENTS REGARDING MILITARY PERSONNEL AND DEPENDENTS. (a) To facilitate the transfer of military personnel and their dependents to and from the public schools of this state, the agency shall pursue reciprocity agreements governing the terms of those transfers with other states that are not parties to the Interstate Compact on Educational Opportunity for Military Children adopted under Chapter 162.


(b) A reciprocity agreement must:


(1) address procedures for:


(A) transferring student records;


(B) awarding credit for completed course work; and


(C) permitting a student to satisfy the requirements of Section 39.025 through successful performance on comparable end-of-course or other exit-level assessment instruments administered in another state; and


(2) include appropriate criteria developed by the agency.


Added by Acts 2001, 77th Leg., ch. 1073, Sec. 1, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 149, Sec. 24, eff. May 27, 2003; Acts 2003, 78th Leg., ch. 445, Sec. 1, eff. June 20, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1312 (S.B. 1031), Sec. 3, eff. September 1, 2007.


Acts 2009, 81st Leg., R.S., Ch. 8 (S.B. 90), Sec. 2, eff. May 5, 2009.


Sec. 25.006. TRANSITION ASSISTANCE FOR MILITARY DEPENDENTS. (a) The legislature finds that:


(1) school-age dependents of military personnel are faced with numerous transitions during their formative years; and


(2) military dependents who move from one school to another during the high school years are faced with special challenges to learning and future achievement.


(b) In recognition of the challenges faced by military dependents and the importance of military families to our community and economy, the agency shall assist the transition of military students from one school to another by:


(1) improving the timely transfer of student records;


(2) developing systems to ease student transition during the first two weeks of enrollment at a new school;


(3) promoting practices that foster student access to extracurricular programs;


(4) establishing procedures to lessen the adverse impact of student moves to a new school after the end of the student's junior year of high school;


(5) encouraging or maintaining partnerships between military bases and affected school districts;


(6) encouraging school districts to provide services for military students in transition when applying for admission to postsecondary study and when seeking sources of funding for postsecondary study; and


(7) providing other assistance as identified by the agency.


(c) The agency shall collect data each year from school districts and open-enrollment charter schools through the Public Education Information Management System (PEIMS) relating to the enrollment of military-connected students. The data relating to the enrollment of military-connected students under this section:


(1) must include the number of active duty military-connected students and the number of National Guard or reserve military-connected students enrolled in the school district or open-enrollment charter school on a date at the beginning of the school year specified by the agency and a date at the end of the school year specified by the agency; and


(2) may not be used for purposes of determining a campus or district performance rating under Section 39.054.


(d) In this section, "military-connected student" means a student enrolled in a school district or open-enrollment charter school who:


(1) is a dependent of a current or former member of:


(A) the United States military;


(B) the Texas National Guard; or


(C) a reserve force of the United States military; or


(2) was a dependent of a member of a military or reserve force described by Subdivision (1) who was killed in the line of duty.


Added by Acts 2005, 79th Leg., Ch. 164 (H.B. 25), Sec. 1, eff. May 27, 2005.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 173 (H.B. 525), Sec. 1, eff. May 25, 2013.


Acts 2019, 86th Leg., R.S., Ch. 269 (S.B. 1557), Sec. 1, eff. May 28, 2019.


Sec. 25.007. TRANSITION ASSISTANCE FOR STUDENTS WHO ARE HOMELESS OR IN SUBSTITUTE CARE. (a) The legislature finds that:


(1) students who are homeless or in substitute care are faced with numerous transitions during their formative years; and


(2) students who are homeless or in substitute care who move from one school to another are faced with special challenges to learning and future achievement.


(a-1) Repealed by Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 3.01(2), eff. June 10, 2019.


(b) In recognition of the challenges faced by students who are homeless or in substitute care, the agency shall assist the transition of students who are homeless or in substitute care from one school to another by:


(1) ensuring that school records for a student who is homeless or in substitute care are transferred to the student's new school not later than the 10th working day after the date the student begins enrollment at the school;


(2) developing systems to ease transition of a student who is homeless or in substitute care during the first two weeks of enrollment at a new school;


(3) developing procedures for awarding credit, including partial credit if appropriate, for course work, including electives, completed by a student who is homeless or in substitute care while enrolled at another school;


(4) developing procedures to ensure that a new school relies on decisions made by the previous school regarding placement in courses or educational programs of a student who is homeless or in substitute care and places the student in comparable courses or educational programs at the new school, if those courses or programs are available;


(5) promoting practices that facilitate access by a student who is homeless or in substitute care to extracurricular programs, summer programs, credit transfer services, electronic courses provided under Chapter 30A, and after-school tutoring programs at nominal or no cost;


(6) establishing procedures to lessen the adverse impact of the movement of a student who is homeless or in substitute care to a new school;


(7) entering into a memorandum of understanding with the Department of Family and Protective Services regarding the exchange of information as appropriate to facilitate the transition of students in substitute care from one school to another;


(8) encouraging school districts and open-enrollment charter schools to provide services for a student who is homeless or in substitute care in transition when applying for admission to postsecondary study and when seeking sources of funding for postsecondary study;


(9) requiring school districts, campuses, and open-enrollment charter schools to accept a referral for special education services made for a student who is homeless or in substitute care by a school previously attended by the student, and to provide comparable services to the student during the referral process or until the new school develops an individualized education program for the student;


(10) requiring school districts, campuses, and open-enrollment charter schools to provide notice to the child's educational decision-maker and caseworker regarding events that may significantly impact the education of a child, including:


(A) requests or referrals for an evaluation under Section 504, Rehabilitation Act of 1973 (29 U.S.C. Section 794), or special education under Section 29.003;


(B) admission, review, and dismissal committee meetings;


(C) manifestation determination reviews required by Section 37.004(b);


(D) any disciplinary actions under Chapter 37 for which parental notice is required;


(E) citations issued for Class C misdemeanor offenses on school property or at school-sponsored activities;


(F) reports of restraint and seclusion required by Section 37.0021;


(G) use of corporal punishment as provided by Section 37.0011; and


(H) appointment of a surrogate parent for the child under Section 29.0151;


(11) developing procedures for allowing a student who is homeless or in substitute care who was previously enrolled in a course required for graduation the opportunity, to the extent practicable, to complete the course, at no cost to the student, before the beginning of the next school year;


(12) ensuring that a student who is homeless or in substitute care who is not likely to receive a high school diploma before the fifth school year following the student's enrollment in grade nine, as determined by the district, has the student's course credit accrual and personal graduation plan reviewed;


(13) ensuring that a student in substitute care who is in grade 11 or 12 be provided information regarding tuition and fee exemptions under Section 54.366 for dual-credit or other courses provided by a public institution of higher education for which a high school student may earn joint high school and college credit;


(14) designating at least one agency employee to act as a liaison officer regarding educational issues related to students in the conservatorship of the Department of Family and Protective Services; and


(15) providing other assistance as identified by the agency.


(c) The commissioner may establish rules to implement this section and to facilitate the transition between schools of children who are homeless or in substitute care.


Added by Acts 2009, 81st Leg., R.S., Ch. 850 (S.B. 2248), Sec. 1, eff. June 19, 2009.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 688 (H.B. 2619), Sec. 10, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1354 (S.B. 1404), Sec. 1, eff. June 14, 2013.


Acts 2015, 84th Leg., R.S., Ch. 746 (H.B. 1804), Sec. 1, eff. September 1, 2015.


Acts 2015, 84th Leg., R.S., Ch. 822 (H.B. 3748), Sec. 1, eff. June 17, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1206 (S.B. 1494), Sec. 1, eff. June 19, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1206 (S.B. 1494), Sec. 2, eff. June 19, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1206 (S.B. 1494), Sec. 3, eff. June 19, 2015.


Acts 2015, 84th Leg., R.S., Ch. 1236 (S.B. 1296), Sec. 5.002, eff. September 1, 2015.


Reenacted and amended by Acts 2017, 85th Leg., R.S., Ch. 419 (S.B. 1220), Sec. 1, eff. June 1, 2017.


Amended by:


Acts 2017, 85th Leg., R.S., Ch. 419 (S.B. 1220), Sec. 2, eff. June 1, 2017.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 3.01(2), eff. June 10, 2019.


Acts 2019, 86th Leg., R.S., Ch. 781 (H.B. 1709), Sec. 1, eff. June 10, 2019.


Sec. 25.008. ENROLLMENT IN SUMMER SCHOOL COURSE BY PERSON NOT ENROLLED IN DISTRICT. (a) Except as provided by Subsection (b), a school district shall permit a person who is eligible under Section 25.001 to attend school in the district but who is not enrolled in school in the district to enroll in a district summer school course on the same basis as a district student, including:


(1) satisfaction of any course eligibility requirement; and


(2) payment of any fee authorized under Section 11.158 that is charged in connection with the course.


(b) Subsection (a) does not apply to enrollment in a program under Section 29.088 or 29.090 or in a similar intensive program.


Added by Acts 2013, 83rd Leg., R.S., Ch. 344 (H.B. 2137), Sec. 1, eff. June 14, 2013.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.017, eff. September 1, 2019.


SUBCHAPTER B. ASSIGNMENTS AND TRANSFERS



Sec. 25.031. ASSIGNMENTS AND TRANSFERS IN DISCRETION OF GOVERNING BOARD. In conformity with this subchapter, the board of trustees of a school district or the board of county school trustees or a school employee designated by the board may assign and transfer any student from one school facility or classroom to another within its jurisdiction.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.032. BASIS FOR ASSIGNMENT OR TRANSFER. The board of trustees of a school district, the board of county school trustees, or the person acting for the board must make the decision concerning the assignment or transfer of a student on an individual basis and may not consider as a factor in its decision any matter relating to the national origin of the student or the student's ancestral language.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.033. ASSIGNMENT OR TRANSFER ON PETITION OF PARENT. The parent or person standing in parental relation to any student may by petition in writing either:


(1) request the assignment or transfer of the student to a designated school or to a school to be designated by the board; or


(2) file objections to the assignment of the student to the school to which the student has been assigned.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.034. HEARING; ACTION ON PETITION; APPEAL. (a) On receiving a petition under Section 25.033, the board of trustees of the school district or the board of county school trustees shall:


(1) if a hearing is not requested, act on the petition not later than the 30th day after the date the petition is submitted and notify the petitioner of the board's conclusion; or


(2) if a hearing is requested, designate a time and place for holding a hearing not later than the 30th day after the date the petition is submitted.


(b) If a hearing is requested, it shall be conducted by the board in compliance with this section.


(c) The petitioner may present evidence relevant to the individual student.


(d) The board may conduct investigations as to the objection or request, examine any student involved, and employ agents, professional or otherwise, for the purpose of examinations and investigations.


(e) The board must grant the request made in the petition unless the board determines that there is a reasonable basis for denying the request. The decision of the board, either with or without hearing, is final unless the student, or the parent, guardian, or custodian of the student as next friend, files exception to the decision of the board as constituting a denial of any right of the student guaranteed under the United States Constitution.


(f) If an exception is filed under Subsection (e), the board may reconsider its decision. If the board has not ruled on the exception before the 16th day after the date of the filing, the exception is considered overruled. If the exception is overruled, an appeal of the board's decision may be filed in the district court of the county in which the board is located. The petition must:


(1) be filed not later than the 30th day after the date of the board's final decision; and


(2) state the facts relevant to the student that relate to the alleged denial of the student's rights under the United States Constitution.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.0341. TRANSFER OF STUDENTS INVOLVED IN SEXUAL ASSAULT. (a) This section applies only to:


(1) a student:


(A) who has been convicted of continuous sexual abuse of young child or children under Section 21.02, Penal Code, or convicted of or placed on deferred adjudication for the offense of sexual assault under Section 22.011, Penal Code, or aggravated sexual assault under Section 22.021, Penal Code, committed against another student who, at the time the offense occurred, was assigned to the same campus as the student convicted or placed on deferred adjudication;


(B) who has been adjudicated under Section 54.03, Family Code, as having engaged in conduct described by Paragraph (A);


(C) whose prosecution under Section 53.03, Family Code, for engaging in conduct described by Paragraph (A) has been deferred; or


(D) who has been placed on probation under Section 54.04(d)(1), Family Code, for engaging in conduct described by Paragraph (A); and


(2) a student who is the victim of conduct described by Subdivision (1)(A).


(b) On the request of a parent or other person with authority to act on behalf of a student who is a victim to whom Subsection (a)(2) applies:


(1) the board of trustees of the school district shall transfer the student to:


(A) a district campus other than:


(i) the campus to which the student was assigned at the time the conduct occurred; or


(ii) the campus to which the student who engaged in the conduct is assigned, if the student who engaged in the conduct has been assigned to a different campus since the conduct occurred; or


(B) a neighboring school district, if there is only one campus in the district serving the grade level in which the student is enrolled; or


(2) if the student does not wish to transfer to another campus or district, the board of trustees shall transfer the student who engaged in the conduct to:


(A) a district campus other than the campus to which the student who is the victim of the conduct is assigned; or


(B) the district's disciplinary alternative education program or juvenile justice alternative education program, if there is only one campus in the district serving the grade level in which the student who engaged in the conduct is enrolled.


(c) A transfer under Subsection (b)(1) must be to a campus or school district, as applicable, agreeable to the parent or other person with authority to act on the student's behalf.


(d) To the extent permitted under federal law, a school district shall notify the parent or other person with authority to act on behalf of a student who is a victim to whom Subsection (a)(2) applies of the campus or program to which the student who engaged in conduct described by Subsection (a)(1)(A) is assigned.


(e) This section applies regardless of whether the conduct occurred on or off of school property.


(f) Section 25.034 does not apply to a transfer under this section.


(g) A school district is not required to provide transportation to a student who transfers to another campus or school district under this section.


Added by Acts 2005, 79th Leg., Ch. 997 (H.B. 308), Sec. 1, eff. June 18, 2005.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 3.25, eff. September 1, 2007.


Sec. 25.0342. TRANSFER OF STUDENTS WHO ARE VICTIMS OF OR HAVE ENGAGED IN BULLYING.


(a) In this section, "bullying" has the meaning assigned by Section 37.0832.


(b) On the request of a parent or other person with authority to act on behalf of a student who is a victim of bullying, the board of trustees of a school district or the board's designee shall transfer the victim to:


(1) another classroom at the campus to which the victim was assigned at the time the bullying occurred; or


(2) a campus in the school district other than the campus to which the victim was assigned at the time the bullying occurred.


(b-1) The board of trustees of a school district may transfer the student who engaged in bullying to:


(1) another classroom at the campus to which the victim was assigned at the time the bullying occurred; or


(2) a campus in the district other than the campus to which the victim was assigned at the time the bullying occurred, in consultation with a parent or other person with authority to act on behalf of the student who engaged in bullying.


(b-2) Section 37.004 applies to a transfer under Subsection (b-1) of a student with a disability who receives special education services.


(c) The board of trustees or the board's designee shall verify that a student has been a victim of bullying before transferring the student under this section.


(d) The board of trustees or the board's designee may consider past student behavior when identifying a bully.


(e) The determination by the board of trustees or the board's designee is final and may not be appealed.


(f) A school district is not required to provide transportation to a student who transfers to another campus under Subsection (b)(2).


(g) Section 25.034 does not apply to a transfer under this section.


Added by Acts 2005, 79th Leg., Ch. 920 (H.B. 283), Sec. 2, eff. June 18, 2005.


Renumbered from Education Code, Section 25.0341 by Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 17.001(12), eff. September 1, 2007.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 776 (H.B. 1942), Sec. 2, eff. June 17, 2011.


Acts 2011, 82nd Leg., R.S., Ch. 776 (H.B. 1942), Sec. 3, eff. June 17, 2011.


Sec. 25.0343. TRANSFER OF STUDENTS RESIDING IN HOUSEHOLD OF STUDENT RECEIVING SPECIAL EDUCATION SERVICES. (a) If, for the purpose of receiving special education services under Subchapter A, Chapter 29, a school district assigns a student to a district campus other than the campus the student would attend based on the student's residence, the district shall permit the student's parent, guardian, or other person standing in parental relation to the student to obtain a transfer to the assigned campus for any other student residing in the household of the student receiving special education services, provided that:


(1) the other student is entitled under Section 25.001 to attend school in the district; and


(2) the appropriate grade level for the other student is offered at the campus.


(b) A school district is not required to provide transportation to a student who transfers to another campus under this section. This subsection does not affect any transportation services provided by the district in accordance with other law for the student receiving special education services.


(c) Section 25.034 does not apply to a transfer under this section.


(d) This section does not apply if the student receiving special education services resides in a residential facility.


Added by Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 12.01, eff. May 31, 2006.


Sec. 25.035. TRANSFERS BETWEEN DISTRICTS OR COUNTIES. The boards of trustees of two or more adjoining school districts or the boards of county school trustees of two or more adjoining counties may, by agreement and in accordance with Sections 25.032, 25.033, and 25.034, arrange for the transfer and assignment of any student from the jurisdiction of one board to that of another. In the case of the transfer and assignment of a student under this section, the participating governing boards shall also agree to the transfer of school funds or other payments proportionate to the transfer of attendance.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.036. TRANSFER OF STUDENT. (a) Any child, other than a high school graduate, who is younger than 21 years of age and eligible for enrollment on September 1 of any school year may transfer annually from the child's school district of residence to another district in this state if both the receiving district and the applicant parent or guardian or person having lawful control of the child jointly approve and timely agree in writing to the transfer.


(b) A transfer agreement under this section shall be filed and preserved as a receiving district record for audit purposes of the agency.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.037. TRANSFER OF STATE FUNDS. On the timely filing with the agency of notice of a child's transfer and certification by the agency of the transfer, the state available school fund apportionment transfers with the child. For purposes of computing state allotments to school districts under the Foundation School Program, the attendance of the child before the date of transfer is counted by the transfer sending district and the attendance of the child after the date of transfer is counted by the transfer receiving district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.038. TUITION FEE FOR TRANSFER STUDENTS. The receiving school district may charge a tuition fee to the extent that the district's actual expenditure per student in average daily attendance, as determined by its board of trustees, exceeds the sum the district benefits from state aid sources as provided by Section 25.037. However, unless a tuition fee is prescribed and set out in a transfer agreement before its execution by the parties, an increase in tuition charge may not be made for the year of that transfer that exceeds the tuition charge, if any, of the preceding school year.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.039. CONTRACTS AND TUITION FOR EDUCATION OUTSIDE DISTRICT. (a) A school district that does not offer each grade level from kindergarten through grade 12 may provide by contract for students residing in the district who are at grade levels not offered by the district to be educated at those grade levels in one or more other districts. In each contract, the districts also shall agree to the transfer of school funds or other payments proportionate to the transfer of attendance.


(b) The school district in which the students reside shall pay tuition to any district with which it has a contract under this section for each of its students attending school in that district at a grade level for which the district has contracted. The amount of the tuition paid may not exceed the greater of the amount provided for by Section 25.038 or an amount specified by commissioner rule.


(c) A school district is not required to pay tuition to any district with which it has not contracted for the attendance by any of its students at a grade level for which it has contracted under this section with another district.


(d) A contract under this section may not be for a period exceeding five years.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 396, Sec. 1.32, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1069, Sec. 1, eff. Sept. 1, 2003.


Sec. 25.040. TRANSFER TO DISTRICT OF BORDERING STATE. Any child entitled to attend the public school of any school district situated on the border of Louisiana, Arkansas, Oklahoma, or New Mexico who finds it more convenient to attend the public school in a district in the contiguous state may have the apportionment of the state and county available school funds paid to the school district of the contiguous state and may have additional tuition, if necessary, paid by the district of the child's residence on terms agreed on by the trustees of the receiving district and the trustees of the residence district.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.041. TRANSFER OF CHILDREN OR WARDS OF EMPLOYEES OF STATE SUPPORTED LIVING CENTERS. A school-age child or ward of an employee of a state supported living center for persons with intellectual disabilities constituted as a school district who resides in the boundaries of center property but who is not a student at the center is entitled to attend school in a district adjacent to the center free of any charge to the child's or ward's parent or guardian provided the parent or guardian is required by the superintendent of the center to live on the grounds of the center for the convenience of this state. A tuition charge required by the admitting district shall be paid by the district constituting the state supported living center out of funds allotted to it by the agency.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 1279 (H.B. 965), Sec. 1, eff. September 1, 2019.


Sec. 25.042. TRANSFER OF CHILDREN OF EMPLOYEES OF TEXAS JUVENILE JUSTICE DEPARTMENT FACILITIES. A school-age child of an employee of a facility of the Texas Juvenile Justice Department is entitled to attend school in a school district adjacent to the district in which the student resides free of any charge to the student's parents or guardian. Any tuition charge required by the admitting district shall be paid by the district from which the student transfers out of any funds appropriated to the facility.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 734 (H.B. 1549), Sec. 21, eff. September 1, 2015.


Sec. 25.043. CLASSROOM PLACEMENT OF MULTIPLE BIRTH SIBLINGS. (a) In this section:


(1) "Multiple birth sibling" means a twin, triplet, quadruplet, or other sibling resulting from a multiple birth.


(2) "Parent" includes a person standing in parental relation.


(b) The parent of multiple birth siblings who are assigned to the same grade level and school may request in writing, not later than the 14th day after the first day of enrollment, that the school place the siblings in the same classroom or in separate classrooms.


(c) Except as provided by Subsection (d) or (g), a school shall provide the multiple birth siblings with the classroom placement requested by the parent.


(d) At the end of the first grading period following the multiple birth siblings' enrollment in the school, if the principal of the school, in consultation with the teacher of each classroom in which the multiple birth siblings are placed, determines that the requested classroom placement is disruptive to the school, the principal may determine the appropriate classroom placement for the siblings.


(e) A parent may appeal the principal's classroom placement of multiple birth siblings in the manner provided by school district policy. During an appeal, the multiple birth siblings shall remain in the classroom chosen by the parent.


(f) The school may recommend to a parent the appropriate classroom placement for the multiple birth siblings and may provide professional educational advice to assist the parent with the decision regarding appropriate classroom placement.


(g) A school district is not required to place multiple birth siblings in separate classrooms if the request would require the school district to add an additional class to the grade level of the multiple birth siblings.


(h) This section does not affect:


(1) a right or obligation under Subchapter A, Chapter 29, or under the Individuals with Disabilities Education Act (20 U.S.C. Section 1400 et seq.) regarding the individual placement decisions of the school district admission, review, and dismissal committee; or


(2) the right of a school district or teacher to remove a student from a classroom under Chapter 37.


Added by Acts 2007, 80th Leg., R.S., Ch. 91 (H.B. 314), Sec. 1, eff. May 15, 2007.


SUBCHAPTER C. OPERATION OF SCHOOLS AND SCHOOL ATTENDANCE



Sec. 25.081. OPERATION OF SCHOOLS. (a) Except as authorized under Subsection (b) of this section, Section 25.0815, Section 25.084, or Section 29.0821, for each school year each school district must operate for at least 75,600 minutes, including time allocated for instruction, intermissions, and recesses for students.


(b) The commissioner may approve the operation of schools for fewer than the number of minutes required under Subsection (a) if disaster, flood, extreme weather conditions, fuel curtailment, or another calamity causes the closing of schools.


(c) If the commissioner does not approve reduced operation time under Subsection (b), a school district may add additional minutes to the end of the district's normal school hours as necessary to compensate for minutes lost due to school closures caused by disaster, flood, extreme weather conditions, fuel curtailment, or another calamity.


(d) The commissioner may adopt rules to implement this section, including rules:


(1) for the application, on the basis of the minimum minutes of operation required by Subsection (a), of any provision of this title that refers to a minimum number of days of instruction under this section;


(2) to determine the minutes of operation that are equivalent to a day;


(3) defining minutes of operation and instructional time; and


(4) establishing the minimum number of minutes of instructional time required for a full-day and a half-day program to meet the time requirements under Subsection (a).


(e) A school district or education program is exempt from the minimum minutes of operation requirement if the district's or program's average daily attendance is calculated under Section 48.005(j).


(f) The commissioner may proportionally reduce the amount of funding a district receives under Chapter 46, 48, or 49 and the average daily attendance calculation for the district if the district operates on a calendar that provides fewer minutes of operation than required under Subsection (a).


(g) A school district may not provide student instruction on Memorial Day. If a school district would be required to provide student instruction on Memorial Day to compensate for minutes of instruction lost because of school closures caused by disaster, flood, extreme weather conditions, fuel curtailment, or another calamity, the commissioner shall approve the instruction of students for fewer than the number of minutes required under Subsection (a).


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 824, Sec. 2, eff. June 20, 2003.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 1084 (H.B. 2610), Sec. 1, eff. June 19, 2015.


Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 1, eff. June 15, 2017.


Acts 2017, 85th Leg., R.S., Ch. 1144 (H.B. 441), Sec. 1, eff. June 15, 2017.


Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 5, eff. June 6, 2019.


Acts 2019, 86th Leg., R.S., Ch. 467 (H.B. 4170), Sec. 21.001(5), eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.018, eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.019, eff. September 1, 2019.


Sec. 25.0811. FIRST DAY OF INSTRUCTION. (a) Except as provided by this section, a school district may not begin instruction for students for a school year before the fourth Monday in August. A school district may:


(1) begin instruction for students for a school year before the fourth Monday in August if the district operates a year-round system under Section 25.084; or


(2) begin instruction for students for a school year on or after the first Monday in August at a campus or at not more than 20 percent of the campuses in the district if:


(A) the district has a student enrollment of 190,000 or more;


(B) the district at the beginning of the school year provides, financed with local funds, days of instruction for students at the campus or at each of the multiple campuses, in addition to the minimum number of days of instruction required under Section 25.081;


(C) the campus or each of the multiple campuses are undergoing comprehensive reform, as determined by the board of trustees of the district; and


(D) a majority of the students at the campus or at each of the multiple campuses are educationally disadvantaged.


(b) Notwithstanding Subsection (a), a school district that does not offer each grade level from kindergarten through grade 12 and whose prospective or former students generally attend school in another state for the grade levels the district does not offer may start school on any date permitted under Subsection (a) or the law of the other state.


(c) Repealed by Acts 2006, 79th Leg., 3rd C.S., Ch. 5, Sec. 9.03, eff. May 31, 2006.


Added by Acts 2001, 77th Leg., ch. 909, Sec. 1, eff. Sept. 1, 2001.


Amended by:


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 9.02, eff. May 31, 2006.


Acts 2006, 79th Leg., 3rd C.S., Ch. 5 (H.B. 1), Sec. 9.03, eff. May 31, 2006.


Acts 2007, 80th Leg., R.S., Ch. 708 (H.B. 2171), Sec. 1, eff. June 15, 2007.


Acts 2011, 82nd Leg., R.S., Ch. 277 (H.B. 1555), Sec. 1, eff. June 17, 2011.


Sec. 25.0812. LAST DAY OF SCHOOL. (a) Except as provided by Subsection (b), a school district may not schedule the last day of school for students for a school year before May 15.


(b) Notwithstanding Subsection (a), a school district that does not offer each grade level from kindergarten through grade 12 and whose prospective or former students generally attend school in another state for the grade levels the district does not offer may schedule the last day of school on any date permitted under Subsection (a) or the law of the other state.


Added by Acts 2015, 84th Leg., R.S., Ch. 1084 (H.B. 2610), Sec. 2, eff. June 19, 2015.


Sec. 25.0815. OPERATION AND INSTRUCTIONAL TIME WAIVERS FOR SCHOOL SAFETY TRAINING. (a) The commissioner shall provide a waiver allowing for fewer minutes of operation and instructional time than required under Section 25.081(a) for a school district that requires each educator employed by the district to attend an approved school safety training course.


(b) A waiver under this section:


(1) must allow sufficient time for the school district's educators to attend the school safety training course; and


(2) may not:


(A) result in an inadequate number of minutes of instructional time for students; or


(B) reduce the number of minutes of operation and instructional time by more than 420 minutes.


(c) To be approved under this section, a school safety training course must apply to the Texas School Safety Center. The Texas School Safety Center may approve a training course if the course satisfies the training requirements as determined by the center.


(d) The commissioner may adopt rules to implement this section.


Added by Acts 2019, 86th Leg., R.S., Ch. 464 (S.B. 11), Sec. 6, eff. June 6, 2019.


Sec. 25.082. PLEDGES OF ALLEGIANCE; MINUTE OF SILENCE. (a) Repealed by Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 9, eff. June 15, 2017.


(b) The board of trustees of each school district and the governing board of each open-enrollment charter school shall require students, once during each school day at each campus, to recite:


(1) the pledge of allegiance to the United States flag in accordance with 4 U.S.C. Section 4; and


(2) the pledge of allegiance to the state flag in accordance with Subchapter C, Chapter 3100, Government Code.


(b-1) The board of trustees of each school district and the governing board of each open-enrollment charter school shall require that the United States and Texas flags be prominently displayed in accordance with 4 U.S.C. Sections 5-10 and Chapter 3100, Government Code, in each campus classroom to which a student is assigned at the time the pledges of allegiance to those flags are recited. A district or school is not required to spend federal, state, or local district or school funds to acquire flags required under this subsection. A district or school may raise money or accept gifts, grants, and donations to acquire flags required under this subsection.


(c) On written request from a student's parent or guardian, a school district or open-enrollment charter school shall excuse the student from reciting a pledge of allegiance under Subsection (b).


(d) The board of trustees of each school district and the governing board of each open-enrollment charter school shall provide for the observance of one minute of silence at each campus following the recitation of the pledges of allegiance to the United States and Texas flags under Subsection (b). During the one-minute period, each student may, as the student chooses, reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student. Each teacher or other school employee in charge of students during that period shall ensure that each of those students remains silent and does not act in a manner that is likely to interfere with or distract another student.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2003, 78th Leg., ch. 126, Sec. 1, 2, eff. Sept. 1, 2003.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 881 (H.B. 773), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1140 (S.B. 2), Sec. 42, eff. September 1, 2013.


Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 2, eff. June 15, 2017.


Acts 2017, 85th Leg., R.S., Ch. 851 (H.B. 2442), Sec. 9, eff. June 15, 2017.


Sec. 25.0821. MINUTE OF SILENCE TO COMMEMORATE SEPTEMBER 11, 2001. (a) To commemorate the events of September 11, 2001, in each year that date falls on a regular school day, each public elementary or secondary school shall provide for the observance of one minute of silence at the beginning of the first class period of that day.


(b) Immediately before the period of observance required by this section, the class instructor shall make a statement of reference to the memory of individuals who died on September 11, 2001.


(c) The period of observance required by this section may be held in conjunction with the minute of silence required by Section 25.082.


Added by Acts 2013, 83rd Leg., R.S., Ch. 925 (H.B. 1501), Sec. 1, eff. June 14, 2013.


Sec. 25.0822. PATRIOTIC SOCIETY ACCESS TO STUDENTS. (a) In this section, "patriotic society" means a youth membership organization listed in Title 36 of the United States Code with an educational purpose that promotes patriotism and civic involvement.


(b) At the beginning of each school year, the board of trustees of an independent school district shall adopt a policy to allow the principal of a public school campus to provide representatives of a patriotic society with the opportunity to speak to students during regular school hours about membership in the society and the ways in which membership may promote a student's educational interest and level of civic involvement, leading to the student's increased potential for self-improvement and ability to contribute to improving the student's school and community.


(c) The board policy shall give a principal complete discretion over the specific date and time of the opportunity required to be provided under this section, except that the policy shall allow the principal to limit:


(1) the opportunity provided to a patriotic society to a single school day; and


(2) any presentation made to students as a result of the opportunity to 10 minutes in length.


Added by Acts 2017, 85th Leg., R.S., Ch. 925 (S.B. 1566), Sec. 8, eff. September 1, 2017.


Sec. 25.083. SCHOOL DAY INTERRUPTIONS. (a) The board of trustees of each school district shall adopt and strictly enforce a policy limiting interruptions of classes during the school day for nonacademic activities such as announcements and sales promotions. At a minimum, the policy must limit announcements other than emergency announcements to once during the school day.


(b) The board of trustees of each school district shall adopt and strictly enforce a policy limiting the removal of students from class for remedial tutoring or test preparation. A district may not remove a student from a regularly scheduled class for remedial tutoring or test preparation if, as a result of the removal, the student would miss more than 10 percent of the school days on which the class is offered, unless the student's parent or another person standing in parental relation to the student provides to the district written consent for removal from class for such purpose.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 5(a), eff. June 10, 2013.


Sec. 25.084. YEAR-ROUND SYSTEM. (a) A school district may operate its schools year-round on either a single-track or a multitrack calendar. If a school district adopts a year-round system, the district may modify:


(1) the number of contract days of employees and the number of days of operation, including any time required for staff development, planning and preparation, and continuing education, otherwise required by law;


(2) testing dates, data reporting, and related matters;


(3) the date of the first day of instruction of the school year under Section 25.0811 for a school that was operating year-round for the 2000-2001 school year; and


(4) a student's eligibility to participate in extracurricular activities when the student's calendar track is not in session.



Text of subsection effective until September 01, 2020



(b) The operation of schools year-round by a district does not affect the amount of state funds to which the district is entitled under Chapter 48.



Text of subsection effective on September 01, 2020



(b) Except as provided by Subsection (c), the operation of schools year-round by a district does not affect the amount of state funds to which the district is entitled under Chapter 48.



Text of subsection effective on September 01, 2020



(c) A district that adopts a year-round system under this section may receive the incentive aid under Section 48.0051 if the district meets the criteria for receiving the incentive under that section.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 909, Sec. 2, eff. Sept. 1, 2001.


Amended by:


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 1.004(a), eff. September 1, 2019.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 1.004(b), eff. September 1, 2020.


Sec. 25.085. COMPULSORY SCHOOL ATTENDANCE. (a) A child who is required to attend school under this section shall attend school each school day for the entire period the program of instruction is provided.


(b) Unless specifically exempted by Section 25.086, a child who is at least six years of age, or who is younger than six years of age and has previously been enrolled in first grade, and who has not yet reached the child's 19th birthday shall attend school.


(c) On enrollment in prekindergarten or kindergarten, a child shall attend school.


(d) Unless specifically exempted by Section 25.086, a student enrolled in a school district must attend:


(1) an extended-year program for which the student is eligible that is provided by the district for students identified as likely not to be promoted to the next grade level or tutorial classes required by the district under Section 29.084;


(2) an accelerated reading instruction program to which the student is assigned under Section 28.006(g);


(3) an accelerated instruction program to which the student is assigned under Section 28.0211;


(4) a basic skills program to which the student is assigned under Section 29.086; or


(5) a summer program provided under Section 37.008(l) or Section 37.021.


(e) A person who voluntarily enrolls in school or voluntarily attends school after the person's 19th birthday shall attend school each school day for the entire period the program of instruction is offered. A school district may revoke for the remainder of the school year the enrollment of a person who has more than five absences in a semester that are not excused under Section 25.087, except a school district may not revoke the enrollment of a person under this subsection on a day on which the person is physically present at school. A person whose enrollment is revoked under this subsection may be considered an unauthorized person on school district grounds for purposes of Section 37.107.


(f) The board of trustees of a school district may adopt a policy requiring a person described by Subsection (e) who is under 21 years of age to attend school until the end of the school year. Section 65.003(a), Family Code, does not apply to a person subject to a policy adopted under this subsection. Sections 25.093 and 25.095 do not apply to the parent of a person subject to a policy adopted under this subsection.


(g) After the third unexcused absence of a person described by Subsection (e), a school district shall issue a warning letter to the person that states the person's enrollment may be revoked for the remainder of the school year if the person has more than five unexcused absences in a semester.


(h) As an alternative to revoking a person's enrollment under Subsection (e), a school district may impose a behavior improvement plan described by Section 25.0915(a-1)(1).



Text of subsection effective on September 01, 2020



(i) Notwithstanding any other provision of this section, a student enrolled in a school district is not required to attend school for any additional instructional days described by Section 48.0051.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1019, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 396, Sec. 2.10, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 711, Sec. 1, eff. June 18, 1999; Acts 2003, 78th Leg., ch. 1055, Sec. 3, eff. June 20, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 50 (H.B. 566), Sec. 1, eff. May 10, 2007.


Acts 2007, 80th Leg., R.S., Ch. 850 (H.B. 1137), Sec. 2, eff. June 15, 2007.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 7, eff. September 1, 2015.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 2.011, eff. September 1, 2020.


Sec. 25.086. EXEMPTIONS.


(a) A child is exempt from the requirements of compulsory school attendance if the child:


(1) attends a private or parochial school that includes in its course a study of good citizenship;


(2) is eligible to participate in a school district's special education program under Section 29.003 and cannot be appropriately served by the resident district;


(3) has a physical or mental condition of a temporary and remediable nature that makes the child's attendance infeasible and holds a certificate from a qualified physician specifying the temporary condition, indicating the treatment prescribed to remedy the temporary condition, and covering the anticipated period of the child's absence from school for the purpose of receiving and recuperating from that remedial treatment;


(4) is expelled in accordance with the requirements of law in a school district that does not participate in a mandatory juvenile justice alternative education program under Section 37.011;


(5) is at least 17 years of age and:


(A) is attending a course of instruction to prepare for the high school equivalency examination, and:


(i) has the permission of the child's parent or guardian to attend the course;


(ii) is required by court order to attend the course;


(iii) has established a residence separate and apart from the child's parent, guardian, or other person having lawful control of the child; or


(iv) is homeless; or


(B) has received a high school diploma or high school equivalency certificate;


(6) is at least 16 years of age and is attending a course of instruction to prepare for the high school equivalency examination, if:


(A) the child is recommended to take the course of instruction by a public agency that has supervision or custody of the child under a court order; or


(B) the child is enrolled in a Job Corps training program under the Workforce Investment Act of 1998 (29 U.S.C. Section 2801 et seq.);


(7) is at least 16 years of age and is enrolled in a high school diploma program under Chapter 18;


(8) is enrolled in the Texas Academy of Mathematics and Science under Subchapter G, Chapter 105;


(9) is enrolled in the Texas Academy of Leadership in the Humanities;


(10) is enrolled in the Texas Academy of Mathematics and Science at The University of Texas at Brownsville;


(11) is enrolled in the Texas Academy of International Studies; or


(12) is specifically exempted under another law.


(b) This section does not relieve a school district in which a child eligible to participate in the district's special education program resides of its fiscal and administrative responsibilities under Subchapter A, Chapter 29, or of its responsibility to provide a free appropriate public education to a child with a disability.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 1015, Sec. 1, eff. June 19, 1997; Acts 1997, 75th Leg., ch. 1019, Sec. 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1282, Sec. 2, eff. June 18, 1999.


Amended by:


Acts 2005, 79th Leg., Ch. 377 (S.B. 1395), Sec. 3, eff. June 17, 2005.


Acts 2005, 79th Leg., Ch. 887 (S.B. 1452), Sec. 2, eff. June 17, 2005.


Acts 2005, 79th Leg., Ch. 1339 (S.B. 151), Sec. 6, eff. June 18, 2005.


Acts 2007, 80th Leg., R.S., Ch. 921 (H.B. 3167), Sec. 4.003, eff. September 1, 2007.


Acts 2019, 86th Leg., R.S., Ch. 597 (S.B. 668), Sec. 1.04, eff. June 10, 2019.


Sec. 25.087. EXCUSED ABSENCES. (a) A person required to attend school, including a person required to attend school under Section 25.085(e), may be excused for temporary absence resulting from any cause acceptable to the teacher, principal, or superintendent of the school in which the person is enrolled.


(b) A school district shall excuse a student from attending school for:


(1) the following purposes, including travel for those purposes:


(A) observing religious holy days;


(B) attending a required court appearance;


(C) appearing at a governmental office to complete paperwork required in connection with the student's application for United States citizenship;


(D) taking part in a United States naturalization oath ceremony;


(E) serving as an election clerk; or


(F) if the student is in the conservatorship of the Department of Family and Protective Services, participating, as determined and documented by the department, in an activity:


(i) ordered by a court under Chapter 262 or 263, Family Code, provided that it is not practicable to schedule the participation outside of school hours; or


(ii) required under a service plan under Subchapter B, Chapter 263, Family Code; or


(2) a temporary absence resulting from an appointment with health care professionals for the student or the student's child if the student commences classes or returns to school on the same day of the appointment.


(b-1) A school district may adopt a policy excusing a student from attending school for service as a student early voting clerk in an election.


(b-2) A school district may excuse a student from attending school to visit an institution of higher education accredited by a generally recognized accrediting organization during the student's junior and senior years of high school for the purpose of determining the student's interest in attending the institution of higher education, provided that:


(1) the district may not excuse for this purpose more than two days during the student's junior year and two days during the student's senior year; and


(2) the district adopts:


(A) a policy to determine when an absence will be excused for this purpose; and


(B) a procedure to verify the student's visit at the institution of higher education.


(b-3) A temporary absence for purposes of Subsection (b)(2) includes the temporary absence of a student diagnosed with autism spectrum disorder on the day of the student's appointment with a health care practitioner, as described by Section 1355.015(b), Insurance Code, to receive a generally recognized service for persons with autism spectrum disorder, including applied behavioral analysis, speech therapy, and occupational therapy.


(b-4) A school district shall excuse a student whose parent, stepparent, or legal guardian is an active duty member of the uniformed services as defined by Section 162.002 and has been called to duty for, is on leave from, or immediately returned from continuous deployment of at least four months outside the locality where the parent, stepparent, or guardian regularly resides, to visit with the student's parent, stepparent, or guardian. A school district may not excuse a student under this subsection more than five days in a school year. An excused absence under this subsection must be taken:


(1) not earlier than the 60th day before the date of deployment; or


(2) not later than the 30th day after the date of return from deployment.


(b-5) A school district shall excuse a student who is 17 years of age or older from attending school to pursue enlistment in a branch of the armed services of the United States or the Texas National Guard, provided that:


(1) the district may not excuse for this purpose more than four days of school during the period the student is enrolled in high school; and


(2) the district verifies the student's activities related to pursuing enlistment in a branch of the armed services or the Texas National Guard.


(b-6) Each school district shall adopt procedures to verify a student's activities as described by Subsection (b-5).


(c) A school district may excuse a student in grades 6 through 12 for the purpose of sounding "Taps" at a military honors funeral held in this state for a deceased veteran.


(d) A student whose absence is excused under Subsection (b), (b-1), (b-2), (b-4), (b-5), or (c) may not be penalized for that absence and shall be counted as if the student attended school for purposes of calculating the average daily attendance of students in the school district. A student whose absence is excused under Subsection (b), (b-1), (b-2), (b-4), (b-5), or (c) shall be allowed a reasonable time to make up school work missed on those days. If the student satisfactorily completes the school work, the day of absence shall be counted as a day of compulsory attendance.


(e) A school district may excuse a student for the purposes provided by Subsections (b)(1)(E) and (b-1) for a maximum of two days in a school year.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 651, Sec. 1, eff. June 18, 1999; Acts 1999, 76th Leg., ch. 711, Sec. 2, eff. June 18, 1999.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 479 (H.B. 2455), Sec. 1, eff. June 16, 2007.


Acts 2007, 80th Leg., R.S., Ch. 660 (H.B. 1187), Sec. 2, eff. June 15, 2007.


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.002(a), eff. September 1, 2009.


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.002(b), eff. September 1, 2009.


Acts 2009, 81st Leg., R.S., Ch. 455 (H.B. 2542), Sec. 1, eff. June 19, 2009.


Acts 2009, 81st Leg., R.S., Ch. 455 (H.B. 2542), Sec. 2, eff. June 19, 2009.


Acts 2009, 81st Leg., R.S., Ch. 517 (S.B. 1134), Sec. 3, eff. September 1, 2009.


Acts 2009, 81st Leg., R.S., Ch. 595 (H.B. 192), Sec. 1, eff. June 19, 2009.


Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 7.005, eff. September 1, 2011.


Acts 2013, 83rd Leg., R.S., Ch. 249 (H.B. 455), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 404 (S.B. 260), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 542 (S.B. 553), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 688 (H.B. 2619), Sec. 11, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1354 (S.B. 1404), Sec. 2, eff. June 14, 2013.


Acts 2015, 84th Leg., R.S., Ch. 944 (S.B. 206), Sec. 2, eff. September 1, 2015.


Acts 2017, 85th Leg., R.S., Ch. 213 (S.B. 1152), Sec. 1, eff. May 28, 2017.


Sec. 25.088. SCHOOL ATTENDANCE OFFICER. The school attendance officer may be selected by:


(1) the county school trustees of any county;


(2) the board of trustees of any school district or the boards of trustees of two or more school districts jointly; or


(3) the governing body of an open-enrollment charter school.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1504, Sec. 21, eff. Sept. 1, 2001.


Sec. 25.089. COMPENSATION OF ATTENDANCE OFFICER; DUAL SERVICE. (a) An attendance officer may be compensated from the funds of the county, independent school district, or open-enrollment charter school, as applicable.


(b) An attendance officer may be the probation officer or an officer of the juvenile court of the county.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1504, Sec. 22, eff. Sept. 1, 2001.


Sec. 25.090. ATTENDANCE OFFICER NOT SELECTED. (a) In those counties and independent school districts where an attendance officer has not been selected, the duties of attendance officer shall be performed by the school superintendents and peace officers of the counties and districts.


(b) If the governing body of an open-enrollment charter school has not selected an attendance officer, the duties of attendance officer shall be performed by the peace officers of the county in which the school is located.


(c) Additional compensation may not be paid for services performed under this section.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1504, Sec. 23, eff. Sept. 1, 2001.


Sec. 25.091. POWERS AND DUTIES OF PEACE OFFICERS AND OTHER ATTENDANCE OFFICERS.


(a) A peace officer serving as an attendance officer has the following powers and duties concerning enforcement of compulsory school attendance requirements:


(1) to investigate each case of a violation of compulsory school attendance requirements referred to the peace officer;


(2) to enforce compulsory school attendance requirements by:


(A) applying truancy prevention measures adopted under Section 25.0915 to the student; and


(B) if the truancy prevention measures fail to meaningfully address the student's conduct:


(i) referring the student to a truancy court if the student has unexcused absences for the amount of time specified under Section 65.003(a), Family Code; or


(ii) filing a complaint in a county, justice, or municipal court against a parent who violates Section 25.093;


(3) to serve court-ordered legal process;


(4) to review school attendance records for compliance by each student investigated by the officer;


(5) to maintain an investigative record on each compulsory school attendance requirement violation and related court action and, at the request of a court, the board of trustees of a school district, or the commissioner, to provide a record to the individual or entity requesting the record; and


(6) to make a home visit or otherwise contact the parent of a student who is in violation of compulsory school attendance requirements, except that a peace officer may not enter a residence without the permission of the parent of a student required under this subchapter to attend school or of the tenant or owner of the residence except to lawfully serve court-ordered legal process on the parent.


(b) An attendance officer employed by a school district who is not commissioned as a peace officer has the following powers and duties with respect to enforcement of compulsory school attendance requirements:


(1) to investigate each case of a violation of the compulsory school attendance requirements referred to the attendance officer;


(2) to enforce compulsory school attendance requirements by:


(A) applying truancy prevention measures adopted under Section 25.0915 to the student; and


(B) if the truancy prevention measures fail to meaningfully address the student's conduct:


(i) referring the student to a truancy court if the student has unexcused absences for the amount of time specified under Section 65.003(a), Family Code; and


(ii) filing a complaint in a county, justice, or municipal court against a parent who violates Section 25.093;


(3) to monitor school attendance compliance by each student investigated by the officer;


(4) to maintain an investigative record on each compulsory school attendance requirement violation and related court action and, at the request of a court, the board of trustees of a school district, or the commissioner, to provide a record to the individual or entity requesting the record;


(5) to make a home visit or otherwise contact the parent of a student who is in violation of compulsory school attendance requirements, except that the attendance officer may not enter a residence without permission of the parent or of the owner or tenant of the residence; and


(6) at the request of a parent, to escort a student from any location to a school campus to ensure the student's compliance with compulsory school attendance requirements.


(b-1) A peace officer who has probable cause to believe that a child is in violation of the compulsory school attendance law under Section 25.085 may take the child into custody for the purpose of returning the child to the school campus of the child to ensure the child's compliance with compulsory school attendance requirements.


(c) In this section:


(1) "Parent" includes a person standing in parental relation.


(2) "Peace officer" has the meaning assigned by Article 2.12, Code of Criminal Procedure.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1514, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 137, Sec. 3, eff. Sept. 1, 2003.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 1058 (H.B. 2237), Sec. 5, eff. September 1, 2007.


Acts 2011, 82nd Leg., R.S., Ch. 1098 (S.B. 1489), Sec. 9, eff. September 1, 2011.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 8, eff. September 1, 2015.


Sec. 25.0915. TRUANCY PREVENTION MEASURES. (a) A school district shall adopt truancy prevention measures designed to:


(1) address student conduct related to truancy in the school setting before the student engages in conduct described by Section 65.003(a), Family Code; and


(2) minimize the need for referrals to truancy court for conduct described by Section 65.003(a), Family Code.


(a-1) As a truancy prevention measure under Subsection (a), a school district shall take one or more of the following actions:


(1) impose:


(A) a behavior improvement plan on the student that must be signed by an employee of the school, that the school district has made a good faith effort to have signed by the student and the student's parent or guardian, and that includes:


(i) a specific description of the behavior that is required or prohibited for the student;


(ii) the period for which the plan will be effective, not to exceed 45 school days after the date the contract becomes effective; or


(iii) the penalties for additional absences, including additional disciplinary action or the referral of the student to a truancy court; or


(B) school-based community service; or


(2) refer the student to counseling, mediation, mentoring, a teen court program, community-based services, or other in-school or out-of-school services aimed at addressing the student's truancy.


(a-2) A referral made under Subsection (a-1)(2) may include participation by the child's parent or guardian if necessary.


(a-3) A school district shall offer additional counseling to a student and may not refer the student to truancy court if the school determines that the student's truancy is the result of:


(1) pregnancy;


(2) being in the state foster program;


(3) homelessness; or


(4) being the principal income earner for the student's family.


(a-4) If a student fails to attend school without excuse on three or more days or parts of days within a four-week period but does not fail to attend school for the time described by Section 25.0951(a), the school district shall initiate truancy prevention measures under this section on the student.


(b) Each referral to truancy court for conduct described by Section 65.003(a), Family Code, must:


(1) be accompanied by a statement from the student's school certifying that:


(A) the school applied the truancy prevention measures adopted under Subsection (a) or (a-4) to the student; and


(B) the truancy prevention measures failed to meaningfully address the student's school attendance; and


(2) specify whether the student is eligible for or receives special education services under Subchapter A, Chapter 29.


(c) A truancy court shall dismiss a petition filed by a truant conduct prosecutor under Section 65.054, Family Code, if the court determines that the school district's referral:


(1) does not comply with Subsection (b);


(2) does not satisfy the elements required for truant conduct;


(3) is not timely filed, unless the school district delayed the referral under Section 25.0951(d); or


(4) is otherwise substantively defective.


(d) Except as provided by Subsection (e), a school district shall employ a truancy prevention facilitator or juvenile case manager to implement the truancy prevention measures required by this section and any other effective truancy prevention measures as determined by the school district or campus. At least annually, the truancy prevention facilitator shall meet to discuss effective truancy prevention measures with a case manager or other individual designated by a truancy court to provide services to students of the school district in truancy cases.


(e) Instead of employing a truancy prevention facilitator, a school district may designate an existing district employee or juvenile case manager to implement the truancy prevention measures required by this section and any other effective truancy prevention measures as determined by the school district or campus.


(f) The agency shall adopt rules:


(1) creating minimum standards for truancy prevention measures adopted by a school district under this section; and


(2) establishing a set of best practices for truancy prevention measures.


(g) The agency shall adopt rules to provide for sanctions for a school district found to be not in compliance with this section.


Added by Acts 2011, 82nd Leg., R.S., Ch. 1098 (S.B. 1489), Sec. 10, eff. September 1, 2011.


Amended by:


Acts 2013, 83rd Leg., R.S., Ch. 1407 (S.B. 393), Sec. 8, eff. September 1, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1409 (S.B. 1114), Sec. 2, eff. September 1, 2013.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 9, eff. September 1, 2015.


Sec. 25.092. MINIMUM ATTENDANCE FOR CLASS CREDIT OR FINAL GRADE. (a) Except as provided by this section, a student in any grade level from kindergarten through grade 12 may not be given credit or a final grade for a class unless the student is in attendance for at least 90 percent of the days the class is offered.


(a-1) A student who is in attendance for at least 75 percent but less than 90 percent of the days a class is offered may be given credit or a final grade for the class if the student completes a plan approved by the school's principal that provides for the student to meet the instructional requirements of the class. A student under the jurisdiction of a court in a criminal or juvenile justice proceeding may not receive credit or a final grade under this subsection without the consent of the judge presiding over the student's case.


(a-2) Subsection (a) does not apply to a student who receives credit by examination for a class as provided by Section 28.023.


(b) The board of trustees of each school district shall appoint one or more attendance committees to hear petitions for class credit or a final grade by students who are in attendance fewer than the number of days required under Subsection (a) and have not earned class credit or a final grade under Subsection (a-1). Classroom teachers shall comprise a majority of the membership of the committee. A committee may give class credit or a final grade to a student because of extenuating circumstances. Each board of trustees shall establish guidelines to determine what constitutes extenuating circumstances and shall adopt policies establishing alternative ways for students to make up work or regain credit or a final grade lost because of absences. The alternative ways must include at least one option that does not require a student to pay a fee authorized under Section 11.158(a)(15). A certified public school employee may not be assigned additional instructional duties as a result of this section outside of the regular workday unless the employee is compensated for the duties at a reasonable rate of pay.


(c) A member of an attendance committee is not personally liable for any act or omission arising out of duties as a member of an attendance committee.


(d) If a student is denied credit or a final grade for a class by an attendance committee, the student may appeal the decision to the board of trustees. The decision of the board may be appealed by trial de novo to the district court of the county in which the school district's central administrative office is located.


(e) This section does not affect the provision of Section 25.087(b) regarding a student's excused absence from school to observe religious holy days.


(f) The availability of the option developed under Subsection (b) must be substantially the same as the availability of the educational program developed under Section 11.158(a)(15).


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1999, 76th Leg., ch. 698, Sec. 2, eff. June 18, 1999.


Amended by:


Acts 2007, 80th Leg., R.S., Ch. 850 (H.B. 1137), Sec. 3, eff. June 15, 2007.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 6(a), eff. June 10, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 211 (H.B. 5), Sec. 7(a), eff. June 10, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1029 (H.B. 2694), Sec. 1, eff. June 14, 2013.


Acts 2013, 83rd Leg., R.S., Ch. 1203 (S.B. 1365), Sec. 1, eff. June 14, 2013.


Sec. 25.093. PARENT CONTRIBUTING TO NONATTENDANCE. (a) If a warning is issued as required by Section 25.095(a), the parent with criminal negligence fails to require the child to attend school as required by law, and the child has absences for the amount of time specified under Section 65.003(a), Family Code, the parent commits an offense.


(b) The attendance officer or other appropriate school official shall file a complaint against the parent in:


(1) the constitutional county court of the county in which the parent resides or in which the school is located, if the county has a population of 1.75 million or more;


(2) a justice court of any precinct in the county in which the parent resides or in which the school is located; or


(3) a municipal court of the municipality in which the parent resides or in which the school is located.


(c) An offense under Subsection (a) is a misdemeanor, punishable by fine only, in an amount not to exceed:


(1) $100 for a first offense;


(2) $200 for a second offense;


(3) $300 for a third offense;


(4) $400 for a fourth offense; or


(5) $500 for a fifth or subsequent offense.


(c-1) Each day the child remains out of school may constitute a separate offense. Two or more offenses under Subsection (a) may be consolidated and prosecuted in a single action. If the court orders deferred disposition under Article 45.051, Code of Criminal Procedure, the court may require the defendant to provide personal services to a charitable or educational institution as a condition of the deferral.


(d) A fine collected under this section shall be deposited as follows:


(1) one-half shall be deposited to the credit of the operating fund of, as applicable:


(A) the school district in which the child attends school;


(B) the open-enrollment charter school the child attends; or


(C) the juvenile justice alternative education program that the child has been ordered to attend; and


(2) one-half shall be deposited to the credit of:


(A) the general fund of the county, if the complaint is filed in the justice court or the constitutional county court; or


(B) the general fund of the municipality, if the complaint is filed in municipal court.


(e) At the trial of any person charged with violating this section, the attendance records of the child may be presented in court by any authorized employee of the school district or open-enrollment charter school, as applicable.


(f) The court in which a conviction, deferred adjudication, or deferred disposition for an offense under Subsection (a) occurs may order the defendant to attend a program for parents of students with unexcused absences that provides instruction designed to assist those parents in identifying problems that contribute to the students' unexcused absences and in developing strategies for resolving those problems if a program is available.


(g) If a parent refuses to obey a court order entered under this section, the court may punish the parent for contempt of court under Section 21.002, Government Code.


(h) It is an affirmative defense to prosecution for an offense under Subsection (a) that one or more of the absences required to be proven under Subsection (a) was excused by a school official or should be excused by the court. The burden is on the defendant to show by a preponderance of the evidence that the absence has been or should be excused. A decision by the court to excuse an absence for purposes of this section does not affect the ability of the school district to determine whether to excuse the absence for another purpose.


(i) In this section, "parent" includes a person standing in parental relation.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 1997, 75th Leg., ch. 865, Sec. 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1403, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1504, Sec. 24, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1514, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 137, Sec. 4, 5, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 283, Sec. 38, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1276, Sec. 6.001, eff. Sept. 1, 2003.


Amended by:


Acts 2011, 82nd Leg., R.S., Ch. 148 (H.B. 734), Sec. 1, eff. September 1, 2011.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 11, eff. September 1, 2015.


Sec. 25.095. WARNING NOTICES. (a) A school district or open-enrollment charter school shall notify a student's parent in writing at the beginning of the school year that if the student is absent from school on 10 or more days or parts of days within a six-month period in the same school year:


(1) the student's parent is subject to prosecution under Section 25.093; and


(2) the student is subject to referral to a truancy court for truant conduct under Section 65.003(a), Family Code.


(b) A school district shall notify a student's parent if the student has been absent from school, without excuse under Section 25.087, on three days or parts of days within a four-week period. The notice must:


(1) inform the parent that:


(A) it is the parent's duty to monitor the student's school attendance and require the student to attend school; and


(B) the student is subject to truancy prevention measures under Section 25.0915; and


(2) request a conference between school officials and the parent to discuss the absences.


(c) The fact that a parent did not receive a notice under Subsection (a) or (b) does not create a defense under Section 25.093 or under Section 65.003(a), Family Code.


(d) In this section, "parent" includes a person standing in parental relation.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 1504, Sec. 25, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1514, Sec. 5, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1276, Sec. 6.002, eff. Sept. 1, 2003.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 12, eff. September 1, 2015.


Sec. 25.0951. SCHOOL DISTRICT COMPLAINT OR REFERRAL FOR FAILURE TO ATTEND SCHOOL. (a) If a student fails to attend school without excuse on 10 or more days or parts of days within a six-month period in the same school year, a school district shall within 10 school days of the student's 10th absence refer the student to a truancy court for truant conduct under Section 65.003(a), Family Code.


(b) If a student fails to attend school without excuse as specified by Subsection (a), a school district may file a complaint against the student's parent in a county, justice, or municipal court for an offense under Section 25.093 if the school district provides evidence of the parent's criminal negligence. In this subsection, "parent" includes a person standing in parental relation.


(c) A court shall dismiss a complaint made by a school district under Subsection (b) that:


(1) does not comply with this section;


(2) does not allege the elements required for the offense;


(3) is not timely filed, unless the school district delayed the referral under Subsection (d); or


(4) is otherwise substantively defective.


(d) Notwithstanding Subsection (a), a school district may delay a referral of a student for truant conduct, or may choose to not refer a student for truant conduct, if the school district:


(1) is applying truancy prevention measures to the student under Section 25.0915; and


(2) determines that the truancy prevention measures are succeeding and it is in the best interest of the student that a referral be delayed or not be made.


Added by Acts 2001, 77th Leg., ch. 1514, Sec. 6, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 137, Sec. 9, eff. Sept. 1, 2003.


Amended by:


Acts 2005, 79th Leg., Ch. 949 (H.B. 1575), Sec. 37, eff. September 1, 2005.


Acts 2007, 80th Leg., R.S., Ch. 908 (H.B. 2884), Sec. 31, eff. September 1, 2007.


Acts 2007, 80th Leg., R.S., Ch. 984 (S.B. 1161), Sec. 1, eff. June 15, 2007.


Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 7.003, eff. September 1, 2009.


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 13, eff. September 1, 2015.


Sec. 25.0952. PROCEDURES APPLICABLE TO PARENT CONTRIBUTING TO NONATTENDANCE OFFENSE. In a proceeding based on a complaint under Section 25.093, the court shall, except as otherwise provided by this chapter, use the procedures and exercise the powers authorized by Chapter 45, Code of Criminal Procedure.


Added by Acts 2001, 77th Leg., ch. 1514, Sec. 6, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 137, Sec. 10, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 283, Sec. 40, eff. Sept. 1, 2003.


Amended by:


Acts 2015, 84th Leg., R.S., Ch. 935 (H.B. 2398), Sec. 14, eff. September 1, 2015.


SUBCHAPTER D. STUDENT/TEACHER RATIOS; CLASS SIZE



Sec. 25.111. STUDENT/TEACHER RATIOS. Except as provided by Section 25.112, each school district must employ a sufficient number of teachers certified under Subchapter B, Chapter 21, to maintain an average ratio of not less than one teacher for each 20 students in average daily attendance.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.112. CLASS SIZE. (a) Except as otherwise authorized by this section, a school district may not enroll more than 22 students in a kindergarten, first, second, third, or fourth grade class. That limitation does not apply during:


(1) any 12-week period of the school year selected by the district, in the case of a district whose average daily attendance is adjusted under Section 48.005(c); or


(2) the last 12 weeks of any school year in the case of any other district.


(b) Not later than the 30th day after the first day of the 12-week period for which a district whose average daily attendance is adjusted under Section 48.005(c) is claiming an exemption under Subsection (a), the district shall notify the commissioner in writing that the district is claiming an exemption for the period stated in the notice.


(c) In determining the number of students to enroll in any class, a school district shall consider the subject to be taught, the teaching methodology to be used, and any need for individual instruction.


(d) On application of a school district, the commissioner may except the district from the limit in Subsection (a) if the commissioner finds the limit works an undue hardship on the district. An exception expires at the end of the school year for which it is granted.


(e) A school district seeking an exception under Subsection (d) shall notify the commissioner and apply for the exception not later than the later of:


(1) October 1; or


(2) the 30th day after the first school day the district exceeds the limit in Subsection (a).


(f) If a school district repeatedly fails to comply with this section, the commissioner may take any appropriate action authorized to be taken by the commissioner under Section 39.131.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995. Amended by Acts 2001, 77th Leg., ch. 889, Sec. 1, eff. June 14, 2001.


Amended by:


Acts 2009, 81st Leg., R.S., Ch. 1347 (S.B. 300), Sec. 2, eff. June 19, 2009.


Acts 2019, 86th Leg., R.S., Ch. 943 (H.B. 3), Sec. 3.020, eff. September 1, 2019.


Sec. 25.113. NOTICE OF CLASS SIZE. (a) A campus or district that is granted an exception under Section 25.112(d) from class size limits shall provide written notice of the exception to the parent of or person standing in parental relation to each student affected by the exception. The notice must be in conspicuous bold or underlined print and:


(1) specify the class for which an exception from the limit imposed by Section 25.112(a) was granted;


(2) state the number of children in the class for which the exception was granted; and


(3) be included in a regular mailing or other communication from the campus or district, such as information sent home with students.


(b) The notice required by Subsection (a) must be provided not later than the 31st day after:


(1) the first day of the school year; or


(2) the date the exception is granted, if the exception is granted after the beginning of the school year.


Added by Acts 2001, 77th Leg., ch. 889, Sec. 2, eff. June 14, 2001.


Sec. 25.114. STUDENT/TEACHER RATIOS IN PHYSICAL EDUCATION CLASSES; CLASS SIZE. (a) In implementing the curriculum for physical education under Section 28.002(a)(2)(C), each school district shall establish specific objectives and goals the district intends to accomplish through the curriculum, including, to the extent practicable, student/teacher ratios that are small enough to enable the district to:


(1) carry out the purposes of and requirements for the physical education curriculum as provided under Section 28.002(d); and


(2) ensure the safety of students participating in physical education.


(b) If a district establishes a student to teacher ratio greater than 45 to 1 in a physical education class, the district shall specifically identify the manner in which the safety of the students will be maintained.


Added by Acts 2009, 81st Leg., R.S., Ch. 773 (S.B. 891), Sec. 2, eff. June 19, 2009.


SUBCHAPTER E. STUDENT EXPRESSION OF RELIGIOUS VIEWPOINTS



Sec. 25.151. STUDENT EXPRESSION. A school district shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.152. LIMITED PUBLIC FORUM; SCHOOL DISTRICT POLICY. (a) To ensure that the school district does not discriminate against a student's publicly stated voluntary expression of a religious viewpoint, if any, and to eliminate any actual or perceived affirmative school sponsorship or attribution to the district of a student's expression of a religious viewpoint, if any, a school district shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak. The policy regarding the limited public forum must also require the school district to:


(1) provide the forum in a manner that does not discriminate against a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject;


(2) provide a method, based on neutral criteria, for the selection of student speakers at school events and graduation ceremonies;


(3) ensure that a student speaker does not engage in obscene, vulgar, offensively lewd, or indecent speech; and


(4) state, in writing, orally, or both, that the student's speech does not reflect the endorsement, sponsorship, position, or expression of the district.


(b) The school district disclaimer required by Subsection (a)(4) must be provided at all graduation ceremonies. The school district must also continue to provide the disclaimer at any other event in which a student speaks publicly for as long as a need exists to dispel confusion over the district's nonsponsorship of the student's speech.


(c) Student expression on an otherwise permissible subject may not be excluded from the limited public forum because the subject is expressed from a religious viewpoint.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.153. RELIGIOUS EXPRESSION IN CLASS ASSIGNMENTS. Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments must be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school district. Students may not be penalized or rewarded on account of the religious content of their work.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.154. FREEDOM TO ORGANIZE RELIGIOUS GROUPS AND ACTIVITIES. Students may organize prayer groups, religious clubs, "see you at the pole" gatherings, or other religious gatherings before, during, and after school to the same extent that students are permitted to organize other noncurricular student activities and groups. Religious groups must be given the same access to school facilities for assembling as is given to other noncurricular groups without discrimination based on the religious content of the students' expression. If student groups that meet for nonreligious activities are permitted to advertise or announce meetings of the groups, the school district may not discriminate against groups that meet for prayer or other religious speech. A school district may disclaim school sponsorship of noncurricular groups and events in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.155. ADOPTION OF POLICY. A school district shall adopt and implement a local policy regarding a limited public forum and voluntary student expression of religious viewpoints. If a school district voluntarily adopts and follows the model policy governing voluntary religious expression in public schools as provided by Section 25.156, the district is in compliance with the provisions of this subchapter covered by the model policy.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


Sec. 25.156. MODEL POLICY GOVERNING VOLUNTARY RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS. In this section, "model policy" means a local policy adopted by the school district that is substantially identical to the following:


ARTICLE I



STUDENT EXPRESSION OF RELIGIOUS VIEWPOINTS



The school district shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


ARTICLE II



STUDENT SPEAKERS AT NONGRADUATION EVENTS



The school district hereby creates a limited public forum for student speakers at all school events at which a student is to publicly speak. For each speaker, the district shall set a maximum time limit reasonable and appropriate to the occasion. Student speakers shall introduce:


(1) football games;


(2) any other athletic events designated by the district;


(3) opening announcements and greetings for the school day; and


(4) any additional events designated by the district, which may include, without limitation, assemblies and pep rallies.


The forum shall be limited in the manner provided by this article.


Only those students in the highest two grade levels of the school and who hold one of the following positions of honor based on neutral criteria are eligible to use the limited public forum: student council officers, class officers of the highest grade level in the school, captains of the football team, and other students holding positions of honor as the school district may designate.


An eligible student shall be notified of the student's eligibility, and a student who wishes to participate as an introducing speaker shall submit the student's name to the student council or other designated body during an announced period of not less than three days. The announced period may be at the beginning of the school year, at the end of the preceding school year so student speakers are in place for the new year, or, if the selection process will be repeated each semester, at the beginning of each semester or at the end of the preceding semester so speakers are in place for the next semester. The names of the volunteering student speakers shall be randomly drawn until all names have been selected, and the names shall be listed in the order drawn. Each selected student will be matched chronologically to the event for which the student will be giving the introduction. Each student may speak for one week at a time for all introductions of events that week, or rotate after each speaking event, or otherwise as determined by the district. The list of student speakers shall be chronologically repeated as needed, in the same order. The district may repeat the selection process each semester rather than once a year.


The subject of the student introductions must be related to the purpose of the event and to the purpose of marking the opening of the event, honoring the occasion, the participants, and those in attendance, bringing the audience to order, and focusing the audience on the purpose of the event. The subject must be designated, a student must stay on the subject, and the student may not engage in obscene, vulgar, offensively lewd, or indecent speech. The school district shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


For as long as there is a need to dispel confusion over the nonsponsorship of the student's speech, at each event in which a student will deliver an introduction, a disclaimer shall be stated in written or oral form, or both, such as, "The student giving the introduction for this event is a volunteering student selected on neutral criteria to introduce the event. The content of the introduction is the private expression of the student and does not reflect the endorsement, sponsorship, position, or expression of the school district."


Certain students who have attained special positions of honor in the school have traditionally addressed school audiences from time to time as a tangential component of their achieved positions of honor, such as the captains of various sports teams, student council officers, class officers, homecoming kings and queens, prom kings and queens, and the like, and have attained their positions based on neutral criteria. Nothing in this policy eliminates the continuation of the practice of having these students, irrespective of grade level, address school audiences in the normal course of their respective positions. The school district shall create a limited public forum for the speakers and shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


ARTICLE III



STUDENT SPEAKERS AT GRADUATION CEREMONIES



The school district hereby creates a limited public forum consisting of an opportunity for a student to speak to begin graduation ceremonies and another student to speak to end graduation ceremonies. For each speaker, the district shall set a maximum time limit reasonable and appropriate to the occasion.


The forum shall be limited in the manner provided by this article.


Only students who are graduating and who hold one of the following neutral criteria positions of honor shall be eligible to use the limited public forum: student council officers, class officers of the graduating class, the top three academically ranked graduates, or a shorter or longer list of student leaders as the school district may designate. A student who will otherwise have a speaking role in the graduation ceremonies is ineligible to give the opening and closing remarks. The names of the eligible volunteering students will be randomly drawn. The first name drawn will give the opening and the second name drawn will give the closing.


The topic of the opening and closing remarks must be related to the purpose of the graduation ceremony and to the purpose of marking the opening and closing of the event, honoring the occasion, the participants, and those in attendance, bringing the audience to order, and focusing the audience on the purpose of the event.


In addition to the students giving the opening and closing remarks, certain other students who have attained special positions of honor based on neutral criteria, including, without limitation, the valedictorian, will have speaking roles at graduation ceremonies. For each speaker, the school district shall set a maximum time limit reasonable and appropriate to the occasion and to the position held by the speaker. For this purpose, the district creates a limited public forum for these students to deliver the addresses. The subject of the addresses must be related to the purpose of the graduation ceremony, marking and honoring the occasion, honoring the participants and those in attendance, and the student's perspective on purpose, achievement, life, school, graduation, and looking forward to the future.


The subject must be designated for each student speaker, the student must stay on the subject, and the student may not engage in obscene, vulgar, offensively lewd, or indecent speech. The school district shall treat a student's voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the district treats a student's voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.


A written disclaimer shall be printed in the graduation program that states, "The students who will be speaking at the graduation ceremony were selected based on neutral criteria to deliver messages of the students' own choices. The content of each student speaker's message is the private expression of the individual student and does not reflect any position or expression of the school district or the board of trustees, or the district's administration, or employees of the district, or the views of any other graduate. The contents of these messages were prepared by the student volunteers, and the district refrained from any interaction with student speakers regarding the student speakers' viewpoints on permissible subjects."


ARTICLE IV



RELIGIOUS EXPRESSION IN CLASS ASSIGNMENTS



Students may express the students' beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of the students' submission. Homework and classroom work shall be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school. Students may not be penalized or rewarded on account of religious content. If a teacher's assignment involves writing a poem, the work of a student who submits a poem in the form of a prayer (for example, a psalm) should be judged on the basis of academic standards, including literary quality, and not penalized or rewarded on account of its religious content.


ARTICLE V



FREEDOM TO ORGANIZE RELIGIOUS GROUPS AND ACTIVITIES



Students may organize prayer groups, religious clubs, "see you at the pole" gatherings, and other religious gatherings before, during, and after school to the same extent that students are permitted to organize other noncurricular student activities and groups. Religious groups must be given the same access to school facilities for assembling as is given to other noncurricular groups, without discrimination based on the religious content of the group's expression. If student groups that meet for nonreligious activities are permitted to advertise or announce the groups' meetings, for example, by advertising in a student newspaper, putting up posters, making announcements on a student activities bulletin board or public address system, or handing out leaflets, school authorities may not discriminate against groups that meet for prayer or other religious speech. School authorities may disclaim sponsorship of noncurricular groups and events, provided they administer the disclaimer in a manner that does not favor or disfavor groups that meet to engage in prayer or other religious speech.


Added by Acts 2007, 80th Leg., R.S., Ch. 261 (H.B. 3678), Sec. 2, eff. June 8, 2007.


SUBCHAPTER Z. MISCELLANEOUS PROVISIONS RELATING TO STUDENTS



Sec. 25.901. EXERCISE OF CONSTITUTIONAL RIGHT TO PRAY. A public school student has an absolute right to individually, voluntarily, and silently pray or meditate in school in a manner that does not disrupt the instructional or other activities of the school. A person may not require, encourage, or coerce a student to engage in or refrain from such prayer or meditation during any school activity.


Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.


Sec. 25.904. USE OF CALCULATOR APPLICATION IN PLACE OF GRAPHING CALCULATOR. (a) A school district shall permit a student enrolled in a course that requires the student to use a graphing calculator to use a calculator application on a computing device, including a personal, laptop, or tablet computer, that provides the same functionality, unless the district makes available to the student a graphing calculator at no cost to the student.


(b) A school district may adopt policies related to student use of a computing device under this section.


(c) To the extent this section conflicts with Section 37.082, this section prevails.


Added by Acts 2019, 86th Leg., R.S., Ch. 1315 (H.B. 3906), Sec. 7, eff. June 14, 2019.

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EDUCATION CODE CHAPTER 25. ADMISSION, TRANSFER, AND ATTENDANCE

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EDUCATION CODE TITLE 2. PUBLIC EDUCATION SUBTITLE E. STUDENTS AND PARENTS CHAPTER 25. ADMISSION, TRANSFER, AND ATTENDANCE SUBCHAPTER A. ADMISSION AND ENROLLMENT Sec. 25.001. ADMISSION.

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Tex. Const. art. 1 § 3a (added 1972).

The Equal Protection Clause

Amendment applies to children, born in a marriage or not

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THE TEXAS CONSTITUTION



ARTICLE 1. BILL OF RIGHTS



That the general, great and essential principles of liberty and free government may be recognized and established, we declare:


Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.


(Feb. 15, 1876.)


Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.


(Feb. 15, 1876.)


Sec. 3. EQUAL RIGHTS. All freemen†, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.


(Added Nov. 7, 1972.)


Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.


(Feb. 15, 1876.)


Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.


(Feb. 15, 1876.)


Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.


(Feb. 15, 1876.)


Sec. 6-a. RELIGIOUS SERVICE PROTECTIONS. This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.


(Added Nov. 2, 2021.)


Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.


(Feb. 15, 1876.)


Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases.


(Feb. 15, 1876.)


Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.


(Feb. 15, 1876.)


Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall hav† a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself† and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense.† unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penetentiary†, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.


(Feb. 15, 1876. Amended Nov. 5, 1918.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offences†, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.


(b) In this section:


(1) "Violent offense" means:


(A) murder;


(B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault;


(C) aggravated kidnapping; or


(D) aggravated robbery.


(2) "Sexual offense" means:


(A) aggravated sexual assault;


(B) sexual assault; or


(C) indecency with a child.


(Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a) amended and (b) added Nov. 2, 1993.)


Sec. 11b. DENIAL OF BAIL FOR VIOLATION OF CONDITION OF RELEASE. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.


(Added Nov. 8, 2005; amended Nov. 6, 2007.)


Sec. 11c. DENIAL OF BAIL FOR VIOLATION OF PROTECTIVE ORDER INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense.


(Added Nov. 6, 2007.)


Sec. 12. HABEAS CORPUS. The writ of Habeas Corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.


(Feb. 15, 1876.)


Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.


(Feb. 15, 1876.)


Sec. 14. DOUBLE JEOPARDY. No person, for the same offence†, shall be twice put in jeopardy of life or liberty,† nor shall a person be again put upon trial for the same offence,† after a verdict of not guilty in a court of competent jurisdiction.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here and here.


Sec. 15. RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury.


(Feb. 15, 1876. Amended Aug. 24, 1935.)


Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.


(Added Nov. 6, 1956.)


Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.


(Feb. 15, 1876.)


Sec. 17. TAKING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES. (a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:


(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:


(A) the State, a political subdivision of the State, or the public at large; or


(B) an entity granted the power of eminent domain under law; or


(2) the elimination of urban blight on a particular parcel of property.


(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.


(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.


(d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.


(Feb. 15, 1876. Amended Nov. 3, 2009.)


Sec. 18. IMPRISONMENT FOR DEBT. No person shall ever be imprisoned for debt.


(Feb. 15, 1876.)


Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.


(Feb. 15, 1876.)


Sec. 20. OUTLAWRY OR TRANSPORTATION OUT OF STATE FOR OFFENSE. No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same. This section does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correctional facilities of that state.


(Feb. 15, 1876. Amended Nov. 5, 1985.)


Sec. 21. CORRUPTION OF BLOOD; FORFEITURE OF ESTATE; SUICIDES. No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.


(Feb. 15, 1876.)


Sec. 22. TREASON AGAINST STATE. Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court.


(Feb. 15, 1876.)


Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defence† of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 24. MILITARY SUBORDINATE TO CIVIL AUTHORITY. The military shall at all times be subordinate to the civil authority.


(Feb. 15, 1876.)


Sec. 25. QUARTERING SOLDIERS IN HOUSES. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law.


(Feb. 15, 1876.)


Sec. 26. PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.


(Feb. 15, 1876.)


Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.


(Feb. 15, 1876.)


Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature.


 (Feb. 15, 1876.)


Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that every thing in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.


(Feb. 15, 1876.)


Sec. 30. RIGHTS OF CRIME VICTIMS. (a) A crime victim has the following rights:


(1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and


(2) the right to be reasonably protected from the accused throughout the criminal justice process.


(b) On the request of a crime victim, the crime victim has the following rights:


(1) the right to notification of court proceedings;


(2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial;


(3) the right to confer with a representative of the prosecutor's office;


(4) the right to restitution; and


(5) the right to information about the conviction, sentence, imprisonment, and release of the accused.


(c) The legislature may enact laws to define the term "victim" and to enforce these and other rights of crime victims.


(d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims.


(e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal or post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.


(Added Nov. 7, 1989.)


Sec. 31. FUNDS FOR COMPENSATION TO VICTIMS OF CRIME. (a) The compensation to victims of crime fund created by general law and the compensation to victims of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund.


(b) Except as provided by Subsection (c) of this section and subject to legislative appropriation, money deposited to the credit of the compensation to victims of crime fund or the compensation to victims of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance.


(c) The legislature may provide by law that money in the compensation to victims of crime fund or in the compensation to victims of crime auxiliary fund may be expended for the purpose of assisting victims of episodes of mass violence if other money appropriated for emergency assistance is depleted.


(Added Nov. 4, 1997.)


Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.


(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.


(Added Nov. 8, 2005.)


Sec. 33. PUBLIC ACCESS TO AND USE OF PUBLIC BEACHES. (a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.


(b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.


(c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.


(d) This section does not create a private right of enforcement.


(Added Nov. 3, 2009.)


Sec. 34. RIGHT TO HUNT, FISH, AND HARVEST WILDLIFE. (a) The people have the right to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing.


(b) Hunting and fishing are preferred methods of managing and controlling wildlife.


(c) This section does not affect any provision of law relating to trespass, property rights, or eminent domain.


(d) This section does not affect the power of the legislature to authorize a municipality to regulate the discharge of a weapon in a populated area in the interest of public safety.


(Added Nov. 3, 2015.)


Sec. 35. RIGHT OF CERTAIN FACILITY RESIDENTS TO DESIGNATE ESSENTIAL CAREGIVER. (a) A resident of a nursing facility, assisted living facility, intermediate care facility for individuals with an intellectual disability, residence providing home and community-based services, or state supported living center, as those terms are defined by general law, has the right to designate an essential caregiver with whom the facility, residence, or center may not prohibit in-person visitation.


(b) Notwithstanding Subsection (a) of this section, the legislature by general law may provide guidelines for a facility, residence, or center described by Subsection (a) of this section to follow in establishing essential caregiver visitation policies and procedures.


(Added Nov. 2, 2021.)

# data[].attributes.attachment_link.title
THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS

# data[].attributes.body
Troxel v. Granville, 530 US 57 (2000)

Parents have a fundamental right to control the upbringing of their children

U.S. Supreme Court has not addressed a constitutional right for minor siblings to maintain contact with each other once placed in foster care by the state

# data[].attributes.attachment_link.readable_text
Citations are generated automatically from bibliographic data as a convenience, and may not be complete or accurate.

Chicago citation style:

O'Connor, Sandra Day, and Supreme Court Of The United States. U.S. Reports: Troxel et vir v. Granville, 530 U.S. 57. 1999. Periodical. https://www.loc.gov/item/usrep530057/.

APA citation style:

O'Connor, S. D. & Supreme Court Of The United States. (1999) U.S. Reports: Troxel et vir v. Granville, 530 U.S. 57. [Periodical] Retrieved from the Library of Congress, https://www.loc.gov/item/usrep530057/.

MLA citation style:

O'Connor, Sandra Day, and Supreme Court Of The United States. U.S. Reports: Troxel et vir v. Granville, 530 U.S. 57. 1999. Periodical. Retrieved from the Library of Congress, <www.loc.gov/item/usrep530057/>.

# data[].attributes.attachment_link.title
U.S. Reports: Troxel et vir v. Granville, 530 U.S. 57 (2000).

# data[].attributes.attachment_link.description
Citations are generated automatically from bibliographic data as a convenience, and may not be complete or accurate. O'Connor, Sandra Day, and Supreme Court Of The United States. U.S. Reports: Troxel et vir v. Granville, 530 U.S. 57. 1999. Periodical. https://www.loc.gov/item/usrep530057/. O'Connor, S. D. & Supreme Court Of The United States.

# data[].attributes.body
Aristotle P. v. Johnson, 721 F. Supp. 1002 (N.D. Ill. 1989)

Class-action suit against the director of DCFS and the guardianship administrator

Seven siblings placed in separate foster homes or residential facilities and denied the opportunity to visit their siblings

Ruling that failing to provide visits among siblings on
a reasonable basis violates the right to freedom of association under the First Amendment

# data[].attributes.attachment_link.readable_text
U.S. District Court for the Northern District of Illinois - 721 F. Supp. 1002 (N.D. Ill. 1989)
September 7, 1989

ARISTOTLE P., et al., Plaintiffs,
v.
Gordon JOHNSON and Gary Morgan, Defendants.

United States District Court, N.D. Illinois, E.D.

ANN C. WILLIAMS, District Judge.

The seven plaintiffs bring this three count complaint on the behalf of a class of similarly situated children pursuant to 42 U.S.C. § 1983 alleging that the defendants Gordon Johnson and Gary Morgan violated their rights under the First and Fourteenth Amendments and under the Adoptive Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-628, 670-679 ("AAA"). The defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b) (6). For the following reasons, the court will grant the defendants' motion in part and deny the motion in part.

When ruling on this motion, pursuant to Federal Rule of Civil Procedure 12(b) (6), the court will "take the allegations in the complaint to be true and view them, along with the reasonable inferences to be drawn from them, in the light most favorable to the plaintiff." Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985); cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). A complaint should be dismissed only when "it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle plaintiff to relief." Id. A "court must construe pleadings liberally, and mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985). Moreover, "in `complex cases involving fundamental rights and important questions of public policy, such preemptory treatment [as dismissal] is rarely appropriate.'" DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir.1988), quoting Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1414 (7th Cir.1988) (Ripple, J., concurring in part, dissenting in part).

The pertinent factual allegations of the complaint are as follows. The plaintiffs are children who are wards of the court and are under the guardianship of the Illinois Department of Children and Family Services ("DCFS"). On September 15, 1988, when the complaint was filed, the plaintiffs ranged in age from one year to eighteen years old. The defendant Johnson, who is sued in his official capacity, is the Director of DCFS. He is responsible for developing, implementing, and administering the programs and practices of DCFS and for ensuring that DCFS' practices comply with all constitutional and statutory provisions. The defendant Morgan, who is also sued in his official capacity, is the Guardianship Administrator of DCFS. Morgan is responsible for establishing policies and procedures to provide adequate care and protection to children in placement. The plaintiffs challenge the defendant's practices of placing siblings in separate foster homes or residential facilities and denying the plaintiffs the opportunity to visit their sisters and brothers who are placed elsewhere. Complaint, ¶ 3.

With the exception of the plaintiff Aristotle P., all of the Children were involuntarily removed from their families' homes by DCFS.[1] Each of the plaintiffs were physically separated from their siblings. This separation caused the plaintiffs to suffer emotional harm. Complaint, ¶¶ 29, 31, 39, 41, 51, 69. DCFS had knowledge of the childrens' woes. Id. at ¶¶ 29, 31, 39, 41. Some of the plaintiffs' foster parents informed DCFS of their willingness to facilitate visits between their foster children and his or her siblings. Id. at ¶¶ 34, 70. Notwithstanding this, DCFS has either refused to arrange sibling visits[2] or has provided for them on an infrequent basis.[3] Mary Freeman, a DCFS worker, stated that DCFS is mandated to provide only parent and child visits. Id. at ¶ 54. The DCFS foster homes operated by Ada McKinley have a practice of prohibiting anyone, including relatives of their foster children, from coming into their foster homes. The McKinley homes also prohibit foster children from visiting other homes including those of their relatives. The defendants are aware of McKinley's practice and support it. Id. at ¶¶ 70-72. The plaintiffs seek a declaratory judgment that DCFS' practices violate the First and Fourteenth Amendments and the AAA. They also seek injunctive relief.[4]

In Count I of the complaint, the plaintiffs contend that the defendants' practices of placing siblings in separate placements and then failing to provide visits among siblings on a reasonable basis violates their right to freedom of association under the First Amendment as applied to the state through the Fourteenth Amendment. Their theory is predicated on the Supreme Court's decision in Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). In Roberts, the Court noted that it has "referred to constitutionally protected `freedom of association' in the two distinct senses." Id. at 617, 104 S. Ct. at 3249. Freedom of association, as defined by one line of decisions, protects "choices to enter into and maintain certain intimate human relationships ... against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme." Id. at 617-18, 104 S. Ct. at 3249. The relationship between two family members is the paradigm of such intimate human relationships. See Id. at 618-19, 104 S. Ct. at 3249-50. "In this respect, freedom of association receives protection as a fundamental element of personal liberty." Id. at 618, 104 S. Ct. at 3249.[5] The Children base their rights of freedom of association on the above language.

The Supreme Court has cited Roberts for the proposition that the First Amendment embraces both variants of the right of freedom of association. See City of Dallas v. Stanglin, ___ U.S. ___, 109 S. Ct. 1591, 1594, 104 L. Ed. 2d 18 (1989) ("While the First Amendment does not in terms protect a `right of association,' our cases have recognized that it embraces such a right in certain circumstances"); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 545, 107 S. Ct. 1940, 1945, 95 L. Ed. 2d 474 (1987) "The First Amendment protects those relationships, including family relationships ..."). Notwithstanding the Rotary International and the Stanglin decisions, some lower courts have interpreted Roberts to find that the right to enter into and maintain certain private, intimate relationships is guaranteed by the Due Process Clause of the Fourteenth Amendment. See IDK, Inc. v. County of Clark, 836 F.2d 1185, 1192 (9th Cir.1988); Trujillo v. Board of County Commissioners, 768 F.2d 1186, 1188-89 n. 4 (10th Cir.1985); Kukla v. Village of Antioch, 647 F. Supp. 799, 806 (N.D. Ill.1986) (Moran, J.); see also, Mayo v. Lane, 867 F.2d 374, 375 (7th Cir.1989) ("The concept of liberty in the Fourteenth Amendment has been held to embrace a right to associate with one's relatives"), Linder, Freedom of Association After Roberts v. United States Jaycees, 82 Mich.L. Rev. 1878, 1884-85 (1984).

The chronological order in which the various decisions were issued provides one possible explanation for the divergent views as to which amendment protects the first variant of the right to freedom of association. The Stanglin case was decided after all of the lower court cases cited above. Nevertheless, even the members of the Supreme Court are not in unanimous agreement on this question. See Stanglin, 109 S. Ct. at 1597 (Steven, J., concurring). This court finds that the childrens' relationships with their siblings are the sort of "intimate human relationships" that are afforded "a substantial measure of sanctuary from unjustified interference by the State." Roberts, 468 U.S. at 618, 104 S. Ct. at 3250; see Trujillo, 768 F.2d at 1189 n. 5 (the siblings' "relationships at issue clearly fall within the protected range" established in Roberts); Cf. Rode v. Dellarciprete, 845 F.2d 1195, 1204-05 (3d Cir.1988) (relationship with brother-in-law, a non-blood relative, is not protected).[6] The plaintiffs' relationships with their siblings are even more important because their relationships with their biological parents are often tenuous or non-existent. See Complaint, ¶¶ 44-46, 48, 61, 67, 75, 83.

The defendants' policies, which allegedly infringe on the plaintiffs' constitutionally protected right to associate with their siblings, must be evaluated under a heightened level of scrutiny. See Stanglin, 109 S. Ct. at 1594; Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612, 637, 46 L. Ed. 2d 659 (1976). The defendants, as state actors, may infringe on an individual's right to associate if they have a sufficiently compelling interest that "cannot be achieved through means significantly less restrictive of associational freedoms." Roberts, 468 U.S. at 623, 104 S. Ct. at 3252. The plaintiffs do not challenge the defendants' action which removed them from their parents or initial guardians and placed them in DCFS' custody. Accordingly, the court presumes that the defendants had a compelling interest in removing the plaintiffs from their initial home environment. However, in light of the policies at issue here, the question of whether the defendants could protect their compelling interest in a manner significantly less restrictive of associational freedoms is an open one. The plaintiffs argue that a DCFS policy which allowed and facilitated sibling visits would be less restrictive of associational freedoms. Such a policy would also further promote the compelling interest of protecting the children from harm.[7] This question must be taken up at a latter stage in the proceedings.

The defendants also move for dismissal on the grounds that the plaintiffs have failed to make sufficient allegations of intent. The defendants are sued in their official capacities. "Official capacity suits ... `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985), quoting Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, n. 55, 98 S. Ct. 2018, 2035 n. 55, 56 L. Ed. 2d 611 (1978). An entity will be liable under § 1983 when its policy or custom causes the injury in question. See City of Canton v. Harris, ___ U.S. ___, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989); Monell, 436 U.S. at 694-95, 98 S. Ct. at 2037-38. A showing of "deliberate indifference" is sufficient to sustain a § 1983 action against a government entity. See Canton, 109 S. Ct. at 1206; B.H. v. Johnson, 715 F. Supp. 1387, 1398 (N.D.Ill.1989) (Grady, J.) (same).

The allegations of the complaint, read in the light most favorable to the plaintiffs, establish that the defendants enforced and maintained their policies regarding sibling visitation notwithstanding their knowledge that these policies were causing severe emotional harm to the plaintiffs. The allegations support an inference that the defendants were deliberately indifferent toward the plaintiffs' rights. See, e.g., Richardson v. Penfold, 839 F.2d 392, 395 (7th Cir.1988) (deliberate indifference is proven by showing actual intent or recklessness. An actor is reckless when he or she disregards a substantial and known risk of danger). Accordingly, the court finds that the plaintiffs have stated a § 1983 claim for the defendants' violation of their First Amendment Rights.

The plaintiffs contend that the defendants violated their substantive due process rights as guaranteed by the Fourteenth Amendment in Count II of their complaint. The defendants move to dismiss this count on the grounds that the plaintiffs do not have a Fourteenth Amendment liberty interest in their relationships with their siblings. They rely primarily on the Seventh Circuit's decision in Bell. The Bell decision, as this court interprets it, does not stand for the proposition that a liberty interest in a sibling relationship will never be protected by the Fourteenth Amendment. The Seventh Circuit was careful to distinguish between awarding money damages and providing other forms of relief. As the court stated,

[w]e can conceive of potential state statutes severing relationships between siblings (though likely not effecting a severance as irreversible and egregious as the one resulting from the shouting and killing at issue). Such statutes should be stricken as being arbitrary and unreasonable, but this approach is not the equivalent of awarding damages under Section 1983 and the Fourteenth Amendment for the loss of society and companionship of a sibling, state law being entirely subsumed in the process.

Bell, 746 F.2d at 1246-47 (emphasis added). Moreover, the fact that Wisconsin state law did not allow siblings to recover for loss of society and companionship was not, as the defendants contend, merely "incidental" to the court's holding. See Id. at 1247 ("the legal consequences of many important relationships, including family relationships, are often governed by State law, and here the Wisconsin legislature has expressly decided that no tort recovery is in order").

Supreme Court and subsequent Seventh Circuit caselaw provides further support for the proposition that the Fourteenth Amendment embraces a right to associate with one's relatives. See Moore v. East Cleveland, 431 U.S. 494, 500-04, 97 S. Ct. 1932, 1936-38, 52 L. Ed. 2d 531 (1977) (plurality opinion); Mayo, 867 F.2d at 375 (appellant's argument "that her natural liberty includes a right of association with members of her family, such as [her] grandnephew ... is not a frivolous argument"); Bergren v. City of Milwaukee, 811 F.2d 1139, 1144 (7th Cir.1987). As the Seventh Circuit noted in Bergren, "[t]here can be no question that the `integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment.'" Bergren, 811 F.2d at 1144, quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1213, 31 L. Ed. 2d 551 (1972). In Moore, the court stated that "[o]ur decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition." Moore, 431 U.S. at 503, 97 S. Ct. at 1938; see also Philadelphia Police and Fire Association for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 165 (3d Cir.1989) (the court, in reliance on Moore, recognized a fundamental right to family integrity).

In Bell, the Seventh Circuit relied on Moore to find that a state statute which severs relationships between siblings should be stricken. Bell, 746 F.2d at 1246. The defendants contend that they have not severed the plaintiffs' relationships in the manner contemplated by the Seventh Circuit. Defendants' Reply, at 6. While the court did not precisely determine what sort of severance would suffice, it did state that such a severance need not be irrevocable and as egregious as one resulting from a siblings' death at the hands of a state actor. Bell, 746 F.2d at 1247. In this case, the defendants' policies, resulted in the physical separation of the plaintiffs and their siblings for extended periods of time.[8] One plaintiff specifically alleges that he was unable to maintain a relationship with two of his siblings because of DCFS' visitation policies. Complaint, ¶ 82. In another instance, one plaintiff has never even had the opportunity to develop a relationship with her siblings because the sisters were infants when taken into DCFS' custody and DCFS has never arranged for visitation between them. Id. at ¶¶ 85-88. Thus, the defendants' policies have seriously damaged, if not severed, the relationships between the plaintiffs and their siblings.

The defendants further contend that the plaintiffs have failed to specifically allege that their actions were arbitrary and unreasonable. Defendants' Reply, at 6. This is true. However, there are no allegations in the complaint which suggest that the defendants' policies are based in reason. The defendants' support of Ada S. McKinley's foster home policies as well as their failure to facilitate visits when the foster parents have expressed their willingness to cooperate seem to be particularly unreasonable. Of course, the complaint presents only the plaintiffs' side of the story. The defendants will have the opportunity to present their side of the story at a latter stage of these proceedings. The pertinent consideration at this point is that the plaintiffs have sufficiently alleged the existence of a policy which deprives their liberty interests in their sibling relationships by severing these relationships. The court may grant relief on this claim. Bell, 746 F.2d at 1205.

The second prong of the plaintiffs' substantive due process argument is based on the fact that they were involuntarily taken into the State's custody. The plaintiffs seek to analogize their situation to incarceration or institutionalization. The Supreme Court has held that the State has an affirmative duty to assume some responsibility for the safety and general well-being of those who are incarcerated or involuntarily institutionalized. See DeShaney v. Winnebago County Department of Social Services, ___ U.S. ___, 109 S. Ct. 998, 1004-06, 103 L. Ed. 2d 249 (1989) (citing to Estelle v. Gamble, 429 U.S. 97, 103-04, 97 S. Ct. 285, 290-91, 50 L. Ed. 2d 251 (1976) and Youngberg v. Romeo, 457 U.S. 307, 316-17, 102 S. Ct. 2452, 2458-59, 73 L. Ed. 2d 28 (1982)). In DeShaney, the Court expressed "no view on the validity of the analogy" between the circumstances of children whom the state removes from free society and places in a foster home operated by its agents and the circumstances of those who are incarcerated or institutionalized. DeShaney, 109 S. Ct. at 1006 n. 9. The Seventh Circuit has also failed to express a definite opinion on the validity of the plaintiffs' analogy. See Doe v. Bobbitt, 881 F.2d 510, 512 (7th Cir.1989). However, the Second and Eleventh Circuits as well as Judge Grady from this District have found that the plaintiffs' analogy is a valid one. See Doe v. New York City Department of Social Services, 649 F.2d 134, 141-42 (2d Cir.1981), appeal after remand, 709 F.2d 782 (2nd Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-97 (11th Cir.1987) (en banc), cert. denied, ___ U.S. ___, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989); B.H., 715 F. Supp. at 1396; see also Gibson v. Merced County Department of Human Resources, 799 F.2d 582, 589-90 (9th Cir.1986) (assumes, without expressly holding, that the Doe analogy is proper).

The defendants object to the extension of the Youngberg-Estelle principles to the circumstances of this case. The defendants rely principally on the Second Circuit's decision in Black v. Beame, 419 F. Supp. 599 (S.D.N.Y.1976), aff'd, 550 F.2d 515 (2d Cir. 1977). In Black, the district court noted that "[t]here is no constitutional obligation on the State either to provide plaintiffs with welfare or housing benefits or to affirmatively insure a given type of family life...." Id. at 607. The relief sought by the plaintiffs in Black was more expansive than the relief sought in this case. More importantly, the children in Black were voluntarily placed into foster care by their mother. Id. at 602, 606; see Milburn v. Anne Arudel County Department of Social Services, 871 F.2d 474, 476 (4th Cir. 1989) (the court notes the distinction between voluntary and involuntary placement into a foster home). The court emphasized that "[t]here [was] no claim that the four plaintiffs in foster care were pulled involuntarily from their home by the State...." Id. at 606. In this case, the plaintiffs were involuntarily taken from free society. In Black, the court also held that it "ha[d] the power to insure that no state agency improperly interfere[d] in the Black's family life." Id. at 607 (emphasis in the original). The plaintiffs here allege here that the defendants' policies are improperly interfering with their family right by depriving them of their liberty interest in their sibling relationships. The Black decision is distinguishable for these reasons.[9]

After reviewing the pertinent authority, the court finds that the Taylor and Doe decisions are persuasive and will follow them.[10] In Taylor, the court held "that a child involuntarily placed in a foster home is in a situation so analogous to a prisoner in a penal institution and a child confined in a mental health facility that the foster child may bring a section 1983 action for violation of fourteenth amendment rights." Taylor, 818 F.2d at 797; see also Philadelphia Police, 874 F.2d at 168, quoting DeShaney, 109 S. Ct. at 1006 ("a `state's affirmative act of restraining the individual's freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint on personal liberty' is a prerequisite to the state's obligation to provide care"). The Taylor court based its decision in main part on the "risk of harm" that the helpless, isolated children are exposed to in foster homes. Id. The court also made note of society's rising consciousness and stated that "it is time that the law [should] give to these defenseless children at least the same protection afforded adults who are imprisoned as a result of their own misdeeds." Id; see Doe, 649 F.2d at 145.

This court is further persuaded to accept the above reasoning after a review of the Seventh Circuit's decision in DeShaney where the court intimated its approval of Doe. In DeShaney, the plaintiffs sued the defendant county department of social services alleging that it recklessly failed to protect the minor plaintiff from his father's child abuse. The minor plaintiff was in the custody of his father at all pertinent times. The Seventh Circuit stated that "[h]ad Joshua (the minor plaintiff) been a foundling in the custody of the state, which then placed him with foster parents who it knew or strongly suspected would abuse the child, this case would be like Doe." DeShaney, 812 F.2d at 303.

The court finds that the plaintiffs have a substantive due process right under the Fourteenth Amendment

to be free from unreasonable and unnecessary intrusions upon their physical and emotional well-being, while directly or indirectly in state custody, and to be provided by the state with adequate food, shelter, clothing and medical care ...

B.H., 715 F. Supp. at 1396. The plaintiffs have stated a claim for the violation of their substantive due process clause by alleging that the defendants, with deliberate indifference,[11] pursued policies which caused them injuries by impairing their relationships with their siblings. The fact that the plaintiffs' injuries are psychological rather than physical is of no moment. See White v. Rochford, 592 F.2d 381, 385 (7th Cir.1979) (citing to Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978)) ("the protections of the Due Process Clause against arbitrary intrusions on personal security includes [sic] both physical and emotional well-being"); Crawford v. Garnier, 719 F.2d 1317, 1324 (7th Cir.1983) (personal distress and emotional pain and suffering while "very subjective matter ... [are] compensable" under § 1983); Mendez v. Rutherford, 655 F. Supp. 115, 118 (N.D. Ill.1986).

When determining whether the plaintiffs' substantive due process rights "ha[ve] been violated, it is necessary to balance `the liberty of the individual[s]' and `the demands of an organized Society.'" Youngberg, 457 U.S. at 320, 102 S. Ct. at 2460, quoting Doe v. Ullman, 367 U.S. 497, 542, 81 S. Ct. 1752, 1776, 6 L. Ed. 2d 989 (1961) (Harlan, J., dissenting). The balancing of these interests is entrusted to professionals and is not "left to the unguided discretion of a judge or jury." Id.[12] The court must first determine whether professional judgment was exercised when the policies at issue were devised and implemented. Id. The decision with respect to the policies, "if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323, 102 S. Ct. at 2462. This is a deferential standard. Id. at 321-23, 102 S. Ct. at 2461-62. However, this issue cannot be resolved on the defendants' motion to dismiss. See, e.g., Gibson, 799 F.2d at 590. Accordingly, the defendants' motion to dismiss Count II of the complaint is denied.

Count IV: Violation of the Adoption Assistance and Child Welfare Act of 1980

In Count III, the plaintiffs allege that the defendants' policies violate the AAA by not requiring the development of a case plan that ensures placement in the least restrictive, most family like setting, consistent with a child's best interests and special needs. The plaintiffs further allege that the defendants have violated the AAA by not making reasonable efforts to reunify their families. The defendants move to dismiss this count asserting that there are several hurdles which stand in the way of the plaintiffs' efforts to state a valid cause of action under this statute. While the court does not find all of the supposed hurdles to be insurmountable, it does agree that this count must be dismissed.

The plaintiffs bring this action under § 1983.[13] The court must first determine whether the AAA creates any enforceable rights under § 1983. "Since 1871, when it was passed by Congress, § 1983 has stood as an independant safeguard against deprivations of federal constitutional and statutory rights." Smith v. Robinson, 468 U.S. 992, 1012, 104 S. Ct. 3457, 3468, 82 L. Ed. 2d 746 (1984). The Supreme Court has "recognized two exceptions to the application of § 1983 to remedy statutory violations: where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges, or immunities within the meaning of § 1983." Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S. Ct. 766, 770, 93 L. Ed. 2d 781 (1987). When making this determination, the court is aware that "[t]he crucial consideration is what Congress intended." Smith, 468 U.S. at 1012, 104 S. Ct. at 3468. The defendants bear the burden of demonstrating that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right. Wright, 479 U.S. at 423-24, 107 S. Ct. at 770-71 This conclusion is not easily drawn. Id.

The defendants assert that Congress foreclosed the enforcement of any AAA rights under § 1983. Specifically, they contend that the AAA's remedial devices are "sufficiently comprehensive ... to demonstrate Congressional intent to preclude the remedy of suits under § 1983." Middlesex County Sewage Authority v. National Sea Clammers Association, 453 U.S. 1, 20, 101 S. Ct. 2615, 2626, 69 L. Ed. 2d 435 (1981). The Section 671(b) of the AAA allows the Secretary of the Department of Health and Human Services to withhold or reduce the federal funds paid to a state when the state plan fails to comply with § 671(a) or when there is a substantial failure to substantially comply with the terms of the plan. 42 U.S.C. § 671(b). The AAA also makes provisions for administrative hearings. Id. The court finds that these remedial provisions are insufficient to demonstrate the requisite Congressional intent.

As an initial matter, "generalized powers" such as the ability to cut off federal funds, "are insufficient to indicate a congressional intention to foreclose § 1983 remedies." Wright, 479 U.S. at 428, 107 S. Ct. at 773, Cf. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S. Ct. 1531, 1545, 67 L. Ed. 2d 694 (1981). Moreover, the absence of a private judicial remedy within the AAA statutory scheme is persuasive evidence that Congress did not intend to foreclose a § 1983 remedy. See Wright, 479 U.S. at 427, 107 S. Ct. at 772 (citing to Sea Clammers and Smith). Finally, the First and Fourth Circuits along with at least two district courts have held that a § 1983 action may be brought for the violation of certain rights guaranteed by the AAA. L.J. v. Massinga, 838 F.2d 118, 123 (4th Cir.1988); Lynch v. Dukakis, 719 F.2d 504, 509-12 (1st Cir. 1983); Joseph A. by Wolfe v. New Mexico Department of Human Services, 575 F. Supp. 346, 353 (N.N.M.1983); B.H., 715 F.Supp. at 1403-04; see also, Spielman v. Hildebrand, 873 F.2d 1377, 1386 (10th Cir. 1989).

The remaining question is the exact nature of the enforceable rights provided by the AAA. The defendants contend that the rights that the plaintiffs seek to enforce are more expansive than the rights found enforceable by any other court. They are correct. For example, in Lynch the First Circuit held that the plaintiffs "could maintain a § 1983 action for prospective injunctive relief where it has alleged that the state had not complied with the statutorily mandated procedure of developing and periodically reviewing case plans for the children under its supervision." Scrivner, 816 F.2d at 263 (citing to Lynch with approval). The court also approved the district court's requirement that limited the number of cases handled by each social worker to twenty-four and required the Department of Social Services to assign each case to a social worker within twenty-four hours at its receipt. Lynch, 719 F.2d at 512-13. The above conditions are ancillary ones intended to "ensure prospective compliance" with the case plan and review requirements. Id. at 512.

The court will follow the analysis established by the Supreme Court in Pennhurst when determining whether the claimed rights are enforceable. Statutes "enacted pursuant to the spending power," such as the AAA, are "much in the nature of ... contract[s]; in return for the federal funds, the States agree to comply with federally imposed conditions." Pennhurst, 451 U.S. at 17, 101 S. Ct. at 1540. "The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the `contract.' ... [t]here can ... be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what of it." Id. (citations omitted).

In this case, the AAA "amended Title IV of the Social Security Act and `sought to provide the states with fiscal incentives to encourage a more active and systematic monitoring of children in the foster care system.'" Scrivner, 816 F.2d at 263, quoting Vermont Department of Social and Rehabilitative Services v. United States Department of Health and Human Services, 798 F.2d 57, 59 (2d Cir.1986), cert. denied, 479 U.S. 1064, 107 S. Ct. 950, 93 L. Ed. 2d 999 (1987). A state is "afforded considerable flexibility in unilaterally developing administrative procedures compatible with its own unique foster care circumstances" as long as it complies with case plan, status review, and dispositional hearing requirements as set forth in 42 U.S.C. § 675. Scrivner, 816 F.2d at 263; Vermont, 798 F.2d at 60.

The court finds that the plaintiffs' claimed rights are not enforceable for the following reasons. Some of these rights, such as the right to be placed "in the least restrictive, most family like setting" and the right to have DCFS make "reasonable efforts to reunify families," are amorphous and not subject to precise definition. See Pennhurst, 451 U.S. at 24-25, 101 S. Ct. at 1544 ("It is difficult to know what is meant by providing `appropriate treatment' in the `least restrictive' setting"). Another right, the right to "meaningful sibling visitation," is not mentioned within the statute although it seems consistent with the statute's purpose. Given the uncertain nature of these rights and the fact that at least one of them is not even found within the statute, the court finds that Congress did not "unambiguously" express its intent to condition the grant of federal funds on the state's compliance with the above "contractual terms." Id. at 17, 24, 101 S. Ct. at 1539-40, 1543. In addition, the court finds for the above reasons that the state did not "knowingly" accept these "terms" of the contract. Id. at 17, 101 S. Ct. at 1540.

The court's conclusion should not be understood as allowing the defendants to ignore the language of the statute. See 42 U.S.C. §§ 671(a) (15), 671(a) (16), 675(5) (A). Rather, the court holds that any rights contained in these provisions may not be enforced through a § 1983 action. See Scrivner, 816 F.2d at 264 (the AAA "does not create a right to meaningful visitation enforceable under § 1983"); B.H., 715 F. Supp. at 1402 (no enforceable rights to family reunification services or meaningful visits between siblings under the AAA). The defendants are allowed flexibility in developing administrative procedures to pursue these objectives. See Scrivner, 816 F.2d at 263. Consequently, the defendants' motion to dismiss Count III of the complaint will be granted because the plaintiffs' have failed to allege the violation of any enforceable rights under the AAA.

For the foregoing reasons, the court denies the defendants' motion to dismiss Counts I and II and grants the motion to dismiss Count III. The plaintiffs' motions for class certification and for a preliminary injunction will be discussed at the pretrial settlement conference on September 13, 1989 at 9:00 a.m. This case, in the court's opinion, is ripe for settlement. The defendants are obligated to act in the best interest of the child plaintiffs because they are wards of the state. It seems beyond question that establishing a policy which facilitates sibling visitation would be in the plaintiffs' best interest. The parties are directed to pursue settlement negotiations and to develop settlement proposals prior to the pretrial conference.

NOTES

[1] DCFS gained custody of Aristotle P. and his twin brother Andre pursuant to what their guardian grandmother believed to be a voluntary and temporary agreement. Complaint, ¶ 19. Their grandmother believed that she could regain custody of her grandsons whenever she wished. Id. at ¶ 20. Some years later, the grandmother expressed her intent to regain custody of the brothers. DCFS refused her request and instead attempted to arrange the brothers' adoption. Id. at ¶ 24. At this point, given the wishes of their former guardian, Aristotle and Andre were involuntarily in DCFS' custody.

[2] See Complaint, ¶¶ 32, 33, 34, 43, 54, 55, 68, 70, 88.

[3] See Complaint, ¶¶ 52, 77, 81.

[4] As the Supreme Court recently noted, a state official sued for injunctive relief in his or her official capacity is a "person" under § 1983. See Will v. Michigan Department of State Police, ___ U.S. ___, 109 S. Ct. 2304, 2311 n. 10, 105 L. Ed. 2d 45 (1989). Thus, the plaintiffs' suit is not barred by the provisions of the Eleventh Amendment.

[5] Freedom of association, in the second sense, "recognize[s] a right to associate for the purpose of engaging in those activities protected by the First Amendment speech, assembly, petition for the redress of grievances, and the exercise of religion." Id.

[6] The defendants cite the Seventh Circuit's decision in Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984) for the proposition that the plaintiffs have no liberty interests in the relationships with siblings. In Bell, the Seventh Circuit held that the plaintiffs could not bring a § 1983 action to secure the damages suffered when the state caused the loss of their siblings' society and companionship. Id. at 1247. Notwithstanding its holding, the court "fully recognize[d] the importance of intrafamily relationships generally, including those between siblings." Id. Moreover, the Court, in a manner more fully discussed later, stated that the Fourteenth Amendment could be used to strike statutes which sever relationships between siblings. Id. at 1246-47. Finally, the court decided the case under the Fourteenth Amendment and made no mention of the Roberts decision which was decided approximately two months before Bell. For these reasons, the court finds that the Bell decision does not foreclose the plaintiffs' First Amendment claim.

[7] As stated above, the plaintiffs allege that the defendants' policies regarding sibling visitation have caused them to suffer emotional harm.

[8] DCFS arranged for the plaintiff Richard to have only six visits with three of his siblings over a twelve year period of time. Complaint, ¶ 77. Other plaintiffs have gone for periods of at least fifteen and seventeen months without having a visit with their siblings. Id. at ¶¶ 33, 37, 43.

[9] The defendants also cite to the district court's decision in Child v. Beame, 412 F. Supp. 593 (S.D.N.Y.1976) to buttress their contentions. The Child Court found the attempt to equate the status of children under foster care with those who have been institutionalized or incarcerated to be "somewhat farfetched." Id. at 608. In light of the Second Circuit's decision in Doe, any persuasive value that the Child decision may have initially had has been greatly, if not entirely, eroded. See Doe, 649 F.2d at 141-142. Moreover, the Child plaintiffs were challenging the fact or duration of their custody rather than the conditions under which they are living as are the plaintiffs in this case. The court will not follow the Child decision for these reasons.

[10] The court notes that it must give "substantial weight" to these decisions from the Second and Eleventh Circuits even though they are not necessarily controlling. See Richards v. Local 134, International Brotherhood of Electrical Workers, 790 F.2d 633, 636 (7th Cir.1986); NuPulse, Inc. v. Schlueter Co., 853 F.2d 545, 550-51 (7th Cir. 1988).

[11] See supra, at 1006 (discussion of how complaint sufficiently alleges deliberate indifference).

[12] A professional decisionmaker, as the Court noted, is "a person competent, whether by education, training or experience, to make the particular decision at issue." Id. at 323 n. 30, 102 S. Ct. at 2462 n. 30.

[13] The court acknowledges that the analysis used to determine whether a federal statute creates rights that are enforceable under § 1983 "resembles" the analysis used to determine whether an implied right of action may be implied from such a statute. See Polchowski v. Gorris, 714 F.2d 749, 751 (7th Cir.1983). The court, however, will not discuss the implied right of action analysis developed in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975) because the plaintiffs assert their claim solely under § 1983.

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U.S. District Court for the Northern District of Illinois - 721 F. Supp. 1002 (N.D. Ill. 1989) September 7, 1989 ARISTOTLE P., et al., Plaintiffs, v. Gordon JOHNSON and Gary Morgan, Defendants. United States District Court, N.D. Illinois, E.D. ANN C. WILLIAMS, District Judge.

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Extended Foster Care, 40. Tex. Admin. Code § 700.346

Eligibility requirements for extended foster care of foster youth

Eligibility ends on the earlier of the date a young adult ceases to meet the eligibility requirements of this section or the end of the month of the young adult's 21st birthday

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(a) Subject to the availability of a placement approved by the Department of Family and Protective Services (DFPS), a young adult may receive foster care assistance if all of the following eligibility requirements are met: (1) The young adult meets the requirements of §700.316 of this title (relating to General Eligibility Requirements for Foster Care Assistance); (2) The young adult turned 18 years of age while in the temporary or permanent managing conservatorship of DFPS; (3) The young adult signs and continues to abide by the terms of a Voluntary Extended Foster Care Agreement, including monthly caseworker visits and participation in all required extended foster care review hearings under Subchapter G of Chapter 263, Texas Family Code; (4) The young adult provides sufficient documentation on a periodic basis as required by the terms of the young adult's Voluntary Extended Foster Care Agreement to demonstrate that within 30 days of turning 18, the young adult is engaged in an eligible activity. For the purposes of this section, an "eligible activity" includes: (A) Regularly attending high school or a program leading toward a high school diploma or high school equivalence certificate; (B) Regularly attending an institution of higher education or a post-secondary vocational or technical program; (C) Actively participating in a program or activity that promotes, or removes barriers to, employment; (D) Being employed for at least 80 hours per month; or (E) Being incapable of performing any of the activities listed in subparagraphs (A) - (D) of this paragraph due to a documented medical condition, as further described in subsection (b) of this section; and (5) A young adult who is eligible for SSI, RSDI, or another monthly benefit designated for the young adult's maintenance and support agrees to allow DFPS to use any benefits received to offset the young adult's cost of care pursuant to a voluntary extended foster care financial agreement. (b) There is a presumption that a young adult is capable of the activities listed in subsection (a)(4)(A) - (D) of this section. The presumption can be rebutted if sufficient documentation is provided to verify the medical condition and that the medical condition renders the young adult incapable of those activities. Such documentation of a medical condition might include a determination of disability from SSA, a determination of mental retardation, or a statement from a medical doctor that verifies the activities of daily living that the young adult is rendered incapable of performing as a result of the medical condition. (c) Eligibility for extended foster care assistance ends on the earlier of the date a young adult ceases to meet the eligibility requirements of this section or the end of the month of the young adult's 21st birthday, except that a young adult who is otherwise eligible may continue to receive benefits until the young adult's 22nd birthday if the young adult is regularly attending high school or a program leading toward a high school diploma or high school equivalence certificate. (d) A young adult who qualifies for extended foster care under this section may transition between eligible activities for a period not to exceed 30 days. A transition period in excess of 30 days, including a failure to provide sufficient documentation of participation in an eligible activity, will be considered a cessation of eligibility and will result in the termination of extended foster care assistance. (e) A young adult may return to extended foster care at any time prior to the month before the young adult's 21st birthday, provided all the requirements in subsections (a) - (c) of this section are met.

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(a) Subject to the availability of a placement approved by the Department of Family and Protective Services (DFPS), a young adult may receive foster care assistance if all of the following eligibility requirements are met: (1) The young adult meets the requirements of §700.316 of this title (relating to General

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United Independent School District. (n.d.) Foster care & student success.

Promotes school stability and requires coordination across child welfare and educational systems

Policies regarding maintaining student confidentiality, attendance, and additional supports are discussed in relation to United Independent School District.

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Homeless Education -Title I and McKinney-Vento Provisions

The McKinney-Vento Homeless Assistance Act (Subtitle B - Education for Homeless Children and Youth), reauthorized in January 2002, ensures educational rights and protections for children and youth experiencing homelessness. Services to homeless children are required by districts in the No Child Left Behind Act, and are primarily found under the requirements of the McKinney-Vento Homeless Education Assistance Act of 2002 (Title X, Part C No Child Left Behind Act) and under Title I. Title I, Part A statue requires participating districts to reserve funds as are necessary to provide services to children identified as homeless.

Services Provided to identified homeless students are tutorials, toiletries, clothing ( School Uniforms ), shoes, food, backpacks with school supplies.

Program Requirements:

Foster Care & Student Success

The goal of United ISD is to provide administrators with useful information that will guide them in creating a positive educational experience for students in foster care. The district wants campus administrators to be familiar with the complexities of the foster care system and the relevant laws and policies that influence a student in foster care's educational experience. The district wants to centralize foster care and education information while increasing awareness and promoting improved cross-system practices and partnerships that benefit students in foster care. Working to achieve these goals, United ISD strives to fulfill the education provisions of the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 that promote school stability and require coordination across child welfare and educational systems.

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United ISD - Homeless Education & Foster Care Liaison

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Homeless Education -Title I and McKinney-Vento Provisions The McKinney-Vento Homeless Assistance Act (Subtitle B - Education for Homeless Children and Youth), reauthorized in January 2002, ensures educational rights and protections for children and youth experiencing homelessness.

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American School Counselor Association. (2016) ASCA Ethical standards for school counselors.

A.8. Responsibility to Students: Student Peer-Support Program

School counselors must actively advocate for equal rights and access to free, appropriate, public education for foster care youth.

School counselors must collaborate and communicate with parents/guardians to ensure foster care students' needs are being met.

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Texas Foster Youth Justice Project. (n.d.) Education.

This website provides information of foster youth rights regarding various topics, including education.

The website is useful for both students and counselors to explore.

The education page specifically provides resources for foster care youth in elementary, middle, and high school. Information varies from legal rights to UIL activities to higher education.

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The Texas Foster Youth Justice Project of Texas RioGrande Legal Aid, Inc. has temporarily closed its office until further notice due to concerns...

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Raquel Brizuela Guzman

Professional School Counselor

This legal guide is geared toward school counselor as well as other school administration, faculty, and staff, especially for those who work with foster care youth.

The topic of this legal guide is foster care youth and education/school counseling.

I chose this topic because as a school counselor I have a duty to be knowledgeable in both the legislation regarding foster care youth in education as well as the different resources and information that may be pertinent to working with foster care youth.

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According to Mrs. Nelda Ceballos, school counselor at Bonnie Garcia Elementary School, the legislation behind foster care and education is important to understand and practice in the educational field because schools must serve foster care students to the best of their ability. This includes being knowledgeable about the law. School counselors are often times the campus liaison that works most closely with foster care youth. This requires them to constantly collaborate with students, guardians, and state agency representatives. Through utilizing a legal guide such as this one, resources can be easily accessible if and when needed for reference.

Best practices:

It is essential for our school district and campuses, individually, to work closely with state and federal agencies when regarding a foster care student.

As a school counselor, you must constantly act as an advocate for foster care students so that they may receive the appropriate services, resources, and education overall.

It is important to stay up to date on any changes in legislation regarding foster care youth in general but this is especially true for legislation on education.

Mrs. Ceballos is especially concerned with any changes or emerging issues that may come up regarding foster care youth and education due to the current pandemic. Due to the unprecedented times, visitation, counseling sessions, and education overall has completely changed nationwide. It is important to watch and see how virtual/hybrid/distance learning affects legislation regarding foster care youth and education. Furthermore, it is important to stay knowledgeable on what changes may arise in counseling duties regarding foster care youth, in regard to the current situation across the country.

This interview was conducted with Mrs. Nelda Ceballos, school counselor at Bonnie Garcia Elementary School, part of the United Independent School District in Laredo, Texas.

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Federal law requires state child welfare agencies to collaborate with their state and local education agencies to promote school stability and improve educational outcomes for children in foster care.

Ensure immediate and appropriate enrollment by child welfare and local education agencies.

Federal law allows educational agencies and institutions to disclose a student’s education records to child welfare case workers or other representatives of a state or local child welfare agency.

Students in foster care are categorically eligible for all U.S. Department of Agriculture (USDA) child nutrition programs.

State law allows for excused absences for court-ordered appointments.

State law allows free eligibility for PRE-K for foster care youth.

State law allows free lifetime college tuition and fees waiver.

School districts and open enrollment charter schools are required to appoint a Foster Care Liaison and notify TEA of their Foster Care Liaison appointment.